Indenture - Akamai Technologies Inc. and State Street Bank and Trust Co.
AKAMAI TECHNOLOGIES, INC.,
Issuer,
and
STATE STREET BANK AND TRUST COMPANY,
Trustee
------------------------
INDENTURE
Dated as of June 20, 2000
------------------------
$250,000,000
5-1/2% Convertible Subordinated Notes Due 2007
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS; TRUST INDENTURE ACT.................................. 1
SECTION 1.01. DEFINITIONS................................................ 1
SECTION 1.02. OTHER DEFINITIONS.......................................... 5
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.......... 6
SECTION 1.04. RULES OF CONSTRUCTION...................................... 7
ARTICLE II THE NOTES........................................................ 7
SECTION 2.01. FORM AND DATING............................................ 7
SECTION 2.02. EXECUTION AND AUTHENTICATION............................... 11
SECTION 2.03. REGISTRAR AND PAYING AGENT................................. 11
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST........................ 12
SECTION 2.05. HOLDER LISTS............................................... 12
SECTION 2.06. TRANSFER AND EXCHANGE...................................... 12
SECTION 2.07. REPLACEMENT NOTES.......................................... 17
SECTION 2.08. OUTSTANDING NOTES.......................................... 18
SECTION 2.09. TREASURY NOTES............................................. 18
SECTION 2.10. TEMPORARY NOTES; GLOBAL NOTES.............................. 18
SECTION 2.11. CANCELLATION............................................... 19
SECTION 2.12. DEFAULTED INTEREST......................................... 19
SECTION 2.13. CUSIP NUMBERS.............................................. 19
ARTICLE III REDEMPTION...................................................... 20
SECTION 3.01. NOTICES TO TRUSTEE......................................... 20
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.......................... 20
SECTION 3.03. NOTICE OF REDEMPTION....................................... 20
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION............................. 21
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE................................ 21
SECTION 3.06. NOTES REDEEMED IN PART..................................... 21
SECTION 3.07. OPTIONAL REDEMPTION........................................ 22
SECTION 3.08. MANDATORY REDEMPTION....................................... 22
SECTION 3.09. PURCHASE OFFER............................................. 22
ARTICLE IV COVENANTS........................................................ 24
SECTION 4.01. PAYMENT OF NOTES........................................... 24
SECTION 4.02. REPORTS.................................................... 24
SECTION 4.03. COMPLIANCE CERTIFICATE..................................... 24
SECTION 4.04. STAY, EXTENSION AND USURY LAWS............................. 25
SECTION 4.05. CORPORATE EXISTENCE........................................ 25
SECTION 4.06. TAXES...................................................... 26
SECTION 4.07. FUNDAMENTAL CHANGE......................................... 26
SECTION 4.08. LIMITATION ON STATUS AS INVESTMENT COMPANY................. 26
SECTION 4.09. SPECIAL INTEREST........................................... 26
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ARTICLE V CONVERSION........................................................ 26
SECTION 5.01. CONVERSION PRIVILEGE....................................... 26
SECTION 5.02. CONVERSION PROCEDURE....................................... 27
SECTION 5.03. FRACTIONAL SHARES.......................................... 28
SECTION 5.04. TAXES ON CONVERSION........................................ 28
SECTION 5.05. COMPANY TO PROVIDE STOCK................................... 28
SECTION 5.06. ADJUSTMENT OF CONVERSION PRICE............................. 29
SECTION 5.07. NO ADJUSTMENT.............................................. 32
SECTION 5.08. OTHER ADJUSTMENTS.......................................... 32
SECTION 5.09. ADJUSTMENTS FOR TAX PURPOSES............................... 32
SECTION 5.10. NOTICE OF ADJUSTMENT....................................... 32
SECTION 5.11. NOTICE OF CERTAIN TRANSACTIONS............................. 33
SECTION 5.12. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS,
MERGERS OR SALES ON CONVERSION PRIVILEGE .................. 33
SECTION 5.13. TRUSTEE'S DISCLAIMER....................................... 34
ARTICLE VI SUBORDINATION.................................................... 34
SECTION 6.01. AGREEMENT TO SUBORDINATE AND RANKING....................... 34
SECTION 6.02. NO PAYMENT ON NOTES IF SENIOR DEBT IN DEFAULT.............. 35
SECTION 6.03. DISTRIBUTION ON ACCELERATION OF NOTES; DISSOLUTION AND
REORGANIZATION; SUBROGATION OF NOTES ...................... 36
SECTION 6.04. RELIANCE BY SENIOR DEBT ON SUBORDINATION PROVISIONS........ 38
SECTION 6.05. NO WAIVER OF SUBORDINATION PROVISIONS...................... 39
SECTION 6.06. TRUSTEE'S RELATION TO SENIOR DEBT.......................... 39
SECTION 6.07. OTHER PROVISIONS SUBJECT HERETO............................ 40
ARTICLE VII SUCCESSORS...................................................... 40
SECTION 7.01. LIMITATION ON MERGER, SALE OR CONSOLIDATION................ 40
SECTION 7.02. SUCCESSOR CORPORATION SUBSTITUTED.......................... 41
ARTICLE VIII DEFAULTS AND REMEDIES.......................................... 41
SECTION 8.01. EVENTS OF DEFAULT.......................................... 41
SECTION 8.02. ACCELERATION............................................... 43
SECTION 8.03. OTHER REMEDIES............................................. 43
SECTION 8.04. WAIVER OF PAST DEFAULTS.................................... 44
SECTION 8.05. CONTROL BY MAJORITY........................................ 44
SECTION 8.06. LIMITATION ON SUITS........................................ 44
SECTION 8.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT....................... 45
SECTION 8.08. COLLECTION SUIT BY TRUSTEE................................. 45
SECTION 8.09. TRUSTEE MAY FILE PROOFS OF CLAIM........................... 45
SECTION 8.10. PRIORITIES................................................. 45
SECTION 8.11. UNDERTAKING FOR COSTS...................................... 45
ARTICLE IX TRUSTEE.......................................................... 46
SECTION 9.01. DUTIES OF TRUSTEE.......................................... 46
SECTION 9.02. RIGHTS OF TRUSTEE.......................................... 46
SECTION 9.03. INDIVIDUAL RIGHTS OF TRUSTEE............................... 47
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SECTION 9.04. TRUSTEE'S DISCLAIMER....................................... 47
SECTION 9.05. NOTICE OF DEFAULTS......................................... 47
SECTION 9.06. REPORTS BY TRUSTEE TO HOLDERS.............................. 48
SECTION 9.07. COMPENSATION AND INDEMNITY................................. 48
SECTION 9.08. REPLACEMENT OF TRUSTEE..................................... 49
SECTION 9.09. SUCCESSOR TRUSTEE BY MERGER, ETC........................... 50
SECTION 9.10. ELIGIBILITY; DISQUALIFICATION.............................. 50
SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.......... 50
ARTICLE X DISCHARGE OF INDENTURE............................................ 50
SECTION 10.01. TERMINATION OF COMPANY'S OBLIGATIONS...................... 50
SECTION 10.02. REPAYMENT TO COMPANY...................................... 50
ARTICLE XI AMENDMENTS, SUPPLEMENTS AND WAIVERS.............................. 50
SECTION 11.01. WITHOUT CONSENT OF HOLDERS................................ 50
SECTION 11.02. WITH CONSENT OF HOLDERS................................... 51
SECTION 11.03. COMPLIANCE WITH TRUST INDENTURE ACT....................... 52
SECTION 11.04. REVOCATION AND EFFECT OF CONSENTS......................... 52
SECTION 11.05. NOTATION ON OR EXCHANGE OF NOTES.......................... 52
SECTION 11.06. TRUSTEE PROTECTED......................................... 53
ARTICLE XII MISCELLANEOUS................................................... 53
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.............................. 53
SECTION 12.02. NOTICES................................................... 53
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS............... 54
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT........ 54
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION............. 54
SECTION 12.06. RULES BY TRUSTEE AND AGENTS............................... 54
SECTION 12.07. LEGAL HOLIDAYS............................................ 54
SECTION 12.08. NO RECOURSE AGAINST OTHERS................................ 55
SECTION 12.09. COUNTERPARTS AND FACSIMILE SIGNATURES..................... 55
SECTION 12.10. VARIABLE PROVISIONS....................................... 55
SECTION 12.11. GOVERNING LAW, SUBMISSION TO JURISDICTION................. 56
SECTION 12.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS............. 56
SECTION 12.13. SUCCESSORS................................................ 57
SECTION 12.14. SEVERABILITY.............................................. 57
SECTION 12.15. TABLE OF CONTENTS, HEADINGS, ETC.......................... 57
Exhibits
Exhibit A Form of Legends and Notes......................................... A1
Exhibit B Form of Transfer Certificate for Transfer From Rule 144A Global
Note or Restricted Note to Regulation S Global Note....................... B1
Exhibit C Form of Transfer Certificate for Transfer From Regulation S Global
Note or Restricted Note to Rule 144A Global Note.......................... C1
Exhibit D Form of Transfer Certificate for Transfer from Global Note or
Restricted Note to Restricted Note........................................ D1
Exhibit E Form of Letter to be Delivered by Institutional Accredited
Investors ................................................................ E1
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INDENTURE, dated as of June 20, 2000, between Akamai
Technologies, Inc., a Delaware corporation (the "COMPANY"), and State
Street Bank and Trust Company, a Massachusetts Trust Company, as
trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders (as defined
in Section 1.01 hereof) of the Company's 5-1/2% Convertible
Subordinated Notes due 2007 (the "NOTES"):
ARTICLE I
DEFINITIONS; TRUST INDENTURE ACT
SECTION 1.01 DEFINITIONS.
"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 purposes of
this definition, "control" (including, with correlative meanings, the
terms "controlling," "controlled by" and "under common control with"),
as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of
voting securities, by agreement or otherwise.
"AGENT" means any Registrar, Paying Agent, New York Presenting
Agent or Conversion Agent.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company or any authorized committee of the Board of Directors.
"BOARD RESOLUTION" means a duly authorized resolution of the
Board of Directors.
"BUSINESS DAY" means any day that is not a Legal Holiday.
"CAPITAL STOCK" means any and all shares, interests,
participations, rights or other equivalents, however designated, of
corporate stock, including, without limitation, partnership interests.
"COMMON STOCK" means the common stock, par value $0.01 per
share, of the Company as the same exists at the date of the execution
of this Indenture or as such stock may be constituted from time to
time.
"COMPANY" means the party named as such above until a
successor replaces it in accordance with Article VII and thereafter
means the successor.
"DAILY MARKET PRICE" means the price of a share of Common
Stock on the relevant date, determined (a) on the basis of the last
reported sale price regular way of the Common Stock as reported on the
Nasdaq Stock Market's National Market (the "NNM"), or if
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the Common Stock is not then listed on the NNM, as reported on such
national securities exchange upon which the Common Stock is listed, or
(b) if there is no such reported sale on the day in question, on the
basis of the average of the closing bid and asked quotations regular
way as so reported, or (c) if the Common Stock is not listed on the NNM
or on any national securities exchange, on the basis of the average of
the high bid and low asked quotations regular way on the day in
question in the over-the-counter market as reported by the National
Association of Securities Dealers Automated Quotation System, or if not
so quoted, as reported by National Quotation Bureau, Incorporated, or a
similar organization.
"DEFAULT" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"DEPOSITARY" shall mean The Depository Trust Company, its
nominees and their respective successors.
"DESIGNATED SENIOR DEBT" means Senior Debt in which the
instrument creating or evidencing the same or the assumption or
guarantee thereof (or related agreements or documents to which the
Company is a party) expressly provides that such Senior Debt shall be
"Designated Senior Debt" for the purposes of the Indenture (provided
that such instrument, agreement or other document may place limitations
and conditions on the right of such Senior Debt to exercise the rights
of Designated Senior Debt).
"EQUITY INTERESTS" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock, but excluding any
Indebtedness that is convertible into, or exchangeable for, Capital
Stock.
"EXCESS PAYMENT" means the excess of (A) the aggregate of the
cash and value of other consideration paid by the Company or any of its
Subsidiaries with respect to shares of the Company acquired in a tender
offer or other negotiated transaction over (B) the market value of such
acquired shares after giving effect to the completion of a tender offer
or other negotiated transaction.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE RATE CONTRACT" means, with respect to any Person,
any currency swap agreements, forward exchange rate agreements, foreign
currency futures or options, exchange rate collar agreements, exchange
rate insurance and other agreements or arrangements, or combination
thereof, the principal purpose of which is to provide protection
against fluctuations in currency exchange rates. An Exchange Rate
Contract may also include an Interest Rate Agreement.
"FUNDAMENTAL CHANGE" means the occurrence of any transaction
or event in connection with which all or substantially all of the
Common Stock shall be exchanged for, converted into, acquired for or
constitute in all material respects solely the right to receive
consideration, whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise, which is not all or substantially all
common stock that is, or upon issuance will be, (i) listed on a United
States national securities exchange, or (ii) approved for quotation on
the NASDAQ
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National Market or any similar United States system of automated
dissemination of quotations of securities prices.
"FUNDAMENTAL CHANGE OFFER" means a Purchase Offer.
"GAAP" means generally accepted accounting principles 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 approved by a
significant segment of the accounting profession, which are in effect
on the Issuance Date and are applied on a consistent basis.
"GUARANTEE" means a guarantee, other than by endorsement of
negotiable instruments for collection in the ordinary course of
business, direct or indirect, in any manner, including, without
limitation, letters of credit and reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"HOLDER" means a Person in whose name a Note is registered in
the register referred to in Section 2.03.
"INDEBTEDNESS" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit, or reimbursement agreements in
respect thereof, or representing the balance deferred and unpaid of the
purchase price of any property (which purchase price is due more than
six months after the placing into service or delivery of such property)
including pursuant to capital leases and sale-and-leaseback
transactions, or representing any hedging obligations under an Exchange
Rate Contract or an Interest Rate Agreement, except any such balance
that constitutes an accrued expense or trade payable, if and to the
extent any of the foregoing indebtedness, other than obligations under
an Exchange Rate Contract or an Interest Rate Agreement, would appear
as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, and also includes, to the extent not otherwise
included, the Guarantee of items which would be included within this
definition if incurred directly by such Person. The amount of any
Indebtedness outstanding as of any date shall be the accreted value
thereof, in the case of any Indebtedness issued with original issue
discount. Indebtedness shall not include liabilities for taxes of any
kind.
"INDENTURE" means this Indenture, as amended from time to
time.
"INITIAL PURCHASERS" means Donaldson, Lufkin & Jenrette
Securities Corporation, Morgan Stanley & Co. Incorporated, Salomon
Smith Barney Inc. and Thomas Weisel Partners LLC.
"INTEREST RATE AGREEMENT" means, with respect to any Person,
any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or other similar agreement the principal purpose
of which is to protect the party indicated therein against fluctuations
in interest rates.
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"ISSUANCE DATE" means the date on which the Notes are first
authenticated and issued.
"NOTES" has the meaning set forth in the preamble hereto.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness.
"OFFICER" means the Chairman of the Board, the President, any
Vice President, the Treasurer, the Secretary, any Assistant Treasurer
or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate of the Company
signed by two Officers, one of whom must be the Chairman of the Board,
the President, the Treasurer or a Vice President of the Company.
"OPINION OF COUNSEL" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be
an employee of or counsel to the Company or the Trustee.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization, limited liability company or government or any agency or
political subdivision thereof.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of
June 15, 2000, among the Company and the Initial Purchasers.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2
of the Notes.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement relating to the Notes and the underlying Common Stock, dated
June 20, 2000, among the Company and the Initial Purchasers party
thereto.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR DEBT" means the principal of, interest on and other
amounts due on (i) Indebtedness of the Company, whether outstanding on
the date hereof or thereafter created, incurred, assumed or guaranteed
by the Company, for money borrowed from banks or other financial
institutions; (ii) Indebtedness of the Company, whether outstanding on
the date hereof or thereafter created, incurred, assumed or guaranteed
by the Company; and (iii) Indebtedness of the Company under interest
rate swaps, caps or similar hedging agreements and foreign exchange
contracts, currency swaps or similar agreements: unless, in the
instrument creating or evidencing or pursuant to which Indebtedness
under (i) or (ii) is outstanding, it is expressly provided that such
Indebtedness is not senior in right of payment to the Notes. Senior
Debt includes, with respect to the obligations described in clauses (i)
and (ii) above, interest accruing, pursuant to the terms of such Senior
Debt, on or after the filing of
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any petition in bankruptcy or for reorganization relating to the
Company, whether or not post-filing interest is allowed in such
proceeding, at the rate specified in the instrument governing the
relevant obligation. Notwithstanding anything to the contrary in the
foregoing, Senior Debt shall not include: (a) Indebtedness of or
amounts owed by the Company for compensation to employees, or for goods
or materials purchased in the ordinary course of business, or for
services; and (b) Indebtedness of the Company to any Subsidiary of the
Company.
"SHELF REGISTRATION STATEMENT" shall have the meaning set
forth in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Company
which is a "significant subsidiary" as defined in Rule 1-02(w) of
Regulation S-X under the Securities Act and the Exchange Act, as such
Regulation is in effect on the date hereof.
"SPECIAL INTEREST" has the meaning set forth in Section 2 of
the Notes.
"SUBSIDIARY" means any corporation, association or other
business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled, without regard to the occurrence of
any contingency, to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the other Subsidiaries of
that Person or a combination thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of execution of this
Indenture.
"TRUSTEE" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor.
"TRUST OFFICER" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust
matters.
"WHOLLY-OWNED SUBSIDIARY" of any specified Person means a
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more
Wholly-Owned Subsidiaries of such Person and one or more Wholly-Owned
Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
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DEFINED
TERM IN SECTION
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"AGENT MEMBER"................................................................. 2.01
"BANKRUPTCY LAW"............................................................... 8.01
"CLEARSTREAM".................................................................. 2.01
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"COMMENCEMENT DATE"............................................................ 3.09
"CONVERSION AGENT"............................................................. 2.03
"CONVERSION DATE".............................................................. 5.02
"CONVERSION PRICE"............................................................. 5.01
"CONVERSION SHARES"............................................................ 5.06
"CUSTODIAN".................................................................... 8.01
"DISTRIBUTION DATE"............................................................ 5.06
"DISTRIBUTION RECORD DATE"..................................................... 5.06
"EUROCLEAR".................................................................... 2.01
"EVENT OF DEFAULT"............................................................. 8.01
"FUNDAMENTAL CHANGE PAYMENT".................................................. 4.07
"GLOBAL NOTE".................................................................. 2.01
"GLOBAL NOTES LEGEND".......................................................... 2.01
"LEGAL HOLIDAY"................................................................ 12.08
"NEW YORK PRESENTING AGENT".................................................... 2.03
"OFFER AMOUNT"................................................................. 3.09
"PAYING AGENT"................................................................. 2.03
"PAYMENT BLOCKAGE NOTICE"...................................................... 6.02
"PAYMENT BLOCKAGE PERIOD"...................................................... 6.02
"PAYMENT DEFAULT".............................................................. 8.01
"PURCHASE DATE"................................................................ 3.09
"PURCHASE OFFER"............................................................... 3.09
"QIBs"......................................................................... 2.01
"REGULATION S" ................................................................ 2.01
"REGULATION S GLOBAL NOTE"..................................................... 2.01
"REGISTRAR".................................................................... 2.03
"RESTRICTED NOTES"............................................................. 2.01
"RESTRICTED NOTES LEGEND"...................................................... 2.01
"RIGHTS"....................................................................... 5.06
"RULE 144A".................................................................... 2.01
"RULE 144A GLOBAL NOTE"........................................................ 2.01
"TENDER PERIOD"................................................................ 3.09
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SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
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"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee;
and
"OBLIGOR" on the Notes means the Company or any other obligor
on the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP consistently applied;
(c) "OR" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions;
(f) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement or
successor sections or rules adopted by the SEC from time to
time; and
(g) a reference to "$" or U.S. Dollars is to United States
dollars.
ARTICLE II
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) GENERAL.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto, which is hereby
incorporated by reference and expressly made a part of this Indenture.
The Notes may have notations, legends or endorsements required by law,
stock exchange rule, agreements to which the Company is subject, if
any, or usage (provided that any such notation, legend or endorsement
is in a form acceptable to the Company). The Company shall furnish any
such legend not contained in Exhibit A to the Trustee in writing. Each
Note shall be dated the date of its authentication. The Notes shall be
in denominations of $1,000 and integral multiples thereof. The terms
and provisions of the Notes set forth in Exhibit A are part of this
Indenture and to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby. However, to the extent
any provision
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of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) GLOBAL NOTES.
The Notes are being offered and sold by the Company pursuant
to the Purchase Agreement. The Notes shall be offered and sold
primarily to Qualified Institutional Buyers ("QIBs") in reliance on
Rule 144A under the Securities Act ("RULE 144A"), as provided in the
Purchase Agreement. The Notes shall be issued initially in the form of
one or more permanent Global Notes in definitive, fully registered form
without interest coupons with the Global Notes Legend ("GLOBAL NOTES
LEGEND") and Restricted Notes Legend ("RESTRICTED NOTES LEGEND") set
forth in Exhibit A hereto ("RULE 144A GLOBAL NOTE"), which shall be
deposited on behalf of the purchasers of the Notes represented thereby
with the Trustee, as custodian for the Depositary, and registered in
the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Rule 144A Global Note
may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary or its nominee as
hereinafter provided.
Notes transferred in reliance on Regulation S under the
Securities Act ("REGULATION S") as provided in Section 2.06(a)(ii) and
(v) hereof, shall be issued in the form of one or more permanent Global
Notes in definitive, fully registered form without interest coupons
with the Global Notes Legend and Restricted Notes Legend set forth in
Exhibit A hereto (the "REGULATION S GLOBAL NOTE"), which shall be
deposited on behalf of the transferees of the Notes represented thereby
with the Trustee, as custodian, for the Depositary, and registered in
the name of the Depositary or the nominee of the Depositary for the
accounts of designated agents holding on behalf of the Euroclear System
("EUROCLEAR") or Clearstream Banking ("CLEARSTREAM"), duly executed by
the Company and authenticated by the Trustee as hereinafter provided.
The aggregate principal of the Regulation S Global Note may from time
to time be increased or decreased by adjustments made on the records of
the Trustee and the Depositary or its nominee as hereinafter provided.
So long as any Global Note is outstanding, owners of
beneficial interests therein may transfer their interests therein only
in reliance on Regulation S or to QIBs in reliance on Rule 144A in
accordance with Section 2.06.
(c) BOOK-ENTRY PROVISIONS.
This Section 2.01(c) shall apply only to the Rule 144A Global
Note and the Regulation S Global Note issued in the form of one or more
permanent Global Notes (collectively, the "GLOBAL NOTES") deposited
with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(c), authenticate and deliver initially one or
more Global Notes that (a) shall be registered in the name of the
Depositary for such Global Note or Global Notes or the nominee
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of such Depositary and (b) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions or held by the
Trustee as custodian for the Depositary.
Members of, or participants in, the Depositary ("AGENT
MEMBERS") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary or by the Trustee as
the custodian of the Depositary or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the
rights of an owner of a beneficial interest in any Global Note.
(d) CERTIFICATED NOTES.
So long as the Depositary or its nominee is the registered
owner of a Note, the Depositary or such nominee, as the case may be,
will be considered the sole owner or Holder of the Notes represented by
the Global Notes for all purposes under the Indenture. Except as
provided below, owners of beneficial interests in a Global Note will
not be entitled to have Notes represented by such Global Note
registered in their names, will not receive or be entitled to receive
physical delivery of certificated Notes, and will not be considered the
owners or holders thereof under the Indenture for any purpose,
including with respect to the giving of any directions, instructions or
approvals to the Trustee thereunder.
Other than as set forth below in this Section, certificated
Notes will be issued to owners of beneficial interests in Global Notes
in exchange for their interests in Global Notes only if (1) the Company
notifies the Trustee in writing that the Depositary is no longer
willing or able to act as a depositary and the Company is unable to
locate a qualified successor within 90 days, or (2) the Company, at its
option, notifies the Trustee in writing that it elects to cause the
issuance of Notes in definitive form under the Indenture. In either
case, upon surrender by the Depositary of the Global Notes,
certificated Notes will be issued to each Person that the Depositary
identifies as the beneficial owner of the Notes represented by the
Global Notes. In addition, the Company will issue certificated Notes in
exchange for interests in Global Notes upon the request of an owner of
such an interest if an Event of Default has occurred and is continuing,
in which case, upon receipt of such request and necessary information
from the Depositary in accordance with its procedures, the principal
Registrar shall instruct the Depositary as to the corresponding
reduction to be made in the principal amount of the relevant Global
Note. Finally, at such time as all Global Notes cease to be outstanding
pursuant to clause (1) or (2) above, certificated Notes may be issued
in accordance with paragraphs (vi) and (vii) of Section 2.06(a). Upon
any such issuance, the Trustee shall register such certificated Notes
in the name of such Person or Persons (or the nominee of any thereof),
and cause the same to be delivered thereto. All such certificated Notes
shall bear the Restricted Notes Legend set forth in Exhibit A hereto
(collectively with the Accredited Investor Restricted Notes defined
below, the "RESTRICTED NOTES") unless otherwise provided in this
Section 2.01(d) and Section 2.06(b) hereof.
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Notes offered and sold to "accredited investors" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act), as provided in the Purchase Agreement, shall be issued in the
form of one or more certificated Notes (subject to a minimum initial
purchase amount of $100,000) in definitive, fully registered form
without interest coupons with the Restricted Notes Legend set forth in
Exhibit A hereto ("ACCREDITED INVESTOR RESTRICTED NOTES"), which shall
be registered in the name of such Accredited Investor or its nominee,
duly executed by the Company and authenticated by the Trustee as
hereinafter provided. So long as Global Notes have not ceased to be
outstanding pursuant to clause (1) or (2) in the immediately preceding
paragraph above (and unless such Accredited Investor Restricted Notes
have been exchanged for certificated Notes without a Restricted Notes
Legend pursuant to the last paragraph in this Section, if applicable),
such Accredited Investor Restricted Notes may only be transferred in
reliance on Regulation S (pursuant to Section 2.06(a)(iv))or to QIBs in
reliance on Rule 144A (pursuant to Section 2.06(a)(v)). After such time
as Global Notes have ceased to be outstanding pursuant to clauses (1)
or (2) in the immediately preceding paragraph, Accredited Investor
Restricted Notes may be transferred to transferees who hold the
transferred interests in the form of certificated Notes in accordance
with Section 2.06(a)(vii) or Section 2.06(b).
Notwithstanding the foregoing, Notes offered and sold on the
Issuance Date to "accredited investors" (as defined above) shall be
issued initially in the form of one or more permanent Global Notes in
definitive, fully registered form without interest coupons with the
Global Notes Legend and Restrictive Notes Legend set forth in Exhibit A
(the "Accredited Investor Global Note"), which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the
Trustee, as custodian for the Depositary, and registered in the name of
the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. Such
Accredited Investor Global Note shall be deemed to be a Global Note for
all purposes of this Indenture. Promptly after the Issuance Date, the
Company shall cause the purchasers of the Accredited Investor Global
Note to arrange with the Depositary for the exchange of such Accredited
Investor Global Note for Accredited Investor Restricted Notes. Upon
receipt by the principal Registrar of instructions from the Depositary
directing the principal Registrar to authenticate and deliver one or
more Accredited Investor Restricted Notes of the same aggregate
principal amount as the beneficial interest in the Accredited Investor
Global Note to be exchanged, such instructions to contain the name or
names of the Holder or Holders of such Accredited Investor Restricted
Note or Notes, the authorized denominations of the Accredited Investor
Restricted Note or Notes to be so issued and appropriate delivery
instructions, the principal Registrar will instruct the Depositary to
reduce the Accredited Investor Global Note by the aggregate principal
amount of the beneficial interest therein to be exchanged and to debit
from the account of the Person making such exchange the beneficial
interest in the Accredited Investor Global Note that is being
exchanged, and concurrently with such reduction and debit the Company
shall execute, and the Trustee shall authenticate and deliver, one or
more Accredited Investor Restricted Notes of the same aggregate
principal amount in accordance with the instructions referred to above.
Certificated Notes may be issued as aforesaid notwithstanding any other
provision of this Indenture to the contrary restricting the issuance of
certificated Notes.
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After a transfer of any Notes during the period of the
effectiveness of a Shelf Registration Statement with respect to the
Notes and pursuant thereto, all requirements for Restricted Notes
Legends on such Notes will cease to apply; and, in this case a
certificated Note without a Restricted Notes Legend will be available
to the Holder of such Restricted Notes upon request (and surrender of
such Note bearing the Restricted Notes Legend for cancellation). The
Company shall give written notice to the Trustee, in the form of an
Officer's Certificate, of the effectiveness of the Shelf Registration
Statement, on which the Trustee and Registrant may rely.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time the Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of an authorized officer of the Trustee. The signature shall
be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall, upon a written order of the Company signed
by an Officer, authenticate one or more Notes for original issue up to
an aggregate principal amount stated in Section 6 of the Notes. The
aggregate principal amount of Notes outstanding at any time may not
exceed $300,000,000 except as provided in Section 2.07; provided that
Notes in excess of $250,000,000 shall not be issued other than pursuant
to the over-allotment option granted by the Company to the Initial
Purchasers as provided in the Purchase Agreement. In the event thereof,
the Company shall certify to the Trustee in an Officer's Certificate
that such issuance is pursuant to such over-allotment option granted by
the Initial Purchasers under the Purchase Agreement.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as an Agent
to deal with Holders, the Company or an Affiliate.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain in the Borough of Manhattan, City
of New York, State of New York, an office or agency where the Notes may
be presented for registration of transfer or for exchange, payment and
conversion (collectively, the "NEW YORK PRESENTING AGENT"). The Company
initially designates STATE STREET BANK AND TRUST COMPANY, N.A., an
affiliate of the Trustee, at its corporate trust offices in the Borough
of Manhattan, City of New York, State of New York to act as New York
Presenting Agent. The Trustee is initially appointed to act as Note
registrar to maintain a register of transfers of the Notes (the "NOTE
REGISTRAR") and to act as paying agent with respect to the Notes
("PAYING AGENT") and to act as agent for conversion of the Notes
("CONVERSION AGENT"). The Registrar shall keep a register of the Notes
and of their transfer and exchange. The Company may
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appoint one or more co-Registrars, one or more additional Paying Agents
and one or more additional Conversion Agents in such other locations as
it shall determine. The term "Registrar" includes any co-Registrar, the
term "Paying Agent" includes any additional Paying Agent and the term
"Conversion Agent" includes any additional conversion agent. The
Company may change any Paying Agent, Registrar, New York Presenting
Agent or Conversion Agent without prior notice to any Holder. The
Company shall notify the Trustee of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar, Paying Agent, New York Presenting
Agent or Conversion Agent, the Trustee shall act as such. The Company
or any of its Affiliates may act as Paying Agent, Registrar, New York
Presenting Agent or Conversion Agent.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Trustee all money held by the Paying
Agent for the payment of principal or interest on the Notes, and will
notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee and to account
for any money disbursed by it. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or an
Affiliate of the Company) shall have no further liability for the
money. If the Company or an Affiliate of the Company acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar,
the Company shall furnish to the Trustee on or before each interest
payment date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders.
SECTION 2.06. TRANSFER AND EXCHANGE.
Whenever Notes are presented to the Registrar or a
co-Registrar with a request to register a transfer or to exchange them
for an equal principal amount of Notes of other denominations, the
Registrar shall register the transfer or make the exchange if its
requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Notes at the Registrar's request. No service charge shall
be made to a Holder for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.10, 3.06 or 11.05 hereof).
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The Company shall not be required (i) to issue, register the
transfer of or exchange any Note for a period beginning at the opening
of business 15 days before the day of any selection of Notes to be
redeemed under Section 3.02 hereof and ending at the close of business
on the day of selection, or (ii) to register the transfer, or exchange,
of any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(a) Notwithstanding any provision to the contrary herein, so
long as a Global Note remains outstanding and is held by or on behalf
of the Depositary, transfers of a Global Note, in whole or in part, or
of any beneficial interest therein, shall only be made in reliance on
Regulation S or to QIBs in reliance on Rule 144A in accordance with
Section 2.01(b), Section 2.01(d), Section 2.06(a) and Section 2.06(b);
provided, however, that beneficial interests in a Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Global Note in accordance with the
transfer restrictions set forth in the Restricted Notes Legend and
under the heading "Notice to Investors" in the Company's Offering
Memorandum dated June 15, 2000.
(i) Transfer of Global Note to Depositary. Except for
transfers or exchanges made in accordance with clauses
(ii) through (vii) of this Section 2.06(a), transfers of
a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to nominees of the
Depositary or to a successor of the Depositary or such
successor's nominee.
(ii) Rule 144A Global Note To Regulation S Global
Note. If an owner of a beneficial interest in the Rule
144A Global Note deposited with the Depositary or the
Trustee as custodian for the Depositary wishes at any
time to transfer its interest in such Rule 144A Global
Note in reliance on Regulation S to a Person whose
purchase or acceptance thereof would not qualify as a
transaction exempt from registration requirements under
144A, such owner may, subject to the rules and procedures
of the Depositary, exchange or cause the exchange of such
interest for an equivalent beneficial interest in the
Regulation S Global Note. Upon receipt by the principal
Registrar of (1) instructions given in accordance with
the Depositary's procedures from an Agent Member
directing the principal Registrar to credit or cause to
be credited a beneficial interest in the Regulation S
Global Note in an amount equal to the beneficial interest
in the Rule 144A Global Note to be exchanged, (2) a
written (or electronic) order given in accordance with
the Depositary's procedures containing information
regarding the participant account of the Depositary (and
which may include the Euroclear or Clearstream account)
to be credited with such increase and (3) a certificate
in the form of Exhibit B attached hereto given by the
holder of such account interest, then the principal
Registrar shall instruct the Depositary to reduce or
cause to be reduced the principal amount of the Rule 144A
Global Note and to increase or cause to be increased the
principal amount of the Regulation S Global Note by the
aggregate principal amount of the beneficial interest in
the Rule 144A Global Note equal to the beneficial
interest in the Regulation S Global Note to be exchanged
or transferred and to debit or cause to be debited from
the account of the Person making such exchange or
transfer the beneficial interest in the Rule 144A Global
Note that is being exchanged or transferred.
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(iii) Regulation S Global Note To Rule 144A Global
Note. If an owner of a beneficial interest in the
Regulation S Global Note deposited with the Depositary or
with the Trustee as custodian for the Depositary wishes
at any time to transfer its interest in such Regulation S
Global Note in reliance on Rule 144A to a Person whose
purchase or acceptance thereof would not qualify as a
transaction exempt from registration requirements under
Regulation S, such Holder may, subject to the rules and
procedures of Euroclear or Clearstream, as the case may
be, and the Depositary, exchange or cause the exchange of
such interest for an equivalent beneficial interest in
the Rule 144A Global Note. Upon receipt by the principal
Registrar of (1) instructions from the Depositary
directing the principal Registrar to credit or cause to
be credited a beneficial interest in the Rule 144A Global
Note equal to the beneficial interest in the Regulation S
Global Note to be exchanged or transferred, (2) a written
(or electronic) order given in accordance with the
Depositary's procedures containing information regarding
the participant account of the Depositary to be credited
and (3) a certificate in the form of Exhibit C attached
hereto given by the owner of such account interest then
the principal Registrar will instruct the Depositary to
reduce or cause to be reduced the Regulation S Global
Note and to increase or cause to be increased the
principal amount of the Rule 144A Global Note by the
aggregate principal amount of the beneficial interest in
the Regulation S Global Note to be exchanged or
transferred.
(iv) Accredited Investor Restricted Note or Other
Restricted Note to Rule 144A Global Note. If an owner of
an Accredited Investor Restricted Note or Other
Restricted Note registered in the name of such owner
wishes at any time to transfer such Restricted Note to a
Person in reliance on Rule 144A, such Holder may, subject
to the rules and procedures of the Depositary, exchange
or cause the exchange of such Restricted Note for an
equivalent beneficial interest in the Rule 144A Global
Note. Upon receipt by the principal Registrar of (1)
surrender of the Restricted Note to be transferred or
exchanged, (2) instructions from the Company, directing
the principal Registrar (A) to credit or cause to be
credited a beneficial interest in the Rule 144A Global
Note equal to the principal amount of the Restricted Note
to be exchanged or transferred and (B) to cancel such
Restricted Note to be exchanged or transferred, (3) a
written (or electronic) order given in accordance with
the Depositary's procedures containing information
regarding the participant account of the Depositary to be
credited and (4) a certificate in the form of Exhibit C
attached hereto given by the Holder of such Restricted
Note, then the principal Registrar will instruct the
Trustee to cancel such Restricted Note and will instruct
the Depositary to increase or cause to be increased the
principal amount of the Rule 144A Global Note by the
principal amount of the Restricted Note to be exchanged
or transferred.
(v) Accredited Investor Restricted or Other Restricted
Note To Regulation S Global Note. If an owner of a
Restricted Note registered in the name of such owner
wishes at any time to transfer such Restricted Note to a
Person in reliance on Regulation S, such owner may,
subject to the rules and procedures of the Euroclear or
Clearstream, as the case may be, exchange or cause the
exchange of such Restricted Note for an equivalent
beneficial interest in the Regulation S Global Note. Upon
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<PAGE> 19
receipt by the principal Registrar of (1) surrender of
the Restricted Note to be transferred or exchanged, (2)
instructions from the Company, directing the principal
Registrar (A) to credit or cause to be credited a
beneficial interest in the Regulation S Global Note equal
to the principal amount of the Restricted Note to be
exchanged or transferred and (B) to cancel such
Restricted Note to be exchanged or transferred, (3) a
written (or electronic) order given in accordance with
the Depositary's procedures containing information
regarding the participant account of the Depositary (and
which may include a Euroclear or Clearstream account) to
be credited with such increase and (4) a certificate in
the form of Exhibit B attached hereto given by the Holder
of such Restricted Note, then the principal Registrar
will instruct the Trustee to cancel such Restricted Note
and will instruct the Depositary to increase or cause to
be increased the principal amount of the Regulation S
Global Note by the principal amount of the Restricted
Note to be exchanged or transferred.
(vi) Global Note To Restricted Note. On and after such
time as owners of beneficial interests in Global Notes
are permitted under Section 2.01(d) to exchange their
interests in Global Notes for certificated Notes, if an
owner of a beneficial interest in a Global Note deposited
with the Depositary or with the Trustee as custodian for
the Depositary wishes to transfer its interest in such
Global Note to a Person who is required to take delivery
thereof in the form of a Restricted Note under Section
2.06(b), such owner may, subject to the rules and
procedures of the Depositary, cause the transfer of such
interest for one or more Restricted Notes of any
authorized denomination or denominations and of the same
aggregate principal amount. Subject to the terms of
Section 2.01(d) regarding the circumstances under which
owners of beneficial interests in Global Notes are
entitled to exchange such interests for certificated
Notes, upon receipt by the principal Registrar of (1)
instructions from the Depositary directing the principal
Registrar to authenticate and deliver one or more
Restricted Notes of the same aggregate principal amount
as the beneficial interest in the Global Note to be
transfered, such instructions to contain the name or
names of the designated transferee or transferees, the
authorized denomination or denominations of the
Restricted Notes to be so issued and appropriate delivery
instructions, (2) a certificate in the form of Exhibit D
attached hereto given by the owner of such beneficial
interest to the effect set forth therein, (3) a
certificate in the form of Exhibit E attached hereto
given by the Person acquiring the Restricted Notes for
which such interest is being transferred, to the effect
set forth therein, and (4) such other 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, then the principal Registrar will
instruct the Depositary to reduce or cause to be reduced
such Global Note by the aggregate principal amount of the
beneficial interest therein to be exchanged and to debit
or cause to be debited from the account of the Person
making such transfer the beneficial interest in the
Global Note that is being transferred, and concurrently
with such reduction and debit the Company shall execute,
and the Trustee shall authenticate and deliver, one or
more Restricted Notes of the same aggregate principal
amount in accordance with the instructions referred to
above. In the event that certificated Notes are issued in
place of beneficial interests in Global Notes pursuant to
2.01(d) prior to the effectiveness of a Shelf
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Registration Statement with respect to such Notes, such
Notes may be exchanged only in accordance with such
procedures as are substantially consistent with the
provisions of clauses (ii) and (iii) above (including the
certification requirements intended to ensure that such
transfers comply with Rule 144A, Regulation S, Rule 144,
or any other available exemption from registration, as
the case may be) and such other procedures as may from
time to time be adopted by the Company.
(vii) Restricted Note To Restricted Note. On and after
such time as Holders of Accredited Investor Restricted
Notes or other Restricted Notes are permitted to transfer
such Notes other than in reliance on Regulation S or to
QIBs in reliance on Rule 144A in certificated form
pursuant to Section 2.01(d), if a Holder of a Restricted
Note wishes to transfer such Restricted Note to a Person
who is required to take delivery thereof in the form of a
Restricted Note, such Holder may, subject to the
restrictions on transfer set forth herein and in such
Restricted Note, cause the exchange of such Restricted
Note for one or more Restricted Notes of any authorized
denomination or denominations and of the same aggregate
principal amount. Upon receipt by the principal Registrar
of (1) such Restricted Note, duly endorsed as provided
herein, (2) instructions from such Holder directing the
principal Registrar to authenticate and deliver one or
more Restricted Notes of the same aggregate principal
amount as the Restricted Note to be exchanged, such
instructions to contain the name or authorized
denomination or denominations of the Restricted Notes to
be so issued and appropriate delivery instructions, (3) a
certificate from the Holder of the Restricted Note to be
exchanged in the form of Exhibit D attached hereto, (4) a
certificate in the form of Exhibit E attached hereto
given by the Person acquiring the Restricted Notes for
which such interest is being exchanged, if such Person is
an "accredited investor" as defined and to the effect set
forth therein, and (5) such other 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, then the Registrar shall cancel or cause
to be canceled such Restricted Note and concurrently
therewith, the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Restricted
Notes of the same aggregate principal amount, in
accordance with the instructions referred to above.
(b) Upon any sale of a Note bearing the Restricted Notes
Legend (or any interest in a Global Note subject to the
Restricted Notes Legend) pursuant to Rule 144 under the
Securities Act or an effective registration statement under
the Securities Act:
(i) (A) in the case of any Note that is a certificated
Note or a beneficial interest in a Global Note, the
Registrar shall permit the Holder thereof to exchange
such Note or interest for a certificated Note or a
beneficial interest in a Global Note, as the case may be,
that does not bear or is subject to, as the case may be,
the legend set forth above and rescind any restriction on
the transfer of such Note or interest (1) in the case of
a sale or transfer pursuant to Rule 144 under the
Securities Act, upon delivery to the Company such
satisfactory evidence, which may include an opinion of
counsel licensed to practice law in the State of New
York, as may be reasonably required by the Company, that
neither the legend nor the restrictions on transfer set
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<PAGE> 21
forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A, Rule
144, Regulation S or any other available exemption from
registration under the Securities Act or, with respect to
Restricted Notes, that such Notes are not "restricted"
within the meaning of Rule 144 under the Securities Act
or (2) in the case of a sale or transfer pursuant to an
effective registration statement under the Securities
Act; and
(ii) any Global Note shall not be subject to the
Restricted Notes Legend (such sales or transfers being
subject only to the provisions of Section 2.06(a)(i) and
Section 2.01(d)).
Upon provision of such satisfactory evidence, the Trustee, at
the direction of the Company, shall authenticate and deliver Notes that
do not bear the Restricted Notes Legend.
(c) Neither the Company nor the Trustee shall have any
responsibility for any actions taken or not taken by the Depositary and
the Company shall have no responsibility for any actions taken or not
taken by the Trustee as agent or custodian of the Depositary.
(d) Notwithstanding anything contained herein to the contrary,
neither the Trustee nor the Note Registrar shall be responsible for
ascertaining whether any purchase or transfer complies with the
registration provisions of or exemptions from the Securities Act, Rule
144A, Rule 144, Regulation S, or any applicable state securities laws;
provided, that if a certificate or other written representation is
specifically required by the express terms of this Section 2.06 to be
delivered to the Registrar or Trustee by a transferee of a Note prior
to registration of such transfer, the Trustee or Note Registrar, as the
case may be, shall be under a duty to receive and examine the same to
determine whether it conforms on its face to the requirements of this
Section 2.06.
(e) Transfers of any Notes in certificated form not bearing
the Restricted Notes Legend shall not be subject to the restrictions
and requirements set forth in Section 2.06(a)(vii).
(f) Any transfer or exchange of a Note in certificated form
shall be accompanied by surrender of the certificated Note, endorsed or
accompanied by an instrument of transfer acceptable to the Registrar,
executed by the Holder or an attorney in fact acting on its behalf.
SECTION 2.07. REPLACEMENT NOTES.
If the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken or if such Note is mutilated and is
surrendered to the Trustee, the Company shall issue and the Trustee
shall authenticate a replacement Note if the Trustee's and the
Company's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of both to protect the Company, the Trustee,
any Agent or any authenticating agent from any loss which any of them
may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, or is about to be
purchased by the Company pursuant to Article III
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hereof, the Company in its discretion may, instead of issuing
a new Note, pay or purchase such Note, as the case may be.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, and those described in this Section
as not outstanding.
If a Note is replaced, paid or purchased pursuant to Section
2.07 hereof, it ceases to be outstanding unless the Trustee receives
proof satisfactory to it that the replaced, paid or purchased Note is
held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company or an Affiliate of the Company shall be
considered as though they are not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes that the
Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES; GLOBAL NOTES.
(a) Until definitive Notes are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes. Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture.
(b) A Global Note deposited with the Depositary or with the
Trustee as custodian for the Depositary pursuant to Section 2.01 shall
be transferred to the beneficial owners thereof in the form of
certificated Notes only (i) in accordance with Section 2.01(d), and
(ii) provided that such transfer complies with the applicable
provisions of Section 2.06(b).
(c) Any Global Note that is re-issued to the beneficial owners
thereof in the form of certificated Notes pursuant to Section 2.01(d)
and this Section 2.10 shall be surrendered by
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the Depositary to the Trustee to be so transferred without charge, and
the Trustee shall authenticate and deliver, upon such transfer of each
portion of such Global Note, an equal aggregate principal amount of
Notes of authorized denominations in the form of certificated Notes.
Any portion of a Global Note transferred pursuant to this Section 2.10
shall be executed, authenticated and delivered as the Depositary shall
direct. Any Note in the form of certificated Notes delivered in
exchange for an interest in the Global Notes shall, except as otherwise
provided by Section 2.06(c), bear the Restricted Notes Legend set forth
in Exhibit A hereto.
(d) Upon the occurrence of any of the events set forth in
Section 2.01(d) requiring the issuance of certificated Notes in place
of all beneficial interests in Global Notes then outstanding, the
Company will promptly make available to the Trustee a reasonable supply
of certificated Notes in definitive, fully registered form without
interest coupons.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar, Paying Agent and Conversion Agent shall
forward to the Trustee any Notes surrendered to them for registration
of transfer, exchange or payment. The Trustee shall promptly cancel all
Notes surrendered for registration of transfer, exchange, payment,
conversion, replacement or cancellation and shall dispose of canceled
Notes as the Company directs. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company fails to make a payment of interest on the
Notes, it shall pay such defaulted interest plus any interest payable
on the defaulted interest, in any lawful manner. It may pay such
defaulted interest, plus any such interest payable on it, to the
Persons who are Holders on a subsequent special record date. The
Company shall fix any such record date and payment date, provided that
no such record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before any
such record date, the Company shall mail to Holders a notice that
states the special record date, the related payment date and amount of
such interest to be paid.
SECTION 2.13. CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption and other notices as a convenience to
holders of Notes; provided, that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption or
notice of a Purchase Offer and that reliance may be placed only on the
other identification numbers printed on the Notes, and any redemption
or Purchase Offer shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
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ARTICLE III
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of the Notes and Section 3.07 hereof, it shall
notify the Trustee in writing of the redemption date and the principal
amount of Notes to be redeemed. The Company shall give the notice
provided for in this Section 3.01 at least 45 days before the
redemption date, unless a shorter notice period shall be satisfactory
to the Trustee. The Company may not give notice of any redemption if
the Company has defaulted in payment of interest and the default is
continuing.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
selection of Notes shall be made by the Trustee on a pro rata basis or
by lot or by a method that complies with the requirements of any
exchange on which the Notes are listed and that the Trustee considers
fair and appropriate, provided that no Notes of $1,000 or less shall be
redeemed in part. The Trustee shall make the selection not more than 60
days and not less than 30 days before the redemption date from Notes
outstanding not previously called for redemption. Notes and portions of
Notes selected shall be in amounts of $1,000 or integral multiples of
$1,000. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The
Trustee shall notify the Company promptly of the Notes or portions of
Notes to be called for redemption.
If any Note selected for partial redemption is converted in
part after such selection, the converted portion of such Note shall be
deemed (so far as may be) to be the portion to be selected for
redemption. The Notes (or portions thereof) so selected shall be deemed
duly selected for redemption for all purposes hereunder,
notwithstanding that any such Note is converted in whole or in part
before the mailing of the notice of redemption. Upon any redemption of
less than all the Notes, the Company and the Trustee may treat as
outstanding any Notes surrendered for conversion during the period 15
days next preceding the mailing of a notice of redemption and need not
treat as outstanding any Note authenticated and delivered during such
period in exchange for the unconverted portion of any Note converted in
part during such period.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption
date, the Company shall mail, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its
registered address. The notice shall identify the Notes to be redeemed
and shall state:
(a) the redemption date;
(b) the redemption price;
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(c) if any Note is to be redeemed in part only, the portion of
the principal amount thereof redeemed, and that, after the redemption
date, upon surrender of such Note, a new Note in principal amount equal
to the unredeemed portion thereof shall be issued in the name of the
Holder thereof upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price plus accrued interest,
if any;
(f) that interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes pursuant to which the Notes
called for redemption are being redeemed; and
(h) the "CUSIP" number of the Notes to be redeemed; and
(i) the current Conversion Price and the date on which the
right to convert such Notes or portions thereof into Common Stock of
the Company will expire.
At the Company's request, the Trustee shall give notice of
redemption in the Company's name and at the Company's expense; provided
that the Company shall have delivered to the Trustee, at least 45 days
prior to the redemption date, an Officers' Certificate requesting that
the Trustee give such notice and setting forth the information to be
stated in such notice, as provided in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become due and payable on the
redemption date at the price set forth in the Note. A notice of
redemption may not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 1:00 pm (Boston time) on the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money
(in immediately available funds) sufficient to pay the redemption price
of and accrued interest on all Notes to be redeemed on that date unless
theretofore converted into Common Stock pursuant to the provisions
hereof. The Trustee or the Paying Agent shall return to the Company any
money not required for that purpose.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
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SECTION 3.07. OPTIONAL REDEMPTION.
The Company may redeem all or any portion of the Notes, upon
the terms and at the redemption prices set forth in the Notes. Any
redemption pursuant to this Section 3.07 shall be made pursuant to the
provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
payments or sinking fund payments with respect to the Notes.
SECTION 3.09. PURCHASE OFFER.
(a) In the event that, pursuant to Section 4.07 hereof, the
Company shall commence an offer to all Holders of the Notes to purchase
Notes (the "PURCHASE OFFER"), the Company shall follow the procedures
in this Section 3.09.
(b) The Purchase Offer shall remain open for a period
specified by the Company which shall be no less than 30 calendar days
and no more than 45 calendar days following its commencement (the
"COMMENCEMENT DATE") (as determined in accordance with Section 4.07
hereof), except to the extent that a longer period is required by
applicable law (the "TENDER PERIOD"). Upon the expiration of the Tender
Period (the "PURCHASE DATE"), the Company shall purchase the principal
amount of all of the Notes required to be purchased pursuant to Section
4.07 hereof (the "OFFER AMOUNT").
(c) If the Purchase Date is on or after an interest payment
record date and on or before the related interest payment date, any
accrued interest shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no
additional interest will be payable to Holders who tender Notes
pursuant to the Purchase Offer.
(d) The Company shall provide the Trustee with written notice
of the Purchase Offer at least 10 days before the Commencement Date.
(e) On or before the Commencement Date, the Company or the
Trustee (at the written request and expense of the Company, the Company
having provided to the Trustee the requisite information therefor)
shall send, by first class mail, a notice to each of the Holders, which
shall govern the terms of the Purchase Offer and shall state:
(i) that the Purchase Offer is being made pursuant to
this Section 3.09 and Section 4.07 hereof, that all Notes
validly tendered will be accepted for payment and the length
of time the Purchase Offer will remain open;
(ii) the purchase price (as determined in accordance
with Section 4.07 hereof) and the Purchase Date, and that all
Notes tendered will be accepted for payment;
(iii) that any Note or portion thereof not tendered
or accepted for payment will continue to accrue interest;
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(iv) that, unless the Company defaults in the payment
of the purchase price, any Note or portion thereof accepted
for payment pursuant to the Purchase Offer will cease to
accrue interest after the Purchase Date;
(v) that Holders electing to have a Note or portion
thereof purchased pursuant to any Purchase Offer will be
required to surrender the Note, with the form entitled "Option
of Holder to Elect Purchase" on the reverse of the Note
completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the
notice prior to the close of business on the third Business
Day preceding the Purchase Date;
(vi) that Holders will be entitled to withdraw their
election if the Company, depositary or Paying Agent, as the
case may be, receives, not later than the close of business on
the second Business Day preceding the Purchase Date, or such
longer period as may be required by law, a letter or a
telegram, telex or facsimile transmission (receipt of which is
confirmed and promptly followed by a letter) setting forth the
name of the Holder, the principal amount of the Note or
portion thereof the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have
the Note or portion thereof purchased;
(vii) that Holders whose Notes were purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered and
(viii) the "CUSIP" number of the Notes to be
purchased.
(f) On or prior to 1:00 pm (Boston time) on the
Purchase Date, the Company shall irrevocably deposit with the Trustee
or a Paying Agent in immediately available funds an amount equal to
the Offer Amount to be held for payment in accordance with the terms
of this Section 3.09. On the Purchase Date, the Company shall, to the
extent lawful, (i) accept for payment the Notes or portions thereof
properly tendered pursuant to the Purchase Offer, (ii) deliver or
cause the Depositary or Paying Agent to deliver to the Trustee Notes
so accepted and (iii) deliver to the Trustee an Officers' Certificate
stating such Notes or portions thereof have been accepted for payment
by the Company in accordance with the terms of this Section 3.09. The
Depositary, the Paying Agent or the Company, as the case may be, shall
promptly (but in any case not later than ten (10) calendar days after
the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Note equal in
principal amount to any unpurchased portion of the Note surrendered.
Any Notes not so accepted shall be promptly mailed or delivered by or
on behalf of the Company to the Holder thereof. The Company will
publicly announce in a newspaper of general circulation the results of
the Purchase Offer on or as soon as practicable after the Purchase
Date.
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The Purchase Offer shall be made by the Company in compliance
with all applicable provisions of the Exchange Act, and all applicable
tender offer rules promulgated thereunder, and shall include all
instructions and materials necessary to enable such Holders to tender
their Notes.
ARTICLE IV
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay the principal of, and premium, if any,
and interest on, the Notes on the dates and in the manner provided in
the Notes. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent (other than the Company or an
Affiliate of the Company) holds on that date money designated for and
sufficient to pay all principal, premium, if any, and interest then
due. To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
(i) overdue principal and premium, if any, at the rate borne by the
Notes, compounded semiannually; and (ii) overdue installments of
interest (without regard to any applicable grace period) at the same
rate, compounded semiannually.
Whenever in this Indenture or the Notes there is mentioned, in
any context, the payment of principal (and premium, if any), Offer
Amount, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include mention of the
payment of Special Interest provided for in Section 2 of the Notes to
the extent that, in such context, Special Interest is, was or would be
payable in respect thereof pursuant to the provisions of Section 2 of
the Notes, and express mention of the payment of Special Interest (if
applicable) in any provisions hereof shall not be construed as
excluding Special Interest in those provisions hereof where such
express mention is not made (if applicable).
SECTION 4.02 REPORTS.
Whether or not required by the rules and regulations of the
SEC, so long as any Notes are outstanding, the Company shall file with
the SEC and furnish to the Trustee and to the Holders of Notes, all
quarterly and annual financial information required to be contained in
a filing with the SEC on Forms 10-Q and 10-K, including a "Management's
Discussion and Analysis of Results of Operations and Financial
Condition" and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants, in each
case, as required by the rules and regulations of the SEC as in effect
on the Issuance Date. The Trustee shall be under no obligation or duty
to review such reports, such delivery to it being for the purpose of
having the same on file with the Trustee and available for examination.
SECTION 4.03. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 90
days after the end of each fiscal year of the Company, an
Officers' Certificate stating that a review of the activities
of the
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Company and its subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers
with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under, and
complied with the covenants and conditions contained in, this
Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge
the Company has kept, observed, performed and fulfilled each
and every covenant, and complied with the covenants and
conditions contained in this Indenture and is not in default
in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or
Events of Default of which he may have knowledge) and that to
the best of his knowledge no event has occurred and remains in
existence by reason of which payments on account of the
principal or of interest, if any, on the Notes are prohibited.
One of the Officers signing such Officers' Certificate shall
be either the Company's principal executive officer, principal
financial officer or principal accounting officer.
The Company will, so long as any of the Notes are
outstanding, deliver to the Trustee forthwith upon becoming
aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default.
Immediately upon the occurrence of any Registration
Default giving rise to Special Interest or the cure of any
such Registration Default, the Company shall give the Trustee
written notice thereof and of the event giving rise to such
Registration Default or the cure of any such Registration
Default (such notice to be contained in an Officers'
Certificate) and prior to receipt of such Officers'
Certificate the Trustee shall be entitled to assume that no
such Registration Default has occurred or been cured, as the
case may be.
SECTION 4.04. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and
the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, 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.
SECTION 4.05. CORPORATE EXISTENCE.
Subject to Article VII hereof, to the extent
permitted by law the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect
its corporate existence and the corporate, partnership or
other existence of each subsidiary of the Company in
accordance with the respective organizational documents of
each subsidiary and the rights (charter and statutory),
licenses and franchises of the Company; provided, however,
that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or
other existence of any subsidiary, if the preservation thereof
is no
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longer desirable in the conduct of the business of the Company
and its subsidiaries taken as a whole.
SECTION 4.06. TAXES.
The Company shall, and shall cause each of its
subsidiaries to, pay prior to delinquency all material taxes,
assessments and governmental levies, except as contested in
good faith and by appropriate proceedings.
SECTION 4.07. FUNDAMENTAL CHANGE.
(a) Upon the occurrence of a Fundamental Change, each
Holder of Notes shall have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of such Holder's Notes pursuant to the
Purchase Offer at a purchase price equal to 100% of the
principal amount thereof plus accrued and unpaid interest to
the date of purchase (the "FUNDAMENTAL CHANGE PAYMENT").
(b) Within 25 days following any Fundamental Change,
the Company shall give written notice to the Trustee and shall
mail to each Holder the notice provided by Section 3.09(e).
SECTION 4.08. LIMITATION ON STATUS AS INVESTMENT COMPANY.
The Company shall not, and shall not permit any
Subsidiary to, conduct its business in a fashion that would
cause the Company to be required to be registered as an
"investment company" (as that term is defined in the
Investment Company Act of 1940, as amended).
SECTION 4.09. SPECIAL INTEREST.
If Special Interest is payable by the Company
pursuant to Section 2 of the Notes, the Company shall deliver
to the Trustee a certificate to that effect stating (i) the
amount of such Special Interest that is payable and (ii) the
date on which such Special Interest is payable. Unless and
until a Trust Officer of the Trustee receives such a
certificate, the Trustee may assume without inquiry that no
such Special Interest is payable. If the Company has paid
Special Interest directly to the persons entitled to it, the
Company shall deliver to the Trustee a certificate setting
forth the particulars of such payment.
ARTICLE V
CONVERSION
SECTION 5.01. CONVERSION PRIVILEGE.
A Holder of a Note may convert it into fully paid and
nonassessable shares of Common Stock at any time following the Issuance
Date and prior to maturity at the Conversion Price then in effect,
except that, with respect to any Note called for redemption, such
conversion right shall terminate at the close of business on the
Business Day immediately preceding the redemption date (unless the
Company shall default in making the redemption payment when it becomes
due, in which case the conversion right shall terminate
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on the date such default is cured). The number of shares of Common
Stock issuable upon conversion of a Note is determined by dividing the
principal amount of such Note by the conversion price in effect on the
Conversion Date (the "CONVERSION PRICE").
The initial Conversion Price is stated in Section 12 of the
Notes and is subject to adjustment as provided in this Article V.
A Holder may convert a portion of a Note equal to any integral
multiple of $1,000. Provisions of this Indenture that apply to
conversion of all of a Note also apply to conversion of a portion of
it.
SECTION 5.02. CONVERSION PROCEDURE.
To convert a Note, a Holder must satisfy the requirements in
Section 12 of the Notes. The date on which the Holder satisfies all of
those requirements is the conversion date (the "CONVERSION DATE"). As
soon as practicable after the Conversion Date, the Company shall
deliver to the Holder through the Conversion Agent a certificate for
the number of whole shares of Common Stock issuable upon the conversion
and a check for any fractional share determined pursuant to Section
5.03 hereof. The Person in whose name the certificate is registered
shall become the stockholder of record on the Conversion Date and, as
of such date, such Person's rights as a Holder of Notes hereunder shall
cease (such Person's rights as a Holder of Transfer Restricted
Securities, if any, under the Registration Rights Agreement, however,
shall continue so long as such Person holds such Transfer Restricted
Securities); provided, however, that no surrender of a Note on any date
when the stock transfer books of the Company shall be closed shall be
effective to constitute the Person entitled to receive the shares of
Common Stock upon such conversion as the stockholder of record of such
shares of Common Stock on such date, but such surrender shall be
effective to constitute the Person entitled to receive such shares of
Common Stock as the stockholder of record thereof for all purposes at
the close of business on the next succeeding day on which such stock
transfer books are open; provided further, however, that such
conversion shall be at the Conversion Price in effect on the date that
such Note shall have been surrendered for conversion, as if the stock
transfer books of the Company had not been closed.
No payment or adjustment will be made for accrued and unpaid
interest on a converted Note, but if any Holder surrenders a Note for
conversion after the close of business on the record date for the
payment of an installment of interest and prior to the opening of
business on the next interest payment date, then, notwithstanding such
conversion, the interest payable on such interest payment date shall be
paid to the Holder of such Note on such record date. Any Notes that
are, however, delivered to the Company for conversion after any record
date but before the next interest payment date must, except as
described in the next sentence, be accompanied by a payment equal to
the interest payable on such interest payment date on the principal
amount of convertible notes being converted. The payment to the Company
described in the preceding sentence shall not be required if, during
that period between a record date and the next interest payment date, a
conversion occurs on or after the date that the Company has issued a
redemption notice and prior to the date of redemption stated in such
notice. If any Notes are converted after an interest payment date but
on or before the next
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record date, no interest will be paid on those Notes. No fractional
shares will be issued upon conversion, but a cash adjustment will be
made for any fractional shares.
If a Holder converts more than one Note at the same time, the
number of whole shares of Common Stock issuable upon the conversion
shall be based on the total principal amount of Notes converted.
Upon surrender of a Note that is converted in part, the
Trustee shall authenticate for the Holder a new Note equal in principal
amount to the unconverted portion of the Note surrendered.
SECTION 5.03. FRACTIONAL SHARES.
The Company will not issue fractional shares of Common Stock
upon conversion of a Note. In lieu thereof, the Company will pay an
amount in cash based upon the Daily Market Price of the Common Stock on
the trading day prior to the date of conversion.
SECTION 5.04. TAXES ON CONVERSION.
The issuance of certificates for shares of Common Stock upon
the conversion of any Note shall be made without charge to the
converting Holder for such certificates or for any tax in respect of
the issuance of such certificates, and such certificates shall be
issued in the respective names of, or in such names as may be directed
by, the Holder or Holders of the converted Note; provided, however,
that in the event that certificates for shares of Common Stock are to
be issued in a name other than the name of the Holder of the Note
converted, such Note, when surrendered for conversion, shall be
accompanied by an instrument of transfer, in form satisfactory to the
Company, duly executed by the registered Holder thereof or his duly
authorized attorney; and provided further, however, that the Company
shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any such
certificates in a name other than that of the Holder of the converted
Note, and the Company shall not be required to issue or deliver such
certificates unless or until the Person or Persons requesting the
issuance thereof shall have paid to the Company the amount of such tax
or shall have established to the satisfaction of the Company that such
tax has been paid or is not applicable.
SECTION 5.05. COMPANY TO PROVIDE STOCK.
The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common
Stock, solely for the purpose of issuance upon conversion of Notes as
herein provided, a sufficient number of shares of Common Stock to
permit the conversion of all outstanding Notes for shares of Common
Stock. All shares of Common Stock which may be issued upon conversion
of the Notes shall be duly authorized, validly issued, fully paid and
nonassessable when so issued. Shares of Common Stock issuable upon
conversion of a Restricted Note shall bear such restrictive legends as
the Company shall provide in accordance with applicable law. If shares
of Common Stock are to be issued upon conversion of a Restricted Note
and they are to be registered in a name other than that of the holder
of such Restricted Note, then the Person in whose name such shares of
Common Stock are to be registered must deliver to the Trustee a
certificate satisfactory to the
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Company and signed by such Person as to compliance with the
restrictions on transfer contained in such restrictive legends.
SECTION 5.06. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price shall be subject to adjustment from time
to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of
Common Stock to holders of Common Stock, (2) make a distribution in
shares of Common Stock to holders of Common Stock, (3) subdivide its
outstanding shares of Common Stock into a greater number of shares of
Common Stock or (4) combine its outstanding shares of Common Stock into
a smaller number of shares of Common Stock, the Conversion Price in
effect immediately prior to such action shall be adjusted so that the
Holder of any Note thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock which he would
have owned immediately following such action had such Notes been
converted immediately prior thereto. Any adjustment made pursuant to
this subsection (a) shall become effective immediately after the record
date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a
subdivision or combination.
(b) In case the Company shall issue rights or warrants to
substantially all holders of Common Stock entitling them (for a period
commencing no earlier than the record date for the determination of
holders of Common Stock entitled to receive such rights or warrants and
expiring not more than 45 days after such record date) to subscribe for
or purchase shares of Common Stock (or securities convertible into
Common Stock) at a price per share less than the current market price
(as determined pursuant to subsection (f) below) of the Common Stock on
such record date, 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 such record date by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding on such record date, plus the number of shares of Common
Stock which the aggregate offering price of the offered shares of
Common Stock (or the aggregate conversion price of the convertible
securities 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 such record date plus the number of additional shares of
Common Stock offered (or into which the convertible securities so
offered are convertible). Such adjustments shall become effective
immediately after such record date.
(c) In case the Company shall distribute to all holders of
Common Stock shares of capital stock of the Company other than Common
Stock, evidences of indebtedness or other assets (other than cash
dividends out of current or retained earnings), or shall distribute to
substantially all holders of Common Stock rights or warrants to
subscribe for securities (other than those referred to in subsection
(b) above), then in each such case 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
date of such distribution by a fraction of which the numerator shall be
the current market price (determined as provided in subsection (f)
below) of the Common Stock on the record date mentioned below less the
then fair market value (as determined by the Board of Directors, whose
determination shall be
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conclusive evidence of such fair market value and described in a Board
Resolution) of the portion of the assets so distributed or of such
subscription rights or warrants applicable to one share of Common
Stock, and of which the denominator shall be such current market price
of the Common Stock. Such adjustment shall become effective immediately
after the record date for the determination of the holders of Common
Stock entitled to receive such distribution. Notwithstanding the
foregoing, in the event that the Company shall distribute rights or
warrants (other than those referred to in subsection (b) above)
("RIGHTS") pro rata to holders of Common Stock, the Company may, in
lieu of making any adjustment pursuant to this Section 5.06, make
proper provision so that each Holder of a Note who converts such Note
(or any portion thereof) after the record date for such distribution
and prior to the expiration or redemption of the Rights shall be
entitled to receive upon such conversion, in addition to the shares of
Common Stock issuable upon such conversion (the "CONVERSION SHARES"), a
number of Rights to be determined as follows: (i) if such conversion
occurs on or prior to the date for the distribution to the holders of
Rights of separate certificates evidencing such Rights (the
"DISTRIBUTION DATE"), the same number of Rights to which a holder of a
number of shares of Common Stock equal to the number of Conversion
Shares is entitled at the time of such conversion in accordance with
the terms and provisions of and applicable to the Rights; and (ii) if
such conversion occurs after the Distribution Date, the same number of
Rights to which a holder of the number of shares of Common Stock into
which the principal amount of the Note so converted was convertible
immediately prior to the Distribution Date would have been entitled on
the Distribution Date in accordance with the terms and provisions of
and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at
any time distribute to all holders of its Common Stock cash (including
any distributions of cash out of current or retained earnings of the
Company but excluding any cash that is distributed as part of a
distribution requiring a Conversion Price adjustment pursuant to
paragraph (c) of this Section 5.06) in an aggregate amount that,
together with the sum of (x) the aggregate amount of any other
distributions to all holders of its Common Stock made in cash plus (y)
all Excess Payments, in each case made within the 12 months preceding
the date fixed for determining the stockholders entitled to such
distribution (the "DISTRIBUTION RECORD DATE") and in respect of which
no Conversion Price adjustment pursuant to paragraphs (c) or (e) of
this Section 5.06 or this paragraph (d) has been made, exceeds 15% of
the product of the current market price per share (determined as
provided in paragraph (f) of this Section 5.06) of the Common Stock on
the Distribution Record Date times the number of shares of Common Stock
outstanding on the Distribution Record Date (excluding shares held in
the treasury of the Company), the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying such
Conversion Price in effect immediately prior to the effectiveness of
the Conversion Price reduction contemplated by this paragraph (d) by a
fraction of which the numerator shall be the current market price per
share (determined as provided in paragraph (f) of this Section 5.06) of
the Common Stock on the Distribution Record Date less the amount of
such cash and other consideration (including any Excess Payments) so
distributed applicable to one share (based on the pro rata portion of
the aggregate amount of such cash and other consideration (including
any Excess Payments), divided by the shares of Common Stock outstanding
on the Distribution Record Date) of Common Stock and the denominator
shall be such current market price per share (determined as provided in
paragraph (f) of this Section 5.06) of the Common Stock on the
Distribution
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Record Date, such reduction to become effective immediately prior to
the opening of business on the day following the Distribution Record
Date.
(e) In case a tender offer or other negotiated transaction
made by the Company or any Subsidiary for all or any portion of the
Common Stock shall be consummated, if an Excess Payment is made in
respect of such tender offer or other negotiated transaction and the
amount of such Excess Payment, together with the sum of (x) the
aggregate amount of all Excess Payments plus (y) the aggregate amount
of all distributions to all holders of the Common Stock made in cash
(specifically including distributions of cash out of retained
earnings), in each case made within the 12 months preceding the date of
payment of such current negotiated transaction consideration or
expiration of such current tender offer, as the case may be (the
"PURCHASE DATE"), and as to which no adjustment pursuant to paragraph
(c) or paragraph (d) of this Section 5.06 or this paragraph (e) has
been made, exceeds 15% of the product of the current market price per
share (determined as provided in paragraph (f) of this Section 5.06) of
the Common Stock on the Purchase Date times the number of shares of
Common Stock outstanding (including any tendered shares but excluding
any shares held in the treasury of the Company) on the Purchase Date,
the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying such Conversion Price in effect
immediately prior to the effectiveness of the Conversion Price
reduction contemplated by this paragraph (e) by a fraction of which the
numerator shall be the current market price per share (determined as
provided in paragraph (f) of this Section 5.06) of the Common Stock on
the Purchase Date less the amount of such Excess Payments and such cash
distributions, if any, applicable to one share (based on the pro rata
portion of the aggregate amount of such Excess Payments and such cash
distributions, divided by the shares of Common Stock outstanding on the
Purchase Date) of Common Stock and the denominator shall be such
current market price per share (determined as provided in paragraph (f)
of this Section 5.06) of the Common Stock on the Purchase Date, such
reduction to become effective immediately prior to the opening of
business on the day following the Purchase Date.
(f) The current market price per share of Common Stock on any
date shall be deemed to be the average of the Daily Market Prices for
the shorter of (i) ten consecutive business days ending on the last
full trading day on the exchange or market referred to in determining
such Daily Market Prices prior to the time of determination or (ii) the
period commencing on the date next succeeding the first public
announcement of the issuance of such rights or such warrants or such
other distribution or such negotiated transaction through such last
full trading day on the exchange or market referred to in determining
such Daily Market Prices prior to the time of determination.
(g) In any case in which this Section 5.06 shall require that
an adjustment be made immediately following a record date, the Company
may elect to defer (but only until five Business Days following the
filing by the Company with the Trustee of the certificate described in
Section 5.10 hereof) issuing to the Holder of any Note converted after
such record date the shares of Common Stock and other Capital Stock of
the Company issuable upon such conversion over and above the shares of
Common Stock and other Capital Stock of the Company issuable upon such
conversion only on the basis of the Conversion Price prior to
adjustment; and, in lieu of the shares the issuance of which is so
deferred, the Company shall
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issue or cause its transfer agents to issue due bills or other
appropriate evidence of the right to receive such shares.
SECTION 5.07. NO ADJUSTMENT.
No adjustment in the Conversion Price shall be required until
cumulative adjustments amount to 1% or more of the Conversion Price as
last adjusted; provided, however, that any adjustments which by reason
of this Section 5.07 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Article V 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 rights to purchase Common Stock pursuant to
a Company plan for reinvestment of dividends or interest. No adjustment
need be made for a change in the par value or no par value of the
Common Stock.
SECTION 5.08. OTHER ADJUSTMENTS.
(a) In the event that, as a result of an adjustment made
pursuant to Section 5.06 hereof, the Holder of any Note thereafter
surrendered for conversion shall become entitled to receive any shares
of Capital Stock of the Company other than shares of its Common Stock,
thereafter the Conversion Price of such other shares so receivable upon
conversion of any Note shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this Article V.
(b) In the event that shares of Common Stock are not delivered
after the expiration of any of the rights or warrants referred to in
Section 5.06(b) and Section 5.06(c) hereof, the Conversion Price shall
be readjusted to the Conversion Price which would otherwise be in
effect had the adjustment 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.
SECTION 5.09. ADJUSTMENTS FOR TAX PURPOSES.
The Company may make such reductions in the Conversion Price,
in addition to those required by Section 5.06 hereof, as it determines
to be advisable in order that any stock dividend, subdivision of
shares, distribution or rights to purchase stock or securities or
distribution of securities convertible into or exchangeable for stock
made by the Company to its stockholders will not be taxable to the
recipients thereof.
SECTION 5.10. NOTICE OF ADJUSTMENT.
Whenever the Conversion Price is adjusted, the Company shall
promptly mail to Holders at the addresses appearing on the Registrar's
books a notice of the adjustment and file with the Trustee an Officers'
Certificate briefly stating the facts requiring the adjustment and the
manner of computing it. The certificate shall be conclusive evidence of
the correctness of such adjustment. Unless and until a Trust Officer of
the Trustee shall receive written notice of an adjustment of the
Conversion Price, the Trustee may assume without inquiry that the
Conversion Price has not been adjusted and that the last Conversion
Price of which it has knowledge remains in effect.
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SECTION 5.11. NOTICE OF CERTAIN TRANSACTIONS.
In the event that:
(1) the Company takes any action which would require an
adjustment in the Conversion Price;
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 5.12; or
(3) there is a dissolution or liquidation of the Company;
the Company shall mail to Holders at the addresses appearing on the
Registrar's books and the Trustee a notice stating the proposed record
or effective date, as the case may be, to permit a Holder of a Note to
convert such Note into shares of Common Stock prior to the record date
for or the effective date of the transaction in order to receive the
rights, warrants, securities or assets which a Holder of shares of
Common Stock on that date may receive. The Company shall mail the
notice at least 15 days before such date; however, failure to mail such
notice or any defect therein shall not affect the validity of any
transaction referred to in clause (1), (2) or (3) of this Section 5.11.
SECTION 5.12. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS, MERGERS OR SALES
ON CONVERSION PRIVILEGE.
If any of the following shall occur, namely: (i) any
reclassification or change of outstanding shares of Common Stock
issuable upon conversion of Notes (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), (ii) any consolidation or
merger to which the Company is a party other than a merger in which the
Company is the continuing corporation and which does not result in any
reclassification of, or change (other than a change in name, or 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) in, outstanding
shares of Common Stock or (iii) any sale or conveyance of all or
substantially all of the property or business of the Company as an
entirety, then the Company, or such successor or purchasing
corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, consolidation, merger, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture
in form reasonably satisfactory to the Trustee providing that the
Holder of each Note then outstanding shall have the right to convert
such Note into the kind and amount of shares of stock and other
securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by
a holder of the number of shares of Common Stock deliverable upon
conversion of such Note immediately prior to such reclassification,
change, consolidation, merger, sale or conveyance. Such supplemental
indenture shall provide for adjustments of the Conversion Price which
shall be as nearly equivalent as may be practicable to the adjustments
of the Conversion Price provided for in this Article V. The foregoing,
however, shall not in any way affect the right a Holder of a Note may
otherwise have, pursuant to clause (ii) of the last sentence of
subsection (c) of Section 5.06 hereof, to receive Rights upon
conversion of a Note. If in the case of any such consolidation, merger,
sale or
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conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Common Stock includes shares of
stock or other securities and property of a corporation other than the
successor or purchasing corporation, as the case may be, in such
consolidation, merger, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall
contain such additional provisions to protect the interests of the
Holders of the Notes as the Board of Directors of the Company shall
reasonably consider necessary by reason of the foregoing. The provision
of this Section 5.12 shall similarly apply to successive
consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental
indenture pursuant to this Section 5.12, the Company shall promptly
file with the Trustee an Officers' Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or securities
or property (including cash) receivable by Holders of the Notes upon
the conversion of their Notes after any such reclassification, change,
consolidation, merger, sale or conveyance and any adjustment to be made
with respect thereto.
SECTION 5.13. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under
this Article V should be made, how it should be made or what such
adjustment should be, but may accept as conclusive evidence of the
correctness of any such adjustment, and shall be protected in relying
upon the Officers' Certificate with respect thereto which the Company
is obligated to file with the Trustee pursuant to Section 5.10 hereof.
The Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Notes, and the Trustee
shall not be responsible for the Company's failure to comply with any
provisions of this Article V.
The Trustee shall not be under any responsibility to determine
the correctness of any provisions contained in any supplemental
indenture executed pursuant to Section 5.12, but may accept as
conclusive evidence of the correctness thereof, and shall be protected
in relying upon, the Officers' Certificate with respect thereto which
the Company is obligated to file with the Trustee pursuant to Section
5.12 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. AGREEMENT TO SUBORDINATE AND RANKING.
The Company, for itself and its successors, and each Holder,
by its acceptance of Notes, agree that the payment of the principal of
or interest on or any other amounts due on the Notes is subordinated in
right of payment, to the extent and in the manner stated in this
Article VI, to the prior payment in full of all existing and future
Senior Debt. The Notes shall rank pari passu with, and shall not be
senior in right of payment to such other Indebtedness of the Company
whether outstanding on the date of this Indenture or hereafter created,
incurred, issued or guaranteed by the Company, where the instrument
creating or evidencing such Indebtedness expressly provides that such
Indebtedness ranks pari passu with the Notes.
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SECTION 6.02. NO PAYMENT ON NOTES IF SENIOR DEBT IN DEFAULT.
Anything in this Indenture to the contrary notwithstanding, no
payment on account of principal of or redemption of, interest on,
Special Interest on, or other amounts due on the Notes, and no
redemption, purchase, or other acquisition of the Notes, shall be made
by or on behalf of the Company (i) unless full payment of amounts then
due for principal and interest and of all other amounts then due on all
Senior Debt has been made or duly provided for pursuant to the terms of
the instrument governing such Senior Debt, (ii) if, at the time of such
payment, redemption, purchase or other acquisition, or immediately
after giving effect thereto, there shall exist under any Senior Debt,
or any agreement pursuant to which any Senior Debt is issued, any
Default, which Default shall have resulted in the full amount of such
Senior Debt being declared due and payable or (iii) if, at the time of
such payment, redemption, purchase or other acquisition, the Trustee
shall have received written notice from any of the holders of
Designated Senior Debt or such holder's representative (a "PAYMENT
BLOCKAGE NOTICE") that there exists under such Designated Senior Debt,
or any agreement pursuant to which such Designated Senior Debt is
issued, any Default, permitting the holders thereof to declare any
amounts of such Designated Senior Debt due and payable, but only for
the period (the "PAYMENT BLOCKAGE PERIOD") commencing on the date of
receipt of the Payment Blockage Notice and ending (unless earlier
terminated by notice given to the Trustee by the holders of such
Designated Senior Debt) on the earlier of (a) the date on which such
Event of Default shall have been cured or waived or (b)180 days from
the receipt of the Payment Blockage Notice. Upon termination of the
Payment Blockage Period, payments on account of principal of or
interest on the Notes (other than, subject to Section 6.03 hereof,
amounts due and payable by reason of the acceleration of the maturity
of the Notes) and redemptions, purchases or other acquisitions may be
made by or on behalf of the Company. Notwithstanding anything herein to
the contrary, (a) only one Payment Blockage Notice may be given during
any period of 360 consecutive days with respect to the same Event of
Default or any other Events of Default on the same issue of Designated
Senior Debt existing or continuing at the time of such notice unless
such Event of Default or such other Events of Default have been cured
or waived for a period of not less than 90 consecutive days and (b) no
new Payment Blockage Period may be commenced by the holder or holders
of Designated Senior Debt or their representative or representatives
during any period of 360 consecutive days unless all Events of Default
which were the subject of the immediately preceding Payment Blockage
Notice have been cured or waived.
In the event that, notwithstanding the provisions of this
Section 6.02, payments are made by or on behalf of the Company in
contravention of the provisions of this Section 6.02, such payments
shall be held by the Trustee, any Paying Agent or the holders, as
applicable, in trust for the benefit of, and shall be paid over to and
delivered to, the holders of Senior Debt or their representative or the
trustee under the indenture or other agreement (if any), pursuant to
which any instruments evidencing any Senior Debt may have been issued
(as to which the Trustee shall be entitled to request and rely upon
written certification from such holders of Senior Debt or related
trustees) for application to the payment of all Senior Debt ratably
according to the aggregate amounts remaining unpaid to the extent
necessary to pay all Senior Debt in full in accordance with the terms
of such Senior Debt, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
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The Company shall give prompt written notice to the Trustee
and any Paying Agent of any default or event of default under any
Senior Debt or under any agreement pursuant to which any Senior Debt
may have been issued.
SECTION 6.03. DISTRIBUTION ON ACCELERATION OF NOTES; DISSOLUTION AND
REORGANIZATION; SUBROGATION OF NOTES.
(a) If the Notes are declared due and payable because of the
occurrence of an Event of Default, the Company or the Trustee shall
give prompt written notice to the holders of all Senior Debt or to the
trustee(s) for such Senior Debt (in each case to the extent known to
the Trustee) of such acceleration. The Company may not pay the
principal of or interest on or any other amounts due on the Notes until
five days after such holders or trustee(s) of Senior Debt receive such
notice and, thereafter, the Company may pay the principal of or
interest on or any other amounts due on the Notes only if the
provisions of this Article VI permit such payment.
(b) Upon (i) any acceleration of the principal amount due on
the Notes because of an Event of Default or (ii) any distribution of
assets of the Company upon any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of
creditors or any other dissolution, winding up, liquidation or
reorganization of the Company):
(1) the holders of all Senior Debt shall first be
entitled to receive payment in full of the principal thereof,
the interest thereon and any other amounts due thereon before
the Holders are entitled to receive payment on account of the
principal of or interest on or any other amounts due on the
Notes;
(2) any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any
other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to
the extent provided in this Article VI with respect to the
Notes, to the payment in full without diminution or
modification by such plan of all Senior Debt), to which the
Holders or the Trustee would be entitled except for the
provisions of this Article VI, shall be paid by the
liquidating trustee or agent or other Person making such a
payment or distribution, directly to the holders of Senior
Debt (or their representatives(s) or trustee(s) acting on
their behalf), ratably according to the aggregate amounts
remaining unpaid on account of the principal of or interest on
and other amounts due on the Senior Debt held or represented
by each, to the extent necessary to make payment in full of
all Senior Debt remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such
Senior Debt; and
(3) in the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities
(other than securities of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a
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plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article
VI with respect to the Notes, to the payment in full without
diminution or modification by such plan of Senior Debt), shall
be received by the Trustee or the Holders before all Senior
Debt is paid in full, such payment or distribution shall be
held in trust for the benefit of, and be paid over to upon
request by a holder of the Senior Debt, the holders of the
Senior Debt remaining unpaid (or their representatives) or
trustee(s) acting on their behalf, ratably as aforesaid, for
application to the payment of such Senior Debt until all such
Senior Debt shall have been paid in full, after giving effect
to any concurrent payment or distribution to the holders of
such Senior Debt. Subject to the payment in full of all Senior
Debt, the Holders shall be subrogated to the rights of the
holders of Senior Debt to receive payments or distributions of
cash, property or securities of the Company applicable to the
Senior Debt until the principal of and interest on the Notes
shall be paid in full and, for purposes of such subrogation,
no such payments or distributions to the holders of Senior
Debt of cash, property or securities which otherwise would
have been payable or distributable to Holders shall, as
between the Company, its creditors other than the holders of
Senior Debt, and the Holders, be deemed to be a payment by the
Company to or on account of the Senior Debt, it being
understood that the provisions of this Article VI are, and are
intended solely for the purpose of, defining the relative
rights of the Holders, on the one hand, and the holders of
Senior Debt, on the other hand.
Nothing contained in this Article VI or elsewhere in this
Indenture or in the Notes is intended to or shall (i) impair, as
between the Company and its creditors other than the holders of Senior
Debt, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on
the Notes as and when the same shall become due and payable in
accordance with the terms of the Notes, or, (ii) affect the relative
rights of the Holders and creditors of the Company other than holders
of Senior Debt or, as between the Company and the Trustee, the
obligations of the Company to the Trustee, or (iii) prevent the Trustee
or the Holders from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article VI of the holders of Senior Debt in
respect of cash, property and securities of the Company received upon
the exercise of any such remedy.
Upon distribution of assets of the Company referred to in this
Article VI, the Trustee, subject to the provisions of Section 9.01
hereof, and the Holders shall be entitled to rely upon a certificate of
the liquidating trustee or agent or other Person making any
distribution to the Trustee or to the Holders for the purpose of
ascertaining the Persons entitled to participate in such distribution,
the holders of the Senior Debt and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this
Article VI. The Trustee, however, shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt. Nothing contained in this
Article VI or elsewhere in this Indenture, or in any of the Notes,
shall prevent the good faith application by the Trustee of any moneys
which were deposited with it hereunder, prior to its receipt of written
notice of facts which would prohibit such application, for the purpose
of the payment of or on account of the principal of or interest on, the
Notes unless, prior to the date on which such application is made by
the Trustee, the Trustee shall be charged with notice under Section
6.03(d) hereof of the facts which would prohibit the making of such
application.
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(c) The provisions of this Article VI shall not be applicable
to any cash, properties or securities received by the Trustee or by any
Holder when received as a holder of Senior Debt and nothing in Section
9.11 hereof or elsewhere in this Indenture shall deprive the Trustee or
such Holder of any of its rights as such holder.
(d) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the
making of any payment of money to or by the Trustee in respect of the
Notes pursuant to the provisions of this Article VI. The Trustee,
subject to the provisions of Section 9.01 hereof, shall be entitled to
assume that no such fact exists unless the Company or any holder of
Senior Debt or any trustee therefor has given such notice to the
Trustee. Notwithstanding the provisions of this Article VI or any other
provisions of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any fact which would prohibit the making
of any payment of monies to or by the Trustee in respect of the Notes
pursuant to the provisions in this Article VI, unless, and until three
Business Days after, the Trustee shall have received written notice
thereof from the Company or any holder or holders of Senior Debt or
from any trustee therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 9.01
hereof, shall be entitled in all respects conclusively to assume that
no such facts exist; provided that if on a date not less than three
Business Days immediately preceding the date upon which by the terms
hereof any such monies may become payable for any purpose (including,
without limitation, the principal of or interest on any Note), the
Trustee shall not have received with respect to such monies the notice
provided for in this Section 6.03(d), than anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to 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 prior
date.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a Person representing himself to be a holder of
Senior Debt (or a trustee on behalf of such holder) to establish that
such notice has been given by a holder of Senior Debt (or a trustee on
behalf of any such holder or holders). In the event that the Trustee
determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article VI, the Trustee
may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article VI, and, if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment; nor shall the Trustee be charged with knowledge of the curing
or waiving of any default of the character specified in Section 6.02
hereof or that any event or any condition preventing any payment in
respect of the Notes shall have ceased to exist, unless and until the
Trustee shall have received an Officers' Certificate to such effect.
(e) The provisions of this Section 6.03 applicable to the
Trustee shall also apply to any Paying Agent for the Company.
SECTION 6.04. RELIANCE BY SENIOR DEBT ON SUBORDINATION PROVISIONS.
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Each Holder of any Note by his acceptance thereof acknowledges
and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration for each holder of
any Senior Debt, whether such Senior Debt was created or acquired
before or after the issuance of the Notes, to acquire and continue to
hold, or to continue to hold, such Senior Debt, and such holder of
Senior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Debt. Notice of any default in the
payment of any Senior Debt, except as expressly stated in this Article
VI, and notice of acceptance of the provisions hereof are hereby
expressly waived. Except as otherwise expressly provided herein, no
waiver, forbearance or release by any holder of Senior Debt under such
Senior Debt or under this Article VI shall constitute a release of any
of the obligations or liabilities of the Trustee or Holders of the
Notes provided in this Article VI.
SECTION 6.05. NO WAIVER OF SUBORDINATION PROVISIONS.
Except as otherwise expressly provided herein, no right of any
present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, 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.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to
time, without the consent of, or notice to, the Trustee or the Holders
of the Notes, without incurring responsibility to the Holders of the
Notes and without impairing or releasing the subordination provided in
this Article VI or the obligations hereunder of the Holders of the
Notes to the holders of Senior Debt, do any one or more of the
following: (i) change the manner, place or terms of payment of, or
renew or alter, Senior Debt, or otherwise amend or supplement in any
manner Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise dispose of any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any
manner for the collection of Senior Debt; and (iv) exercise or refrain
from exercising any rights against the Company or any other Person.
SECTION 6.06. TRUSTEE'S RELATION TO SENIOR DEBT.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article VI in respect of any Senior
Debt at any time held by it, to the same extent as any holder of Senior
Debt, and nothing in Section 9.11 hereof or elsewhere in this Indenture
shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and
obligation, as are specifically set forth in this Article VI, 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 owe any fiduciary duty to the holders of Senior Debt but
shall have only such obligations to such holders as are
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expressly set forth in this Article VI; and in no event shall the
Trustee be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of the Notes or to the
Company (or any other Person) amounts to which such holders of Senior
Debt would be entitled under this Article.
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in
this Article VI and appoints the Trustee his attorney-in-fact for any
and all such purposes, including, in the event of any dissolution,
winding up or liquidation or reorganization under any applicable
bankruptcy law of the Company (whether in bankruptcy, insolvency or
receivership proceedings or otherwise), the timely filing of a claim
for the unpaid balance of such Holder's Notes in the form required in
such proceedings and the causing of such claim to be approved. If the
Trustee does not file a claim or proof of debt in the form required in
such proceedings prior to 30 days before the expiration of the time to
file such claims or proofs, then any Holder or holders of Senior Debt
or their representative or representatives shall have the right to
demand, sue for, collect, receive and receipt for the payments and
distributions in respect of the Notes which are required to be paid or
delivered to the holders of Senior Debt as provided in this Article VI
and to file and prove all claims therefore and to take all such other
action in the name of the holders or otherwise, as such holders of
Senior Debt or representative thereof may determine to be necessary or
appropriate for the enforcement of the provisions of this Article VI.
SECTION 6.07. OTHER PROVISIONS SUBJECT HERETO.
Except as expressly stated in this Article VI, notwithstanding
anything contained in this Indenture to the contrary, all the
provisions of this Indenture and the Notes are subject to the
provisions of this Article VI. However, nothing in this Article VI
shall apply to or adversely affect the claims of, or payment, to, the
Trustee pursuant to Section 9.07 hereof. Notwithstanding the foregoing,
the failure to make a payment on account of principal of or interest on
the Notes by reason of any provision of this Article VI shall not be
construed as preventing the occurrence of an Event of Default under
Section 8.01 hereof.
ARTICLE VII
SUCCESSORS
SECTION 7.01. LIMITATION ON MERGER, SALE OR CONSOLIDATION.
The Company may not, directly or indirectly, consolidate with
or merge with or into, or sell, lease or otherwise dispose of all or
substantially all of its assets, on a consolidated basis, whether in a
single transaction or a series of related transactions, to another
person or group of affiliated persons, other than to its Wholly-Owned
Subsidiaries, unless:
(a) either: (i) in the case of a merger or consolidation, the
Company is the surviving entity; or (ii) the resulting, surviving or
transferee entity is a corporation organized under the laws of the
United States, any state thereof or the District of Columbia and
expressly assumes by supplemental indenture all of the Company's
obligations in connection with the Notes and the Indenture; and
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(b) no Default or Event of Default shall exist immediately
before or after giving effect on a pro forma basis to such transaction.
Upon any permitted consolidation or merger or any permitted
sale, lease or other disposition of all or substantially all of the
assets of the Company in accordance with the foregoing, the successor
corporation formed by such consolidation or into which the Company is
merged or to which such sale, lease or other disposition is made, shall
succeed to, and be substituted for, and may exercise every right and
power of, the Company under the Indenture with the same effect as if
such successor corporation had been named therein in the same manner as
the Company is named, and when a successor corporation duly assumes all
of the obligations of the Company pursuant hereto and pursuant to the
Notes, the Company will be released from its obligations under the
Indenture and the Notes, except as to any obligations that arise from
or as a result of such transaction.
For purposes of the foregoing, the transfer, by lease,
assignment, sale or otherwise, of all or substantially all of the
properties and assets of one or more Subsidiaries, which properties and
assets, if held by the Company instead of such Subsidiary, would
constitute all or substantially all of the Company's properties and
assets, shall be deemed to be the transfer of all or substantially all
of the Company's properties and assets. This Section 7.01 will not
apply to a sale, assignment, transfer, conveyance or other disposition
of assets between or among the Company and any of its Wholly-Owned
Subsidiaries.
SECTION 7.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Company undertaken in accordance
with Section 7.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition
is made 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 Person has been named as the Company
herein.
ARTICLE VIII
DEFAULTS AND REMEDIES
SECTION 8.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(a) the Company defaults in the payment of interest on any
Note when the same becomes due and payable and the Default continues
for a period of 30 days after the date due and payable;
(b) the Company defaults in the payment of the principal of
any Note when the same becomes due and payable at maturity, upon
optional redemption, in connection with a Purchase Offer, upon
declaration or otherwise;
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(c) the Company fails to observe or perform for a period of 30
days after notice any covenant or agreement contained in Sections 4.07
and 7.01 hereof (other than, in the case of Section 4.07, a failure to
purchase Notes in connection with a Purchase Offer) hereof;
(d) the Company fails to observe or perform any other covenant
or agreement contained in this Indenture or the Notes, required by it
to be performed and the failure continues for a period of 60 days after
notice from the Trustee to the Company or from the Holders of 25% in
aggregate principal amount of the then outstanding Notes to the Company
and the Trustee stating that such notice is a "Notice of Default";
(e) the failure by the Company or any Significant Subsidiary
to make any payment at final stated maturity, including any applicable
grace period, in respect of its Indebtedness (other than non-recourse
obligations) in an amount in excess of $15 million, and continuance of
such failure for 30 days after written notice is given to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of Notes outstanding.
(f) A default by the company or any Significant Subsidiary
with respect to any of the Company's Indebtedness (other than
non-recourse obligations), which default results in the acceleration of
Indebtedness in an amount in excess of $15 million without such
Indebtedness having been discharged or such acceleration having been
rescinded or annulled for 30 days after written notice is given to the
Company by the Trustee or to us and the Trustee by the Holders of at
least 25% in aggregate principal amount or Notes outstanding.
(g) failure by the Company or any of its Subsidiaries that is
a Significant Subsidiary or any group of two or more Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary to pay
final judgments for the payment of money (other than any judgment as to
which a reputable insurance company has accepted liability subject to
customary terms) aggregating in excess of $5.0 million, which judgments
are not paid, discharged or stayed within 60 days after their entry;
(h) the Company or any of its Subsidiaries that is a
Significant Subsidiary or any group of two or more Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief
against it in an involuntary case in which it is the debtor;
(iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of
its creditors; or
(v) generally is unable to pay its debts as the same
become due; or
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
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(i) is for relief against the Company or any of its
Subsidiaries that is a Significant Subsidiary or any group of two or
more Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company or any of its
Subsidiaries that is a Significant Subsidiary or any group of two or
more Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary or for all or substantially all of its property;
(iii) orders the liquidation of the Company or any of its
Subsidiaries that is a Significant Subsidiary or any group of two or
more Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, and the order or decree remains unstayed and in
effect for 60 days.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors or the protection of
creditors. The term "CUSTODIAN" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
SECTION 8.02. ACCELERATION.
If an Event of Default (other than an Event of Default
specified in clauses (g) or (h) of Section 8.01 hereof) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at
least 25% in principal amount of the then outstanding Notes by notice
to the Company and the Trustee, may declare all the Notes to be due and
payable. Upon such declaration, the principal of, premium, if any, and
interest on the Notes shall be due and payable immediately. If an Event
of Default specified in clause (g) or (h) of Section 8.01 hereof
occurs, such an amount shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the
Trustee or any Holder.
If the Notes have been declared due and payable as a result of
the acceleration of Indebtedness prior to its express maturity pursuant
to Section 8.01(e)(ii), such declaration shall be automatically
rescinded if the acceleration of such indebtedness has been rescinded
or annulled within 30 days after such acceleration in accordance with
the mortgage, indenture or instrument under which it was issued and if
(i) the recission would not conflict with any judgment or decree of a
court of competent jurisdiction and (ii) all existing Events of Default
have been cured or waived except nonpayment of principal or interest on
the Notes that has become due solely because of the acceleration of the
Notes.
Except as otherwise provided in the immediately preceding
paragraph, the Holders of a majority in principal amount of the then
outstanding Notes by notice to the Trustee may rescind an acceleration
and its consequences (i) if the recission would not conflict with any
judgment or decree of a court of competent jurisdiction and (ii) if all
existing Events of Default have been cured or waived except nonpayment
of principal or interest on the Notes that has become due solely
because of the acceleration of the Notes.
SECTION 8.03. OTHER REMEDIES.
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If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal or
interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to
the extent permitted by law.
SECTION 8.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of all of the
Holders of the Notes waive an existing Default or Event of Default and
its consequences except a continuing Default or Event of Default in the
payment of the principal of or interest on any Note. When a Default or
Event of Default is waived, it is cured and ceases; but no such waiver
shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 8.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then
outstanding Notes may 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 it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, is
unduly prejudicial to the rights of other Holders, or would involve the
Trustee in personal liability.
SECTION 8.06. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder gives to the Trustee notice of a continuing
Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a request to the Trustee to pursue the
remedy;
(c) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another
Holder.
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SECTION 8.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, and
interest on the Note, on or after the respective due dates expressed in
the Note, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
SECTION 8.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 8.01(a) or (b),
hereof occurs and is continuing, the Trustee may recover judgment in
its own name and as trustee of an express trust against the Company for
the whole amount of principal and interest remaining unpaid on the
Notes and interest on overdue principal and interest and such further
amount as shall be sufficient to cover the costs and, to the extent
lawful, expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
SECTION 8.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee and the Holders allowed in any judicial proceedings
relative to the Company, its creditors or its property. Nothing
contained herein shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder 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 in any such proceeding.
SECTION 8.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 9.07
hereof;
Second: to the holders of Senior Debt, if and to the extent
required by Article VI;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest (and Special Interest, if applicable), ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal and interest, respectively;
and
Fourth: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders made pursuant to this Section 8.10.
SECTION 8.11. UNDERTAKING FOR COSTS.
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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
or omitted by it as a Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This
Section 8.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 8.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE IX
TRUSTEE
SECTION 9.01. DUTIES OF TRUSTEE.
(a) If 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.
(b) Except during the continuance of an Event of Default: (i)
the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others and (ii) 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. However, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform on their face to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that: (i) this paragraph does not limit the effect
of paragraph (b) of this Section 9.01; (ii) the Trustee shall not be
liable for any error of judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts and (iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 8.05 hereof.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section 9.01.
(e) The Trustee may refuse to perform any duty or exercise any
right or power (including, without limitation, as requested or directed
by a Holder) unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
SECTION 9.02. RIGHTS OF TRUSTEE.
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(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers.
(e) The Trustee shall not be charged with knowledge of any
Event of Default under subsections (c), through (i) (and subsection (a)
or (b) if the Trustee does not act as Paying Agent) of Section 8.01 or
of the identity of any Significant Subsidiary or of any group of two or
more Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary unless either (1) a Trust Officer of the Trustee
assigned to its corporate trust department shall have actual knowledge
thereof, or (2) the Trustee shall have received written notice thereof
in accordance with Section 12.02 hereof from the Company or any Holder.
(f) The grant of any permissive rights, power or authority
hereunder to the Trustee shall not be construed to be a duty.
SECTION 9.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company
or an Affiliate with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 9.10 and 9.11 hereof.
SECTION 9.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable
for the Company's use of the proceeds from the Notes, and it shall not
be responsible for any statement of the Company in the Indenture or any
statement in the Notes other than its authentication or for compliance
by the Company with the Registration Rights Agreement.
SECTION 9.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders a
notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment
on any Note, the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Holders.
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SECTION 9.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after the reporting date stated in Section
12.10, the Trustee shall mail to Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a) if and to the
extent required by such Section 313(a). The Trustee also shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to Holders
shall be filed with the SEC and each stock exchange on which the Notes
are listed. The Company shall notify the Trustee when the Notes are
listed on any stock exchange.
SECTION 9.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services hereunder as to which the
Company and the Trustee shall from time to time mutually agree in
writing. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements,
expenses and advances incurred or made by it. Such disbursements and
expenses may include the reasonable disbursements, compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any claims,
demands, expenses (including but not limited to reasonable
compensation, fees, disbursements and expenses of the Trustee's agents
and counsel), losses, damages or liabilities incurred by it, except as
set forth in the next paragraph, arising out of, related to, or in
connection with the acceptance or administration of this trust and its
rights or duties hereunder, including the reasonable costs and
expenses, and the costs and expenses of enforcing this Indenture
(including this Section 9.07) against the Company and of defending
itself against any claim (whether asserted by the Company, or any
Holder or any other person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim for which it may
seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees, disbursements and
expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably
withheld.
The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through the
Trustee's negligence or bad faith.
To secure the Company's payment obligations in this Section
9.07, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee, except money or property
held in trust to pay principal and interest on particular Notes.
Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders
services after an Event of Default specified in Section 8.01(h) or (i)
hereof occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy
Law.
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All amounts owing to the Trustee under this Section 9.07 shall
be payable by the Company in United States dollars.
SECTION 9.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 9.08.
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 9.10 hereof,
unless the Trustee's duty to resign is stayed as provided in TIA
Section 310(b);
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of
the then outstanding Notes may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least 10% in principal amount of the
then outstanding Notes may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 9.10 hereof,
unless the Trustee's duty to resign is stayed as provided in TIA
Section 310(b), any Holder who has been a bona fide Holder of a Note
for at least six months may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective,
and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 9.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section
9.08 hereof, the Company's obligations under Section 9.07 hereof shall
continue for the benefit of the retiring trustee with respect to
expenses and liabilities incurred by it prior to such replacement.
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SECTION 9.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business
(including the administration of this Indenture) to, another
corporation, the successor corporation without any further act shall be
the successor Trustee.
SECTION 9.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (5). The Trustee shall always
have a combined capital and surplus as stated in Section 12.10 hereof.
The Trustee is subject to TIA Section 310(b).
SECTION 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE X
DISCHARGE OF INDENTURE
SECTION 10.01. TERMINATION OF COMPANY'S OBLIGATIONS.
This Indenture shall cease to be of further effect (except
that the Company's obligations under Sections 9.07 and 10.02 hereof
shall survive) when all outstanding Notes theretofore authenticated and
issued have been delivered to the Trustee for cancellation and the
Company has paid all sums payable hereunder.
SECTION 10.02. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the
Company upon request any excess money or securities held by them at any
time.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest
that remains unclaimed for two years after the date upon which such
payment shall have become due (subject to the requirements of any
abandoned property laws that may be applicable); provided, however,
that the Company shall have first caused notice of such payment to the
Company to be mailed to each Holder entitled thereto no less than 30
days prior to such payment. After payment to the Company, the Trustee
and the Paying Agent shall have no further liability with respect to
such money and Holders entitled to the money must look to the Company
for payment as general creditors unless any applicable abandoned
property law designates another Person.
ARTICLE XI
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 11.01. WITHOUT CONSENT OF HOLDERS.
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The Company and the Trustee may amend or supplement this
Indenture or the Notes without the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Sections 5.12 and 7.01 hereof;
(c) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(d) to make any change that provides additional rights or
benefits to the Holders of the Notes;
(e) to make any change that does not adversely affect the
interests hereunder of any Holder; or
(f) to qualify the Indenture under the TIA or to comply with
the requirements of the SEC in order to maintain the qualification of
the Indenture under the TIA.
SECTION 11.02. WITH CONSENT OF HOLDERS.
Subject to Section 8.07 hereof, the Company and the Trustee
may amend or supplement this Indenture or the Notes with the written
consent of the Holders of at least a majority in principal amount of
the then outstanding Notes. Subject to Sections 8.04 and 8.07 hereof,
the Holders of a majority in principal amount of the Notes then
outstanding may also waive compliance in a particular instance by the
Company with any provision of this Indenture or the Notes. However,
without the consent of each Holder affected, an amendment, supplement
or waiver under this Section 11.02 may not:
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter the provisions of Section 7 of the Notes in a manner
adverse to the Holders;
(c) reduce the rate of or change the time for payment or
accrual of interest on any Note;
(d) waive a continuing default or Event of Default in the
payment of the principal of or interest on any Note, except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration;
(e) make any Note payable in money other than that stated in
the Note;
(f) make any change in Section 8.04 or 8.07 hereof;
(g) waive a redemption payment with respect to any Note;
(h) impair the right to convert the Notes into Common Stock;
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<PAGE> 56
(i) modify Article V or VI in a manner adverse to the Holders
of Notes; and
(j) make any change in the foregoing amendment and waiver
provisions of this Article XI.
To secure a consent of the Holders under this Section 11.02,
it shall not be necessary for the Holders to approve the particular
form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section
11.02 becomes effective, the Company shall mail to Holders a notice
briefly describing the amendment or waiver.
SECTION 11.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Notes shall be set
forth in a supplemental indenture that complies with the TIA as then in
effect.
SECTION 11.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the
Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if
notation of the consent is not made on any Note. However, any such
Holder or subsequent Holder may revoke the consent as to his Note or
portion of a Note if the Trustee receives the notice of revocation
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Notes
have consented to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to
any amendment, supplement or waiver. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph,
those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be
Holders after such record date. No consent shall be valid or effective
for more than 90 days after such record date unless consents from
Holders of the principal amount of Notes required hereunder for such
amendment or waiver to be effective shall have also been given and not
revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective it
shall bind every Holder, unless it is of the type described in any of
clauses (a) through (j) of Section 11.02 hereof. In such case, the
amendment or waiver shall bind each Holder who has consented to it and
every subsequent Holder that evidences the same debt as the consenting
Holder's Note.
SECTION 11.05. NOTATION ON OR EXCHANGE OF NOTES.
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<PAGE> 57
The Trustee may place an appropriate notation about an
amendment or waiver on any Note thereafter authenticated. The Company
in exchange for all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment or waiver.
Failure to make such notation on a Note or to issue a new Note
as aforesaid shall not affect the validity and effect of such amendment
or waiver.
SECTION 11.06. TRUSTEE PROTECTED.
The Trustee shall sign all supplemental indentures, except
that the Trustee may, but need not, sign any supplemental indenture
that adversely affects its rights, obligations or protections. Upon
request by the Company to sign any amendment or supplement, the Trustee
shall be entitled to request and receive from the Company, and to rely
upon, an Opinion of Counsel and Officer's Certificate to the effect
that such supplement or amendment is authorized or permitted under this
Article XI.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
This Indenture is subject to the provisions of the TIA that
are required to be incorporated into this Indenture (or, prior to the
registration of the Notes pursuant to the Registration Rights
Agreement, would be required to be incorporated into this Indenture if
it were qualified under the TIA), and shall, to the extent applicable,
be governed by such provisions. If any provision of this Indenture
limits, qualifies, or conflicts with another provision which is
required (or would be so required) to be incorporated in this Indenture
by the TIA, the incorporated provision shall control.
SECTION 12.02. NOTICES.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in Person or mailed
by first class mail to the other's address stated in Section 12.10
hereof. The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or
communications.
Any notice or communication to a Holder shall be mailed by
first class mail to his address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
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In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any
notice as required by the Indenture, then such method of notification
as shall be made with the approval of the Trustee shall constitute a
sufficient mailing of such notice.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to
the Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than
pursuant to Section 4.03) shall include:
(a) a statement that the Person signing such certificate or
rendering such opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by, or a
meeting of, Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 12.07. LEGAL HOLIDAYS.
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<PAGE> 59
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which
banking institutions in the State of New York are not required to be
open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening
period. If any other operative date for purposes of this Indenture
shall occur on a Legal Holiday then for all purposes the next
succeeding day that is not a Legal Holiday shall be such operative
date.
SECTION 12.08. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, incorporator or shareholder of
the Company, as such, shall not have any liability for any Obligations
of the Company under the Notes or this Indenture or for any claim based
on, in respect of or by reason of such Obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issue of
the Notes.
SECTION 12.09. COUNTERPARTS AND FACSIMILE SIGNATURES.
This Indenture may be executed by manual or facsimile
signature in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 12.10. VARIABLE PROVISIONS.
The first certificate pursuant to Section 4.03 hereof shall be
for the fiscal year ended on December 31, 2001.
The reporting date for Section 9.06 hereof is September 15, of
each year. The first reporting date is September 15, 2000.
The Trustee shall always have a combined capital and surplus
of at least $100,000,000 as set forth in its most recent published
annual report of condition.
The Company's address is:
Akamai Technologies, Inc.
500 Technology Square
Cambridge, Massachusetts 02139
Attention: General Counsel
The Trustee's address is:
if by mail:
State Street Bank and Trust Company
P. O. Box 778
Boston, Massachusetts 02102-0778
Attention: Corporate Trust Administration
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<PAGE> 60
if by delivery or overnight courier:
State Street Bank and Trust Company
Two Avenue de Lafayette
Boston, Massachusetts 02110-1724
Attention: Corporate Trust Administration
SECTION 12.11. GOVERNING LAW, SUBMISSION TO JURISDICTION.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
INDENTURE AND THE NOTES, WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
To the extent permitted by applicable law, the Company
irrevocably submits to the nonexclusive jurisdiction of any federal or
state court in the Borough of Manhattan, City and State of New York,
United States of America, in any suit or proceeding based on or arising
under this Indenture and the Notes and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any
such court. The Company irrevocably and fully waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding. The
Company hereby irrevocably designates and appoints CT Corporation
System as the authorized agent of the Company upon whom process may be
served in any such suit or proceeding (the "PROCESS AGENT"), it being
understood that the designation and appointment of the Process Agent as
such authorized agent shall become effective immediately without any
further action on the part of the Company. The Company represents to
the Trustee that it has notified the Process Agent of such designation
and appointment and that the Process Agent has accepted the same. The
Company hereby irrevocably authorizes and directs the Process Agent to
accept such service. The Company further agrees that service of process
upon the Process Agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding.
Nothing herein shall affect the right of the Trustee or any Holder to
serve process in any other manner permitted by law. In the event that
CT Corporation System ceases to be the Process Agent, the Company
agrees that it will take any and all action, including the execution
and filing of any and all such documents and instruments as may be
necessary to validly designate and appoint an alternate agent as
Process Agent, and to maintain such designation and appointment in full
force and effect so long as the Company has any outstanding obligations
under this Indenture or the Notes, on terms that are reasonably
acceptable to the Trustee. To the extent that the Company has or
hereafter may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, the Company hereby
irrevocably waives such immunity in respect of its obligations
hereunder and thereunder, to the extent permitted by law.
SECTION 12.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or an Affiliate. Any such
indenture, loan or debt agreement may not be used to interpret this
Indenture.
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SECTION 12.13. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes
shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 12.14. SEVERABILITY.
In case any provision in this Indenture or in 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 12.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table, and headings of
the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof,
and shall in no way modify or restrict any of the terms or provisions
hereof.
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<PAGE> 62
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
AKAMAI TECHNOLOGIES, INC. as Company
By:
-----------------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
--------------------------------------------
Name:
Title:
58
<PAGE> 63
EXHIBIT A
AKAMAI TECHNOLOGIES, INC.
[GLOBAL NOTES LEGEND]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[RESTRICTED NOTES LEGEND]
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE HEREOF. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB")
OR (B) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C)
IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT);
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(B)
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<PAGE> 64
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF
THE SECURITIES ACT, (E) 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
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE
FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF THE
COMPANY SO REQUESTS, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
ON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THE LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING.
A-2
<PAGE> 65
AKAMAI TECHNOLOGIES, INC.
5 -1/2% CONVERTIBLE SUBORDINATED NOTE DUE 2007
RULE 144A GLOBAL NOTE
No. R-1 CUSIP No. _______
$________________
Akamai Technologies, Inc., a Delaware corporation (hereinafter called
the "Company", which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of ___________________ dollars
($___________), on ______________, 2007.
Interest Payment Dates: July 1 and January 1: commencing January 1,
2001.
Record Dates: June 15 and December 15.
Reference is made to the further provisions of this Note hereinafter
set forth, which will, for all purposes, have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
AKAMAI TECHNOLOGIES, INC.,
a Delaware corporation
[Seal]
By: ____________________________
Name:
Title:
Attest: ____________
Secretary
A-3
<PAGE> 66
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
State Street Bank and Trust Company,
as Trustee
By: ____________________________________
Name:
Authorized Signatory
Dated: ___________________
A-4
<PAGE> 67
5 -1/2% CONVERTIBLE SUBORDINATED NOTE DUE 2007
RULE 144A GLOBAL NOTE
1. INTEREST. AKAMAI TECHNOLOGIES, INC., a Delaware corporation (the
"COMPANY"), is the issuer of 5 -1/2% Convertible Subordinated Notes due 2007
(the "Notes"). The Notes will accrue interest at a rate of 5 -1/2% per annum.
The Company promises to pay interest on the Notes in cash semiannually on each
July 1 and January 1, commencing on January 1, 2001, to Holders of record on the
immediately preceding June 15 and December 15, respectively. Interest on the
Notes will accrue from the most recent date to which interest has been paid, or
if no interest has been paid, from June 20, 2000. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. The Company will pay
interest on overdue principal at the interest rate borne by the Notes,
compounded semiannually, and, to the extent permitted by law, it shall pay
interest on overdue installments of interest (without regard to any applicable
grace period) at the same interest rate compounded semiannually.
2. REGISTRATION RIGHTS. The holder of this Note (and the Common Stock
issuable upon conversion hereof) is entitled to the benefits of a Registration
Rights Agreement, dated as of June 20, 2000, among the Company and the Initial
Purchasers (the "REGISTRATION RIGHTS AGREEMENT"). Pursuant to the Registration
Rights Agreement the Company has agreed for the benefit of the holders of
Transfer Restricted Securities, that (i) it will, at its cost, within 90 days
after the closing of the sale of the Notes (the "CLOSING"), file a shelf
registration statement (the "SHELF REGISTRATION STATEMENT") with the Securities
and Exchange Commission (the "COMMISSION") with respect to resales of the Notes
and the Common Stock issuable upon conversion thereof, (ii) it will use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective within 180 days after the Closing, and (iii) it will use its
reasonable best efforts to keep such Shelf Registration Statement continuously
effective under the Securities Act, subject to certain exceptions specified in
the Registration Rights Agreement, until the second anniversary of the date of
the Closing. If (a) the Company fails to file the Shelf Registration Statement
required by the Registration Rights Agreement on or before the date specified
above for such filing, (b) such Shelf Registration Statement is not declared
effective by the Commission on or prior to the date specified above for such
effectiveness, or (c) the Shelf Registration Statement is declared effective but
thereafter ceases to be effective or useable in connection with resales of
Transfer Restricted Securities during the periods specified in the Registration
Rights Agreement without being succeeded immediately by a post-effective
amendment to such Shelf Registration Statement that cures such failure and is
itself declared effective immediately (each such event referred to in clauses
(a) through (c) above a "REGISTRATION DEFAULT"), then the Company will pay
special interest to each Holder of Transfer Restricted Securities as described
below. Notwithstanding the foregoing, as set forth in the Registration Rights
Agreement, the Company will be permitted to suspend use of the prospectus that
is part of the Shelf Registration Statement during certain periods of time and
in certain circumstances relating to pending corporate developments and public
filings with the SEC and similar events, and such a suspension shall not be
deemed a Registration Default provided it does not last in excess of 60 days in
the aggregate during any 12-month period. With respect to the first 90-day
period immediately following the occurrence of a Registration Default, the
Company shall pay special interest to each Holder of Transfer Restricted
Securities in an amount equal to an increase in the annual interest rate on the
Notes of 0.25%
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<PAGE> 68
("SPECIAL INTEREST") and with respect to each subsequent 90-day period,
additional amounts equal to an increase in the annual interest rate on the Notes
of 0.25% until all Registration Defaults have been cured, up to a maximum
increase in the annual interest rate on the Notes equal to 1.0%. In the event
that this Note, or any portion thereof, shall have been converted into shares of
Common Stock pursuant to Section 12 hereof, the amount payable under this
Section 2 per share of Common Stock so converted shall be determined by dividing
(x) the amount that would have been payable hereunder on the aggregate principal
amount so converted by (y) the number of shares of Common Stock issued upon such
conversion. All accrued Special Interest shall be paid by the Company on each
Interest Payment Date for which Special Interest is owed to the holders of
Transfer Restricted Securities by wire transfer of immediately available funds
or by federal funds check. Following the cure of all Registration Defaults, the
application of Special Interest will cease. THE PROVISIONS OF THIS SECTION 2
SHALL SURVIVE ANY CONVERSION OF THE NOTES INTO SHARES OF COMMON STOCK PURSUANT
TO SECTION 12 HEREOF, AND MAY BE ENFORCED BY THE HOLDER OF COMMON STOCK ISSUED
UPON CONVERSION OF THIS NOTE.
3. PAYMENTS. All payments made by the Company on this Note shall be
made without deduction or withholding for or on account of, any and all present
or future taxes, duties, assessments, or governmental charges of whatever nature
unless the deduction or withholding of such taxes, duties, assessments or
government charges is then required by law.
4. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date for the next interest payment date
even though Notes are canceled after the record date and on or before the
interest payment date. Holders must surrender Notes to a Paying Agent to collect
principal and premium payments. The Company will pay principal, premium, if any,
interest, and Special Interest, if any, in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal, premium, if any, interest and Special
Interest, if any, by check payable in such money. It may mail an interest or
Special Interest check to a Holder's registered address. Upon the request of a
Holder who holds an aggregate principal amount of at least $5.0 million,
principal, premium, if any, interest, and Special Interest, if any, shall be
paid by wire transfer of immediately available funds to an account previously
specified in writing by such Holder to the Company and the Trustee.
5. PAYING AGENT, CONVERSION AGENT AND REGISTRAR. The Trustee will act
as Paying Agent, Conversion Agent and Registrar and will maintain an office or
agency in the City of New York, New York at which the notes may be presented for
payment, transfer or exchange. The Company may change any Paying Agent,
Conversion Agent or Registrar without prior notice. The Company or any of its
Affiliates may act in any such capacity.
6. INDENTURE. The Company issued the Notes under an Indenture, dated as
of June 20, 2000 (the "INDENTURE"), between the Company and State Street Bank
and Trust Company, as Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA") as in
effect on the date of the Indenture. The Notes are subject to, and qualified by,
all such terms, certain of which are summarized hereon, and Holders are referred
to the Indenture and such Act for a statement of such terms. The Notes are
unsecured general obligations of the Company limited to
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<PAGE> 69
$300,000,000 in aggregate principal amount and subordinated in right of payment
to all existing and future Senior Debt of the Company.
7. REDEMPTION. At any time on or after July 3, 2003 the Company may
redeem any portion of the Notes, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount thereof), together with accrued and unpaid interest and Special
Interest thereon to, but excluding, the applicable redemption date. If redeemed
during the period beginning July 3, 2003 and ending on June 30, 2004, the
redemption price shall be 103.143%, and if redeemed during the 12-month period
commencing on July 1 of each of the following years, up to the maturity date the
redemption price shall be the corresponding percentage of principal set forth
below:
<TABLE>
<CAPTION>
Period Redemption Price
------ ----------------
<S> <C>
July 1, 2004 - June 30, 2005 ......................................... 102.357%
July 1, 2005 - June 30, 2006 ......................................... 101.571%
July 1, 2006 - June 30, 2007 ......................................... 100.786%
July 1, 2007 ......................................................... 100.000%
</TABLE>
In the event the Company redeems less than all of the outstanding
Notes, the Notes to be redeemed shall be selected by the Trustee in accordance
with Section 3.02 of the Indenture. In the event a portion of an outstanding
Note is selected for redemption and such Note is converted in part after such
selection, the converted portion of such Note shall be deemed (so far as may be)
to be the portion to be selected for redemption in accordance with Section 3.02
of the Indenture. The Company may not give notice of any redemption if the
Company has defaulted in payment of interest and the default is continuing.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder of
the Notes to be redeemed at his address of record. The Notes in denominations
larger than $1,000 may be redeemed in part but only in integral multiples of
$1,000. In the event of a redemption of less than all of the Notes, the Notes
will be chosen for redemption by the Trustee in accordance with the Indenture.
On and after the redemption date, interest ceases to accrue on the Notes or
portions of them called for redemption.
If this Note is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest will be paid to the Person in whose name
this Note is registered at the close of business on such record date.
9. MANDATORY REDEMPTION. The Company will not be required to make
mandatory redemption or repurchase payments with respect to the Notes. There are
no sinking fund payments with respect to the Notes.
10. REPURCHASE AT OPTION OF HOLDER. If there is a Fundamental Change,
the Company shall be required to offer to purchase on the Purchase Date all
outstanding Notes at a purchase price equal to 100% of the aggregate principal
amount thereof, plus accrued and unpaid interest and Special Interest, if any,
to the Purchase Date. Holders of Notes that are subject to an offer to purchase
will receive a Fundamental Change Offer from the Company in accordance with
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<PAGE> 70
Section 3.09 of the Indenture and may elect to have such Notes or portions
thereof in authorized denominations purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
11. SUBORDINATION. The payment of the principal of, interest on,
Special Interest or any other amounts due on the Notes is subordinated in right
of payment to all existing and future Senior Debt of the Company, as described
in the Indenture. Each Holder, by accepting a Note, agrees to such subordination
and authorizes and directs the Trustee on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee as its attorney-in-fact for such purpose.
12. CONVERSION. The holder of any Note has the right, exercisable at
any time following the Issuance Date and prior to the close of business (New
York time) on the date of the Note's maturity, to convert the principal amount
thereof (or any portion thereof that is an integral multiple of $1,000) into
shares of Common Stock at the initial Conversion Price of $115.47 per share,
subject to adjustment under certain circumstances as set forth in the Indenture,
except that if a Note is called for redemption, the conversion right will
terminate at the close of business on the Business Day immediately preceding the
date fixed for redemption.
To convert a Note, a holder must (1) complete and sign a conversion
notice substantially in the form set forth below, (2) surrender the Note to a
Conversion Agent, (3) furnish appropriate endorsements or transfer documents if
required by the Registrar or Conversion Agent and (4) pay any transfer or
similar tax, if required. No payment or adjustment will be made for accrued and
unpaid interest on a converted Note, but if any holder surrenders a Note for
conversion after the close of business on the record date for the payment of an
installment of interest and prior to the opening of business on the next
interest payment date, then, notwithstanding such conversion, the interest
payable on such interest payment date shall be paid to the holder of such Note
on such record date. Any Notes that are, however, delivered to the Company for
conversion after any record date but before the next interest payment date must,
except as described in the next sentence, be accompanied by a payment equal to
the interest payable on such interest payment date on the principal amount of
such Notes being converted. Payments to the Company described in the preceding
sentence shall not be required if, during that period between a record date and
the next interest payment date, a conversion occurs on or after the date that
the Company has issued a redemption notice and prior to the date of redemption
stated in such notice. If any Notes are converted after an interest payment date
but on or before the next record date, no interest will be paid on those Notes.
The number of shares issuable upon conversion of a Note is determined by
dividing the principal amount of the Note converted by the Conversion Price in
effect on the Conversion Date. No fractional shares will be issued upon
conversion but a cash adjustment will be made for any fractional interest.
A note in respect of which a holder has delivered an "Option of Holder
to Elect Purchase" form appearing below exercising the option of such holder to
require the Company to purchase such Note may be converted only if the notice of
exercise is withdrawn as provided above and in accordance with the terms of the
Indenture. The above description of conversion of the Notes is qualified by
reference to, and is subject in its entirety by, the more complete description
thereof contained in the Indenture.
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<PAGE> 71
13. DENOMINATIONS, TRANSFER, EXCHANGE. The notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered, and Notes may be exchanged, as
provided in the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption (except the unredeemed portion of any Note being
redeemed in part). Also, it need not exchange or register the transfer of any
Note for a period of 15 days before a selection of Notes to be redeemed.
14. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
15. UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, Holders of Notes
entitled to the money must look to the Company for payment unless an abandoned
property law designates another Person and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
16. DEFAULTS AND REMEDIES. The Notes shall have the Events of Default
set forth in Section 8.01 of the Indenture. Subject to certain limitations in
the Indenture, if an Event of Default occurs and is continuing, the Trustee by
notice to the Company or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes by notice to the Company and the Trustee
may declare all the Notes to be due and payable immediately, except that in the
case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization, all unpaid principal and interest accrued on the
Notes shall become due and payable immediately without further action or notice.
The Holders of a majority in principal amount of the Notes then outstanding by
written notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes issued under the Indenture may direct the
Trustee in its exercise of any trust or power. The Company must furnish annually
compliance certificates to the Trustee. The above description of Events of
Default and remedies is qualified by reference, and subject in its entirety, to
the more complete description thereof contained in the Indenture.
17. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for Notes), and any existing default may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes. Without
the consent of any Holder, the Indenture or the Notes may be amended, among
other reasons, to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for assumption of the Company's obligations to Holders, to make any
change that does not adversely affect the rights of any Holder or to qualify the
Indenture under the TIA or to comply with the requirements of the SEC in order
to maintain the qualification of the Indenture under the TIA.
A-9
<PAGE> 72
18. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual
or any other capacity may become the owner or pledgee of the Notes and may
otherwise deal with the Company or an Affiliate with the same rights it would
have, as if it were not Trustee, subject to certain limitations provided for in
the Indenture and in the TIA. Any Agent may do the same with like rights.
19. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or shareholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Notes.
20. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
21. AUTHENTICATION. The Notes shall not be valid until authenticated by
the manual signature of an authorized officer of the Trustee or an
authenticating agent.
22. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and UGMA (= Uniform Gifts to
Minors Act).
The Company will furnish to any Holder of the Notes upon written
request and without charge a copy of the Indenture. Request may be made to:
Akamai Technologies, Inc.
500 Technology Square
Cambridge, Massachusetts 02139
Attention: General Counsel
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<PAGE> 73
ASSIGNMENT FORM
TO ASSIGN THIS NOTE, FILL IN THE FORM BELOW:
I. ASSIGNMENT
I, or we, assign this Note to:
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
________________________________________________________________________________
(Please insert Social Security or other identifying number of assignee)
________________________________________________________________________________
and irrevocably appoint _______________ agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
Dated:_______________________ Signed:________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Print Name:____________________________________
Signature Guarantee:*__________________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
II. TRANSFEROR REPRESENTATIONS
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of the
date of original issuance of such Notes and the last date, if any, on which such
Notes were owned by the Company or any Affiliate of the company, the undersigned
confirms that such Notes are being transferred:
A-11
<PAGE> 74
CHECK ONE BOX BELOW
(1) [ ] to the Company or any subsidiary thereof (attach Restricted Transfer
Certificate),
(2) [ ] to a qualified institutional buyer in compliance with Rule 144A (attach
Rule 144A Transfer Certificate),
(3) [ ] outside the United States in compliance with Rule 904 under the
Securities Act (attach Regulation S Transfer Certificate),
(4) [ ] pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available) (attach Restricted Transfer
Certificate),
(5) [ ] to an institutional "accredited investor" (as defined in rule
501(a)(1), (2), (3), or (7) under the Securities Act (attach Accredited
Investor Letter),
(6) [ ] in accordance with another exemption from the registration requirements
of the Securities Act (attach legal opinion), or
(7) [ ] pursuant to an effective registration statement under the Securities
Act.
CHECK IF APPLICABLE
[ ] (A) The undersigned represents and warrants that it is, or at some time
during which it held this Security was, an Affiliate of the Company.
(B) If (A) above is checked and if the undersigned was not an Affiliate of
the Company at all times during which it held this Note, indicate the
periods during which the undersigned was an Affiliate of the Company:
(C) If (A) above is checked and if the Transferee will not pay the full
purchase price for the transfer of this Note on or prior to the date of
transfer, indicate when such purchase price will be paid:
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<PAGE> 75
THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM (A) IS
CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS NOT NOR
HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS NOTE AN AFFILIATE, AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE COMPANY.
________________________________________
(Signature)
Signature Guarantee*____________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
III. TRANSFEREE REPRESENTATIONS
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:___________________ Signed:_____________________________
Name:
NOTICE: To be executed by an executive
Officer
A-13
<PAGE> 76
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED
The undersigned represents and warrants that it is not a "U.S. Person"
(as defined in Regulation S under the Securities Act of 1933, as amended).
Dated:___________________ Signed:_____________________________
Name:
NOTICE: To be executed by an executive
Officer
A-14
<PAGE> 77
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 3.09 or Section 4.07 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 3.09 or Section 4.07 of the Indenture, state the amount you
want to be purchased (in denominations of $1,000 or any integral multiple
thereof):
$_______________
Dated: _______________________ Signed: ________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:*___________________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
ELECTION TO CONVERT
To: Akamai Technologies, Inc.
The undersigned owner of this Note hereby irrevocably exercise
the option to convert this Note, or the portion below designated, into
Common Stock of Akamai Technologies, Inc. in accordance with the terms
of the Indenture referred to in this Note, and directors that the
shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been
indicated in the assignment below. If the shares 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.
Any holder of Notes, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Note, agrees to be
bound by the terms of the Registration Rights Agreement relating to the
Common Stock issuable upon conversion of the Notes.
Date:
In Whole [ ] In Part [ ] as follows:
Portions of Note to be converted
($1,000 or integral multiples
thereof): $____________
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<PAGE> 78
_______________________________
Signature
Please print or Typewrite Name and Address, Including Zip code, and Social
Security or Other Identifying Number:
________________________________
________________________________
________________________________
Signature Guarantee:*___________
* Signature must be guaranteed by a commercial bank, trust company or
member firm of the New York Stock Exchange
A-16
<PAGE> 79
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Global Note shall be $ . The following
increases or decreases in the principal amount of this Global Note have been
made:
<TABLE>
<CAPTION>
Amount of decrease Signature of authorized
in principal Amount of increase Signature of authorized officer
amount of this in principal amount Principal amount of officer of Trustee or of Trustee or
Global Note of this Global Note this Global Note Notes Custodian Securities Custodian
------------------ ------------------- ------------------- ----------------------- -----------------------
<S> <C> <C> <C> <C>
</TABLE>
A-17
<PAGE> 80
AKAMAI TECHNOLOGIES, INC.
5 -1/2% CONVERTIBLE SUBORDINATED NOTE DUE 2007
REGULATION S GLOBAL NOTE
No. S-1 CUSIP No._________
$_________________
Akamai Technologies, Inc., a Delaware corporation (hereinafter called
the "Company", which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of ___________________ dollars
($___________), on ______________, 2007.
Interest Payment Dates: July 1 and January 1: commencing January 1,
2001.
Record Dates: June 15 and December 15.
Reference is made to the further provisions of this Note hereinafter
set forth, which will, for all purposes, have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
AKAMAI TECHNOLOGIES, INC.,
a Delaware corporation
[Seal]
By: ________________________________
Name:
Title:
Attest: ____________
Secretary
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<PAGE> 81
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
State Street Bank and Trust Company,
as Trustee
By:__________________________________
Name:
Authorized Signatory
Dated:___________________
A-19
<PAGE> 82
5 -1/2% CONVERTIBLE SUBORDINATED NOTE DUE 2007
REGULATION S GLOBAL NOTE
1. INTEREST. AKAMAI TECHNOLOGIES, INC., a Delaware corporation (the
"COMPANY"), is the issuer of 5 -1/2% Convertible Subordinated Notes due 2007
(the "Notes"). The Notes will accrue interest at a rate of 5 -1/2% per annum.
The Company promises to pay interest on the Notes in cash semiannually on each
July 1 and January 1, commencing on January 1, 2001, to Holders of record on the
immediately preceding June 15 and December 15, respectively. Interest on the
Notes will accrue from the most recent date to which interest has been paid, or
if no interest has been paid, from June 20, 2000. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. The Company will pay
interest on overdue principal at the interest rate borne by the Notes,
compounded semiannually, and, to the extent permitted by law, it shall pay
interest on overdue installments of interest (without regard to any applicable
grace period) at the same interest rate compounded semiannually.
2. REGISTRATION RIGHTS. The holder of this Note (and the Common Stock
issuable upon conversion hereof) is entitled to the benefits of a Registration
Rights Agreement, dated as of June 20, 2000, among the Company and the Initial
Purchasers (the "REGISTRATION RIGHTS AGREEMENT"). Pursuant to the Registration
Rights Agreement the Company has agreed for the benefit of the holders of
Transfer Restricted Securities, that (i) it will, at its cost, within 90 days
after the closing of the sale of the Notes (the "CLOSING"), file a shelf
registration statement (the "SHELF REGISTRATION STATEMENT") with the Securities
and Exchange Commission (the "COMMISSION") with respect to resales of the Notes
and the Common Stock issuable upon conversion thereof, (ii) it will use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective within 180 days after the Closing, and (iii) it will use its
reasonable best efforts to keep such Shelf Registration Statement continuously
effective under the Securities Act, subject to certain exceptions specified in
the Registration Rights Agreement, until the second anniversary of the date of
the Closing. If (a) the Company fails to file the Shelf Registration Statement
required by the Registration Rights Agreement on or before the date specified
above for such filing, (b) such Shelf Registration Statement is not declared
effective by the Commission on or prior to the date specified above for such
effectiveness, or (c) the Shelf Registration Statement is declared effective but
thereafter ceases to be effective or useable in connection with resales of
Transfer Restricted Securities during the periods specified in the Registration
Rights Agreement without being succeeded immediately by a post-effective
amendment to such Shelf Registration Statement that cures such failure and is
itself declared effective immediately (each such event referred to in clauses
(a) through (c) above a "REGISTRATION DEFAULT"), then the Company will pay
special interest to each Holder of Transfer Restricted Securities as described
below. Notwithstanding the foregoing, as set forth in the Registration Rights
Agreement, the Company will be permitted to suspend use of the prospectus that
is part of the Shelf Registration Statement during certain periods of time and
in certain circumstances relating to pending corporate developments and public
filings with the SEC and similar events, and such a suspension shall not be
deemed a Registration Default provided it does not last in excess of 60 days in
the aggregate during any 12-month period. With respect to the first 90-day
period immediately following the occurrence of a Registration Default, the
Company shall pay special interest to each Holder of Transfer Restricted
Securities in an amount equal to an increase in the annual interest rate on the
Notes of 0.25%
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<PAGE> 83
("SPECIAL INTEREST") and with respect to each subsequent 90-day period,
additional amounts equal to an increase in the annual interest rate on the Notes
of 0.25% until all Registration Defaults have been cured, up to a maximum
increase in the annual interest rate on the Notes equal to 1.0%. In the event
that this Note, or any portion thereof, shall have been converted into shares of
Common Stock pursuant to Section 12 hereof, the amount payable under this
Section 2 per share of Common Stock so converted shall be determined by dividing
(x) the amount that would have been payable hereunder on the aggregate principal
amount so converted by (y) the number of shares of Common Stock issued upon such
conversion. All accrued Special Interest shall be paid by the Company on each
Interest Payment Date for which Special Interest is owed to the holders of
Transfer Restricted Securities by wire transfer of immediately available funds
or by federal funds check. Following the cure of all Registration Defaults, the
application of Special Interest will cease. THE PROVISIONS OF THIS SECTION 2
SHALL SURVIVE ANY CONVERSION OF THE NOTES INTO SHARES OF COMMON STOCK PURSUANT
TO SECTION 12 HEREOF, AND MAY BE ENFORCED BY THE HOLDER OF COMMON STOCK ISSUED
UPON CONVERSION OF THIS NOTE.
3. PAYMENTS. All payments made by the Company on this Note shall be
made without deduction or withholding for or on account of, any and all present
or future taxes, duties, assessments, or governmental charges of whatever nature
unless the deduction or withholding of such taxes, duties, assessments or
government charges is then required by law.
4. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date for the next interest payment date
even though Notes are canceled after the record date and on or before the
interest payment date. Holders must surrender Notes to a Paying Agent to collect
principal and premium payments. The Company will pay principal, premium, if any,
interest, and Special Interest, if any, in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal, premium, if any, interest and Special
Interest, if any, by check payable in such money. It may mail an interest or
Special Interest check to a Holder's registered address. Upon the request of a
Holder who holds an aggregate principal amount of at least $5.0 million,
principal, premium, if any, interest, and Special Interest, if any, shall be
paid by wire transfer of immediately available funds to an account previously
specified in writing by such Holder to the Company and the Trustee.
5. PAYING AGENT, CONVERSION AGENT AND REGISTRAR. The Trustee will act
as Paying Agent, Conversion Agent and Registrar and will maintain an office or
agency in the City of New York, New York at which the notes may be presented for
payment, transfer or exchange. The Company may change any Paying Agent,
Conversion Agent or Registrar without prior notice. The Company or any of its
Affiliates may act in any such capacity.
6. INDENTURE. The Company issued the Notes under an Indenture, dated as
of June 20, 2000 (the "INDENTURE"), between the Company and State Street Bank
and Trust Company, as Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA") as in
effect on the date of the Indenture. The Notes are subject to, and qualified by,
all such terms, certain of which are summarized hereon, and Holders are referred
to the Indenture and such Act for a statement of such terms. The Notes are
unsecured general obligations of the Company limited to
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<PAGE> 84
$300,000,000 in aggregate principal amount and subordinated in right of payment
to all existing and future Senior Debt of the Company.
7. REDEMPTION. At any time on or after July 3, 2003 the Company may redeem any
portion of the Notes, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of principal
amount thereof), together with accrued and unpaid interest and Special Interest
thereon to, but excluding, the applicable redemption date. If redeemed during
the period beginning July 3, 2003 and ending on June 30, 2004, the redemption
price shall be 103.143%, and if redeemed during the 12-month period commencing
on July 1 of each of the following years, up to the maturity date the redemption
price shall be the corresponding percentage of principal set forth below:
<TABLE>
Period Redemption Price
------ ----------------
<S> <C>
July 1, 2004 - June 30, 2005. .......................................... 102.357%
July 1, 2005 - June 30, 2006. .......................................... 101.571%
July 1, 2006 - June 30, 2007. .......................................... 100.786%
July 1, 2007 . ......................................................... 100.000%
</TABLE>
In the event the Company redeems less than all of the outstanding
Notes, the Notes to be redeemed shall be selected by the Trustee in accordance
with Section 3.02 of the Indenture. In the event a portion of an outstanding
Note is selected for redemption and such Note is converted in part after such
selection, the converted portion of such Note shall be deemed (so far as may be)
to be the portion to be selected for redemption in accordance with Section 3.02
of the Indenture. The Company may not give notice of any redemption if the
Company has defaulted in payment of interest and the default is continuing.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder of
the Notes to be redeemed at his address of record. The Notes in denominations
larger than $1,000 may be redeemed in part but only in integral multiples of
$1,000. In the event of a redemption of less than all of the Notes, the Notes
will be chosen for redemption by the Trustee in accordance with the Indenture.
On and after the redemption date, interest ceases to accrue on the Notes or
portions of them called for redemption.
If this Note is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest will be paid to the Person in whose name
this Note is registered at the close of business on such record date.
9. MANDATORY REDEMPTION. The Company will not be required to make
mandatory redemption or repurchase payments with respect to the Notes. There are
no sinking fund payments with respect to the Notes.
10. REPURCHASE AT OPTION OF HOLDER. If there is a Fundamental Change,
the Company shall be required to offer to purchase on the Purchase Date all
outstanding Notes at a purchase price equal to 100% of the aggregate principal
amount thereof, plus accrued and unpaid interest and Special Interest, if any,
to the Purchase Date. Holders of Notes that are subject to an offer to purchase
will receive a Fundamental Change Offer from the Company in accordance with
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<PAGE> 85
Section 3.09 of the Indenture and may elect to have such Notes or portions
thereof in authorized denominations purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
11. SUBORDINATION. The payment of the principal of, interest on,
Special Interest or any other amounts due on the Notes is subordinated in right
of payment to all existing and future Senior Debt of the Company, as described
in the Indenture. Each Holder, by accepting a Note, agrees to such subordination
and authorizes and directs the Trustee on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee as its attorney-in-fact for such purpose.
12. CONVERSION. The holder of any Note has the right, exercisable at
any time following the Issuance Date and prior to the close of business (New
York time) on the date of the Note's maturity, to convert the principal amount
thereof (or any portion thereof that is an integral multiple of $1,000) into
shares of Common Stock at the initial Conversion Price of $115.47 per share,
subject to adjustment under certain circumstances as set forth in the Indenture,
except that if a Note is called for redemption, the conversion right will
terminate at the close of business on the Business Day immediately preceding the
date fixed for redemption.
To convert a Note, a holder must (1) complete and sign a conversion
notice substantially in the form set forth below, (2) surrender the Note to a
Conversion Agent, (3) furnish appropriate endorsements or transfer documents if
required by the Registrar or Conversion Agent and (4) pay any transfer or
similar tax, if required. No payment or adjustment will be made for accrued and
unpaid interest on a converted Note, but if any holder surrenders a Note for
conversion after the close of business on the record date for the payment of an
installment of interest and prior to the opening of business on the next
interest payment date, then, notwithstanding such conversion, the interest
payable on such interest payment date shall be paid to the holder of such Note
on such record date. Any Notes that are, however, delivered to the Company for
conversion after any record date but before the next interest payment date must,
except as described in the next sentence, be accompanied by a payment equal to
the interest payable on such interest payment date on the principal amount of
such Notes being converted. Payments to the Company described in the preceding
sentence shall not be required if, during that period between a record date and
the next interest payment date, a conversion occurs on or after the date that
the Company has issued a redemption notice and prior to the date of redemption
stated in such notice. If any Notes are converted after an interest payment date
but on or before the next record date, no interest will be paid on those Notes.
The number of shares issuable upon conversion of a Note is determined by
dividing the principal amount of the Note converted by the Conversion Price in
effect on the Conversion Date. No fractional shares will be issued upon
conversion but a cash adjustment will be made for any fractional interest.
A note in respect of which a holder has delivered an "Option of Holder
to Elect Purchase" form appearing below exercising the option of such holder to
require the Company to purchase such Note may be converted only if the notice of
exercise is withdrawn as provided above and in accordance with the terms of the
Indenture. The above description of conversion of the Notes is qualified by
reference to, and is subject in its entirety by, the more complete description
thereof contained in the Indenture.
A-23
<PAGE> 86
13. DENOMINATIONS, TRANSFER, EXCHANGE. The notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered, and Notes may be exchanged, as
provided in the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption (except the unredeemed portion of any Note being
redeemed in part). Also, it need not exchange or register the transfer of any
Note for a period of 15 days before a selection of Notes to be redeemed.
14. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
15. UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, Holders of Notes
entitled to the money must look to the Company for payment unless an abandoned
property law designates another Person and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
16. DEFAULTS AND REMEDIES. The Notes shall have the Events of Default
set forth in Section 8.01 of the Indenture. Subject to certain limitations in
the Indenture, if an Event of Default occurs and is continuing, the Trustee by
notice to the Company or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes by notice to the Company and the Trustee
may declare all the Notes to be due and payable immediately, except that in the
case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization, all unpaid principal and interest accrued on the
Notes shall become due and payable immediately without further action or notice.
The Holders of a majority in principal amount of the Notes then outstanding by
written notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes issued under the Indenture may direct the
Trustee in its exercise of any trust or power. The Company must furnish annually
compliance certificates to the Trustee. The above description of Events of
Default and remedies is qualified by reference, and subject in its entirety, to
the more complete description thereof contained in the Indenture.
17. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for Notes), and any existing default may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes. Without
the consent of any Holder, the Indenture or the Notes may be amended, among
other reasons, to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for assumption of the Company's obligations to Holders, to make any
change that does not adversely affect the rights of any Holder or to qualify the
Indenture under the TIA or to comply with the requirements of the SEC in order
to maintain the qualification of the Indenture under the TIA.
A-24
<PAGE> 87
18. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual
or any other capacity may become the owner or pledgee of the Notes and may
otherwise deal with the Company or an Affiliate with the same rights it would
have, as if it were not Trustee, subject to certain limitations provided for in
the Indenture and in the TIA. Any Agent may do the same with like rights.
19. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or shareholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Notes.
20. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
21. AUTHENTICATION. The Notes shall not be valid until authenticated by
the manual signature of an authorized officer of the Trustee or an
authenticating agent.
22. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and UGMA (= Uniform Gifts to
Minors Act).
The Company will furnish to any Holder of the Notes upon
written request and without charge a copy of the Indenture. Request may be made
to:
Akamai Technologies, Inc.
500 Technology Square
Cambridge, Massachusetts 02139
Attention: General Counsel
A-25
<PAGE> 88
ASSIGNMENT FORM
TO ASSIGN THIS NOTE, FILL IN THE FORM BELOW:
I. ASSIGNMENT
I, or we, assign this Note to:
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
________________________________________________________________________________
(Please insert Social Security or other identifying number of assignee)
________________________________________________________________________________
and irrevocably appoint _______________ agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
Dated:_______________________ Signed:________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Print Name:____________________________________
Signature Guarantee:*__________________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
II. TRANSFEROR REPRESENTATIONS
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of the
date of original issuance of such Notes and the last date, if any, on which such
Notes were owned by the Company or any Affiliate of the company, the undersigned
confirms that such Notes are being transferred:
A-26
<PAGE> 89
CHECK ONE BOX BELOW
(1) [ ] to the Company or any subsidiary thereof (attach Restricted Transfer
Certificate),
(2) [ ] to a qualified institutional buyer in compliance with Rule 144A (attach
Rule 144A Transfer Certificate),
(3) [ ] outside the United States in compliance with Rule 904 under the
Securities Act (attach Regulation S Transfer Certificate),
(4) [ ] pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available) (attach Restricted Transfer
Certificate),
(5) [ ] to an institutional "accredited investor" (as defined in rule
501(a)(1), (2), (3), or (7) under the Securities Act (attach Accredited
Investor Letter),
(6) [ ] in accordance with another exemption from the registration requirements
of the Securities Act (attach legal opinion), or
(7) [ ] pursuant to an effective registration statement under the Securities
Act.
CHECK IF APPLICABLE
[ ] (A) The undersigned represents and warrants that it is, or at some time
during which it held this Security was, an Affiliate of the Company.
(B) If (A) above is checked and if the undersigned was not an Affiliate of
the Company at all times during which it held this Note, indicate the
periods during which the undersigned was an Affiliate of the Company:
(C) If (A) above is checked and if the Transferee will not pay the full
purchase price for the transfer of this Note on or prior to the date of
transfer, indicate when such purchase price will be paid:
A-27
<PAGE> 90
THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM (A) IS
CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS NOT NOR
HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS NOTE AN AFFILIATE, AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE COMPANY.
________________________________________
(Signature)
Signature Guarantee*____________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
III. TRANSFEREE REPRESENTATIONS
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:___________________ Signed:_____________________________
Name:
NOTICE: To be executed by an executive
Officer
A-28
<PAGE> 91
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED
The undersigned represents and warrants that it is not a "U.S. Person"
(as defined in Regulation S under the Securities Act of 1933, as amended).
Dated:___________________ Signed:_____________________________
Name:
NOTICE: To be executed by an executive
Officer
A-29
<PAGE> 92
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 3.09 or Section 4.07 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 3.09 or Section 4.07 of the Indenture, state the amount you
want to be purchased (in denominations of $1,000 or any integral multiple
thereof):
$_______________
Dated: _______________________ Signed: ________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:*___________________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
A-30
<PAGE> 93
ELECTION TO CONVERT
To: Akamai Technologies, Inc.
The undersigned owner of this Note hereby irrevocably exercise
the option to convert this Note, or the portion below designated, into
Common Stock of Akamai Technologies, Inc. in accordance with the terms
of the Indenture referred to in this Note, and directors that the
shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been
indicated in the assignment below. If the shares 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.
Any holder of Notes, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Note, agrees to be
bound by the terms of the Registration Rights Agreement relating to the
Common Stock issuable upon conversion of the Notes.
Date:
In Whole [ ] In Part [ ] as follows:
Portions of Note to be converted
($1,000 or integral multiples
thereof): $____________
_______________________________
Signature
Please print or Typewrite Name and Address, Including Zip code, and Social
Security or Other Identifying Number:
________________________________
________________________________
________________________________
Signature Guarantee:*___________
* Signature must be guaranteed by a commercial bank, trust company or
member firm of the New York Stock Exchange
A-31
<PAGE> 94
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Global Note shall be $ . The
following increases or decreases in the principal amount of this Global Note
have been made:
<TABLE>
<CAPTION>
Amount of decrease Signature of authorized
in principal Amount of increase Signature of authorized officer
amount of this in principal amount Principal amount of officer of Trustee or of Trustee or
Global Note of this Global Note this Global Note Notes Custodian Securities Custodian
<S> <C> <C> <C> <C>
</TABLE>
A-32
<PAGE> 95
AKAMAI TECHNOLOGIES, INC.
5-1/2% CONVERTIBLE SUBORDINATED NOTE DUE 2007
ACCREDITED INVESTOR GLOBAL NOTE
No. A-1 CUSIP No. _______
$________________
Akamai Technologies, Inc., a Delaware corporation (hereinafter called
the "Company", which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of ___________________ dollars
($___________), on ______________, 2007.
Interest Payment Dates: July 1 and January 1: commencing January 1,
2001.
Record Dates: June 15 and December 15.
Reference is made to the further provisions of this Note hereinafter
set forth, which will, for all purposes, have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
AKAMAI TECHNOLOGIES, INC.,
a Delaware corporation
[Seal]
By: ________________________________
Name:
Title:
Attest: ____________
Secretary
A-33
<PAGE> 96
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
State Street Bank and Trust Company,
as Trustee
By:_______________________________________
Name:
Authorized Signatory
Dated:___________________
A-34
<PAGE> 97
5-1/2% CONVERTIBLE SUBORDINATED NOTE DUE 2007
ACCREDITED INVESTOR GLOBAL NOTE
1. INTEREST. AKAMAI TECHNOLOGIES, INC., a Delaware corporation (the
"COMPANY"), is the issuer of 5-1/2% Convertible Subordinated Notes due 2007
(the "Notes"). The Notes will accrue interest at a rate of 5-1/2% per annum.
The Company promises to pay interest on the Notes in cash semiannually on each
July 1 and January 1, commencing on January 1, 2001, to Holders of record on the
immediately preceding June 15 and December 15, respectively. Interest on the
Notes will accrue from the most recent date to which interest has been paid, or
if no interest has been paid, from June 20, 2000. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. The Company will pay
interest on overdue principal at the interest rate borne by the Notes,
compounded semiannually, and, to the extent permitted by law, it shall pay
interest on overdue installments of interest (without regard to any applicable
grace period) at the same interest rate compounded semiannually.
2. REGISTRATION RIGHTS. The holder of this Note (and the Common Stock
issuable upon conversion hereof) is entitled to the benefits of a Registration
Rights Agreement, dated as of June 20, 2000, among the Company and the Initial
Purchasers (the "REGISTRATION RIGHTS AGREEMENT"). Pursuant to the Registration
Rights Agreement the Company has agreed for the benefit of the holders of
Transfer Restricted Securities, that (i) it will, at its cost, within 90 days
after the closing of the sale of the Notes (the "CLOSING"), file a shelf
registration statement (the "SHELF REGISTRATION STATEMENT") with the Securities
and Exchange Commission (the "COMMISSION") with respect to resales of the Notes
and the Common Stock issuable upon conversion thereof, (ii) it will use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective within 180 days after the Closing, and (iii) it will use its
reasonable best efforts to keep such Shelf Registration Statement continuously
effective under the Securities Act, subject to certain exceptions specified in
the Registration Rights Agreement, until the second anniversary of the date of
the Closing. If (a) the Company fails to file the Shelf Registration Statement
required by the Registration Rights Agreement on or before the date specified
above for such filing, (b) such Shelf Registration Statement is not declared
effective by the Commission on or prior to the date specified above for such
effectiveness, or (c) the Shelf Registration Statement is declared effective but
thereafter ceases to be effective or useable in connection with resales of
Transfer Restricted Securities during the periods specified in the Registration
Rights Agreement without being succeeded immediately by a post-effective
amendment to such Shelf Registration Statement that cures such failure and is
itself declared effective immediately (each such event referred to in clauses
(a) through (c) above a "REGISTRATION DEFAULT"), then the Company will pay
special interest to each Holder of Transfer Restricted Securities as described
below. Notwithstanding the foregoing, as set forth in the Registration Rights
Agreement, the Company will be permitted to suspend use of the prospectus that
is part of the Shelf Registration Statement during certain periods of time and
in certain circumstances relating to pending corporate developments and public
filings with the SEC and similar events, and such a suspension shall not be
deemed a Registration Default provided it does not last in excess of 60 days in
the aggregate during any 12-month period. With respect to the first 90-day
period immediately following the occurrence of a Registration Default, the
Company shall pay special interest to each Holder of Transfer Restricted
Securities in an amount equal to an increase in the annual interest rate on the
Notes of 0.25%
A-35
<PAGE> 98
("SPECIAL INTEREST") and with respect to each subsequent 90-day period,
additional amounts equal to an increase in the annual interest rate on the Notes
of 0.25% until all Registration Defaults have been cured, up to a maximum
increase in the annual interest rate on the Notes equal to 1.0%. In the event
that this Note, or any portion thereof, shall have been converted into shares of
Common Stock pursuant to Section 12 hereof, the amount payable under this
Section 2 per share of Common Stock so converted shall be determined by dividing
(x) the amount that would have been payable hereunder on the aggregate principal
amount so converted by (y) the number of shares of Common Stock issued upon such
conversion. All accrued Special Interest shall be paid by the Company on each
Interest Payment Date for which Special Interest is owed to the holders of
Transfer Restricted Securities by wire transfer of immediately available funds
or by federal funds check. Following the cure of all Registration Defaults, the
application of Special Interest will cease. THE PROVISIONS OF THIS SECTION 2
SHALL SURVIVE ANY CONVERSION OF THE NOTES INTO SHARES OF COMMON STOCK PURSUANT
TO SECTION 12 HEREOF, AND MAY BE ENFORCED BY THE HOLDER OF COMMON STOCK ISSUED
UPON CONVERSION OF THIS NOTE.
3. PAYMENTS. All payments made by the Company on this Note shall be made without
deduction or withholding for or on account of, any and all present or future
taxes, duties, assessments, or governmental charges of whatever nature unless
the deduction or withholding of such taxes, duties, assessments or government
charges is then required by law.
4. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the record date for the next interest payment date even
though Notes are canceled after the record date and on or before the interest
payment date. Holders must surrender Notes to a Paying Agent to collect
principal and premium payments. The Company will pay principal, premium, if any,
interest, and Special Interest, if any, in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal, premium, if any, interest and Special
Interest, if any, by check payable in such money. It may mail an interest or
Special Interest check to a Holder's registered address. Upon the request of a
Holder who holds an aggregate principal amount of at least $5.0 million,
principal, premium, if any, interest, and Special Interest, if any, shall be
paid by wire transfer of immediately available funds to an account previously
specified in writing by such Holder to the Company and the Trustee.
5. PAYING AGENT, CONVERSION AGENT AND REGISTRAR. The Trustee will act as Paying
Agent, Conversion Agent and Registrar and will maintain an office or agency in
the City of New York, New York at which the notes may be presented for payment,
transfer or exchange. The Company may change any Paying Agent, Conversion Agent
or Registrar without prior notice. The Company or any of its Affiliates may act
in any such capacity.
6. INDENTURE. The Company issued the Notes under an Indenture, dated as of June
20, 2000 (the "INDENTURE"), between the Company and State Street Bank and Trust
Company, as Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA") as in
effect on the date of the Indenture. The Notes are subject to, and qualified by,
all such terms, certain of which are summarized hereon, and Holders are referred
to the Indenture and such Act for a statement of such terms. The Notes are
unsecured general obligations of the Company limited to
A-36
<PAGE> 99
$300,000,000 in aggregate principal amount and subordinated in right of payment
to all existing and future Senior Debt of the Company.
7. REDEMPTION. At any time on or after July 3, 2003 the Company may redeem any
portion of the Notes, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of principal
amount thereof), together with accrued and unpaid interest and Special Interest
thereon to, but excluding, the applicable redemption date. If redeemed during
the period beginning July 3, 2003 and ending on June 30, 2004, the redemption
price shall be 103.143%, and if redeemed during the 12-month period commencing
on July 1 of each of the following years, up to the maturity date the redemption
price shall be the corresponding percentage of principal set forth below:
<TABLE>
<CAPTION>
Period Redemption Price
------ ----------------
<S> <C>
July 1, 2004 - June 30, 2005 ............................................ 102.357%
July 1, 2005 - June 30, 2006 ............................................ 101.571%
July 1, 2006 - June 30, 2007 ............................................ 100.786%
July 1, 2007 ............................................................ 100.000%
</TABLE>
In the event the Company redeems less than all of the outstanding
Notes, the Notes to be redeemed shall be selected by the Trustee in accordance
with Section 3.02 of the Indenture. In the event a portion of an outstanding
Note is selected for redemption and such Note is converted in part after such
selection, the converted portion of such Note shall be deemed (so far as may be)
to be the portion to be selected for redemption in accordance with Section 3.02
of the Indenture. The Company may not give notice of any redemption if the
Company has defaulted in payment of interest and the default is continuing.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder of
the Notes to be redeemed at his address of record. The Notes in denominations
larger than $1,000 may be redeemed in part but only in integral multiples of
$1,000. In the event of a redemption of less than all of the Notes, the Notes
will be chosen for redemption by the Trustee in accordance with the Indenture.
On and after the redemption date, interest ceases to accrue on the Notes or
portions of them called for redemption.
If this Note is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest will be paid to the Person in whose name
this Note is registered at the close of business on such record date.
9. MANDATORY REDEMPTION. The Company will not be required to make
mandatory redemption or repurchase payments with respect to the Notes. There are
no sinking fund payments with respect to the Notes.
10. REPURCHASE AT OPTION OF HOLDER. If there is a Fundamental Change,
the Company shall be required to offer to purchase on the Purchase Date all
outstanding Notes at a purchase price equal to 100% of the aggregate principal
amount thereof, plus accrued and unpaid interest and Special Interest, if any,
to the Purchase Date. Holders of Notes that are subject to an offer to purchase
will receive a Fundamental Change Offer from the Company in accordance with
A-37
<PAGE> 100
Section 3.09 of the Indenture and may elect to have such Notes or portions
thereof in authorized denominations purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
11. SUBORDINATION. The payment of the principal of, interest on,
Special Interest or any other amounts due on the Notes is subordinated in right
of payment to all existing and future Senior Debt of the Company, as described
in the Indenture. Each Holder, by accepting a Note, agrees to such subordination
and authorizes and directs the Trustee on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee as its attorney-in-fact for such purpose.
12. CONVERSION. The holder of any Note has the right, exercisable at
any time following the Issuance Date and prior to the close of business (New
York time) on the date of the Note's maturity, to convert the principal amount
thereof (or any portion thereof that is an integral multiple of $1,000) into
shares of Common Stock at the initial Conversion Price of $115.47 per share,
subject to adjustment under certain circumstances as set forth in the Indenture,
except that if a Note is called for redemption, the conversion right will
terminate at the close of business on the Business Day immediately preceding the
date fixed for redemption.
To convert a Note, a holder must (1) complete and sign a conversion
notice substantially in the form set forth below, (2) surrender the Note to a
Conversion Agent, (3) furnish appropriate endorsements or transfer documents if
required by the Registrar or Conversion Agent and (4) pay any transfer or
similar tax, if required. No payment or adjustment will be made for accrued and
unpaid interest on a converted Note, but if any holder surrenders a Note for
conversion after the close of business on the record date for the payment of an
installment of interest and prior to the opening of business on the next
interest payment date, then, notwithstanding such conversion, the interest
payable on such interest payment date shall be paid to the holder of such Note
on such record date. Any Notes that are, however, delivered to the Company for
conversion after any record date but before the next interest payment date must,
except as described in the next sentence, be accompanied by a payment equal to
the interest payable on such interest payment date on the principal amount of
such Notes being converted. Payments to the Company described in the preceding
sentence shall not be required if, during that period between a record date and
the next interest payment date, a conversion occurs on or after the date that
the Company has issued a redemption notice and prior to the date of redemption
stated in such notice. If any Notes are converted after an interest payment date
but on or before the next record date, no interest will be paid on those Notes.
The number of shares issuable upon conversion of a Note is determined by
dividing the principal amount of the Note converted by the Conversion Price in
effect on the Conversion Date. No fractional shares will be issued upon
conversion but a cash adjustment will be made for any fractional interest.
A note in respect of which a holder has delivered an "Option of Holder
to Elect Purchase" form appearing below exercising the option of such holder to
require the Company to purchase such Note may be converted only if the notice of
exercise is withdrawn as provided above and in accordance with the terms of the
Indenture. The above description of conversion of the Notes is qualified by
reference to, and is subject in its entirety by, the more complete description
thereof contained in the Indenture.
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<PAGE> 101
13. DENOMINATIONS, TRANSFER, EXCHANGE. The notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered, and Notes may be exchanged, as
provided in the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption (except the unredeemed portion of any Note being
redeemed in part). Also, it need not exchange or register the transfer of any
Note for a period of 15 days before a selection of Notes to be redeemed.
14. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
15. UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, Holders of Notes
entitled to the money must look to the Company for payment unless an abandoned
property law designates another Person and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
16. DEFAULTS AND REMEDIES. The Notes shall have the Events of Default
set forth in Section 8.01 of the Indenture. Subject to certain limitations in
the Indenture, if an Event of Default occurs and is continuing, the Trustee by
notice to the Company or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes by notice to the Company and the Trustee
may declare all the Notes to be due and payable immediately, except that in the
case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization, all unpaid principal and interest accrued on the
Notes shall become due and payable immediately without further action or notice.
The Holders of a majority in principal amount of the Notes then outstanding by
written notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes issued under the Indenture may direct the
Trustee in its exercise of any trust or power. The Company must furnish annually
compliance certificates to the Trustee. The above description of Events of
Default and remedies is qualified by reference, and subject in its entirety, to
the more complete description thereof contained in the Indenture.
17. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for Notes), and any existing default may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes. Without
the consent of any Holder, the Indenture or the Notes may be amended, among
other reasons, to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for assumption of the Company's obligations to Holders, to make any
change that does not adversely affect the rights of any Holder or to qualify the
Indenture under the TIA or to comply with the requirements of the SEC in order
to maintain the qualification of the Indenture under the TIA.
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<PAGE> 102
18. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual
or any other capacity may become the owner or pledgee of the Notes and may
otherwise deal with the Company or an Affiliate with the same rights it would
have, as if it were not Trustee, subject to certain limitations provided for in
the Indenture and in the TIA. Any Agent may do the same with like rights.
19. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or shareholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Notes.
20. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
21. AUTHENTICATION. The Notes shall not be valid until authenticated by
the manual signature of an authorized officer of the Trustee or an
authenticating agent.
22. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and UGMA (= Uniform Gifts to
Minors Act).
The Company will furnish to any Holder of the Notes upon
written request and without charge a copy of the Indenture. Request may be made
to:
Akamai Technologies, Inc.
500 Technology Square
Cambridge, Massachusetts 02139
Attention: General Counsel
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<PAGE> 103
ASSIGNMENT FORM
TO ASSIGN THIS NOTE, FILL IN THE FORM BELOW:
I. ASSIGNMENT
I, or we, assign this Note to:
_______________________________________________________________________
(Print or type name, address and zip code of assignee)
_______________________________________________________________________
(Please insert Social Security or other identifying number of assignee)
________________________________________________________________________________
and irrevocably appoint _______________ agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
Dated:_______________________ Signed:________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Print Name:____________________________________
Signature Guarantee:*__________________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
II. TRANSFEROR REPRESENTATIONS
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of the
date of original issuance of such Notes and the last date, if any, on which such
Notes were owned by the Company or any Affiliate of the company, the undersigned
confirms that such Notes are being transferred:
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<PAGE> 104
CHECK ONE BOX BELOW
(1) [ ] to the Company or any subsidiary thereof (attach Restricted Transfer
Certificate),
(2) [ ] to a qualified institutional buyer in compliance with Rule 144A (attach
Rule 144A Transfer Certificate),
(3) [ ] outside the United States in compliance with Rule 904 under the
Securities Act (attach Regulation S Transfer Certificate),
(4) [ ] pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available) (attach Restricted Transfer
Certificate),
(5) [ ] to an institutional "accredited investor" (as defined in rule
501(a)(1), (2), (3), or (7) under the Securities Act (attach Accredited
Investor Letter),
(6) [ ] in accordance with another exemption from the registration requirements
of the Securities Act (attach legal opinion), or
(7) [ ] pursuant to an effective registration statement under the Securities
Act.
CHECK IF APPLICABLE
[ ] (A) The undersigned represents and warrants that it is, or at some time
during which it held this Security was, an Affiliate of the Company.
(B) If (A) above is checked and if the undersigned was not an Affiliate of
the Company at all times during which it held this Note, indicate the
periods during which the undersigned was an Affiliate of the Company:
(C) If (A) above is checked and if the Transferee will not pay the full
purchase price for the transfer of this Note on or prior to the date of
transfer, indicate when such purchase price will be paid:
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<PAGE> 105
THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM (A) IS
CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS NOT NOR
HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS NOTE AN AFFILIATE, AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE COMPANY.
________________________________________
(Signature)
Signature Guarantee*____________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
III. TRANSFEREE REPRESENTATIONS
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:___________________ Signed:_____________________________
Name:
NOTICE: To be executed by an executive
Officer
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<PAGE> 106
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED
The undersigned represents and warrants that it is not a "U.S. Person"
(as defined in Regulation S under the Securities Act of 1933, as amended).
Dated:___________________ Signed:_____________________________
Name:
NOTICE: To be executed by an executive
Officer
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<PAGE> 107
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 3.09 or Section 4.07 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 3.09 or Section 4.07 of the Indenture, state the amount you
want to be purchased (in denominations of $1,000 or any integral multiple
thereof):
$_______________
Dated: _______________________ Signed: ________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:*___________________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
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<PAGE> 108
ELECTION TO CONVERT
To: Akamai Technologies, Inc.
The undersigned owner of this Note hereby irrevocably exercise
the option to convert this Note, or the portion below designated, into
Common Stock of Akamai Technologies, Inc. in accordance with the terms
of the Indenture referred to in this Note, and directors that the
shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been
indicated in the assignment below. If the shares 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.
Any holder of Notes, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Note, agrees to be
bound by the terms of the Registration Rights Agreement relating to the
Common Stock issuable upon conversion of the Notes.
Date:
In Whole [ ] In Part [ ] as follows:
Portions of Note to be converted
($1,000 or integral multiples
thereof): $____________
_______________________________
Signature
Please print or Typewrite Name and Address, Including Zip code, and Social
Security or Other Identifying Number:
________________________________
________________________________
________________________________
Signature Guarantee:*___________
* Signature must be guaranteed by a commercial bank, trust company or
member firm of the New York Stock Exchange
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<PAGE> 109
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Global Note shall be $ . The following
increases or decreases in the principal amount of this Global Note have been
made:
<TABLE>
<CAPTION>
Amount of decrease Signature of authorized
in principal Amount of increase Signature of authorized officer
amount of this in principal amount Principal amount of officer of Trustee or of Trustee or
Global Note of this Global Note this Global Note Notes Custodian Securities Custodian
------------------ ------------------- ------------------- ----------------------- -----------------------
<S> <C> <C> <C> <C>
</TABLE>
A-47
<PAGE> 110
AKAMAI TECHNOLOGIES, INC.
5 1/2% CONVERTIBLE SUBORDINATED NOTE DUE 2007
No. D-1 CUSIP No._________
$_________________
Akamai Technologies, Inc., a Delaware corporation (hereinafter called
the "Company", which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of ___________________ dollars
($___________), on ______________, 2007.
Interest Payment Dates: July 1 and January 1: commencing January 1,
2001.
Record Dates: June 15 and December 15.
Reference is made to the further provisions of this Note hereinafter
set forth, which will, for all purposes, have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed under its corporate seal.
AKAMAI TECHNOLOGIES, INC.,
a Delaware corporation
[Seal]
By: ________________________________
Name:
Title:
Attest: ____________
Secretary
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<PAGE> 111
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
State Street Bank and Trust Company,
as Trustee
By:__________________________________
Name:
Authorized Signatory
Dated:___________________
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<PAGE> 112
5 1/2% CONVERTIBLE SUBORDINATED NOTE DUE 2007
1. INTEREST. AKAMAI TECHNOLOGIES, INC., a Delaware corporation (the
"COMPANY"), is the issuer of 5 1/2% Convertible Subordinated Notes due 2007 (the
"Notes"). The Notes will accrue interest at a rate of 5 1/2% per annum. The
Company promises to pay interest on the Notes in cash semiannually on each July
1 and January 1, commencing on January 1, 2001, to Holders of record on the
immediately preceding June 15 and December 15, respectively. Interest on the
Notes will accrue from the most recent date to which interest has been paid, or
if no interest has been paid, from June 20, 2000. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. The Company will pay
interest on overdue principal at the interest rate borne by the Notes,
compounded semiannually, and, to the extent permitted by law, it shall pay
interest on overdue installments of interest (without regard to any applicable
grace period) at the same interest rate compounded semiannually.
2. REGISTRATION RIGHTS. The holder of this Note (and the Common Stock
issuable upon conversion hereof) is entitled to the benefits of a Registration
Rights Agreement, dated as of June 20, 2000, among the Company and the Initial
Purchasers (the "REGISTRATION RIGHTS AGREEMENT"). Pursuant to the Registration
Rights Agreement the Company has agreed for the benefit of the holders of
Transfer Restricted Securities, that (i) it will, at its cost, within 90 days
after the closing of the sale of the Notes (the "CLOSING"), file a shelf
registration statement (the "SHELF REGISTRATION STATEMENT") with the Securities
and Exchange Commission (the "COMMISSION") with respect to resales of the Notes
and the Common Stock issuable upon conversion thereof, (ii) it will use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective within 180 days after the Closing, and (iii) it will use its
reasonable best efforts to keep such Shelf Registration Statement continuously
effective under the Securities Act, subject to certain exceptions specified in
the Registration Rights Agreement, until the second anniversary of the date of
the Closing. If (a) the Company fails to file the Shelf Registration Statement
required by the Registration Rights Agreement on or before the date specified
above for such filing, (b) such Shelf Registration Statement is not declared
effective by the Commission on or prior to the date specified above for such
effectiveness, or (c) the Shelf Registration Statement is declared effective but
thereafter ceases to be effective or useable in connection with resales of
Transfer Restricted Securities during the periods specified in the Registration
Rights Agreement without being succeeded immediately by a post-effective
amendment to such Shelf Registration Statement that cures such failure and is
itself declared effective immediately (each such event referred to in clauses
(a) through (c) above a "REGISTRATION DEFAULT"), then the Company will pay
special interest to each Holder of Transfer Restricted Securities as described
below. Notwithstanding the foregoing, as set forth in the Registration Rights
Agreement, the Company will be permitted to suspend use of the prospectus that
is part of the Shelf Registration Statement during certain periods of time and
in certain circumstances relating to pending corporate developments and public
filings with the SEC and similar events, and such a suspension shall not be
deemed a Registration Default provided it does not last in excess of 60 days in
the aggregate during any 12-month period. With respect to the first 90-day
period immediately following the occurrence of a Registration Default, the
Company shall pay special interest to each Holder of Transfer Restricted
Securities in an amount equal to an increase in the annual interest rate on the
Notes of 0.25% ("SPECIAL INTEREST") and with respect to each subsequent 90-day
period, additional amounts
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<PAGE> 113
equal to an increase in the annual interest rate on the Notes of 0.25% until all
Registration Defaults have been cured, up to a maximum increase in the annual
interest rate on the Notes equal to 1.0%. In the event that this Note, or any
portion thereof, shall have been converted into shares of Common Stock pursuant
to Section 12 hereof, the amount payable under this Section 2 per share of
Common Stock so converted shall be determined by dividing (x) the amount that
would have been payable hereunder on the aggregate principal amount so converted
by (y) the number of shares of Common Stock issued upon such conversion. All
accrued Special Interest shall be paid by the Company on each Interest Payment
Date for which Special Interest is owed to the holders of Transfer Restricted
Securities by wire transfer of immediately available funds or by federal funds
check. Following the cure of all Registration Defaults, the application of
Special Interest will cease. THE PROVISIONS OF THIS SECTION 2 SHALL SURVIVE ANY
CONVERSION OF THE NOTES INTO SHARES OF COMMON STOCK PURSUANT TO SECTION 12
HEREOF, AND MAY BE ENFORCED BY THE HOLDER OF COMMON STOCK ISSUED UPON CONVERSION
OF THIS NOTE.
3. PAYMENTS. All payments made by the Company on this Note shall be
made without deduction or withholding for or on account of, any and all present
or future taxes, duties, assessments, or governmental charges of whatever nature
unless the deduction or withholding of such taxes, duties, assessments or
government charges is then required by law.
4. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date for the next interest payment date
even though Notes are canceled after the record date and on or before the
interest payment date. Holders must surrender Notes to a Paying Agent to collect
principal and premium payments. The Company will pay principal, premium, if any,
interest, and Special Interest, if any, in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal, premium, if any, interest and Special
Interest, if any, by check payable in such money. It may mail an interest or
Special Interest check to a Holder's registered address. Upon the request of a
Holder who holds an aggregate principal amount of at least $5.0 million,
principal, premium, if any, interest, and Special Interest, if any, shall be
paid by wire transfer of immediately available funds to an account previously
specified in writing by such Holder to the Company and the Trustee.
5. PAYING AGENT, CONVERSION AGENT AND REGISTRAR. The Trustee will act
as Paying Agent, Conversion Agent and Registrar and will maintain an office or
agency in the City of New York, New York at which the notes may be presented for
payment, transfer or exchange. The Company may change any Paying Agent,
Conversion Agent or Registrar without prior notice. The Company or any of its
Affiliates may act in any such capacity.
6. INDENTURE. The Company issued the Notes under an Indenture, dated as
of June 20, 2000 (the "INDENTURE"), between the Company and State Street Bank
and Trust Company, as Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA") as in
effect on the date of the Indenture. The Notes are subject to, and qualified by,
all such terms, certain of which are summarized hereon, and Holders are referred
to the Indenture and such Act for a statement of such terms. The Notes are
unsecured general obligations of the Company limited to
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<PAGE> 114
$300,000,000 in aggregate principal amount and subordinated in right of payment
to all existing and future Senior Debt of the Company.
7. REDEMPTION. At any time on or after July 3, 2003 the Company may
redeem any portion of the Notes, in whole or in part, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount thereof), together with accrued and unpaid interest and Special
Interest thereon to, but excluding, the applicable redemption date. If redeemed
during the period beginning July 3, 2003 and ending on June 30, 2004, the
redemption price shall be 103.143%, and if redeemed during the 12-month period
commencing on July 1 of each of the following years, up to the maturity date the
redemption price shall be the corresponding percentage of principal set forth
below:
<TABLE>
<CAPTION>
Period Redemption Price
------ ----------------
<S> <C>
July 1, 2004 - June 30, 2005 ........................................... 102.357%
July 1, 2005 - June 30, 2006 ........................................... 101.571%
July 1, 2006 - June 30, 2007 ........................................... 100.786%
July 1, 2007 ........................................................... 100.000%
</TABLE>
In the event the Company redeems less than all of the outstanding
Notes, the Notes to be redeemed shall be selected by the Trustee in accordance
with Section 3.02 of the Indenture. In the event a portion of an outstanding
Note is selected for redemption and such Note is converted in part after such
selection, the converted portion of such Note shall be deemed (so far as may be)
to be the portion to be selected for redemption in accordance with Section 3.02
of the Indenture. The Company may not give notice of any redemption if the
Company has defaulted in payment of interest and the default is continuing.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder of
the Notes to be redeemed at his address of record. The Notes in denominations
larger than $1,000 may be redeemed in part but only in integral multiples of
$1,000. In the event of a redemption of less than all of the Notes, the Notes
will be chosen for redemption by the Trustee in accordance with the Indenture.
On and after the redemption date, interest ceases to accrue on the Notes or
portions of them called for redemption.
If this Note is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest will be paid to the Person in whose name
this Note is registered at the close of business on such record date.
9. MANDATORY REDEMPTION. The Company will not be required to make
mandatory redemption or repurchase payments with respect to the Notes. There are
no sinking fund payments with respect to the Notes.
10. REPURCHASE AT OPTION OF HOLDER. If there is a Fundamental Change,
the Company shall be required to offer to purchase on the Purchase Date all
outstanding Notes at a purchase price equal to 100% of the aggregate principal
amount thereof, plus accrued and unpaid interest and Special Interest, if any,
to the Purchase Date. Holders of Notes that are subject to an offer to purchase
will receive a Fundamental Change Offer from the Company in accordance with
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<PAGE> 115
Section 3.09 of the Indenture and may elect to have such Notes or portions
thereof in authorized denominations purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below.
11. SUBORDINATION. The payment of the principal of, interest on,
Special Interest or any other amounts due on the Notes is subordinated in right
of payment to all existing and future Senior Debt of the Company, as described
in the Indenture. Each Holder, by accepting a Note, agrees to such subordination
and authorizes and directs the Trustee on its behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee as its attorney-in-fact for such purpose.
12. CONVERSION. The holder of any Note has the right, exercisable at
any time following the Issuance Date and prior to the close of business (New
York time) on the date of the Note's maturity, to convert the principal amount
thereof (or any portion thereof that is an integral multiple of $1,000) into
shares of Common Stock at the initial Conversion Price of $115.47 per share,
subject to adjustment under certain circumstances as set forth in the Indenture,
except that if a Note is called for redemption, the conversion right will
terminate at the close of business on the Business Day immediately preceding the
date fixed for redemption.
To convert a Note, a holder must (1) complete and sign a conversion
notice substantially in the form set forth below, (2) surrender the Note to a
Conversion Agent, (3) furnish appropriate endorsements or transfer documents if
required by the Registrar or Conversion Agent and (4) pay any transfer or
similar tax, if required. No payment or adjustment will be made for accrued and
unpaid interest on a converted Note, but if any holder surrenders a Note for
conversion after the close of business on the record date for the payment of an
installment of interest and prior to the opening of business on the next
interest payment date, then, notwithstanding such conversion, the interest
payable on such interest payment date shall be paid to the holder of such Note
on such record date. Any Notes that are, however, delivered to the Company for
conversion after any record date but before the next interest payment date must,
except as described in the next sentence, be accompanied by a payment equal to
the interest payable on such interest payment date on the principal amount of
such Notes being converted. Payments to the Company described in the preceding
sentence shall not be required if, during that period between a record date and
the next interest payment date, a conversion occurs on or after the date that
the Company has issued a redemption notice and prior to the date of redemption
stated in such notice. If any Notes are converted after an interest payment date
but on or before the next record date, no interest will be paid on those Notes.
The number of shares issuable upon conversion of a Note is determined by
dividing the principal amount of the Note converted by the Conversion Price in
effect on the Conversion Date. No fractional shares will be issued upon
conversion but a cash adjustment will be made for any fractional interest.
A note in respect of which a holder has delivered an "Option of Holder
to Elect Purchase" form appearing below exercising the option of such holder to
require the Company to purchase such Note may be converted only if the notice of
exercise is withdrawn as provided above and in accordance with the terms of the
Indenture. The above description of conversion of the Notes is qualified by
reference to, and is subject in its entirety by, the more complete description
thereof contained in the Indenture.
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<PAGE> 116
13. DENOMINATIONS, TRANSFER, EXCHANGE. The notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered, and Notes may be exchanged, as
provided in the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption (except the unredeemed portion of any Note being
redeemed in part). Also, it need not exchange or register the transfer of any
Note for a period of 15 days before a selection of Notes to be redeemed.
14. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
15. UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, Holders of Notes
entitled to the money must look to the Company for payment unless an abandoned
property law designates another Person and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
16. DEFAULTS AND REMEDIES. The Notes shall have the Events of Default
set forth in Section 8.01 of the Indenture. Subject to certain limitations in
the Indenture, if an Event of Default occurs and is continuing, the Trustee by
notice to the Company or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes by notice to the Company and the Trustee
may declare all the Notes to be due and payable immediately, except that in the
case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization, all unpaid principal and interest accrued on the
Notes shall become due and payable immediately without further action or notice.
The Holders of a majority in principal amount of the Notes then outstanding by
written notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes issued under the Indenture may direct the
Trustee in its exercise of any trust or power. The Company must furnish annually
compliance certificates to the Trustee. The above description of Events of
Default and remedies is qualified by reference, and subject in its entirety, to
the more complete description thereof contained in the Indenture.
17. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for Notes), and any existing default may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes. Without
the consent of any Holder, the Indenture or the Notes may be amended, among
other reasons, to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for assumption of the Company's obligations to Holders, to make any
change that does not adversely affect the rights of any Holder or to qualify the
Indenture under the TIA or to comply with the requirements of the SEC in order
to maintain the qualification of the Indenture under the TIA.
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<PAGE> 117
18. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual
or any other capacity may become the owner or pledgee of the Notes and may
otherwise deal with the Company or an Affiliate with the same rights it would
have, as if it were not Trustee, subject to certain limitations provided for in
the Indenture and in the TIA. Any Agent may do the same with like rights.
19. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or shareholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Notes.
20. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
21. AUTHENTICATION. The Notes shall not be valid until authenticated by
the manual signature of an authorized officer of the Trustee or an
authenticating agent.
22. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and UGMA (= Uniform Gifts to
Minors Act).
The Company will furnish to any Holder of the Notes upon
written request and without charge a copy of the Indenture. Request may be made
to:
Akamai Technologies, Inc.
500 Technology Square
Cambridge, Massachusetts 02139
Attention: General Counsel
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<PAGE> 118
ASSIGNMENT FORM
TO ASSIGN THIS NOTE, FILL IN THE FORM BELOW:
I. ASSIGNMENT
I, or we, assign this Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
________________________________________________________________________________
(Please insert Social Security or other identifying number of assignee)
________________________________________________________________________________
and irrevocably appoint _______________ agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
Dated:_______________________ Signed:________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Print Name:____________________________________
Signature Guarantee:*__________________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
__________________________
II. TRANSFEROR REPRESENTATIONS
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of the
date of original issuance of such Notes and the last date, if any, on which such
Notes were owned by the Company or any Affiliate of the company, the undersigned
confirms that such Notes are being transferred:
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<PAGE> 119
CHECK ONE BOX BELOW
(1) [ ] to the Company or any subsidiary thereof (attach Restricted Transfer
Certificate),
(2) [ ] to a qualified institutional buyer in compliance with Rule 144A (attach
Rule 144A Transfer Certificate),
(3) [ ] outside the United States in compliance with Rule 904 under the
Securities Act (attach Regulation S Transfer Certificate),
(4) [ ] pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available) (attach Restricted Transfer
Certificate),
(5) [ ] to an institutional "accredited investor" (as defined in rule
501(a)(1), (2), (3), or (7) under the Securities Act (attach Accredited
Investor Letter),
(6) [ ] in accordance with another exemption from the registration requirements
of the Securities Act (attach legal opinion), or
(7) [ ] pursuant to an effective registration statement under the Securities
Act.
CHECK IF APPLICABLE
[ ] (A) The undersigned represents and warrants that it is, or at some time
during which it held this Security was, an Affiliate of the Company.
(B) If (A) above is checked and if the undersigned was not an Affiliate of
the Company at all times during which it held this Note, indicate the
periods during which the undersigned was an Affiliate of the Company:
_____________________________.
(C) If (A) above is checked and if the Transferee will not pay the full
purchase price for the transfer of this Note on or prior to the date of
transfer, indicate when such purchase price will be paid:
_____________________________.
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<PAGE> 120
THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM (A) IS
CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS NOT NOR
HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS NOTE AN AFFILIATE, AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE COMPANY.
________________________________________
(Signature)
Signature Guarantee*____________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
III. TRANSFEREE REPRESENTATIONS
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:___________________ Signed:_____________________________
Name:
NOTICE: To be executed by an executive
officer
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<PAGE> 121
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED
The undersigned represents and warrants that it is not a "U.S. Person"
(as defined in Regulation S under the Securities Act of 1933, as amended).
Dated:___________________ Signed:_____________________________
Name:
NOTICE: To be executed by an executive
officer
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<PAGE> 122
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 3.09 or Section 4.07 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 3.09 or Section 4.07 of the Indenture, state the amount you
want to be purchased (in denominations of $1,000 or any integral multiple
thereof):
$_______________
Dated: _______________________ Signed: ________________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:*___________________________
*Signatures must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
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<PAGE> 123
ELECTION TO CONVERT
To: Akamai Technologies, Inc.
The undersigned owner of this Note hereby irrevocably exercise
the option to convert this Note, or the portion below designated, into
Common Stock of Akamai Technologies, Inc. in accordance with the terms
of the Indenture referred to in this Note, and directors that the
shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been
indicated in the assignment below. If the shares 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.
Any holder of Notes, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Note, agrees to be
bound by the terms of the Registration Rights Agreement relating to the
Common Stock issuable upon conversion of the Notes.
Date:
In Whole [ ] In Part [ ] as follows:
Portions of Note to be converted
($1,000 or integral multiples
thereof): $____________
_______________________________
Signature
Please print or Typewrite Name and Address, Including Zip code, and Social
Security or Other Identifying Number:
________________________________
________________________________
________________________________
Signature Guarantee:*___________
* Signature must be guaranteed by a commercial bank, trust company or
member firm of the New York Stock Exchange
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<PAGE> 124
EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RULE 144A GLOBAL NOTE OR
RESTRICTED NOTE TO REGULATION S GLOBAL NOTE
REGULATION S TRANSFER CERTIFICATE
State Street Bank and Trust Company
2 Avenue de Lafayette
Boston, MA 02111-1724
Attn: Corporate Trust Administration
Re: Akamai Technologies, Inc. 5 1/2% Convertible Subordinated Notes due
2007 (the "NOTES")
Reference is hereby made to the Indenture, dated as of June 20, 2000
(the "INDENTURE"), between Akamai Technologies, Inc., as Issuer, and State
Street Bank and Trust Company, as Trustee.
This letter relates to $[___________] [check one] (i) aggregate
principal amount of Notes which are held in the form of the Rule 144A Global
Note (CUSIP No. ________) with the Depositary or (ii) principal amount of
Restricted Note (CUSIP No. ________) registered, in either case, in the name of
[name of transferor] (the "TRANSFEROR") to effect the transfer of the Notes in
exchange for an equivalent beneficial interest in the Regulation S Global Notes.
In connection with such request, the Transferor does hereby certify (i)
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Notes and (ii) that:
(1) the offer of the Notes was not made to a Person in the United
States;
(2) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the
Transferor nor any Person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United
States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the United States Securities Act
of 1933, as amended (the "SECURITIES ACT").
In addition, if the sale is made during a distribution compliance
period and the provisions of Rule 903 (c) (2) or (3) or Rule 904 (c) (1) of
Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 903 (c) (2) or (3) or Rule
904(c)(1), as the case may be.
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<PAGE> 125
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Capitalized terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S.
[Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated:
cc: Akamai Technologies, Inc.
500 Technology Square
Cambridge, Massachusetts 02139
Attention: General Counsel
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<PAGE> 126
EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REGULATION S GLOBAL NOTE OR
RESTRICTED NOTE TO RULE 144A GLOBAL NOTE
RULE 144A TRANSFER CERTIFICATE
State Street Bank and Trust Company
2 Avenue de Lafayette
Boston, MA 02111-1724
Attn: Corporate Trust Administration
Re: Akamai Technologies, Inc. 5 1/2% Convertible Subordinated Notes due
2007 (the "NOTES")
Reference is hereby made to the Indenture, dated of June 20, 2000 (the
"INDENTURE"), between Akamai Technologies, Inc., as Issuer, and State Street
Bank and Trust Company, as Trustee. Capitalized terms used but not defined
herein shall have the respective meanings given them in the Indenture.
This letter relates to $[___________] [check one] (i) aggregate
principal amount of Notes which are held in the form of the Regulation S Global
Note (CUSIP No. ________) with the Depositary or (ii) principal amount of
Restricted Note (CUSIP No. ________) registered, in either case, in the name of
[name of transferor] (the "TRANSFEROR") to effect the transfer of the Notes in
exchange for an equivalent beneficial interest in the Rule 144A Global Note.
In connection with such request, and in respect of such Notes the Transferor
does hereby certify that such Notes are being transferred in accordance with (i)
the transfer restrictions set forth in the Notes and (ii) Rule 144A under the
United States Securities Act of 1933, as amended, to a transferee that the
Transferor reasonably believes is purchasing the Notes for its own account or an
account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in a transaction meeting the
requirements of Rule 144A and in accordance with applicable securities laws of
any state of the United States or any other jurisdiction.
[Name of Transferor],
By:
-----------------------------
Name:
Title:
Dated:
cc: Akamai Technologies, Inc.
500 Technology Square
Cambridge, Massachusetts 02139
Attention: General Counsel
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<PAGE> 127
EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM GLOBAL NOTE OR
RESTRICTED NOTE TO RESTRICTED NOTE
RESTRICTED NOTE TRANSFER CERTIFICATE
State Street Bank and Trust Company
2 Avenue de Lafayette
Boston, MA 02111-1724
Attn: Corporate Trust Administration
Re: Akamai Technologies, Inc. 5 1/2% Convertible Subordinated Notes due
2007 (the "NOTES")
Reference is hereby made to the Indenture, dated as of June 20, 2000
(the "INDENTURE"), between Akamai Technologies, Inc., as Issuer, and State
Street Bank and Trust Company, as Trustee. Capitalized terms used but not
defined herein shall have the respective meanings given them in the Indenture.
This letter relates to $[___________] aggregate principal amount of
Notes which are [held in the form of the [Rule 144A/Regulation S] [Global]
[Restricted] Note (CUSIP No. [________] CINS No. [__________]) [with the
Depositary] in the name of [name of transferor] (the "TRANSFEROR") to effect the
transfer of the Notes.
In connection with such request, and in respect of such Notes, the
Transferor does hereby certify that such Notes are being transferred (i) in
accordance with the transfer restrictions set forth in the Notes and (ii) in
accordance with applicable securities laws of any state of the United States or
any other jurisdiction.
[Name of Transferor],
By:
------------------------------
Name:
Title:
Dated:
cc: Akamai Technologies, Inc.
500 Technology Square
Cambridge, Massachusetts 02139
Attention: General Counsel
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<PAGE> 128
EXHIBIT E
FORM OF LETTER TO BE DELIVERED BY INSTITUTIONAL ACCREDITED INVESTORS
ACCREDITED INVESTOR LETTER
(Date)
Akamai Technologies, Inc.
500 Technology Square
Cambridge, Massachusetts 02139
Ladies and Gentlemen:
We are delivering this letter in connection with our acquisition of
5 1/2% Convertible Subordinated Notes due 2007 (the "Notes") of Akamai
Technologies, Inc., a Delaware corporation (the "Company"), as more fully
described in the Offering Memorandum (the "Offering Memorandum") relating to the
initial offering of the Notes.
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule 501(a)
(1), (2), (3) or (7) under the Securities Act of 1933, as amended (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), (3) or (7) under the
Securities Act (an "Institutional Accredited Investor");
(ii) (A) any purchase of the 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 a "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 the Notes as fiduciary for the account of one
or more institutions for which we exercise sole investment discretion;
(iii) in the event that we purchase any of the Notes, we will acquire
Notes having a minimum purchase price of not less than $100,000 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 the
Notes;
(v) we are not acquiring the Notes with a view to distribution thereof
or with any present intention of offering or selling any of the Notes, except
inside the United States in accordance
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<PAGE> 129
with Rule 144A under the Securities Act or outside the United States in
accordance with Regulation S under the Securities Act, as provided below,
provided that the disposition of our property and the property of any accounts
for which we are acting as fiduciary shall remain at all times within our
control; and
(vi) we have received a copy of the Offering Memorandum relating to the
offering of the Notes and acknowledge that we have had access to such financial
and other information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers thereto, as we
deem necessary in connection with our decision to acquire the Notes.
We understand that the Notes are being offered in a transaction not
involving any public offering within the United States within the meaning of the
Securities Act and that the Notes have not been registered under the Securities
Act, and we agree, on our own behalf and on behalf of each account for which we
acquire any Notes, that if in the future we decide to resell, pledge or
otherwise transfer such Notes, such Notes may be offered, resold, pledged or
otherwise transferred only: (a) to the Company or any of its subsidiaries, (b)
to a person whom the seller reasonably believes is a Qualified Institutional
Buyer or "QIB" (as defined in Rule 144A under the Securities Act) purchasing for
its own account or for the account of a QIB in a transaction meeting the
requirements of Rule 144A, (c) in an offshore transaction meeting the
requirements of Rule 904 of the Securities Act, (d) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (e) to an Institutional
Accredited Investor that, prior to such transfer, furnishes the trustee a signed
letter containing certain representations and agreements relating to the
transfer of the Notes (in substantially this form) and, if such transfer is in
respect of an aggregate principal amount of Notes less than $100,000, an opinion
of counsel acceptable to the Company that such transfer is in compliance with
the Securities Act, (f) in accordance with another exemption from the
registration requirements of the Securities Act (and based upon an opinion of
counsel acceptable to the Company) or (g) pursuant to an effective registration
statement and, in each case, in accordance with the applicable securities laws
of any state of the United States, or any other applicable jurisdiction. We
understand that the registrar and transfer agent for the Notes will not be
required to accept for registration of transfer any Notes acquired by us, except
upon presentation of evidence satisfactory to the Company and the transfer agent
that the foregoing restrictions on transfer have been complied with. We further
understand that any Notes acquired by us will be in the form of definitive
physical certificates and will bear a legend reflecting the substance of this
paragraph.
We acknowledge that the Company and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representatives or warranties
herein ceases to be accurate and complete.
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<PAGE> 130
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Dated:
-------------------------------- --------------------------------
(Name of Purchaser)
By:
-----------------------------
(Signature)
Name:
Title:
Address:
E-3