EXHIBIT 4.06
WABASH NATIONAL CORPORATION
3.25% Convertible Senior Notes due 2008
--------------------------
INDENTURE
Dated as of August 1, 2003
--------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION
TRUSTEE
--------------------------
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions.....................................................1
Section 1.02. Other Definitions...............................................7
Section 1.03. Incorporation by Reference of Trust Indenture Act...............9
Section 1.04. Rules of Construction...........................................9
Section 1.05. Acts of Holders................................................10
ARTICLE 2
The Notes
Section 2.01. Designation Amount and Issue of Notes..........................11
Section 2.02. Form of Notes..................................................11
Section 2.03. Execution and Authentication...................................12
Section 2.04. Note Registrar, Paying Agent and Conversion Agent..............13
Section 2.05. Paying Agent to Hold Money and Notes in Trust..................13
Section 2.06. Noteholder Lists...............................................14
Section 2.07. Transfer and Exchange; Restrictions on Transfer; Depositary....14
Section 2.08. Replacement Notes..............................................25
Section 2.09. Outstanding Notes; Determination of Holders' Action............26
Section 2.10. Temporary Notes................................................27
Section 2.11. Cancellation...................................................27
Section 2.12. Persons Deemed Owners..........................................28
Section 2.13. CUSIP Numbers..................................................28
Section 2.14. Default Interest...............................................28
ARTICLE 3
Repurchase Upon a Change of Control
Section 3.01. No Optional Redemption.........................................28
Section 3.02. Repurchase of Notes at Option of the Holder upon Change of
Control........................................................29
Section 3.03. Effect of Change of Control Repurchase Notice..................34
Section 3.04. Deposit of Change of Control Repurchase Price..................35
Section 3.05. Notes Purchased in Part........................................36
Section 3.06. Covenant to Comply with Securities Laws upon Purchase of
Notes..........................................................36
Section 3.07. Repayment to the Company.......................................36
ARTICLE 4
Covenants
Section 4.01. Payment of Principal, Premium, Interest on the Notes...........37
Section 4.02. Reports by the Company.........................................37
Section 4.03. Compliance Certificate.........................................38
Section 4.04. Further Instruments and Acts...................................38
Section 4.05. Maintenance of Office or Agency................................38
Section 4.06. Delivery of Certain Information................................38
Section 4.07. Existence......................................................39
Section 4.08. Maintenance of Properties......................................39
Section 4.09. Payment of Taxes and Other Claims..............................39
Section 4.10. Liquidated Damages Notice......................................40
ARTICLE 5
Successor Corporation
Section 5.01. When Company May Merge or Transfer Assets......................40
ARTICLE 6
Defaults and Remedies
Section 6.01. Events of Default..............................................41
Section 6.02. Acceleration...................................................44
Section 6.03. Other Remedies.................................................44
Section 6.04. Waiver of Past Defaults........................................45
Section 6.05. Control by Majority............................................45
Section 6.06. Limitation on Suits............................................45
Section 6.07. Rights of Holders To Receive Payment...........................46
Section 6.08. Collection Suit by Trustee.....................................46
Section 6.09. Trustee May File Proofs of Claim...............................46
Section 6.10. Priorities.....................................................47
Section 6.11. Undertaking for Costs..........................................47
Section 6.12. Waiver of Stay, Extension or Usury Laws........................48
ARTICLE 7
Trustee
Section 7.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default...............................................48
Section 7.02. Certain Rights of the Trustee..................................49
Section 7.03. Trustee Not Responsible for Recitals, Dispositions of Notes
or Application of Proceeds Thereof.............................51
Section 7.04. Trustee and Agents May Hold Notes; Collections, etc............51
Section 7.05. Moneys Held by Trustee.........................................51
Section 7.06. Compensation and Indemnification of Trustee and its Prior
Claim..........................................................51
Section 7.07. Right of Trustee to Rely on Officers' Certificate, etc.........52
Section 7.08. Conflicting Interests..........................................53
Section 7.09. Persons Eligible for Appointment as Trustee....................53
Section 7.10. Resignation and Removal; Appointment of Successor Trustee......53
Section 7.11. Acceptance of Appointment by Successor Trustee.................54
Section 7.12. Merger, Conversion, Consolidation or Succession to Business
of Trustee.....................................................55
Section 7.13. Preferential Collection of Claims Against the Company..........56
Section 7.14. Reports by the Trustee.........................................56
Section 7.15. Trustee to Give Notice of Default, but May Withhold in
Certain Circumstances..........................................56
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ARTICLE 8
Discharge of Indenture
Section 8.01. Discharge of Indenture.........................................57
Section 8.02. [Intentionally Omitted]........................................57
Section 8.03. Paying Agent to Repay Monies Held..............................57
Section 8.04. Return of Unclaimed Monies.....................................57
ARTICLE 9
Supplemental Indentures
Section 9.01. Without Consent of Holders.....................................58
Section 9.02. With Consent of Holders........................................58
Section 9.03. Compliance with Trust Indenture Act............................59
Section 9.04. Revocation and Effect of Consents, Waivers and Actions.........60
Section 9.05. Notation on or Exchange of Notes...............................60
Section 9.06. Trustee to Sign Supplemental Indentures........................60
Section 9.07. Effect of Supplemental Indentures..............................60
ARTICLE 10
Conversion
Section 10.01. Conversion Right and Conversion Price..........................61
Section 10.02. Exercise of Conversion Right...................................61
Section 10.03. Fractions of Shares............................................62
Section 10.04. Adjustment of Conversion Price.................................62
Section 10.05. Notice of Adjustments of Conversion Price......................73
Section 10.06. Notice Prior to Certain Actions................................73
Section 10.07. Company to Reserve Common Stock................................74
Section 10.08. Taxes on Conversions...........................................74
Section 10.09. Covenant as to Common Stock....................................74
Section 10.10. Cancellation of Converted Notes................................75
Section 10.11. Effect of Reclassification, Consolidation, Merger or Sale......75
Section 10.12. Responsibility of Trustee for Conversion Provisions............76
ARTICLE 11
Miscellaneous
Section 11.01. Trust Indenture Act Controls...................................77
Section 11.02. Notices........................................................77
Section 11.03. Communication by Holders with Other Holders....................78
Section 11.04. Certificate and Opinion as to Conditions Precedent.............79
Section 11.05. Statements Required in Certificate or Opinion..................79
Section 11.06. Separability Clause............................................79
Section 11.07. Rules by Trustee, Paying Agent, Conversion Agent and Note
Registrar......................................................79
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Section 11.08. Legal Holidays.................................................79
Section 11.09. GOVERNING LAW..................................................80
Section 11.10. No Recourse Against Others.....................................80
Section 11.11. Successors.....................................................80
Section 11.12. Benefits of Indenture..........................................80
Section 11.13. Table of Contents, Heading, Etc...............................80
Section 11.14. Authenticating Agent...........................................80
Section 11.15. Execution in Counterparts......................................81
EXHIBITS
Exhibit A Form of Global Note
Exhibit B-1 Transfer Certificate
Exhibit B-2 Form of Letter to Be Delivered by Institutional Accredited
Investors
4
CROSS REFERENCE TABLE*
TIA SECTION INDENTURE SECTION
310(a)(1).................................. 7.09
(a)(2)............................... 7.09
(a)(3)............................... N.A.
(a)(4)............................... N.A.
(a)(5)............................... 7.09
(b).................................. 7.08; 7.09; 7.10; 7.11
(c).................................. N.A.
311(a)..................................... 7.13
(b).................................. 7.13
(c).................................. N.A.
312(a)..................................... 2.06
(b).................................. 11.03
(c).................................. 11.03
313(a)..................................... 7.14(a)
(b)(1)............................... 7.14(a)
(b)(2)............................... 7.14(a)
(c).................................. 11.02
(d).................................. 7.14(b)
314(a)..................................... 4.02; 4.03; 11.02
(b).................................. N.A.
(c)(1)............................... 11.04
(c)(2)............................... 11.04
(c)(3)............................... N.A.
(d).................................. N.A.
(e).................................. 11.05
(f).................................. N.A.
315(a)..................................... 7.01
(b).................................. 7.15; 11.02
(c).................................. 7.01
(d).................................. 7.01
(e).................................. 6.11
316(a) (last sentence)..................... 2.09
(a)(1)(A)............................ 6.05
TIA SECTION INDENTURE SECTION
(a)(1)(B)............................ 6.04
(a)(2)............................... N.A.
(b).................................. 6.07
317(a)(1).................................. 6.08
(a)(2)............................... 6.09
(b).................................. 2.05
318(a)..................................... 11.01
N.A. means Not Applicable
-----------------
Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of the Indenture.
INDENTURE dated as of August 1, 2003 between WABASH NATIONAL
CORPORATION, a Delaware corporation (the "COMPANY") and WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking corporation, as Trustee hereunder
(the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its
3.25% Convertible Senior Notes due 2008 (herein called the "Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of
this Indenture.
All things necessary to make the Notes, when the Notes are executed
by the Company and authenticated and delivered hereunder, the valid and
legally binding obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms,
have been done. Further, all things necessary to duly authorize the
issuance of the Common Stock of the Company issuable upon the conversion
of the Notes, and to duly reserve for issuance the number of shares of
Common Stock issuable upon such conversion, have been done.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended, that are
required to be a part of and to govern indentures qualified under the
Trust Indenture Act of 1939, as amended.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Notes, as
follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
"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" when used with respect to any specified person means the power
to direct or cause the direction of the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"BOARD OF DIRECTORS" means either the board of directors of the
Company, or any duly authorized committee of such board.
"BOARD RESOLUTION" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant
Secretary of the Company, to be in full force and effect on the date of
such certification, shall have been delivered to the Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which the banking institutions in The City of
New York or the city in which the Corporate Trust Office is located are
authorized or obligated by law or executive order to close or be closed.
"CAPITAL STOCK" of any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"CLOSING PRICE" of any security on any date of determination means:
(1) the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of such security on the New York
Stock Exchange on such date;
(2) if such security is not listed for trading on the New York
Stock Exchange on any such date, the closing sale price as reported in the
composite transactions for the principal U.S. securities exchange on which
such security is so listed;
(3) if such security is not so listed on a U.S. national or
regional securities exchange, the closing sale price as reported by the
NASDAQ National Market;
(4) if such security is not so reported, the last quoted bid price
for such security in the over-the-counter market as reported by the
National Quotation Bureau or similar organization; or
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(5) if such bid price is not available, the average of the
mid-point of the last bid and ask prices of such security on such date
from at least three nationally recognized independent investment banking
firms retained for this purpose by the Company.
"CLOSING TIME" has the meaning specified in the Purchase Agreement.
"COMMON STOCK" means the common stock, par value $.01 per share, of
the Company, authorized at the date of this instrument as originally
executed.
"COMMON STOCK" means any stock of any class of Capital Stock which
has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding
up of the issuer.
"COMPANY" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"COMPANY ORDER" means a written order signed in the name of the
Company by any two Officers of the Company.
"CONVERSION AGENT" means any person authorized by the Company to
convert Notes in accordance with Article 10 hereof.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee
at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at Corporate Trust
Administration-VA 9646, 0000 Xxxx Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx,
Xxxxxxxx 00000, or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as
a successor Trustee may designate from time to time by notice to the
Holders and the Company).
"DATE OF DELIVERY" has the meaning specified in the Purchase
Agreement.
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in 2.07(d) as the
Depositary
3
with respect to such Notes, until a successor shall have been appointed
and become such pursuant to the applicable provisions of this Indenture,
and thereafter, "DEPOSITARY" shall mean or include such successor.
"GAAP" means United States generally accepted accounting principles
as in effect from time to time.
"HOLDER" or "NOTEHOLDER" as applied to any Note, or other similar
terms (but excluding the term "beneficial holder"), means any Person in
whose name at the time a particular Note is registered on the Note
Registrar's books.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof, including the provisions
of the TIA that are deemed to be a part hereof.
"INITIAL PURCHASERS" means Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated and BB&T Capital Markets.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional
"ACCREDITED INVESTOR" as described in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment
of interest on the Notes.
"ISSUE DATE" of any Note means the date on which the Note was
originally issued or deemed issued as set forth on the face of the Note.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset given to secure indebtedness, whether or not filed, recorded or
otherwise perfected under applicable law (including any conditional sale
or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction with respect
to any such lien, pledge, charge or security interest).
"LIQUIDATED DAMAGES" has the meaning specified for "Liquidated
Damages Amount" in Section 2(e) of the Registration Rights Agreement.
"NOTES" has the meaning ascribed to it in the first paragraph under
the caption "RECITALS OF THE COMPANY".
4
"OFFICER" means the Chairman of the Board, the Vice Chairman, the
Chief Executive Officer, the President, any Executive Vice President, any
Senior Vice President, any Vice President, the Treasurer or the Secretary
or any Assistant Treasurer or Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 11.04 and 11.05, signed in the name of
the Company by any two Officers of the Company, and delivered to the
Trustee. An Officers' Certificate given pursuant to Section 4.03 shall be
signed by an authorized financial or accounting Officer of the Company but
need not contain the information specified in Sections 11.04 and 11.05.
"OPINION OF COUNSEL" means a written opinion containing the
information specified in Sections 11.04 and 11.05, from legal counsel. The
counsel may be an employee of, or counsel to, the Company.
"PERSON" or "PERSON" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or government or any agency
or political subdivision thereof.
"PORTAL MARKET" means The Portal Market operated by the National
Association of Securities Dealers, Inc. or any successor thereto.
"PRINCIPAL" of a Note means the principal amount due on the Stated
Maturity as set forth on the face of the Note.
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of July
28, 2003, between the Company and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"REGISTRATION RIGHTS AGREEMENT" means that certain Registration
Rights Agreement, dated as of August 1, 2003, between the Company and the
Initial Purchasers, as amended from time to time in accordance with its
terms.
"REGULAR RECORD DATE" means, with respect to the interest payable on
any Interest Payment Date, the close of business on January 15 or July 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee,
including any
5
vice president, assistant vice president, assistant treasurer, trust
officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject, and who shall have direct responsibility for the
administration of this Indenture.
"RULE 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the United States Securities Act of 1933 (or
any successor statute), as amended from time to time.
"SIGNIFICANT SUBSIDIARY" means any direct or indirect Subsidiary of
the Company that meets any of the following conditions:
(1) the Company's and its other Subsidiaries' investments in and
advances to such Subsidiary exceed 10% of the total assets of the Company
and its Subsidiaries consolidated as of the end of the most recently
completed fiscal year;
(2) the Company's and its other Subsidiaries' proportionate share
of the total assets (after intercompany eliminations) of such Subsidiary
exceeds 10% of the total assets of the Company and its Subsidiaries
consolidated as of the end of the most recently completed fiscal year; or
(3) the Company's and its other Subsidiaries' equity in the income
from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle of such Subsidiary
exceeds 10% of such income of the Company and its Subsidiaries
consolidated for the most recently completed fiscal year.
"STATED MATURITY," when used with respect to any Note or any
installment of interest thereon, means the date specified in such Note as
the fixed date on which the principal of such Note or such installment of
interest is due and payable.
"SUBSIDIARY" means (i) a corporation, a majority of whose Capital
Stock with voting power, under ordinary circumstances, to elect directors
is, at the date of determination, directly or indirectly owned by the
Company, by one or more Subsidiaries of the Company or by the Company and
one or more Subsidiaries of the Company, (ii) a partnership in which the
Company or a Subsidiary of the Company holds a majority interest in the
equity capital or profits of such
6
partnership, or (iii) any other person (other than a corporation) in which
the Company, a Subsidiary of the Company or the Company and one or more
Subsidiaries of the Company, directly or indirectly, at the date of
determination, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or
other governing body of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date
of this Indenture; provided, however, that in the event the TIA is amended
after such date, TIA means, to the extent required by any such amendment,
the TIA as so amended.
"TRADING DAY" means a day during which trading in Common Stock
generally occurs on the New York Stock Exchange or, if the Common Stock is
not listed on the New York Stock Exchange, on the principal other national
or regional securities exchange on which the Common Stock is then listed
or, if the Common Stock is not listed on a national or regional securities
exchange, on the National Association of Securities Dealers Automated
Quotation System on which the Common Stock is then reported or, if the
Common Stock is not quoted on the National Association of Securities
Dealers Automated Quotation System, on the principal other market on which
the Common Stock is then traded.
"TRUSTEE" means the party named as the "TRUSTEE" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"UNITED STATES" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (its "possessions" including
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands).
"VOTING STOCK" means with respect to any Person, Capital Stock of
any class or kind ordinarily having the power to vote for the election of
directors of such Person.
Section 1.02. Other Definitions.
7
Term Defined in Section
---- ------------------
"Act"...................................................... 1.05(a)
"Agent Members"............................................ 2.07(d)
"Authenticating Agent"..................................... 11.14
"Bankruptcy Law"........................................... 6.01
"Certificated Notes"....................................... 2.07(b)
"Change of Control"........................................ 3.02(a)
"Change of Control Repurchase Date"........................ 3.02(a)
"Change of Control Repurchase Notice"...................... 3.02(d)
"Change of Control Repurchase Price"....................... 3.02(a)
"Conversion Price"......................................... 10.01
"Current Market Price"..................................... 10.04(g)
"Custodian"................................................ 6.01
"Event of Default"......................................... 6.01
"Exchange Act"............................................. 3.02(a)
"excluded securities"...................................... 10.04(d)
"Expiration Time".......................................... 10.04(f)
"fair market value"........................................ 10.04(g)
"Global Note".............................................. 2.07(b)
"Legal Holiday"............................................ 11.08
"Liquidated Damages Notice"................................ 4.10
"Non-Electing Share"....................................... 10.11
"Note Register"............................................ 2.04
"Note Registrar"........................................... 2.04
"Notice of Default"........................................ 6.01
"Paying Agent"............................................. 2.04
"Principal Amount"......................................... 2.07(b)
"Purchased Shares"......................................... 10.04(f)
"Record Date".............................................. 10.04(g)
"Reference Period"......................................... 10.04(d)
"Restricted Note".......................................... 10.02
"Restricted Securities".................................... 2.07(d)
8
Term Defined in Section
---- ------------------
"Rule 144A Information".................................... 4.06
"transfer"................................................. 2.07(d)
"Trigger Event"............................................ 10.04(d)
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:
"COMMISSION" means the SEC.
"INDENTURE NOTES" means the Notes.
"INDENTURE NOTE HOLDER" means a Noteholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "institutional trustee" means the Trustee.
"OBLIGOR" on the indenture Notes means the Company.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
Section 1.4. 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 as in effect from time to time;
(c) "OR" is not exclusive;
(d) "INCLUDING" means including, without limitation;
(e) words in the singular include the plural, and words in the
plural include the singular; and
(f) the words "herein," "hereof" and "hereunder" and other words
of
9
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Section 1.5. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by their agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of Holders signing
such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to such officer
the execution thereof. Where such execution is by a signer acting in a
capacity other than such signer's individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such signer's
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
The ownership of Notes shall be proved by the Note Register or by a
certificate of the Note Registrar.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Note.
If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a resolution of the Board of
Directors, fix in
10
advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for purposes of determining
whether Holders of the requisite proportion of outstanding Notes have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
outstanding Notes shall be computed as of such record date; provided that
no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the
record date.
ARTICLE 2
The Notes
Section 2.01. Designation Amount and Issue of Notes. The Notes shall
be designated as "3.25% Convertible Senior Notes due 2008". Except
pursuant to Sections 2.07, 2.08, 3.05 and 10.02 hereof, Notes not to
exceed the aggregate principal amount of $125,000,000 upon the execution
of this Indenture, or from time to time thereafter, may be executed by the
Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Notes upon a Company Order,
without any further action by the Company hereunder.
Section 2.02. Form of Notes. The Notes and the Trustee's certificate
of authentication to be borne by such Notes shall be substantially in the
form set forth in Exhibit A, which is incorporated in and made a part of
this Indenture.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the
Officers executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange or automated quotation system on
which the Notes may be listed, or to conform to usage.
11
Any Global Note shall represent such of the outstanding Notes as
shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon
and that the aggregate amount of outstanding Notes represented thereby may
from time to time be increased or reduced to reflect transfers or
exchanges permitted hereby. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee, in such manner and upon
instructions given by the Holder of such Notes in accordance with this
Indenture. Payment of principal of and interest and premium, if any, on
any Global Note shall be made to the Holder of such Note.
The terms and provisions contained in the form of Note attached as
Exhibit A hereto shall constitute, and are hereby expressly made, a 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.
Section 2.03. Execution and Authentication. The Notes shall be
executed on behalf of the Company by an Officer of the Company, under its
corporate seal reproduced thereon, which may be manual or facsimile. The
signatures of such Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at the time of the execution of the Notes the proper Officers of the
Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication
and delivery of such Notes or did not hold such offices at the date of
authentication of such Notes. Notes shall be dated the date of their
authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for
herein duly executed by the Trustee or an Authenticating Agent by manual
signature of an authorized officer, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder.
The Notes shall be issued only in registered form without coupons
and only in denominations of $1,000 in principal amount and any integral
multiple thereof.
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Section 2.04. Note Registrar, Paying Agent and Conversion Agent. The
Company shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange ("NOTE REGISTRAR"), an office
or agency where Notes may be presented for purchase or payment ("PAYING
AGENT") and an office or agency where Notes may be presented for
conversion ("CONVERSION AGENT"). The Note Registrar shall keep a register
(the "NOTE REGISTER") in which, subject to such reasonable regulations as
it may prescribe it shall provide for the registration, transfer and
conversion of the Notes. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent,
including any named pursuant to Section 4.05. The term Conversion Agent
includes any additional conversion agent, including any named pursuant to
Section 4.05.
The Company shall notify the Trustee of the name and address of any
such agent. If the Company fails to maintain a Note Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.06.
The Company or any Subsidiary or an Affiliate of either of them may act as
Paying Agent, Note Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Note Registrar,
Conversion Agent and Paying Agent in connection with the Notes.
Section 2.05. Paying Agent to Hold Money and Notes in Trust. Except
as otherwise provided herein, on or prior to each due date of payments in
respect of any Note, the Company shall deposit with the Paying Agent a sum
of money (in immediately available funds if deposited on the due date) or
Common Stock sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree
in writing that the Paying Agent shall hold in trust for the benefit of
Noteholders or the Trustee all money and Common Stock held by the Paying
Agent for the making of payments in respect of the Notes and shall notify
the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any default in making such payment, the
Paying Agent shall, upon the written request of the Trustee, forthwith pay
to the Trustee all money and Common Stock so held in trust. If the
Company, or any Subsidiary or an Affiliate of either acts as Paying Agent,
it shall segregate the money and Common Stock held by it as Paying Agent
and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to pay all money and Common Stock held by it to the Trustee
and to account for any funds and Common Stock disbursed by it. Upon doing
so, the Paying Agent shall have no further liability for the money or
13
Common Stock.
Section 2.06. Noteholder 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 Noteholders. If the Trustee is not the
Note Registrar, the Company shall cause to be furnished to the Trustee at
least semiannually on January 1 and July 1 a listing of Noteholders dated
within fifteen (15) days of the date on which the list is furnished and at
such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Noteholders.
Section 2.07. Transfer and Exchange; Restrictions on Transfer;
Depositary. (a) Upon surrender for registration of transfer of any Note,
together with a written instrument of transfer satisfactory to the Note
Registrar duly executed by the Noteholder or such Noteholder's attorney
duly authorized in writing, at the office or agency of the Company
designated as Note Registrar or co-registrar pursuant to Section 2.04, and
satisfaction of the requirements of such transfer set forth in this
Section, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or
more new Notes of any authorized denomination or denominations, of a like
aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture. The Company shall not charge a service charge
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other
governmental charges that may be imposed in connection with the transfer
or exchange of the Notes from the Noteholder requesting such transfer or
exchange.
At the option of the Holder, Notes may be exchanged for other Notes
of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged, together
with a written instrument of transfer satisfactory to the Note Registrar
duly executed by the Noteholder or such Noteholder's attorney duly
authorized in writing, at such office or agency. Whenever any Notes are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange
is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
14
The Company shall not be required to make, and the Note Registrar
need not register, transfers or exchanges of any Notes in respect of which
a Change of Control Repurchase Notice (as defined in Section 3.02(d)) has
been given and not withdrawn by the Holder thereof in accordance with the
terms of this Indenture (except, in the case of Notes to be purchased in
part, the portion thereof not to be purchased).
(b) So long as the Notes are eligible for book-entry settlement with
the Depositary, or unless otherwise required by law, all Notes that, upon
initial issuance are beneficially owned by QIBs or as a result of a sale
or transfer after initial issuance are beneficially owned by QIBs, will be
represented by one or more Notes in global form registered in the name of
the Depositary or the nominee of the Depositary (the "GLOBAL NOTE"),
except as otherwise specified below. The transfer and exchange of
beneficial interests in any such Global Note shall be effected through the
Depositary in accordance with this Indenture and the procedures of the
Depositary therefor. The Trustee shall make appropriate endorsements to
reflect increases or decreases in the principal amounts of any such Global
Note as set forth on the face of the Note ("PRINCIPAL AMOUNT") to reflect
any such transfers. Except as provided below, beneficial owners of a
Global Note shall not be entitled to have certificates registered in their
names, will not receive or be entitled to receive physical delivery of
certificates in definitive form ("CERTIFICATED NOTES") and will not be
considered holders of such Global Note.
(c) (i) So long as the Notes are eligible for book-entry settlement
with the Depositary, or unless otherwise required by law, upon any
transfer of a Certificated Note to a QIB in accordance with Rule 144A that
requests delivery of such Note in the form of an interest in the Global
Note, and upon receipt of the Certificated Note or Notes being so
transferred, together with a certification, substantially in the form of
Exhibit B-1 hereto, from the transferor that the transfer is being made in
compliance with Rule 144A (or other evidence satisfactory to the Trustee),
the Trustee shall make an endorsement on the Global Note to reflect an
increase in the aggregate Principal Amount of the Notes represented by
such Global Note, and the Trustee shall cancel such Certificated Note or
Notes in accordance with the standing instructions and procedures of the
Depositary.
(ii) Upon any sale or transfer of a Note to the Company or any
Subsidiary thereof (other than pursuant to a registration statement that
has been declared effective under the Securities Act or after the
expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act), the transferor shall, prior to such sale
or transfer, furnish to the Company and/or Trustee
15
such certifications, including a certification substantially in the form
of Exhibit B-1 hereto, legal opinions or other information as they may
reasonably require to confirm that the proposed transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act. Upon any transfer of a
beneficial interest in the Global Note to the Company or such Subsidiary,
as the case may be, the Trustee shall make an endorsement on the Global
Note to reflect a decrease in the aggregate Principal Amount of the Notes
represented by such Global Note, and the Company shall execute a
Certificated Note or Notes in exchange therefor, and the Trustee, upon
receipt of such Certificated Note or Notes and a Company Order, shall
authenticate and deliver such, Certificated Note or Notes.
(iii) Upon any sale or transfer of a Note to an Institutional
Accredited Investor (other than pursuant to a registration statement that
has been declared effective under the Securities Act or after the
expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act), such Institutional Accredited Investor
shall, prior to such sale or transfer, furnish to the Company and/or the
Trustee a signed letter containing representations and agreements relating
to restrictions on transfer substantially in the form set forth in Exhibit
B-2 hereto and the transferor shall, prior to such sale or transfer,
furnish to the Company and/or Trustee such certifications, including a
certification substantially in the form of Exhibit B-1 hereto, legal
opinions or other information as they may reasonably require to confirm
that the proposed transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act. Upon any transfer of a beneficial interest in the Global
Note to an Institutional Accredited Investor, the Trustee shall make an
endorsement on the Global Note to reflect a decrease in the aggregate
Principal Amount of the Notes represented by such Global Note, and the
Company shall execute a Certificated Note or Notes in exchange therefor,
and the Trustee, upon receipt of such Certificated Note or Notes and a
Company Order, shall authenticate and deliver such, Certificated Note or
Notes.
(iv) Upon any sale or transfer of a Note outside the United States
in compliance with Rule 904 under the Securities Act (other than pursuant
to a registration statement that has been declared effective under the
Securities Act or after the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act), the transferor
shall, prior to such sale or transfer, furnish to the Company and/or the
Trustee such certifications, including a certification substantially in
the form of Exhibit B-1 hereto, legal opinions or other information as
they may reasonably require to confirm that the proposed transfer is being
made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act. Upon any transfer of
a beneficial interest
16
in the Global Note to such transferee, the Trustee shall make an
endorsement on the Global Note to reflect a decrease in the aggregate
Principal Amount of the Notes represented by such Global Note, and the
Company shall either (1) execute a Certificated Note or Notes in exchange
therefor, and the Trustee, upon receipt of such Certificated Note or Notes
and a Company Order, shall authenticate and deliver such, Certificated
Note or Notes or (2) if a Global Note with respect to Notes transferred in
compliance with Regulation S under the Securities Act has previously been
executed and authenticated, the Trustee shall make an endorsement on such
Global Note to reflect a corresponding increase in the aggregate Principal
Amount of Notes represented by such Global Note.
(v) Upon any sale or transfer of a Note pursuant to the exemption
from registration provided by Rule 144 under the Securities Act, the
transferor shall, prior to such sale or transfer, furnish to the Company
and/or the Trustee such certifications, including a certification
substantially in the form of Exhibit B-1 hereto, legal opinions or other
information as they may reasonably require to confirm that the proposed
transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act. Upon
any transfer of a beneficial interest in the Global Note to such
transferee, the Trustee shall make an endorsement on the Global Note to
reflect a decrease in the aggregate Principal Amount of the Notes
represented by such Global Note, and, at the request of the transferee,
either (1) the Company shall execute a Certificated Note or Notes in
exchange therefor, and the Trustee, upon receipt of such Certificated Note
or Notes and a Company Order, shall authenticate and deliver such,
Certificated Note or Notes or (2) if a Global Note that does not bear the
legend set forth in Section 2.07(d) has previously been executed and
authenticated, the Trustee shall make an endorsement on such Global Note
to reflect a corresponding increase in the aggregate Principal Amount of
Notes represented by such Global Note.
Any Global Note may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be
required by the Trustee, the Depositary or by the National
Association of Securities Dealers, Inc. in order for the Notes to be
tradeable on The Portal Market or as may be required for the Notes
to be tradeable on any other market developed for trading of
securities pursuant to Rule 144A or required to comply with any
applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange or automated quotation system
upon which the Notes may be listed or traded or to conform with any
usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Notes are subject.
(d) Every Note that bears or is required under this Section
17
2.07(d) to bear the legend set forth in this Section 2.07(d)
(together with any Common Stock issued upon conversion of the Notes
and required to bear the legend set forth in Section 2.07(e),
collectively, the "RESTRICTED SECURITIES") shall be subject to the
restrictions on transfer set forth in this Section 2.07(d)
(including those set forth in the legend set forth below) unless
such restrictions on transfer shall be waived by written consent of
the Company, and the holder of each such Restricted Security, by
such Noteholder's acceptance thereof, agrees to be bound by all such
restrictions on transfer. As used in Section 2.07(d) and 2.07(c),
the term "TRANSFER" encompasses any sale, pledge, loan, transfer or
other disposition whatsoever of any Restricted Security.
Until the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor
provision), any certificate evidencing such Note (and all securities
issued in exchange therefor or substitution thereof, other than
Common Stock, if any, issued upon conversion thereof, which shall
bear the legend set forth in Section 2.07(e), if applicable) shall
bear a legend in substantially the following form, unless such Note
has been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and which continues to
be effective at the time of such transfer), or unless otherwise
agreed by the Company in writing, with written notice thereof to the
Trustee:
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES
OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE EXPIRATION OF THE HOLDING
18
PERIOD APPLICABLE TO SALES THEREOF UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION) (THE "RESALE
RESTRICTION PERIOD") ONLY (A) TO WABASH NATIONAL CORPORATION
OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (C) OUTSIDE THE UNTIED
STATES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S, (D) TO
AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) or (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING UNDER RULE 144, IF AVAILABLE,
SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF
LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF
SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIME WITHIN ITS OR
THEIR CONTROL. IF ANY RESALE
19
OR OTHER TRANSFER OF THIS SECURITY OR SHARES OF COMMON STOCK
ISSUED UPON CONVERSION OF THIS SECURITY IS PROPOSED TO BE MADE
PURSUANT TO CLAUSE (D) OF THIS PARAGRAPH PRIOR TO THE
EXPIRATION OF THE RESALE RESTRICTION PERIOD (OR THE DATE OF
REGISTRATION THEREOF), THE TRANSFEROR SHALL BE REQUIRED TO
DELIVER A LETTER FROM THE TRANSFEREE TO THE TRUSTEE WHICH
SHALL PROVIDE, AMONG OTHER THINGS, THAT THE TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) or (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY OR THE SHARES
OF COMMON STOCK ISSUED UPON CONVERSION OF THIS SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT. PRIOR TO THE
EXPIRATION OF THE RESALE RESTRICTION PERIOD, THE COMPANY AND
THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE HOLDER AFTER THE EXPIRATION OF THE RESALE
RESTRICTION PERIOD.
Any Note (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have
expired in accordance with their terms or as to conditions for
removal of the foregoing legend set forth therein have been
satisfied may, upon surrender of such Note for exchange to the Note
20
Registrar in accordance with the provisions of this Section 2.07, be
exchanged for a new Note or Notes, of like tenor and aggregate
principal amount, which shall not bear the restrictive legend
required by this Section 2.07(d).
Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in Section 2.07(c), with respect to
transfers of beneficial interests in a Global Note, and in this
Section 2.07(d)), a Global Note may not be transferred as a whole or
in part except by the Depositary to a nominee of the Depositary or
by a nominee of the Depositary to the Depositary or another nominee
of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
Neither any members of, or participants in, the Depositary
(collectively, the "AGENT MEMBERS") nor any other Persons on whose
behalf Agent Members may act shall have any rights under this
Indenture with respect to any Global Note registered in the name of
the Depositary or any nominee thereof, or under any such Global
Note, and the Depositary or such nominee, as the case may be, may be
treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and holder of such Global 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 such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person on
whose behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a
Holder of any Note.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust
Company to act as Depositary with respect to the Notes in global
form. Initially, the Global Note shall be issued to the Depositary,
registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Trustee, as custodian for Cede &
Co.
If at any time the Depositary for a Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for
such Note, the Company may appoint a successor Depositary with
respect to such Note. If a successor Depositary is not appointed by
the Company within ninety (90) days after the Company receives such
notice, the Company will execute, and the Trustee, upon receipt of
an Officers' Certificate for the authentication and delivery of
Notes, will authenticate and deliver, Certificated Notes, in
aggregate principal amount equal to the principal amount of such
Global Note, in exchange for such Global
21
Note.
If a Certificated Note is issued in exchange for any portion
of a Global Note after the close of business at the office or agency
where such exchange occurs on any Regular Record Date and before the
opening of business at such office or agency on the next succeeding
Interest Payment Date, interest will not be payable on such Interest
Payment Date in respect of such Certificated Note, but will be
payable on such Interest Payment Date only to the Person to whom
interest in respect of such portion of such Global Note is payable
in accordance with the provisions of this Indenture.
Certificated Notes issued in exchange for all or a part of a
Global Note pursuant to this Section 2.07 shall be registered in
such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. Upon execution and
authentication, the Trustee shall deliver such Certificated Notes to
the Persons in whose names such Certificated Notes are so
registered.
At such time as all interests in a Global Note have been
converted, canceled, exchanged for Certificated Notes, or
transferred to a transferee who receives Certificated Notes thereof,
such Global Note shall, upon receipt thereof, be canceled by the
Trustee in accordance with standing procedures and instructions
existing between the Depositary and the Trustee. At any time prior
to such cancellation, if any interest in a Global Note is exchanged
for Certificated Notes, converted, repurchased or canceled, or
transferred to a transferee who receives Certificated Notes therefor
or any Certificated Note is exchanged or transferred for part of a
Global Note, the principal amount of such Global Note shall, in
accordance with the standing procedures and instructions existing
between the Depositary and the Trustee, be appropriately reduced or
increased, as the case may be, and an endorsement shall be made on
such Global Note, by the Trustee to reflect such reduction or
increase.
(e) Until the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), any stock certificate representing Common
Stock issued upon conversion of any Note shall bear a legend in
substantially the following form, unless such Common Stock has been
sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be
effective at the time of such transfer) or such Common Stock has
been issued upon conversion of Notes that have been transferred
pursuant to a registration statement that has been declared
effective under the Securities Act, or unless otherwise agreed by
the Company in writing with written notice thereof to the
22
transfer agent:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
THEREOF UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION) (THE "RESALE RESTRICTION PERIOD") ONLY
(A) TO WABASH NATIONAL CORPORATION OR ANY SUBSIDIARY THEREOF,
(B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (C) OUTSIDE THE UNTIED STATES TO NON-U.S. PERSONS IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) or (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN
23
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING UNDER RULE 144, IF AVAILABLE,
SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF
LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF
SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIME WITHIN ITS OR
THEIR CONTROL. IF ANY RESALE OR OTHER TRANSFER OF THIS
SECURITY IS PROPOSED TO BE MADE PURSUANT TO CLAUSE (D) OF THIS
PARAGRAPH PRIOR TO THE EXPIRATION OF THE RESALE RESTRICTION
PERIOD (OR THE DATE OF REGISTRATION THEREOF), THE TRANSFEROR
SHALL BE REQUIRED TO DELIVER A LETTER FROM THE TRANSFEREE TO
THE TRANSFER AGENT WHICH SHALL PROVIDE, AMONG OTHER THINGS,
THAT THE TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) or (7) OF
RULE 501 UNDER THE SECURITIES ACT AND THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT.
PRIOR TO THE EXPIRATION OF THE RESALE RESTRICTION PERIOD, THE
COMPANY AND THE TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE
THE DELIVERY OF AN
24
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE EXPIRATION OF THE
RESALE RESTRICTION PERIOD.
Any such Common Stock as to which such restrictions on
transfer shall have expired in accordance with their terms or as to
which the conditions for removal of the foregoing legend set forth
therein have been satisfied may, upon surrender of the certificates
representing such shares of Common Stock for exchange in accordance
with the procedures of the transfer agent for the Common Stock, be
exchanged for a new certificate or certificates for a like number of
shares of Common Stock, which shall not bear the restrictive legend
required by this Section 2.07(e).
(f) Any Note or Common Stock issued upon the conversion or
exchange of a Note that, prior to the expiration of the holding
period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision), is purchased or owned
by the Company or any Affiliate thereof may not be resold by the
Company or such Affiliate unless registered under the Securities Act
or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction which results in
such Notes or Common Stock, as the case may be, no longer being
"RESTRICTED securities" (as defined under Rule 144).
Section 2.08. Replacement Notes. If (a) any mutilated Note is
surrendered to the Trustee, or (b) the Company, the Trustee and, if
applicable, the Authenticating Agent receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Company, the Trustee and, if applicable, the
Authenticating Agent such Note or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company,
the Trustee or, if applicable, the Authenticating Agent that such Note has
been acquired by a bona fide purchaser, the Company shall execute and upon
its written request the Trustee or the Authenticating Agent shall
authenticate and deliver, in exchange for any such mutilated Note or in
lieu of any such destroyed, lost or stolen Note, a new Note of like tenor
and principal amount, bearing a number not contemporaneously outstanding.
25
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 3 hereof, the Company in its discretion
may, instead of issuing a new Note, pay or purchase such Note, as the case
may be.
Upon the issuance of any new Notes under this Section 2.08, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and any
Authenticating Agent) connected therewith.
Every new Note issued pursuant to this Section 2.08 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Note shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.09. Outstanding Notes; Determination of Holders' Action.
Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it or delivered to it for
cancellation, those paid pursuant to Section 2.08 and those described in
this Section 2.09 as not outstanding. A Note does not cease to be
outstanding because the Company or an Affiliate thereof holds the Note;
provided, however, that in determining whether the Holders of the
requisite principal amount of the outstanding Notes have given or
concurred in any request, demand, authorization, direction, notice,
consent or waiver hereunder, Notes owned by the Company or any other
obligor upon the Notes or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent
or waiver, only Notes which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Subject to the foregoing,
only Notes outstanding at the time of such determination shall be
considered in any such determination (including, without limitation,
determinations pursuant to Articles 6 and 9).
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held
26
by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on the
Business Day following the Change of Control Repurchase Date, or on Stated
Maturity, money or securities, if permitted hereunder, sufficient to pay
Notes payable on that date, then immediately after such Change of Control
Repurchase Date or Stated Maturity, as the case may be, such Notes shall
cease to be outstanding and interest on such Notes shall cease to accrue.
If a Note is converted in accordance with Article 10, then from and
after the time of conversion on the conversion date, such Note shall cease
to be outstanding and interest shall cease to accrue on such Note.
Section 2.10. Temporary Notes. Pending the preparation of definitive
Notes, the Company may execute, and upon a Company Order the Trustee shall
authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Notes in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes
may determine, as conclusively evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive
Notes upon surrender of the temporary Notes at the office or agency of the
Company designated for such purpose pursuant to Section 2.04, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes the Company shall execute and the Trustee or an
Authenticating Agent shall authenticate and deliver in exchange therefor a
like principal amount of definitive Notes of authorized denominations.
Until so exchanged the temporary Notes shall in all respects be entitled
to the same benefits under this Indenture as definitive Notes.
Section 2.11. Cancellation. All Notes surrendered for payment,
purchase by the Company pursuant to Article 3, conversion or registration
of transfer or exchange shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation
any Notes previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Notes to replace Notes it has
27
paid or delivered to the Trustee for cancellation or that any Holder has
converted pursuant to Article 10. No Notes shall be authenticated in lieu
of or in exchange for any Notes cancelled as provided in this Section
2.11, except as expressly permitted by this Indenture. All cancelled Notes
held by the Trustee shall be disposed of by the Trustee in its customary
manner.
Section 2.12. Persons Deemed Owners. Prior to due presentment of a
Note for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Note
is registered as the owner of such Note for the purpose of receiving
payment of principal of the Note or the payment of any Change of Control
Repurchase Price in respect thereof, and interest thereon, for the purpose
of conversion and for all other purposes whatsoever, whether or not such
Note is overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 2.13. CUSIP Numbers. The Company in issuing the Notes may
use "CUSIP" numbers (if then generally in use). No representation is made
as to the correctness of such CUSIP numbers and reliance may be placed
only on the other identification numbers printed on the Notes. The Company
will promptly notify the Trustee of any change in the CUSIP numbers.
Section 2.14. Default Interest. If the Company defaults in a payment
of interest on the Notes, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the
defaulted interest, plus (to the extent lawful) any interest payable on
the defaulted interest, to the Persons who are Holders on a subsequent
special record date. A special record date, as used in this Section 2.14
with respect to the payment of any defaulted interest, shall mean the 15th
day next preceding the date fixed by the Company for the payment of
defaulted interest, whether or not such day is a Business Day. At least
fifteen (15) days before the subsequent special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the
subsequent special record date, the payment date and the amount of
defaulted interest to be paid.
ARTICLE 3
Repurchase Upon a Change of Control
Section 3.01. No Optional Redemption. Except as set forth in Section
28
3.02, the Notes are not redeemable by the Company prior to their Stated
Maturity.
Section 3.02. Repurchase of Notes at Option of the Holder upon
Change of Control. (a) If there shall have occurred a Change of Control,
all or any portion of the Notes of any Holder equal to $1,000 or a whole
multiple of $1,000, shall be repurchased by the Company, at the option of
such Holder, at a repurchase price equal to 100% of the principal amount
of the Notes to be repurchased, together with interest accrued and unpaid
to, but excluding, the repurchase date (the "CHANGE OF CONTROL REPURCHASE
PRICE"), on the date (the "CHANGE OF CONTROL REPURCHASE DATE") that is
thirty (30) days after the date the Company delivered the notice required
under Section 3.02(c) (or if such 30th day is not a Business Day, the next
succeeding Business Day); provided, however, that installments of interest
on Notes the Stated Maturity of which is prior to or on the Change of
Control Repurchase Date shall be payable to the Holders of such Notes, or
one or more predecessor Notes, registered as such on the relevant Regular
Record Date according to their terms.
Subject to the fulfillment by the Company of the conditions set
forth in Section 3.02(b) hereof, the Company may elect to pay the Change
of Control Repurchase Price in Common Stock by delivering the number of
shares of Common Stock equal to (i) the Change of Control Repurchase Price
divided by (ii) 95% of the average of the Closing Prices per share of the
applicable Common Stock for the five (5) consecutive Trading Days
immediately preceding and including the third Trading Day prior to the
Change of Control Repurchase Date.
Whenever in this Indenture (including Sections 2.01, 6.01(a) and
6.07 hereof) or Exhibit A annexed hereto there is a reference, in any
context, to the principal of any Note as of any time, such reference shall
be deemed to include reference to the Change of Control Repurchase Price
payable in respect to such Note to the extent that such Change of Control
Repurchase Price is, was or would be so payable at such time, and express
mention of the Change of Control Repurchase Price in any provision of this
Indenture shall not be construed as excluding the Change of Control
Repurchase Price in those provisions of this Indenture when such express
mention is not made.
A "CHANGE OF CONTROL" of the Company shall be deemed to have
occurred at such time as either of the following events shall occur:
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended
29
(the "EXCHANGE ACT")), acquires the beneficial ownership (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, through a purchase, merger or other
acquisition transaction, of 50% or more of the total voting power of
the Company's total outstanding Voting Stock other than an
acquisition by the Company, any of its Subsidiaries or any of its
employee benefit plans;
(ii) the Company consolidates with, or merges with or into,
another Person or conveys, transfers, leases or otherwise disposes
in one or a series of related transactions of all or substantially
all of its assets to any Person, or any Person consolidates with or
merges with or into the Company other than:
(A) any transaction (1) that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of the Company's Capital Stock and (2)
pursuant to which holders of the Company's Capital Stock
immediately prior to such transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total
voting power of all shares of the Company's Capital Stock
entitled to vote generally in the election of directors of the
continuing or surviving person immediately after the
transaction; and
(B) any merger solely for the purpose of changing the
Company's jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding shares
of Common Stock solely into shares of common stock of the
surviving entity;
(iii) during any consecutive two-year period, individuals who
at the beginning of that two-year period constituted the Company's
board of directors (together with any new directors whose election
to such board of directors, or whose nomination for election by the
Company's stockholders, was approved by a vote of a majority of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority the Company's board of directors then in
office;
(iv) the Company's stockholders pass a special resolution
approving a plan of liquidation or dissolution and no additional
approvals of the Company's stockholders are required under
applicable law to cause a liquidation or dissolution; or
(v) the Common Stock (or other common stock into which the
Notes are then convertible) is neither listed for trading on the New
York
30
Stock Exchange nor approved for trading on the Nasdaq National
Market.
Notwithstanding the foregoing, a "CHANGE OF CONTROL" shall not
be deemed to have occurred if:
(i) the Closing Price per share of the applicable Common Stock
for any five (5) Trading Days within the period of ten (10)
consecutive Trading Days immediately after the later of the Change
of Control (in the case of a Change of Control under subsection (i)
of the definition of "Change of Control") or the period of ten (10)
consecutive Trading Days ending immediately before the Change of
Control (in the case of a Change of Control under subsection (ii) of
the definition of "Change of Control") shall equal or exceed 110% of
the Conversion Price of the Notes in effect on the date prior to the
Change of Control or the public announcement of the Change of
Control, as applicable; or
(ii) all of the consideration (excluding cash payments for
fractional shares and cash payments made pursuant to dissenters'
appraisal rights) in the transaction or transactions constituting a
Change of Control under subsection (i) or (ii) of the definition of
"Change of Control" consists of shares of common stock that are, or
upon issuance will be, traded on the New York Stock Exchange or the
American Stock Exchange or quoted on the Nasdaq National Market and
as a result of such transaction or transactions the Notes become
convertible solely into such common stock.
(b) The following are conditions to the Company's election to pay
for the Change of Control Repurchase Price in Common Stock; or
(i) The shares of Common Stock to be issued upon repurchase of
Notes hereunder:
(A) shall not require registration under any federal
securities law before such shares may be freely transferable without
being subject to any transfer restrictions under the Securities Act
upon repurchase or, if such registration is required, such
registration shall be completed and shall become effective prior to
the Change of Control Repurchase Date; and
(B) shall not require registration with, or approval of, any
governmental authority under any state law or any other federal law
before shares may be validly issued or delivered upon repurchase or
if such registration is required or such approval must be obtained,
such registration shall be completed or such approval shall be
obtained prior to the Change of Control Repurchase Date.
(ii) The shares of Common Stock to be listed upon repurchase
31
of Notes hereunder are, or shall have been, approved for listing on
the Nasdaq National Market or the New York Stock Exchange or listed
on another national securities exchange, in any case, prior to the
Change of Control Repurchase Date.
(iii) All shares of Common Stock which may be issued upon
repurchase of Notes will be issued out of the Company's authorized
but unissued Common Stock and will, upon issue, be duly and validly
issued and fully paid and nonassessable and free of any preemptive
or similar rights.
(iv) If any of the conditions set forth in clauses (i) through
(iii) of this Section 3.02(b) are not satisfied in accordance with
the terms thereof, the Change of Control Repurchase Price shall be
paid by the Company only in cash.
(c) Prior to or on the 15th day after the occurrence of a
Change of Control, the Company, or, at the written request and
expense of the Company prior to or on the 15th day after such
occurrence, the Trustee, shall give to all Noteholders, in the
manner provided in Section 11.02 hereof, notice of the occurrence of
the Change of Control and of the repurchase right set forth herein
arising as a result thereof. The Company shall also deliver a copy
of such notice of a repurchase right to the Trustee. Except as a
result of its failure to fulfill the conditions set forth in Section
3.02(b), the Company may not change the form of consideration to be
paid for the Notes under this Article 3 once it has delivered its
Change of Control Repurchase Notice. The notice shall include a form
of Change of Control Repurchase Notice (as defined in Section
3.02(d)) to be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change of Control and the
date of such Change of Control;
(2) the date by which the Change of Control Repurchase Notice
pursuant to this Section 3.02 must be given;
(3) the Change of Control Repurchase Date;
(4) the Change of Control Repurchase Price and whether the
Change of Control Repurchase Price will be payable in cash or Common
Stock;
(5) the name and address of the Paying Agent and the
Conversion Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Notes as to which a Change of Control Repurchase
Notice has been given may be converted pursuant to Article 10 hereof
only if
32
the Change of Control Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to
collect payment;
(9) that the Change of Control Repurchase Price for any Note
as to which a Change of Control Repurchase Notice has been duly
given and not withdrawn will be paid promptly following the later of
the Change of Control Repurchase Date and the time of surrender of
such Note as described in (8) above;
(10) briefly, the procedures the Holder must follow to
exercise rights under this Section 3.02;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change of Control
Repurchase Notice;
(13) that, unless the Company defaults in making payment of
such Change of Control Repurchase Price, interest on Notes submitted
for repurchase will cease to accrue on and after the Change of
Control Repurchase Date; and
(14) the CUSIP number of the Notes.
(d) A Holder may exercise its rights specified in Section
3.02(a) hereof upon delivery of a written notice of purchase (a
"CHANGE OF CONTROL REPURCHASE NOTICE"), substantially in the form as
set forth on the reverse of the Notes, to the Paying Agent at any
time prior to the close of business on the Change of Control
Repurchase Date, stating:
(1) the certificate number of the Note which the Holder will
deliver to be purchased;
(2) the portion of the principal amount of the Note which the
Holder will deliver to be purchased, which portion must be $1,000 or
an integral multiple thereof; and
(3) that such Note shall be purchased pursuant to the terms
and conditions specified in paragraph 6 of the Notes.
33
The delivery of such Note to the Paying Agent prior to, on or after
the Change of Control Repurchase Date (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to
the receipt by the Holder of the Change of Control Repurchase Price
therefor; provided, however, that such Change of Control Repurchase Price
shall be so paid pursuant to this Section 3.02 only if the Note so
delivered to the Paying Agent shall conform in all respects to the
description thereof set forth in the related Change of Control Repurchase
Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.02, a portion of a Note if the principal amount of such portion
is $1,000 or an integral multiple of $1,000. Provisions of this Indenture
that apply to the purchase of all of a Note also apply to the purchase of
such portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions
of this Section 3.02 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of
the Change of Control Repurchase Date and the time of delivery of the Note
to the Paying Agent in accordance with this Section 3.02.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change of Control Repurchase Notice
contemplated by this Section 3.02(d) shall have the right to withdraw such
Change of Control Repurchase Notice at any time prior to the close of
business on the Change of Control Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 3.03.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Change of Control Repurchase Notice or written withdrawal
thereof.
Section 3.03. Effect of Change of Control Repurchase Notice. Upon
receipt by the Paying Agent of the Change of Control Repurchase Notice
specified in Section 3.02(d), the Holder of the Note in respect of which
such Change of Control Repurchase Notice was given shall (unless such
Change of Control Repurchase Notice is withdrawn as specified in the
following two paragraphs) thereafter be entitled to receive solely the
Change of Control Repurchase Price with respect to such Note. Such Change
of Control Repurchase Price shall be paid to such Holder, subject to
receipts of funds and/or Notes by the Paying Agent, promptly following the
later of (x) the Change of Control Repurchase Date with respect to such
Note (provided that the conditions in Section 3.02(d) have been satisfied)
and (y) the time of delivery of
34
such Note to the Paying Agent by the Holder thereof in the manner required
by Section 3.02(d). Notes in respect of which a Change of Control
Repurchase Notice has been given by the Holder thereof may not be
converted pursuant to Article 10 hereof on or after the date of the
delivery of such Change of Control Repurchase Notice unless such Change of
Control Repurchase Notice has first been validly withdrawn as specified in
the following two paragraphs.
A Change of Control Repurchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent
in accordance with the Change of Control Repurchase Notice at any time
prior to the close of business on the Change of Control Repurchase Date
specifying:
(1) the certificate number of the Note in respect of which such
notice of withdrawal is being submitted,
(2) the principal amount of the Note with respect to which such
notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Note which remains
subject to the original Change of Control Repurchase Notice and which has
been or will be delivered for purchase by the Company.
There shall be no repurchase of any Notes pursuant to Section 3.02
if there has occurred (prior to, on or after, as the case may be, the
giving, by the Holders of such Notes, of the required Change of Control
Repurchase Notice) and is continuing an Event of Default (other than a
default in the payment of the Change of Control Repurchase Price with
respect to such Notes). The Paying Agent will promptly return to the
respective Holders thereof any Notes (x) with respect to which a Change of
Control Repurchase Notice has been withdrawn in compliance with this
Indenture, or (y) held by it during the continuance of an Event of Default
(other than a default in the payment of the Change of Control Repurchase
Price with respect to such Notes) in which case, upon such return, the
Change of Control Repurchase Notice with respect thereto shall be deemed
to have been withdrawn.
Section 3.04. Deposit of Change of Control Repurchase Price. Prior
to 10:00 a.m. (New York City time) on the Business Day following the
Change of Control Repurchase Date, the Company shall deposit with the
Trustee or with the Paying Agent (or, if the Company or any Subsidiary or
an Affiliate of either is acting as the Paying Agent, shall segregate and
hold in trust as provided in
35
Section 2.05) an amount of money (in immediately available funds if
deposited on such Business Day) or Common Stock, if permitted hereunder,
sufficient to pay the aggregate Change of Control Repurchase Price of all
the Notes or portions thereof which are to be purchased as of the Change
of Control Repurchase Date.
Section 3.05. Notes Purchased in Part. Any Note which is to be
purchased only in part shall be surrendered at the office of the Paying
Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such
Xxxxxx's attorney duly authorized in writing) and the Company shall
execute and the Trustee or an Authenticating Agent shall authenticate and
deliver to the Holder of such Note, without service charge, a new Note or
Notes, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for, the portion of
the principal amount of the Note so surrendered which is not purchased.
Section 3.06. Covenant to Comply with Securities Laws upon Purchase
of Notes. In connection with any offer to purchase or repurchase of Notes
under Section 3.02 hereof (provided that such offer or purchase
constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which
term, as used herein, includes any successor provision thereto) under the
Exchange Act at the time of such offer or purchase), the Company shall (i)
comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules under
the Exchange Act which may then be applicable, (ii) file the related
Schedule 13E-3 (or any successor schedule, form or report) or any other
schedule required under the Exchange Act, and (iii) otherwise comply with
all federal and state securities laws so as to permit the rights and
obligations under Section 3.02 to be exercised in the time and in the
manner specified in Section 3.02.
Section 3.07. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash or shares of Common Stock that
remain unclaimed as provided in paragraph 9 of the Notes, together with
interest or dividends, if any, thereon, held by them for the payment of
the Change of Control Repurchase Price; provided, however, that to the
extent that the aggregate amount of cash or shares of Common Stock
deposited by the Company pursuant to Section 3.04 exceeds the aggregate
Change of Control Repurchase Price of the Notes or portions thereof which
the Company is obligated to purchase as of the Change of Control
Repurchase Date, then promptly after the Business Day following the Change
of Control Repurchase Date, the Trustee shall return any such excess to
the Company together with
36
interest or dividends, if any, thereon.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Principal, Premium, Interest on the Notes .
The Company will duly and punctually pay the principal of and premium, if
any, and interest (including Liquidated Damages, if any) in respect of the
Notes in accordance with the terms of the Notes and this Indenture. The
Company will deposit or cause to be deposited with the Trustee as directed
by the Trustee, no later than the day of the Stated Maturity of any Note
or installment of interest, all payments so due. Principal amount, Change
of Control Repurchase Price, and cash interest shall be considered paid on
the applicable date due if on such date (or, in the case of a Change of
Control Repurchase Price on the Business Day following the applicable
Change of Control Repurchase Date) the Trustee or the Paying Agent holds,
in accordance with this Indenture, money or Notes, if permitted hereunder,
sufficient to pay all such amounts then due.
The Company shall, to the extent permitted by law, pay cash interest
on overdue amounts at the rate per annum set forth in paragraph 1 of the
Notes, compounded semiannually, which interest shall accrue from the date
such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand.
Section 4.02. Reports by the Company. The Company shall file with
the Trustee (and the SEC after the Indenture becomes qualified under the
TIA), and transmit to holders of Notes, such information, documents and
other reports and such summaries thereof, as may be required pursuant to
the TIA at the times and in the manner provided pursuant to the TIA,
whether or not the Notes are governed by the TIA; provided, however, that
any such information, documents or reports required to be filed with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within fifteen (15) days after the same is so required to
be filed with the SEC. Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates).
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Section 4.03. Compliance Certificate. The Company shall deliver to
the Trustee within one hundred twenty (120) days after the end of each
fiscal year of the Company (beginning with the fiscal year ending on
December 31, 2003) an Officers' Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions
of this Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which
they may have knowledge.
Section 4.04. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.
Section 4.05. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, the City of New York, an office or
agency of the Trustee, Note Registrar, Paying Agent and Conversion Agent
where Notes may be presented or surrendered for payment, where Notes may
be surrendered for registration of transfer, exchange, purchase or
conversion and where notices and demands to or upon the Company in respect
of the Notes and this Indenture may be served. The Corporate Trust Office
and each office or agency of the Trustee in the Borough of Manhattan, the
City of New York, shall initially be one such office or agency for all of
the aforesaid purposes. The Company shall give prompt written notice to
the Trustee of the location, and of any change in the location, of any
such office or agency (other than a change in the location of the office
of the Trustee). If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section
11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in the Borough of Manhattan, the City of New York, for
such purposes.
Section 4.06. Delivery of Certain Information. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder or any beneficial holder of Notes or shares of
Common Stock issued upon conversion thereof, the Company will promptly
furnish or
38
cause to be furnished Rule 144A Information (as defined below) to such
Holder or any beneficial holder of Notes or holder of shares of Common
Stock issued upon conversion of Notes, or to a prospective purchaser of
any such security designated by any such Holder, as the case may be, to
the extent required to permit compliance by such Holder or holder with
Rule 144A under the Securities Act in connection with the resale of any
such security. "RULE 144A INFORMATION" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.07. Existence. Subject to Article 5, the Company will do
or cause to be done all things necessary to preserve and keep in full
force and effect its existence and rights (charter and statutory);
provided, however, that the Company shall not be required to preserve any
such right if the Company shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the
Noteholders.
Section 4.08. Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business
of any Significant Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the
Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company
from discontinuing the operation or maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable in
the conduct of its business or the business of any Significant Subsidiary
and not disadvantageous in any material respect to the Noteholders.
Section 4.09. Payment of Taxes and Other Claims. The Company will
pay or discharge, or cause to be paid or discharged, before the same may
become delinquent, (i) all taxes, assessments and governmental charges
levied or imposed upon the Company or any Significant Subsidiary or upon
the income, profits or property of the Company or any Significant
Subsidiary, (ii) all claims for labor, materials and supplies which, if
unpaid, might by law become a Lien or charge upon the property of the
Company or any Significant Subsidiary and (iii) all stamps and other
duties, if any, which may be imposed by the United States or any political
subdivision thereof or therein in connection with the issuance, transfer,
exchange or conversion of any Notes or with respect to this Indenture;
provided, however, that, in the case of clauses (i) and (ii), the
39
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (A) if the failure to
do so will not, in the aggregate, have a material adverse impact on the
Company, or (B) if the amount, applicability or validity is being
contested in good faith by appropriate proceedings.
Section 4.10. Liquidated Damages Notice. In the event that the
Company is required to pay Liquidated Damages to holders of Notes pursuant
to the Registration Rights Agreement, the Company will provide written
notice ("LIQUIDATED DAMAGES NOTICE") to the Trustee of its obligation to
pay Liquidated Damages no later than fifteen (15) days prior to the
proposed payment date for the Liquidated Damages, and the Liquidated
Damages Notice shall set forth the amount of Liquidated Damages to be paid
by the Company on such payment date. The Trustee shall not at any time be
under any duty or owe a responsibility to any Holder of Notes to determine
the Liquidated Damages, or with respect to the nature, extent or
calculation of the amount of Liquidated Damages when made, or with respect
to the method employed in such calculation of the Liquidated Damages.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge or Transfer Assets. The Company
shall not consolidate with, merge with or into any other person or convey,
transfer or lease all or substantially all of its properties and assets to
any Person, unless:
(a) either (1) the Company shall be the surviving or
continuing corporation or (2) the person (if other than the Company)
formed by or surviving such consolidation or into which the Company is
merged or the person which acquires by conveyance, transfer or lease all
or substantially all of the properties and assets of the Company (i) shall
be a corporation organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia and (ii)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form and substance reasonably satisfactory to
the Trustee, all of the obligations of the Company under the Notes and
this Indenture;
(b) at the time of such transaction, no Event of Default and
no event which, after notice or lapse of time, would become an Event of
Default, shall have happened and be continuing; and
40
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article 5 and that all
conditions precedent herein provided for relating to such transaction have
been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if
such assets were owned by the Company, would constitute all or
substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties
and assets of the Company.
The successor person formed by such consolidation or into which the
Company is merged or the successor person to which such conveyance,
transfer or lease 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 had been named as the Company
herein; and thereafter, except in the case of a lease and obligations the
Company may have under a supplemental indenture pursuant to Section 10.11,
the Company shall be discharged from all obligations and covenants under
this Indenture and the Notes. Subject to Section 9.06, the Company, the
Trustee and the successor person shall enter into a supplemental indenture
to evidence the succession and substitution of such successor person and
such discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. An "EVENT OF DEFAULT" occurs if:
(a) the Company fails to pay when due the principal of or
premium, if any, on any of the Notes at maturity, upon exercise of a
repurchase right or otherwise;
(b) the Company fails to pay an installment of interest
(including Liquidated Damages, if any) on any of the Notes that continues
for thirty (30) days after the date when due;
(c) the Company fails to deliver shares of Common Stock,
together with cash in lieu of fractional shares, when such Common Stock or
cash
41
in lieu of fractional shares is required to be delivered upon conversion
of a Note and such failure continues for ten (10) days after such delivery
date;
(d) the Company fails to give notice regarding a Change of
Control within the time period specified in Section 3.02(c);
(e) the Company fails to perform or observe any other term,
covenant or agreement contained in the Notes or this Indenture for a
period of sixty (60) days after receipt by the Company of a Notice of
Default (as defined below);
(f) (i) the Company or any Significant Subsidiary fails to
make any payment by the end of the applicable grace period, if any, after
the final scheduled payment date for such payment with respect to any
indebtedness for borrowed money in an aggregate amount in excess of $10
million, or (ii) indebtedness for borrowed money of the Company or any
Significant Subsidiary in an aggregate amount in excess of $10 million
shall have been accelerated or otherwise declared due and payable, or
required to be prepaid or repurchased (other than by regularly scheduled
required prepayment) prior to the scheduled maturity thereof as a result
of a default with respect to such indebtedness, in either case without
such indebtedness referred to in subclause (i) or (ii) of this clause (f)
having been discharged, cured, waived, rescinded or annulled, for a period
of thirty (30) days after receipt by the Company of a Notice of Default;
(g) the Company, or any Significant Subsidiary, or any
Subsidiaries of the Company which in the aggregate would constitute a
Significant Subsidiary pursuant to or under or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it
in an involuntary case or proceeding or the commencement of any case
against it;
(iii) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(iv) makes a general assignment for the benefit of its
creditors;
(v) files a petition in bankruptcy or answer or consent
seeking reorganization or relief; or
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(vi) consents to the filing of such a petition or the
appointment of or taking possession by a Custodian;
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary or any Subsidiaries of the Company which in the aggregate would
constitute a Significant Subsidiary in an involuntary case or proceeding,
or adjudicates the Company or any Significant Subsidiary or any
Subsidiaries of the Company which in the aggregate would constitute a
Significant Subsidiary insolvent or bankrupt;
(ii) appoints a Custodian of the Company or any Significant
Subsidiary or any Subsidiaries of the Company which in the aggregate would
constitute a Significant Subsidiary or for any substantial part of its or
their properties; or
(iii) orders the winding up or liquidation of the Company or
any Significant Subsidiary or any Subsidiaries of the Company which in the
aggregate would constitute a Significant Subsidiary; and
and the order or decree remains unstayed and in effect for sixty (60) days.
For purposes of Sections 6.01(g) and 6.01(h) above:
"BANKRUPTCY LAW" means Title 11, United States Code, or any similar
federal or state law for the relief of debtors.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
A Default under clause (e) or (f) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Notes at the time outstanding notify the
Company and the Trustee, of the Default and the Company does not cure such
Default (and such Default is not waived) within the time specified in
clause (e) or (f) above after actual receipt of such notice. Any such
notice must specify the Default, demand that it be remedied and state that
such notice is a "NOTICE OF DEFAULT."
The Company shall deliver to the Trustee, within five (5) Business
Days
43
of becoming aware of the occurrence of an Event of Default, written notice
thereof. In addition, the Company shall deliver to the Trustee, within
thirty (30) days after they become aware of the occurrence thereof,
written notice of any event which with the lapse of time would become an
Event of Default under clause (e) above, its status and what action the
Company is taking or proposes to take with respect thereto.
Section 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(g) or (h)) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at
least 25% in aggregate principal amount of the Notes at the time
outstanding by notice to the Company and the Trustee, may declare the
Notes due and payable at their principal amount together with accrued
interest (including Liquidated Damages, if any). Upon a declaration of
acceleration, such principal and accrued and unpaid interest to the date
of payment shall be immediately due and payable. If an Event of Default is
cured prior to any such declaration by the Trustee or the Holders, the
Trustee and the Holders shall not be entitled to declare the Notes due and
payable as provided herein as a result of such cured Event of Default and
any such cured Event of Default shall be deemed waived by the Holders and
the Trustee.
If an Event of Default specified in Section 6.01(g) or (h) above
occurs and is continuing, then the principal and the accrued interest
(including Liquidated Damages, if any) on all the Notes shall become and
be immediately due and payable without any declaration or other act on the
part of the Trustee or any Noteholders.
The Holders of a majority in aggregate principal amount of the Notes
at the time outstanding, by notice to the Trustee (and without notice to
any other Noteholder) may rescind or annul 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 the principal and any accrued cash interest
(including Liquidated Damages, if any) that have become due solely as a
result of acceleration and if all amounts due to the Trustee under Section
7.06 have been paid. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
Section 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the
payment of the principal, the premium, if any, and any accrued cash
interest (including Liquidated Damages, if any) on the Notes or to enforce
the performance of any provision of the Notes or this Indenture.
44
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Notes or produce any of the Notes in the proceeding. A
delay or omission by the Trustee or any Noteholder 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. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
Section 6.04. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Notes at the time outstanding, by notice
to the Trustee (and without notice to any other Noteholder), may waive an
existing Event of Default and its consequences except (1) an Event of
Default described in Section 6.01(a) or (b), (2) an Event of Default in
respect of a provision that under Section 9.02 cannot be amended without
the consent of each Noteholder affected or (3) an Event of Default which
constitutes a failure to convert any Note in accordance with the terms of
Article 11. When an Event of Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Event of Default or
impair any consequent right.
Section 6.05. Control by Majority. The Holders of a majority in
aggregate principal amount of the Notes at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on
the Trustee, subject to Section 7.02(d). The Trustee may refuse to follow
any direction that conflicts with law or this Indenture or that the
Trustee determines in good faith is prejudicial to the rights of other
Noteholders or would involve the Trustee in personal liability unless the
Trustee is offered indemnity satisfactory to it against loss, liability or
expense.
Section 6.06. Limitation on Suits. A Noteholder may not pursue any
remedy with respect to this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount of
the Notes at the time outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within sixty (60)
days after receipt of such notice, request and offer of security or indemnity;
and
45
(5) the Holders of a majority in aggregate principal amount of the
Notes at the time outstanding do not give the Trustee a direction inconsistent
with the request during such sixty (60) day period.
A Noteholder may not use this Indenture to prejudice the rights of
any other Noteholder or to obtain a preference or priority over any other
Noteholder.
Section 6.07. Rights of Holders To Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the principal amount, premium, if any, Change of Control
Repurchase Price or any accrued cash interest (including Liquidated
Damages, if any) in respect of the Notes held by such Xxxxxx, on or after
the respective due dates expressed in the Notes or any Change of Control
Purchase Date, and to convert the Notes in accordance with Article 10, or
to bring suit for the enforcement of any such payment on or after such
respective dates or the right to convert, shall not be impaired or
affected adversely without the consent of such Holder.
Section 6.08. Collection Suit by Trustee. If an Event of Default
described in Section 6.01(a) or (b) 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 owing with respect to the Notes
and the amounts provided for in Section 7.06.
Section 6.09. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or
the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal amount, Change of
Control Repurchase Price or any accrued cash interest in respect of the
Notes shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of any such amount) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the
principal amount, Change of Control Repurchase Price or any accrued cash
interest and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel or any other amounts due the Trustee under
Section 7.06) and of the Holders allowed in such judicial proceeding, and
46
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.06.
Nothing herein contained 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 6.10. Priorities. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money in the following order:
(1) to the Trustee for amounts due under Section 7.06;
(2) to Noteholders for amounts due and unpaid on the Notes
for the principal amount, Change of Control Purchase Price or any
accrued cash interest (including Liquidated Damages, if any) as the
case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Notes; and
(3) the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10. At least fifteen (15) days before
such record date, the Trustee shall mail to each Noteholder and the Company a
notice that states the record date, the payment date and the amount to be paid.
Section 6.11. Undertaking for Costs. 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 Trustee, a court in its
discretion may require the filing by any party litigant (other than the
Trustee) in the suit of an undertaking to pay the costs of the suit in the
manner and to the extent provided in the TIA, and the court in its
discretion may assess reasonable costs, including reasonable attorneys'
fees and expenses, 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 6.11 does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more
than 10% in
47
aggregate principal amount of the Notes at the time outstanding.
Section 6.12. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Company from paying all or any portion of
the principal amount, Change of Control Repurchase Price or any accrued
cash interest (including Liquidated Damages, if any) in respect of Notes,
or any interest on such amounts, as contemplated herein, or which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 7
TRUSTEE
Section 7.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. The Trustee, prior to the occurrence of an
Event of Default hereunder and after the curing or waiving of all such
Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default hereunder has occurred (which has
not been cured or waived), 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 person would exercise or use
under the circumstances in the conduct of its own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all such Events of Default which may
have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall not be
liable
48
except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements, certificates
or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders pursuant to Section 6.05 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers.
Section 7.02. Certain Rights of the Trustee. Subject to Section
7.01:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
Officers' Certificate or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, note,
coupon, security or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors may
be evidenced to the Trustee by a copy thereof certified by the secretary
or an assistant secretary of the Company;
49
(c) the Trustee may consult with counsel of its selection
and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture with the request,
order or direction of any of the Noteholders pursuant to the provisions of
this Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all such Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing to do so by the Holders of not less than a majority
in aggregate principal amount of the Notes then outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation shall be paid by the Company or, if paid by the Trustee
or any predecessor trustee, shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which
is in fact
50
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
and
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder.
Section 7.03. Trustee Not Responsible for Recitals, Dispositions of
Notes or Application of Proceeds Thereof. The recitals contained herein
and in the Notes, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of
the Notes. The Trustee shall not be accountable for the use or application
by the Company of any of the Notes or of the proceeds thereof.
Section 7.04. Trustee and Agents May Hold Notes; Collections, etc.
The Trustee or any agent of the Company or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes with the
same rights it would have if it were not the Trustee or such agent and,
subject to Sections 7.08 and 7.13, if operative, may otherwise deal with
the Company and receive, collect, hold and retain collections from the
Company with the same rights it would have if it were not the Trustee or
such agent.
Section 7.05. Moneys Held by Trustee. Subject to the provisions of
Section 8.04 hereof, all moneys received by the Trustee shall, until used
or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Trustee
nor any agent of the Company or the Trustee shall be under any liability
for interest on any moneys received by it hereunder.
Section 7.06. Compensation and Indemnification of Trustee and its
Prior Claim. The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) to be agreed to in writing
by the Trustee and the Company (and, in the absence of specific agreement,
to reasonable compensation), and the Company covenants and agrees to pay
or reimburse the Trustee and each predecessor Trustee upon its request for
all expenses,
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disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including (i) the
reasonable compensation and the expenses and disbursements of its counsel
and of all agents and other persons not regularly in its employ and (ii)
interest at the prime rate on any disbursements and advances made by the
Trustee and not paid by the Company within five (5) days after receipt of
an invoice for such disbursement or advance) except any such expense,
disbursement or advance as shall be determined by a court of competent
jurisdiction to have been caused by its own negligence or bad faith. The
Company also covenants to fully indemnify each of the Trustee, each
predecessor Trustee, any Authenticating Agent and any officer, director,
employee or agent of the Trustee, each such predecessor Trustee or any
such Authenticating Agent for, and to hold it harmless against, any and
all loss, liability, claim, damage or expense (including legal fees and
expenses) incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and its duties hereunder, including
the costs and expenses of defending itself against or investigating any
claim of liability in the premises. The obligations of the Company under
this Section 7.06 to compensate and indemnify the Trustee, each
predecessor Trustee, any Authenticating Agent and any officer, director,
employee or agent of the Trustee, each such predecessor Trustee or any
such Authenticating Agent and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness
shall be a senior claim to that of the Notes upon all property and funds
held or collected by the Trustee as such, except funds held in trust for
the benefit of the Holders of particular Notes, and the Notes are hereby
effectively subordinated to such senior claim to such extent. The
provisions of this Section 7.06 shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
Section 7.07. Right of Trustee to Rely on Officers' Certificate,
etc. Subject to Sections 7.01 and 7.02, whenever in the administration of
the trusts of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
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Section 7.08. Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the TIA, the Trustee
shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the TIA.
Section 7.09. Persons Eligible for Appointment as Trustee. The
Trustee shall at all times be a corporation or banking association having
a combined capital and surplus of at least $50,000,000. If such
corporation or banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section
7.09, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section
7.09, the Trustee shall resign immediately in the manner and with the
effect specified in Section 7.10.
Section 7.10. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of Notes
by giving written notice of resignation to the Company and by mailing
notice thereof by first class mail to the Holders of Notes at their last
addresses as they shall appear on the Note Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor
trustee or trustees by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee
or trustees. If no successor trustee shall have been so appointed and have
accepted appointment within thirty (30) days after the mailing of such
notice of resignation, the resigning trustee may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of
a successor trustee, or any Noteholder who has been a bona fide Holder of
a Note for at least six (6) months may, subject to the provisions of
Section 7.11, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 7.08 with respect to any Notes after written request therefor by
the Company or by any Noteholder who has been a bona fide Holder of a Note
for at least six months; or
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(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any Noteholder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; or
(iv) the Company shall determine that the Trustee has failed to
perform its obligations under this Indenture in any material respect;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 7.11, any Noteholder who has been a bona fide Holder of a
Note for at least six months may on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee. If no successor trustee shall have been
appointed and have accepted appointment within thirty (30) days after a notice
of removal has been given, the removed trustee may petition a court of competent
jurisdiction for the appointment of a successor trustee.
(c) The Holders of a majority in aggregate principal amount
of the Notes at the time outstanding may at any time remove the Trustee
and appoint a successor trustee by delivering to the Trustee so removed,
to the successor trustee so appointed and to the Company the evidence
provided for in Section 1.05 of the action in that regard taken by the
Noteholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of
this Section 7.10 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 7.11.
Section 7.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 7.10 shall execute and
deliver to the Company and to the predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall
become vested with all rights, powers,
54
duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee hereunder; but, nevertheless, on the
written request of the Company or of the successor trustee, upon payment
of its charges then unpaid, the trustee ceasing to act shall pay over to
the successor trustee all moneys at the time held by it hereunder and
shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of
any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 7.08 and eligible under
the provisions of Section 7.09.
Upon acceptance of appointment by any successor trustee as provided
in this Section 7.11, the Company shall mail notice thereof by first class
mail to the Holders of Notes at their last addresses as they shall appear
in the Note Register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section
7.10. If the Company fails to mail such notice within ten (10) days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Company.
Section 7.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation or banking association into which the
Trustee may be merged or converted or with which it may be consolidated,
or any corporation or banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation or banking association succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder; provided that such corporation or banking
association shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case at the
time such successor to the Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any
55
predecessor Trustee or Authenticating Agent and deliver such Notes so
authenticated; and, in case at that time any of the Notes shall not have
been authenticated, any successor to the Trustee or any Authenticating
Agent appointed by such successor Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate shall have the
full force and effect that this Indenture provides for the certificate of
authentication of the Trustee; provided that the right to adopt the
certificate of authentication of any predecessor Trustee or to
authenticate Notes in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
Section 7.13. Preferential Collection of Claims Against the Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the TIA regarding the collection of the claims against the
Company (or any such other obligor).
Section 7.14. Reports by the Trustee. (a) Within sixty (60) days
after May 15 of each year commencing with the year 2004, the Trustee shall
transmit to Holders and other persons such reports dated as of May 15 of
the year in which such reports are made concerning the Trustee and its
actions under this Indenture as may be required pursuant to the TIA.
(b) A copy of each such report shall, at the time of such
transmission to Noteholders, be furnished to the Company and be filed by
the Trustee with each stock exchange upon which the Notes are listed and
also with the SEC. The Company agrees to notify the Trustee when and as
the Notes become admitted to trading on any national securities exchange
or become delisted therefrom.
Section 7.15. Trustee to Give Notice of Default, but May Withhold in
Certain Circumstances. The Trustee shall transmit to the Noteholders, as
the names and addresses of such Holders appear on the Note Register,
notice by mail of all Defaults which have occurred, such notice to be
transmitted within ninety (90) days after the occurrence thereof, unless
such defaults shall have been cured before the giving of such notice;
provided that, except in the case of Default in the payment of the
principal of, premium, if any, or interest (including Liquidated Damages,
if any) on any of the Notes when due or in the payment of any repurchase
obligation, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a trust
committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such
56
notice is in the best interests of the Noteholders.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge of Indenture. When the Company shall deliver
to the Trustee for cancellation all Notes theretofore authenticated (other
than any Notes that have been destroyed, lost or stolen and in lieu of or
in substitution for which other Notes shall have been authenticated and
delivered) and not theretofore canceled and if the Company shall also pay
or cause to be paid all other sums payable hereunder by the Company, then
this Indenture shall cease to be of further effect, and the Trustee, on
written demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel as required by Section 11.04 and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture; the Company, however,
hereby agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Notes.
Section 8.02. [Intentionally Omitted].
Section 8.03. Paying Agent to Repay Monies Held. Upon the discharge
of this Indenture, all monies then held by any Paying Agent of the Notes
(other than the Trustee) shall, upon written request of the Company, be
repaid to it or paid to the Trustee, and thereupon such Paying Agent shall
be released from all further liability with respect to such monies.
Section 8.04. Return of Unclaimed Monies. Subject to the
requirements of applicable law, any monies deposited with or paid to the
Trustee or the Paying Agent for payment of the principal of, premium, if
any, or interest on Notes and not applied but remaining unclaimed by the
holders of Notes for two years after the date upon which the principal of,
premium, if any, or interest on such Notes, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee or
the Paying Agent on written demand and all liability of the Trustee or the
Paying Agent shall thereupon cease with respect to such monies; and the
Holder of any of the Notes shall thereafter look only to the Company for
any payment that such Holder may be entitled to collect unless an
applicable abandoned property law designates another Person.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01. Without Consent of Holders. The Company and the
Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto without the consent of any Noteholder for
one or more of the following purposes:
(a) adding to the Company's covenants for the benefit of the
Holders;
(b) surrendering any right or power conferred upon the
Company;
(c) providing for the assumption of the Company's
obligations to the Holders in the case of a merger, consolidation,
conveyance, transfer or lease in accordance with Article 5;
(d) reducing the Conversion Price; provided that the
reduction will not adversely affect the interests of Holders; or
(e) curing any ambiguity or correcting or supplementing any
defective provision contained in this Indenture; provided that such
modification or amendment does not adversely affect the interests of the
Holders.
Notwithstanding any other provision of the Indenture or the Notes,
the Registration Rights Agreement and the obligation to pay Liquidated
Damages thereunder may be amended, modified or waived in accordance with
the provisions of the Registration Rights Agreement.
Section 9.02. With Consent of Holders. With the written consent of
the Holders of at least a majority in aggregate principal amount of the
Notes at the time outstanding, the Company and the Trustee may, from time
to time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or change
in any manner or eliminating any of the provisions of this Indenture or
any supplemental indenture or of modifying in any manner the rights of the
Holders of the Notes. However, without the consent of each Noteholder so
affected, a supplemental indenture may not:
(a) change the maturity of the principal of or any
installment
58
of interest on any Note (including any payment of Liquidated Damages);
(b) reduce the principal amount of, or any premium or
interest on (including any payment of Liquidated Damages), any Note;
(c) change the currency of payment of such Note or interest
thereon;
(d) impair the right to institute suit for the enforcement
of any payment on or with respect to any Note;
(e) except as otherwise permitted or contemplated by
provisions concerning corporate reorganizations, adversely affect the
repurchase option of Holders upon a Change of Control or the conversion
rights of Holders;
(f) waive an Event of Default in the payment of principal
amount of, or any premium or interest on any Note including any payment of
Liquidated Damages, except a rescission of acceleration of the Notes by
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;
(g) except as permitted herein, increase the Conversion
Price or modify or amend the provisions of this Indenture relating to the
conversion of the Note in any manner adverse to the Holders; or
(h) reduce the percentage in aggregate principal amount of
Notes outstanding necessary to modify or amend this Indenture or to waive
any past default.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent approves the
substance thereof.
After a supplemental indenture under this Section 9.02 becomes
effective, the Company shall mail to each Holder a notice briefly
describing the supplemental indenture.
Section 9.03. Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall comply with
the TIA; provided that this Section 9.03 shall not require such
supplemental indenture or the Trustee to be qualified under the TIA prior
to the time such qualification is in fact required under the terms of the
TIA or the Indenture has
59
been qualified under the TIA, nor shall it constitute any admission or
acknowledgment by any party to such supplemental indenture that any such
qualification is required prior to the time such qualification is in fact
required under the terms of the TIA or the Indenture has been qualified
under the TIA.
Section 9.04. Revocation and Effect of Consents, Waivers and
Actions. Until a supplemental indenture, waiver or other action by Holders
becomes effective, a consent thereto by a Holder of a Note hereunder is a
continuing consent by the Holder and every subsequent Holder of that Note
or portion of the Note that evidences the same obligation as the
consenting Holder's Note, even if notation of the consent, waiver or
action is not made on the Note. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Note
or portion of the Note if the Trustee receives the notice of revocation
before the date the supplemental indenture, waiver or action becomes
effective. After a supplemental indenture, waiver or action becomes
effective, it shall bind every Noteholder.
Section 9.05. Notation on or Exchange of Notes. Notes authenticated
and delivered after the execution of any supplemental indenture pursuant
to this Article may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee or an
Authenticating Agent in exchange for outstanding Notes.
Section 9.06. Trustee to Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article
9 if the amendment contained therein does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee
may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall be provided with, and (subject to
the provisions of Section 7.01) shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
Section 9.07. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every Holder of Notes
theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.
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ARTICLE 10
CONVERSION
Section 10.01. Conversion Right and Conversion Price. A Holder of a
Note may convert such Note into shares of Common Stock at any time during
the periods and subject to the conditions stated in paragraph 6 of the
Notes, subject to the provisions of this Article 10.
In the case of a Change of Control for which the Holder exercises
its repurchase right with respect to a Note or portion thereof, such
conversion right in respect of the Note or portion thereof shall expire at
the close of business on the Business Day immediately preceding the Change
of Control Repurchase Date.
The price at which shares of Common Stock shall be delivered upon
conversion (the "CONVERSION PRICE") shall be initially equal to $19.20 per
share of Common Stock. The Conversion Price shall be adjusted in certain
instances as provided in paragraphs (a), (b), (c), (d), (e), (f), (h) and
(i) of Section 10.04 hereof.
Section 10.02. Exercise of Conversion Right. To exercise the
conversion right, the Holder of any Note to be converted shall surrender
such Note duly endorsed or assigned to the Company or in blank, at the
office of any Conversion Agent, accompanied by a duly signed conversion
notice substantially in the form attached to the Note to the Company
stating that the Holder elects to convert such Note or, if less than the
entire principal amount thereof is to be converted, the portion thereof to
be converted.
Notes surrendered for conversion during the period from the close of
business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date shall be accompanied by payment in New
York Clearing House funds or other funds acceptable to the Company of an
amount equal to the interest to be received on such Interest Payment Date
on the principal amount of Notes being surrendered for conversion.
Notes shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Notes for conversion
in accordance with the foregoing provisions, and at such time the rights
of the Holders of such Notes as Holders shall cease, and the Person or
Persons entitled to receive the Common Stock issuable upon conversion
shall be treated for all
61
purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the
Company shall cause to be issued and delivered to such Conversion Agent a
certificate or certificates for the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any fraction of
a share as provided in Section 10.03 hereof.
In the case of any Note which is converted in part only, upon such
conversion the Company shall execute and the Trustee or an Authenticating
Agent shall authenticate and deliver to the Holder thereof, at the expense
of the Company, a new Note or Notes of authorized denominations in
aggregate principal amount equal to the unconverted portion of the
principal amount of such Notes.
If shares of Common Stock to be issued upon conversion of a Note
that is a Restricted Security (a "RESTRICTED NOTE"), or securities to be
issued upon conversion of a Restricted Note in part only, are to be
registered in a name other than that of the Holder of such Restricted
Note, such Holder must deliver to the Conversion Agent a certificate in
substantially the form of Exhibit B-1 hereto, dated the date of surrender
of such Restricted Note and signed by such Holder, as to compliance with
the restrictions on transfer applicable to such Restricted Note. Neither
the Trustee nor any Conversion Agent, Note Registrar or transfer agent
shall be required to register in a name other than that of the Holder of
Notes or shares of Common Stock issued upon conversion of any such
Restricted Note not so accompanied by a properly completed certificate.
Section 10.03. Fractions of Shares. No fractional shares of Common
Stock shall be issued upon conversion of any Note or Notes. If more than
one Note shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issued upon conversion
thereof shall be computed on the basis of the aggregate principal amount
of the Notes (or specified portions thereof) so surrendered. Instead of
any fractional share of Common Stock which would otherwise be issued upon
conversion of any Note or Notes (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction
(calculated to the nearest one-100th of a share) in an amount equal to the
same fraction of the quoted price of the Common Stock as of the Trading
Day preceding the date of conversion.
Section 10.04. Adjustment of Conversion Price. The Conversion Price
shall be subject to adjustments, calculated by the Company, from time to
time as follows:
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(a) In case the Company shall hereafter pay a dividend or
make a distribution to all holders of the outstanding Common Stock in
shares of Common Stock, the Conversion Price in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall
be reduced by multiplying such Conversion Price by a fraction:
(1) the numerator of which shall be the number of shares of Common
Stock outstanding at the close of business on the Record Date (as defined
in Section 10.04(g)) fixed for such determination, and
(2) the denominator of which shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution.
Such reduction shall become effective immediately after the opening of business
on the day following the Record Date. For the purpose of this paragraph (a), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company. The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the treasury
of the Company. If any dividend or distribution of the type described in this
Section 10.04(a) is declared but not so paid or made, the Conversion Price shall
again be adjusted to the Conversion Price which would then be in effect if such
dividend or distribution had not been declared.
(b) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion
Price in effect at the opening of business on the day following the day
upon which such subdivision becomes effective shall be proportionately
reduced, and conversely, in case outstanding shares of Common Stock shall
be combined into a smaller number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be,
to become effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes
effective.
(c) In case the Company shall issue rights or warrants to
all holders of its outstanding shares of Common Stock entitling them to
subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) at a price per share (or having a
conversion price per share) less than the Current Market Price (as defined
in Section 10.04(g)) on the Record Date fixed for the determination of
stockholders entitled to receive such rights or warrants, the Conversion
Price shall be adjusted so that the same shall equal the price
63
determined by multiplying the Conversion Price in effect immediately prior
to such Record Date by a fraction:
(1) the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the Record Date plus
the number of shares which the aggregate offering price of the total
number of shares so offered for subscription or purchase (or the aggregate
conversion price of the convertible securities so offered) would purchase
at such Current Market Price, and
(2) the denominator of which shall be the number of shares
of Common Stock outstanding on the close of business on the Record Date
plus the total number of additional shares of Common Stock so offered for
subscription or purchase (or into which the convertible securities so
offered are convertible).
Such adjustment shall become effective immediately after the opening
of business on the day following the Record Date fixed for determination
of stockholders entitled to receive such rights or warrants. To the extent
that shares of Common Stock (or securities convertible into Common Stock)
are not delivered pursuant to such rights or warrants, upon the expiration
or termination of such rights or warrants the Conversion Price shall be
readjusted to the Conversion Price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on
the basis of the delivery of only the number of shares of Common Stock (or
securities convertible into Common Stock) actually delivered. In the event
that such rights or warrants are not so issued, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect
if such Record Date had not been fixed. In determining whether any rights
or warrants entitle the holders to subscribe for or purchase shares of
Common Stock at less than such Current Market Price, and in determining
the aggregate offering price of such shares of Common Stock, there shall
be taken into account any consideration received for such rights or
warrants and any amount payable on exercise or conversion thereof, the
value of such consideration if other than cash, to be determined by the
Board of Directors.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of Common Stock or shares of Capital Stock of
the Company (other than any dividends or distributions to which Section
10.04(a) applies) evidences of its indebtedness, cash or other assets,
including securities, but excluding (1) any rights or warrants referred to
in Section 10.04(c), (2) any stock, securities or other property or assets
(including cash) distributed in connection with a reclassification,
change, merger, consolidation, statutory share exchange, combination, sale
or conveyance to which Section 10.11 hereof
64
applies and (3) dividends and distributions paid exclusively in cash (the
securities described in foregoing clauses (1), (2) and (3) hereinafter in
this Section 10.04(d) called the "EXCLUDED SECURITIES"), then, in each
such case (unless the Company elects to reserve such securities for
distribution to the Noteholders upon the conversion of the Notes so that
any such Holder converting Notes will receive upon such conversion, in
addition to the shares of Common Stock to which such Holder is entitled,
the amount and kind of such securities which such Holder would have
received if such Holder had converted its Notes into Common Stock
immediately prior to the Record Date), subject to the second succeeding
paragraph of this Section 10.04(d), the Conversion Price shall be adjusted
so that the same shall be equal to the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on
the Record Date (as defined in Section 10.04(g)) with respect to such
distribution by a fraction:
(1) the numerator of which shall be the Current Market Price
(determined as provided in Section 10.04(g)) on such Record Date less the
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board Resolution) on
such Record Date of the portion of the securities so distributed (other
than excluded securities) applicable to one share of Common Stock
(determined on the basis of the number of shares of the Common Stock
outstanding on the Record Date), and
(2) the denominator of which shall be such Current Market
Price.
Such reduction shall become effective immediately prior to the opening of
business on the day following the Record Date. However, in the event that the
then fair market value (as so determined) of the portion of the securities so
distributed (other than excluded securities) applicable to one share of Common
Stock is equal to or greater than the Current Market Price on the Record Date,
in lieu of the foregoing adjustment, adequate provision shall be made so that
each Holder shall have the right to receive upon conversion of a Note (or any
portion thereof) the amount of securities so distributed (other than excluded
securities) such Holder would have received had such Holder converted such Note
(or portion thereof) immediately prior to such Record Date. In the event that
such dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not been declared.
If the Board of Directors determines the fair market value of any
distribution for purposes of this Section 10.04(d) by reference to the
actual or when issued trading market for any securities comprising all or
part of such distribution (other than excluded securities), it must in
doing so consider the
65
prices in such market over the same period (the "REFERENCE PERIOD") used
in computing the Current Market Price pursuant to Section 10.04(g) to the
extent possible, unless the Board of Directors in a Board Resolution
determines in good faith that determining the fair market value during the
Reference Period would not be in the best interest of the Holder.
Rights or warrants distributed by the Company to all holders of
Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company's Capital Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a
specified event or events ("TRIGGER EVENT"):
(i) are deemed to be transferred with such shares of Common Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of Common
Stock,
shall be deemed not to have been distributed for purposes of this Section
10.04(d) (and no adjustment to the Conversion Price under this Section 10.04(d)
will be required) until the occurrence of the earliest Trigger Event. If such
right or warrant is subject to subsequent events, upon the occurrence of which
such right or warrant shall become exercisable to purchase different securities,
evidences of indebtedness or other assets or entitle the Holder to purchase a
different number or amount of the foregoing or to purchase any of the foregoing
at a different purchase price, then the occurrence of each such event shall be
deemed to be the date of issuance and Record Date with respect to a new right or
warrant (and a termination or expiration of the existing right or warrant
without exercise by the holder thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with
respect thereto, that resulted in an adjustment to the Conversion Price under
this Section 10.04(d):
(1) in the case of any such rights or warrants which shall all
have been redeemed or repurchased without exercise by any holders thereof,
the Conversion Price shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the
case may be, as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder of Common Stock with
respect to such rights or warrant (assuming such holder had retained such
rights or warrants), made to all holders of Common Stock as of the date of
such redemption or repurchase, and
(2) in the case of such rights or warrants all of which shall have
expired or been terminated without exercise, the Conversion Price shall be
66
readjusted as if such rights and warrants had never been issued.
No adjustment of the Conversion Price shall be made pursuant to this
Section 10.04(d) in respect of rights or warrants distributed or deemed
distributed on any Trigger Event to the extent that such rights or
warrants are actually distributed, or reserved by the Company for
distribution to holders of Notes upon conversion by such holders of Notes
to Common Stock.
For purposes of this Section 10.04(d) and Sections 10.04(a),
10.04(b) and 10.04(c), any dividend or distribution to which this Section
10.04(d) is applicable that also includes shares of Common Stock, a
subdivision or combination of Common Stock to which Section 10.04(b)
applies, or rights or warrants to subscribe for or purchase shares of
Common Stock to which Section 10.04(c) applies (or any combination
thereof), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness,
assets, shares of Capital Stock, rights or warrants other than such shares
of Common Stock, such subdivision or combination or such rights or
warrants to which Sections 10.04(a), 10.04(b) and 10.04(c) apply,
respectively (and any Conversion Price reduction required by this Section
10.04(d) with respect to such dividend or distribution shall then be
made), immediately followed by
(2) a dividend or distribution of such shares of Common Stock,
such subdivision or combination or such rights or warrants (and any
further Conversion Price reduction required by Sections 10.04(a), 10.04(b)
and 10.04(c) with respect to such dividend or distribution shall then be
made), except:
(A) the Record Date of such dividend or distribution shall
be substituted as (x) "the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution," "Record Date fixed for such determinations" and
"Record Date" within the meaning of Section 10.04(a), (y) "the day
upon which such subdivision becomes effective" and "the day upon
which such combination becomes effective" within the meaning of
Section 10.04(b), and (z) as "the date fixed for the determination
of stockholders entitled to receive such rights or warrants," "the
Record Date fixed for the determination of the stockholders entitled
to receive such rights or warrants" and such "Record Date" within
the meaning of Section 10.04(c), and
(B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination" within the
meaning of Section 10.04(a) and any reduction or increase in the
number of shares of Common Stock resulting from such subdivision or
combination shall be
67
disregarded in connection with such dividend or distribution.
(e) In case the Company shall, by dividend or otherwise,
distribute cash to all holders of its Common Stock (excluding any cash
that is distributed upon a reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance
to which Section 10.11 hereof applies or as part of a distribution
referred to in Section 10.04(d) hereof), then and in each such case,
immediately after the close of business on such date, the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the close
of business on such Record Date by a fraction:
(i) the numerator of which shall be equal to the Current Market
Price on the Record Date less an amount equal to the quotient of (x) such
amount distributed to all holders of its Common Stock and (y) the number
of shares of Common Stock outstanding on the Record Date, and
(ii) the denominator of which shall be equal to the Current Market
Price on such date.
However, in the event that the then fair market value (as so determined) of the
portion of the securities so distributed (other than excluded securities)
applicable to one share of Common Stock is equal to or greater than the Current
Market Price on the Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive upon
conversion of a Note (or any portion thereof) the amount of cash such Holder
would have received had such Holder converted such Note (or portion thereof)
immediately prior to such Record Date. In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if such
dividend or distribution had not been declared.
(f) In case a tender offer made by the Company or any of its
Subsidiaries for all or any portion of the Common Stock shall expire and
such tender offer (as amended upon the expiration thereof) shall require
the payment to stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and set forth in a Board Resolution) that combined together
with:
(1) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and set forth in a Board Resolution), as of the expiration of
such tender offer, of
68
other consideration payable in respect of any other tender offers, by the
Company or any of its Subsidiaries for all or any portion of the Common
Stock expiring within the twelve (12) months preceding the expiration of
such tender offer and in respect of which no adjustment pursuant to this
Section 10.04(f) has been made, and
(2) the aggregate amount of any distributions to all holders of
the Company's Common Stock made exclusively in cash within 12 months
preceding the expiration of such tender offer and in respect of which no
adjustment pursuant to Section 10.04(e) has been made, exceeds 10% of the
product of the Current Market Price (determined as provided in Section
10.04(g)) as of the last time (the "EXPIRATION TIME") tenders could have
been made pursuant to such tender offer (as it may be amended) times the
number of shares of Common Stock outstanding (including any tendered
shares) on the Expiration Time, then, and in each such case, immediately
prior to the opening of business on the day after the date of the
Expiration Time, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to close of business on the date of the
Expiration Time by a fraction:
(i) the numerator of which shall be the number of shares of
Common Stock outstanding (including any tendered shares) at the
Expiration Time multiplied by the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the sum of (x) the
fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to
any maximum specified in the terms of the tender offer) of all
shares validly tendered and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any such maximum, being
referred to as the "PURCHASED SHARES") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased
Shares) on the Expiration Time and the Current Market Price of the
Common Stock on the Trading Day next succeeding the Expiration Time.
Such reduction (if any) shall become effective immediately prior to the opening
of business on the day following the Expiration Time. In the event that the
Company or any such Subsidiary, as the case may be, is obligated to purchase
shares pursuant to any such tender offer, but the Company or any such
Subsidiary, as the case may be, is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the
69
Conversion Price which would then be in effect if such tender offer had not been
made. If the application of this Section 10.04(f) to any tender offer would
result in an increase in the Conversion Price, no adjustment shall be made for
such tender offer under this Section 10.04(f).
(g) For purposes of this Section 10.04, the following terms
shall have the meanings indicated:
(1) "CURRENT MARKET PRICE" shall mean the average of the daily
Closing Prices per share of Common Stock for the ten (10) consecutive
Trading Days immediately prior to the date in question; provided, however,
that if:
(i) the "ex" date (as hereinafter defined) for any event
(other than the issuance or distribution requiring such computation)
that requires an adjustment to the Conversion Price pursuant to
Section 10.04(a), (b), (c), (d), (e) or (f) occurs during such ten
(10) consecutive Trading Days, the Closing Price for each Trading
Day prior to (ii) the "ex" date for such other event shall be
adjusted by multiplying such Closing Price by the same fraction by
which the Conversion Price is so required to be adjusted as a result
of such other event;
(ii) the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment
to the Conversion Price pursuant to Section 10.04(a), (b), (c), (d),
(e) or (f) occurs on or after the "ex" date for the issuance or
distribution requiring such computation and prior to the day in
question, the Closing Price for each Trading Day on and after the
"ex" date for such other event shall be adjusted by multiplying such
Closing Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of such
other event; and
(iii) the "ex" date for the issuance or distribution requiring
such computation is prior to the day in question, after taking into
account any adjustment required pursuant to clause (i) or (ii) of
this proviso, the Closing Price for each Trading Day on or after
such "ex" date shall be adjusted by adding thereto the amount of any
cash and the fair market value (as determined by the Board of
Directors in a manner consistent with any determination of such
value for purposes of Section 10.04(d) or (f), whose determination
shall be conclusive and set forth in a Board Resolution) of the
evidences of indebtedness, shares of Capital Stock or assets being
distributed applicable to one share of Common Stock as of the close
of business on the day before such "ex" date.
70
For purposes of any computation under Section 10.04(f), the Current
Market Price of the Common Stock on any date shall be deemed to be the
average of the daily Closing Prices per share of Common Stock for such day
and the next two (2) succeeding Trading Days; provided, however, that if
the "ex" date for any event (other than the tender offer requiring such
computation) that requires an adjustment to the Conversion Price pursuant
to Section 10.04(a), (b), (c), (d), (e) or (f) occurs on or after the
Expiration Time for the tender offer requiring such computation and prior
to the day in question, the Closing Price for each Trading Day on and
after the "ex" date for such other event shall be adjusted by multiplying
such Closing Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of such other
event. For purposes of this paragraph, the term "ex" date, when used:
(A) with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the
relevant exchange or in the relevant market from which the Closing
Price was obtained without the right to receive such issuance or
distribution;
(B) with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the Common Stock
trades regular way on such exchange or in such market after the time
at which such subdivision or combination becomes effective, and
(C) with respect to any tender offer, means the first date
on which the Common Stock trades regular way on such exchange or in
such market after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments to the Conversion
Price are called for pursuant to this Section 10.04, such adjustments shall be
made to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 10.04 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
(2) "FAIR MARKET VALUE" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction.
(3) "RECORD DATE" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common
Stock have the right to receive any cash, securities or other property or
in which the Common Stock (or other applicable security) is exchanged for
or converted into any combination of cash, securities or other property,
the date fixed for determination of stockholders entitled to receive such
cash, securities or other property (whether such date is fixed by the
Board of Directors or by statute, contract or otherwise).
71
(h) The Company may make such reductions in the Conversion Price,
in addition to those required by Section 10.04(a), (b), (c), (d), (e) or
(f), as the Board of Directors considers to be advisable to avoid or
diminish any income tax to holders of Common Stock or rights to purchase
Common Stock resulting from any dividend or distribution of stock (or
rights to acquire stock) or from any event treated as such for income tax
purposes.
To the extent permitted by applicable law, the Company from time to
time may reduce the Conversion Price by any amount for any period of time
if the period is at least twenty (20) days and the reduction is
irrevocable during the period and the Board of Directors determines in
good faith that such reduction would be in the best interests of the
Company, which determination shall be conclusive and set forth in a Board
Resolution. Whenever the Conversion Price is reduced pursuant to the
preceding sentence, the Company shall mail to the Trustee and each Holder
at the address of such Holder as it appears in the Note Register a notice
of the reduction at least fifteen (15) days prior to the date the reduced
Conversion Price takes effect, and such notice shall state the reduced
Conversion Price and the period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of
this Section 10.04(i) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations
under this Article 10 shall be made by the Company and shall be made to
the nearest one hundredth of a cent or to the nearest one hundredth of a
share, as the case may be. No adjustment need be made for a change in the
par value or no par value of the Common Stock.
(j) In any case in which this Section 10.04 provides that an
adjustment shall become effective immediately after a Record Date for an
event, the Company may defer until the occurrence of such event (i)
issuing to the Holder of any Note converted after such Record Date and
before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment required by such
event over and above the Common Stock issuable upon such conversion before
giving effect to such adjustment and (ii) paying to such Holder any amount
in cash in lieu of any fraction pursuant to Section 10.03 hereof.
(k) For purposes of this Section 10.04, the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of
scrip
72
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
Section 10.05. Notice of Adjustments of Conversion Price. Whenever
the Conversion Price is adjusted as herein provided (other than in the
case of an adjustment pursuant to the second paragraph of Section 10.04(h)
for which the notice required by such paragraph has been provided), the
Company shall promptly file with the Trustee and any Conversion Agent
other than the Trustee an Officers' Certificate setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon which
such adjustment is based. Promptly after delivery of such Officers'
Certificate, the Company shall prepare a notice stating that the
Conversion Price has been adjusted and setting forth the adjusted
Conversion Price and the date on which each adjustment becomes effective,
and shall mail such notice to each Holder at the address of such Holder as
it appears in the Note Register within twenty (20) days of the effective
date of such adjustment. Failure to deliver such notice shall not effect
the legality or validity of any such adjustment.
Section 10.06. Notice Prior to Certain Actions. In case at any time
after the date hereof:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of
its capital surplus or its consolidated retained earnings;
(2) the Company shall authorize the granting to the holders of its
Common Stock of rights or warrants to subscribe for or purchase any shares
of Capital Stock of any class (or of securities convertible into shares of
Capital Stock of any class) or of any other rights;
(3) there shall occur any reclassification of the Common Stock of
the Company (other than a subdivision or combination of its outstanding
Common Stock, a change in par value, a change from par value to no par
value or a change from no par value to par value), or any merger,
consolidation, statutory share exchange or combination to which the
Company is a party and for which approval of any shareholders of the
Company is required, or the sale, transfer or conveyance of all or
substantially all of the assets of the Company; or
(4) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Notes pursuant to Section 4.03 hereof, and shall cause
to be provided
73
to the Trustee and all Holders in accordance with Section 11.02 hereof, at least
twenty (20) days (or ten (10) days in any case specified in clause (1) or (2)
above) prior to the applicable record or effective date hereinafter specified, a
notice stating:
(A) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights or warrants, or, if a
record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined, or
(B) the date on which such reclassification, merger,
consolidation, statutory share exchange, combination, sale,
transfer, conveyance, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, merger,
consolidation, statutory share exchange, sale, transfer,
dissolution, liquidation or winding up.
Neither the failure to give such notice nor any defect therein shall affect the
legality or validity of the proceedings or actions described in clauses (1)
through (4) of this Section 10.06.
Section 10.07. Company to Reserve Common Stock. The Company shall at
all times reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock, for the purpose of effecting the
conversion of Notes, the full number of shares of fully paid and
nonassessable Common Stock then issuable upon the conversion of all Notes
outstanding.
Section 10.08. Taxes on Conversions. Except as provided in the next
sentence, the Company will pay any and all taxes (other than taxes on
income) and duties that may be payable in respect of the issue or delivery
of shares of Common Stock on conversion of Notes pursuant hereto. A Holder
delivering a Note for conversion shall be liable for and will be required
to pay any tax or duty which may be payable in respect of any transfer
involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Note or Notes to be converted, and no
such issue or delivery shall be made unless the Person requesting such
issue has paid to the Company the amount of any such tax or duty, or has
established to the satisfaction of the Company that such tax or duty has
been paid.
Section 10.09. Covenant as to Common Stock. The Company covenants
that all shares of Common Stock which may be issued upon
74
conversion of Notes will upon issue be fully paid and nonassessable and,
except as provided in Section 10.08, the Company will pay all taxes, Liens
and charges with respect to the issue thereof.
Section 10.10. Cancellation of Converted Notes. All Notes delivered
for conversion shall be delivered to the Trustee to be canceled by or at
the direction of the Trustee, which shall dispose of the same as provided
in Section 2.11.
Section 10.11. Effect of Reclassification, Consolidation, Merger or
Sale. If any of following events occur, namely:
(1) any reclassification or change of the outstanding shares of
Common Stock (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a
subdivision or combination),
(2) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange
for such Common Stock or
(3) any sale or conveyance of all or substantially all the
properties and assets of the Company to any other corporation as a result
of which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or
in exchange for such Common Stock,
the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee and the Company a supplemental indenture (which
shall comply with the TIA as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then required to so
comply) providing that such Note shall be convertible into the kind and amount
of shares of stock and other securities or property or assets (including cash)
which such Holder would have been entitled to receive upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance had such Notes been converted into Common Stock
immediately prior to such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance assuming such holder
of Common Stock did not exercise its rights of election, if any, as to the kind
or amount of securities, cash or other property receivable upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised
75
("NON-ELECTING SHARE"), then for the purposes of this Section 10.11 the kind and
amount of securities, cash or other property receivable upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance for each Non-Electing Share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
Non-Electing Shares). Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 10. If, in the case of any such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance, the stock or other securities and assets receivable thereupon by a
holder of shares of Common Stock includes shares of stock or other securities
and assets of a corporation other than the successor or purchasing corporation,
as the case may be, in such reclassification, change, merger, consolidation,
statutory share exchange, combination, 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 shall reasonably consider necessary by
reason of the foregoing, including to the extent practicable the provisions
providing for the repurchase rights set forth in Section 3.02 hereof.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the Note Register, within twenty (20) days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.
The above provisions of this Section 10.11 shall similarly apply to
successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.
If this Section 10.11 applies to any event or occurrence, Section
10.04 hereof shall not apply.
Section 10.12. Responsibility of Trustee for Conversion Provisions.
The Trustee, subject to the provisions of Section 7.01 hereof, and any
Conversion Agent shall not at any time be under any duty or responsibility
to any Holder of Notes to determine whether any facts exist which may
require any adjustment of the Conversion Price, or with respect to the
nature or intent of any such adjustments when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee, subject to the
provisions of Section 7.01 hereof, nor any Conversion Agent shall be
accountable with respect to the validity or value (of the kind or amount)
of any Common Stock, or of any other securities
76
or property, which may at any time be issued or delivered upon the
conversion of any Note; and it or they do not make any representation with
respect thereto. Neither the Trustee, subject to the provisions of Section
7.01 hereof, nor any Conversion Agent shall be responsible for any failure
of the Company to make any cash payment or to issue, transfer or deliver
any shares of stock or share certificates or other securities or property
upon the surrender of any Note for the purpose of conversion; and the
Trustee, subject to the provisions of Section 7.01 hereof, and any
Conversion Agent shall not be responsible or liable for any failure of the
Company to comply with any of the covenants of the Company contained in
this Article.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls. This Indenture is
hereby made subject to, and shall be governed by, the provisions of the
TIA required to be part of and to govern indentures qualified under the
TIA; provided, however, that, unless otherwise required by law,
notwithstanding the foregoing, this Indenture and the Notes issued
hereunder shall not be subject to the provisions of subsections (a)(1),
(a)(2), and (a)(3) of Section 314 of the TIA as now in effect or as
hereafter amended or modified; provided further that this Section 11.01
shall not require this Indenture or the Trustee to be qualified under the
TIA prior to the time such qualification is in fact required under the
terms of the TIA, nor shall it constitute any admission or acknowledgment
by any party to the Indenture that any such qualification is required
prior to the time such qualification is in fact required under the terms
of the TIA. If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
Section 11.02. Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in
person or mailed by first-class mail, postage prepaid, addressed as
follows or transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile numbers:
77
if to the Company:
Wabash National Corporation
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
Facsimile No. (000) 000-0000
if to the Trustee:
Wachovia Bank, National Association
0000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxx__XX0000
Xxxxxxxx, Xxxxxxxx 23219
Attention: Corporate Trust Department
Facsimile No. (000) 000-0000
The Company or the Trustee by notice given to the other in the
manner provided above may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication given to a Noteholder shall be mailed to
the Noteholder, by first-class mail, postage prepaid, at the Noteholder's
address as it appears on the registration books of the Note Registrar and
shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Noteholders,
it shall mail a copy to the Trustee and each Note Registrar, Paying Agent,
Conversion Agent or co-registrar.
Section 11.03. Communication by Holders with Other Holders .
Noteholders may communicate pursuant to Section 312(b) of the TIA with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Note Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of Section
312(c) of the TIA.
78
Section 11.04. 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:
(1) 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
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.05. Statements Required in Certificate or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance
with a covenant or condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers' Certificate
or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he 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
(4) a statement that, in the opinion of such person, such covenant
or condition has been complied with.
Section 11.06. Separability Clause. 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 11.07. Rules by Trustee, Paying Agent, Conversion Agent and
Note Registrar. The Trustee may make reasonable rules for action by or a
meeting of Noteholders. The Note Registrar, Conversion Agent and the
Paying Agent may make reasonable rules for their functions.
Section 11.08. Legal Holidays. A "LEGAL HOLIDAY" is any day other
than a Business Day. If any specified date (including a date for giving
notice) is a Legal Holiday, the action shall be taken on the next
succeeding day that is not a Legal Holiday, and, if the action to be taken
on such date is a payment in respect of the Notes, no interest, if any,
shall accrue for the intervening period.
79
Section 11.09. GOVERNING LAW. THIS INDENTURE AND THE NOTES WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
Section 11.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company 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. By accepting a Note, each Noteholder shall
waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Notes.
Section 11.11. 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 11.12. Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent, any authenticating agent, any Note
Registrar and their successors hereunder and the holders of Notes, any
benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 11.13. Table of Contents, Heading, Etc. The table of
contents and the titles 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.
Section 11.14. Authenticating Agent. The Trustee may appoint an
authenticating agent (the "AUTHENTICATING AGENT") that shall be authorized
to act on its behalf, and subject to its direction, in the authentication
and delivery of Notes in connection with the original issuance thereof and
transfers and exchanges of Notes hereunder, including under Sections 2.03,
2.07, 2.08, 2.10, 3.05 and 10.02, as fully to all intents and purposes as
though the authenticating agent had been expressly authorized by this
Indenture and those Sections to authenticate and deliver Notes. For all
purposes of this Indenture, the authentication and delivery of Notes by
the Authenticating Agent shall be deemed to be authentication and delivery
of such Notes "by the Trustee" and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent shall be
deemed to satisfy any requirement hereunder or in the Notes for the
Trustee's certificate of authentication. Such Authenticating Agent shall
at all times be a Person eligible to serve as trustee hereunder
80
pursuant to Section 7.09.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to
all or substantially all the corporate trust business of any
Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 11.14, without the execution or filing of any paper or any further
act on the part of the parties hereto or the Authenticating Agent or such
successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may
at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease
to be eligible under this Section, the Trustee shall either promptly
appoint a successor Authenticating Agent or itself assume the duties and
obligations of the former Authenticating Agent under this Indenture and,
upon such appointment of a successor Authenticating Agent, if made, shall
give written notice of such appointment of a successor Authenticating
Agent to the Company and shall mail notice of such appointment of a
successor Authenticating Agent to all holders of Notes as the names and
addresses of such holders appear on the Note Register.
The Company agrees to pay to the Authenticating Agent from time to
time such reasonable compensation for its services as shall be agreed upon
in writing between the Company and the Authenticating Agent.
The provisions of Sections 2.12, 7.03, 7.04, 7.07 and this Section
11.14 shall be applicable to any Authenticating Agent.
Section 11.15. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the
same instrument.
81
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date first
above written.
WABASH NATIONAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
and Chief Financial
Officer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
Title:
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date first
above written.
WABASH NATIONAL CORPORATION
By:
--------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
EXHIBIT A
[FOR GLOBAL NOTE ONLY] [UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, 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 ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[IF REQUIRED PURSUANT TO SECTION 2.07(d)] [THIS SECURITY AND THE SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES THEREOF UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION) (THE "RESALE RESTRICTION PERIOD") WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH WABASH NATIONAL CORPORATION OR ANY AFFILIATE OF
WABASH NATIONAL CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH ENTITY) ONLY (A) TO WABASH NATIONAL CORPORATION OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C)
OUTSIDE THE UNTIED STATES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) or (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, INCLUDING UNDER RULE 144, IF AVAILABLE,
SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS
BE AT ALL TIME WITHIN ITS OR THEIR CONTROL. IF ANY RESALE OR OTHER TRANSFER OF
THIS SECURITY OR SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF THIS SECURITY
IS PROPOSED TO BE MADE PURSUANT TO CLAUSE (D) OF THIS PARAGRAPH PRIOR TO THE
EXPIRATION OF THE RESALE RESTRICTION PERIOD (OR THE DATE OF REGISTRATION
THEREOF), THE TRANSFEROR SHALL BE REQUIRED TO DELIVER A LETTER FROM THE
TRANSFEREE TO THE TRUSTEE WHICH SHALL PROVIDE, AMONG OTHER THINGS, THAT THE
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) or (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THE SECURITY OR THE SHARES OF COMMON STOCK ISSUED UPON CONVERSION
OF THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT. PRIOR TO THE EXPIRATION OF THE RESALE RESTRICTION PERIOD,
THE
2
COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY,
AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE EXPIRATION OF THE RESALE RESTRICTION PERIOD.]
3
WABASH NATIONAL CORPORATION
3-1/4% Convertible Senior Notes due 2008
No. CUSIP:
Issue Date:
WABASH NATIONAL CORPORATION, a Delaware corporation promises to pay
to ____________ or registered assigns, the principal sum of _____________
($___________) on August 1, 2008.
This Note shall bear interest as specified on the other side of this
Note. This Note is convertible as specified on the other side of this
Note.
Additional provisions of this Note are set forth on the other side
of this Note.
Dated: WABASH NATIONAL CORPORATION
By: ______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture (as
defined on the other side of this Note).
WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
By:__________________________
Authorized Signatory
By:__________________________
As Authenticating Agent
(if different from Trustee)
Dated:_______________________
[REVERSE SIDE OF NOTE]
3-1/4% Convertible Senior Note due 2008
1. Cash Interest.
The Company promises to pay interest in cash on the principal amount of
this Note at the rate per annum of 3.25%. The Company will pay cash interest
semiannually in arrears on August 1 and February 1 of each year (each an
"INTEREST PAYMENT DATE"), beginning February 1, 2004, to Holders of record at
the close of business on July 15 and January 15 (whether or not a Business Day)
(each a "REGULAR RECORD DATE"), as the case may be, immediately preceding such
Interest Payment Date, and the Company will pay interest in arrears on the
Maturity Date to the Holder to whom it pays the principal of this Note. Cash
interest on the Notes will accrue from the most recent date to which interest
has been paid or duly provided or, if no interest has been paid, from the Issue
Date. Cash interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay cash interest on overdue principal at the
rate borne by the Notes plus 2% per annum, and it shall pay interest in cash on
overdue installments of cash interest (including Liquidated Damages, if any) at
the same rate to the extent lawful. All such overdue cash interest shall be
payable on demand. The Company further promises to pay Liquidated Damages that
it may from time to time be required to pay pursuant to Section 2(e) of the
Registration Rights Agreement at the same time and in the same manner as
payments of interest as specified herein.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of the principal of, premium, if any, and cash interest
on this Note and in respect of Change of Control Repurchase Prices to Holders
who surrender Notes to a Paying Agent to collect such payments in respect of the
Notes. The Company will pay cash amounts 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 make such cash payments by check payable in such money.
A Holder of Notes with an aggregate principal amount in excess of $5,000,000
will be paid by wire transfer in immediately available funds at the election of
such Holder. Any payment required to be made on any day that is not a Business
Day will be made on the next succeeding Business Day.
1
3. Paying Agent, Conversion Agent and Note Registrar.
Initially, Wachovia Bank, National Association (the "TRUSTEE"), will act
as Paying Agent, Conversion Agent and Note Registrar. The Company may appoint
and change any Paying Agent, Conversion Agent, Note Registrar or co-registrar
without notice, other than notice to the Trustee except that the Company will
maintain at least one Paying Agent in the State of New York, City of New York,
Borough of Manhattan, which shall initially be an office or agency of the
Trustee. The Company or any of its Subsidiaries or any of their Affiliates may
act as Paying Agent, Conversion Agent, Note Registrar or co-registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of August 1, 2003
(the "INDENTURE"), between the Company and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as in effect from time to time
(the "TIA"). Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Notes are subject to all such
terms, and Noteholders are referred to the Indenture and the TIA for a statement
of those terms.
The Notes are general unsecured obligations of the Company limited to
$125,000,000 aggregate principal amount (subject to Section 2.08 of the
Indenture). The Indenture does not limit other indebtedness of the Company,
secured or unsecured.
5. Repurchase by the Company at the Option of the Holder.
If a Change of Control of the Company occurs, the Holder, at the Holder's
option, shall have the right, in accordance with the provisions of the
Indenture, to require the Company to repurchase the Notes (or any portion of the
principal amount hereof that is at least $1,000 or an integral multiple thereof,
provided that the portion of the principal amount of this Note to be outstanding
after such repurchase is at least equal to $1,000) at the Change of Control
Repurchase Price in cash, plus any interest (including Liquidated Damages, if
any) accrued and unpaid to the Change of Control Repurchase Date.
Subject to the conditions provided in the Indenture, the Company may elect
to pay the Change of Control Repurchase Price in Common Stock by delivering a
number of shares of Common Stock equal to (i) the Change of Control Repurchase
Price divided by (ii) 95% of the average of the Closing Prices per share of the
Common Stock for the five (5) consecutive Trading Days immediately preceding and
including the third Trading Day prior to the Change of Control Repurchase Date.
No fractional shares of Common Stock will be issued upon repurchase of
2
any Notes. Instead of any fractional share of Common Stock which would otherwise
be issued upon conversion of such Notes, the Company shall pay a cash adjustment
as provided in the Indenture.
A notice of a Change of Control will be given by the Company to the Holder
as provided in the Indenture. To exercise a repurchase right, a Holder must
deliver to the Trustee a written notice as provided in the Indenture.
The Holder has the right to withdraw any Change of Control Repurchase
Notice by delivering to the Paying Agent a written notice of withdrawal in
accordance with the provisions of the Indenture.
6. Conversion.
Conversion Based on Trading Price of the Common Stock
Subject to the provisions of this paragraph 6 and notwithstanding the fact
that any other condition to conversion described below has not been satisfied,
the Holder may convert this Note, or any portion of the principal amount hereof
that is at least $1,000 or an integral multiple thereof, into Common Stock (i)
in any fiscal quarter commencing after September 30, 2003, if, as of the last
day of the preceding fiscal quarter, the Closing Price of the Common Stock for
at least twenty (20) Trading Days in a period of thirty (30) consecutive Trading
Days ending on the last Trading Day of such preceding fiscal quarter is greater
than 110% of the Conversion Price on the last Trading Day of such preceding
fiscal quarter and (ii) if the Closing Price of the Common Stock for at least
twenty (20) Trading Days in a period of 30 consecutive Trading Days ending on
the last Trading Day prior to the final maturity date of the Notes is greater
than 110% of the Conversion Price on the last day prior to the maturity date. If
either of the foregoing conditions is satisfied, then this Note, or portions
thereof, will be convertible at any time at the option of the Holder, through
the close of business on the maturity date of the Notes.
Conversion Based on Trading Price of the Securities.
Subject to the provisions of this paragraph 6 and the Indenture and
notwithstanding the fact that any other condition to conversion described below
has not been satisfied, the Holder may convert this Note, or portions thereof,
into Common Stock at any time prior to maturity following any period of ten
consecutive Trading Days in which the average of the Closing Prices per $1,000
principal amount of Notes for that period of ten Trading Days was less than 95%
of the average Conversion Value (as defined below) for the Notes during that
period; provided, however, the Holder may not convert this Note, or portions
thereof, if the average Closing Price of the Common Stock for such period of ten
consecutive Trading Days was between the then current Conversion Price and 110%
of the then applicable Conversion Price.
3
The "CONVERSION VALUE" of a Note is equal to the product of the
Closing Price for shares of Common Stock on a given day multiplied by the then
current conversion rate, which is the number of shares of Common Stock into
which each note is then convertible. The trading price of the Notes on any date
of determination means the average of the secondary market bid quotations per
$1,000 principal amount of Notes obtained by the Company or the Trustee for
$2,500,000 principal amount of Notes at approximately 3:30 p.m., New York City
time, on such determination date from two independent nationally recognized
securities dealers the Company selects, provided that if at least two such bids
cannot reasonably be obtained by the Company or the Trustee, but one such bid is
obtained, then this one bid shall be used.
Conversion upon Occurrence of Specified Corporate Transactions.
Subject to the provisions of this paragraph 6 and notwithstanding the fact
that any other condition described herein to conversion has not been satisfied,
in the event the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets and, as a
result, holders of Common Stock would be entitled to receive stock, other
securities, other property or assets (including cash or any combination thereof)
as set forth in Section 10.11 of the Indenture, this Note (or any portion
thereof) may be surrendered for conversion at any time from and after the date
which is fifteen (15) days prior the date announced by the Company as the
anticipated effective time until fifteen (15) days after the actual effective
date of such transaction, and at the effective time of such transaction the
right to convert this Note into Common Stock will be deemed to have changed into
a right to convert it into the kind and amount of cash, securities or other
property which the Holder would have received if the Holder had converted this
Note immediately prior to the transaction.
A Note in respect of which a Holder has delivered a Change of Control
Repurchase Notice exercising the option of such Holder to require the Company to
purchase such Note may be converted only if such notice of exercise is withdrawn
in accordance with the terms of the Indenture.
The initial Conversion Price shall be initially equal to $19.20 per share
of Common Stock, subject to adjustment in certain events described in the
Indenture. The Company shall pay a cash adjustment as provided in the Indenture
in lieu of any fractional share of Common Stock.
To convert a Note, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (2) surrender the Note
to the Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by the Conversion Agent, the Company or the Trustee and
(4) pay any transfer or similar tax, if required.
87
7. Denominations; Transfer; Exchange.
The Notes are in fully registered form, without coupons, in denominations
of $1,000 of principal amount and integral multiples of $1,000. A Holder may
transfer or exchange Notes in accordance with the Indenture. The Note 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 Note Registrar need not transfer or exchange any
Notes in respect of which a Change of Control Repurchase Notice has been given
and not withdrawn (except, in the case of a Note to be purchased in part, the
portion of the Note not to be purchased).
8. Persons Deemed Owners.
The registered Holder of this Note may be treated as the owner of this
Note for all purposes.
9. Unclaimed Money or Notes.
The Trustee and the Paying Agent shall return to the Company upon written
request any money or Notes held by them for the payment of any amount with
respect to the Notes that remains unclaimed for two years, subject to applicable
unclaimed property law. After return to the Company, Holders entitled to the
money or Notes must look to the Company for payment as general creditors unless
an applicable abandoned property law designates another person.
10. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in aggregate principal amount of the Notes at the time
outstanding and (ii) certain Defaults or Events of Default may be waived with
the written consent of the Holders of a majority in aggregate principal amount
of the Notes at the time outstanding. Subject to certain exceptions set forth in
the Indenture, without the consent of any Noteholder, the Company and the
Trustee may amend the Indenture or the Notes, among other things, to cure any
ambiguity, omission, defect or inconsistency, or to comply with Article 5 of the
Indenture.
11. Defaults and Remedies.
Under the Indenture, Events of Default include (1) the Company fails to
pay when due the principal of or premium, if any, on any of the Notes at
maturity, upon exercise of a repurchase right or otherwise; (2) the Company
fails to pay an installment of interest (including Liquidated Damages, if any)
on any of the Notes that continues for thirty (30) days after the date when due;
(3) the Company fails to deliver shares of Common Stock, together with cash in
lieu of fractional shares, when such Common Stock or cash in lieu of fractional
5
shares is required to be delivered upon conversion of a Note and such failure
continues for ten (10) days after such required delivery date; (4) the Company
fails to give notice regarding a Change of Control within the time period
specified in the Indenture; (5) the Company fails to perform or observe any
other term, covenant or agreement contained in the Notes or the Indenture for a
period of sixty (60) days after written notice of such failure, requiring the
Company to remedy the same, shall have been given to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding; (6) (A) the Company or any
Significant Subsidiary fails to make any payment by the end of the applicable
grace period, if any, after the final scheduled payment date for such payment
with respect to any indebtedness for borrowed money in an aggregate amount in
excess of $10 million or (B) indebtedness for borrowed money of the Company or
any Significant Subsidiary in an aggregate amount in excess of $10 million shall
have been accelerated or otherwise declared due and payable, or required to be
prepaid or repurchased (other than by regularly scheduled required prepayment)
prior to the scheduled maturity thereof as a result of a default with respect to
such indebtedness referred to in subclause (A) or (B) hereof, in either case
without such having been discharged, cured, waived, rescinded or annulled, for a
period of thirty (30) days after receipt by the Company of a Notice of Default;
and (7) certain events of bankruptcy, insolvency or reorganization with respect
to the Company or any Significant Subsidiary or any Subsidiaries of the Company
which in the aggregate would constitute a Significant Subsidiary. If an Event of
Default (other than an Event of Default specified in clause (7) above) occurs
and is continuing, the Trustee, or the Holders of at least 25% in aggregate
principal amount of the Notes at the time outstanding, may declare all the Notes
to be due and payable immediately. Certain events of bankruptcy or insolvency
are Events of Default which will result in the Notes becoming due and payable
immediately upon the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless
it receives reasonable indemnity or security. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Noteholders notice of any continuing Default (except a
Default in payment of amounts specified in clause (1) or (2) above) if it
determines that withholding notice is in their interests.
12. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
6
13. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
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. By accepting a Note, each Noteholder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
14. Authentication.
This Note shall not be valid until an authorized signatory of the Trustee
or an Authenticating Agent manually signs the Trustee's Certificate of
Authentication on the other side of this Note.
15. Abbreviations.
Customary abbreviations may be used in the name of a Noteholder 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 U/G/M/A (=Uniform Gift to Minors
Act).
16. GOVERNING LAW.
THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
--------------------------
The Company will furnish to any Noteholder upon written request and
without charge a copy of the Indenture which has in it the text of this Note in
larger type. Requests may be made to:
Wabash National Corporation
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
7
CONVERSION NOTICE
TO: WABASH NATIONAL CORPORATION
WACHOVIA BANK, NATIONAL ASSOCIATION
The undersigned registered owner of this Note hereby irrevocably
exercises the option to convert this Note, or the portion thereof (which
is $1,000 or an integral multiple thereof) below designated, into shares
of Common Stock of Wabash National Corporation in accordance with the
terms of the Indenture referred to in this Note, and directs that the
shares issuable and deliverable upon such conversion, together with any
check in payment for fractional shares and any Notes representing any
unconverted principal amount hereof, be issued and delivered to the
registered Holder hereof unless a different name has been indicated below.
If shares or any portion of this Note not converted are to be issued in
the name of a person other than the undersigned, the undersigned will
provide the appropriate information below and pay all transfer taxes
payable with respect thereto. Any amount required to be paid by the
undersigned on account of interest accompanies this Note.
Dated: ___________________
---------------------------
Signature(s)
Signature(s) must be
guaranteed by an "eligible
guarantor institution"
meeting the requirements of
the Note Registrar, which
requirements include
membership or participation
in the Security Transfer
Agent Medallion Program
("STAMP") or such other
"signature guarantee
program" as may be
determined by the Note
Registrar in addition to,
or in substitution for,
STAMP, all in accordance
with the Securities
Exchange Act of 1934, as
amended.
---------------------------
Signature Guarantee
Fill in the registration of shares of Common Stock if to be issued, and
Notes if to be delivered, other than to and in the name of the registered
Holder:
---------------------------------
(Name)
---------------------------------
(Street Address)
---------------------------------
(City, State and Zip Code)
---------------------------------
Please print name and address
Principal amount to be converted (if less than all):
$
---------------------------------
Social Security or Other Taxpayer
Identification Number:
---------------------------------
CHANGE OF CONTROL REPURCHASE NOTICE
TO: WABASH NATIONAL CORPORATION
WACHOVIA BANK, NATIONAL ASSOCIATION
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Wabash National Corporation (the
"Company") as to the occurrence of a Change of Control with respect to the
Company and requests and instructs the Company to repay the entire
principal amount of this Note (Certificate No.____), or the portion
thereof (which is $1,000 or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in
this Note to the registered Holder hereof. If the Company has elected to
pay the Change of Control Repurchase Price in Common Stock, the
undersigned hereby elects to receive the Change of Control Repurchase
Price in Common Stock.
Dated: ___________________
------------------------------
------------------------------
Signature(s)
NOTICE: The above signatures of the holder(s) hereof
must correspond with the name as written upon the face
of the Note in every particular without alteration or
enlargement or any change whatever.
Principal amount to be repaid (if less than all):
$
-----------------------------
------------------------------
Social Security or Other
Taxpayer Identification Number
ASSIGNMENT
For value received
__________________________________________ hereby sell(s) assign(s) and
transfer(s) unto ____________________________________________ (Please
insert social security or other Taxpayer Identification Number of
assignee) the within Note, and hereby irrevocably constitutes and appoints
____________________________________ attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
In connection with any transfer of the Note prior to the expiration of the
holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) (other than any transfer pursuant to
a registration statement that has been declared effective under the Securities
Act), the undersigned confirms that such Note is being transferred:
[ ] To Wabash National Corporation or a subsidiary thereof; or
[ ] Inside the United States pursuant to and in compliance with Rule
144A under the Securities Act of 1933, as amended; or
[ ] Inside the United States to an Institutional Accredited Investor
pursuant to and in compliance with the Securities Act of 1933, as
amended; or
[ ] Outside the Unites States in compliance with Rule 904 under the
Securities Act; or
[ ] Pursuant to and in compliance with Rule 144 under the Securities Act
of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate").
[ ] The transferee is an Affiliate of the Company.
Dated:
-----------------------------------
------------------------------------
A-1
---------------------------
Signature(s)
Signature(s) must be
guaranteed by an "eligible
guarantor institution"
meeting the requirements of
the Note Registrar, which
requirements include
membership or participation
in the Security Transfer
Agent Medallion Program
("STAMP") or such other
"signature guarantee
program" as may be
determined by the Note
Registrar in addition to,
or in substitution for,
STAMP, all in accordance
with the Securities
Exchange Act of 1934, as
amended.
---------------------------
Signature Guarantee
NOTICE: The signature of the conversion notice, the Change of Control Repurchase
Notice or the assignment must correspond with the name as written upon the face
of the Note in every particular without alteration or enlargement or any change
whatever.
A-2
EXHIBIT B-1
Transfer Certificate
In connection with any transfer of any of the Notes within the period
prior to the expiration of the holding period applicable to the sales thereof
under Rule 144(k) under the Securities Act of 1933, as amended (the "SECURITIES
ACT") (or any successor provision), the undersigned registered owner of this
Note hereby certifies with respect to $____________ principal amount of the
above-captioned Notes presented or surrendered on the date hereof (the
"SURRENDERED NOTES") for registration of transfer, or for exchange or conversion
where the Notes issuable upon such exchange or conversion are to be registered
in a name other than that of the undersigned registered owner (each such
transaction being a "transfer"), that such transfer complies with the
restrictive legend set forth on the face of the Surrendered Notes for the reason
checked below:
[ ] A transfer of the Surrendered Notes is made to the Company or any
subsidiaries; or
[ ] The transfer of the Surrendered Notes complies with Rule 144A under the
U.S. Securities Act of 1933, as amended (the "SECURITIES ACT"); or
[ ] The transfer of the Surrendered Notes is to an Institutional Accredited
Investor, as described in Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act; or
[ ] The transfer of the Surrendered Notes is pursuant to an effective
registration statement under the Securities Act, or
[ ] The transfer of the Surrendered Notes is pursuant to an offshore
transaction in accordance with Rule 904 of Regulation S under the
Securities Act; or
[ ] The transfer of the Surrendered Notes is pursuant to another available
exemption from the registration requirement of the Securities Act.
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, such Notes are not being transferred to an "affiliate"
of the Company as defined in Rule 144 under the Securities Act (an "AFFILIATE").
[ ] The transferee is an Affiliate of the Company.
DATE:
----------------------------------------
----------------------------------------
Signature(s)
(If the registered owner is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of
such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to Be Delivered by Institutional Accredited Investors
Wabash National Corporation
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
Wachovia Bank, National Association
------------------------------------
------------------------------------
------------------------------------
Attention:
------------------------
Dear Sirs:
We are delivering this letter in connection with the proposed
transfer of $_____________ principal amount of the ___% Convertible Senior
Notes due 2008 (the "NOTES") of Wabash National Corporation (the
"COMPANY").
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule 501(a)(1),
(2) or (3) under the Securities Act of 1933, 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) or (3) under the
Securities Act (an "INSTITUTIONAL ACCREDITED INVESTOR");
(ii) the purchase of Notes by us is 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 Notes fiduciary for the account of one or
more institutions for which we exercise sole investment discretion;
(iii) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of purchasing
Notes; and
(iv) we are not acquiring Notes with a view to distribution thereof or
with any present intention of offering or selling Notes or the Common Stock
issuable upon conversion thereof, except as permitted any accounts for which
we are acting as fiduciary shall remain at all times within our control.
We understand that the Notes were originally offered and sold in a
B-2-2
transaction not involving any public offering within the United
States within the meaning of the Securities Act and that the Notes
and the shares of Common Stock (the "NOTES") issuable upon
conversion thereof 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 or otherwise transfer such Notes prior to the date (the
"RESALE RESTRICTION TERMINATION DATE") which is two years after the
later of the original issuance of the Notes and the last date on
which the Company or an Affiliate of the Company was the owner of
the Note, such Notes may be resold or otherwise transferred only (i)
to the Company or any subsidiary thereof, or (ii) for as long as the
Notes are eligible for resale pursuant to Rule 144A, to a person it
reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) that purchases for its own
account or for the account of a qualified institutional buyer to
which notice is given that the transfer is being made in reliance on
Rule 144A, or (iii) to an Institutional Accredited Investor that is
acquiring the Note for its own account, or for the account of such
Institutional Accredited Investor for investment purposes and not
with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act, or (iv) outside the
United States in a transaction meeting the requirements of Rule 904
under the Securities Act, or (v) pursuant to another available
exemption from registration under the Securities Act (if
applicable), or (vi) pursuant to a registration statement which has
been declared effective under the Securities Act and, in each case,
in accordance with any applicable securities laws of any State of
the United States or any other applicable jurisdiction and in
accordance with the legends set forth on the Notes. We further agree
to provide any person purchasing any of the Notes other than
pursuant to clause (vi) above from us a notice advising such
purchaser that resales of such Notes are restricted as stated
herein. We understand that the trustee or the transfer agent, as the
case may be, for the Notes will not be required to accept for
registration of transfer any Notes, except upon presentation of
evidence satisfactory to the Company that the foregoing restrictions
on transfer have been complied with. We further understand that any
Notes will be in the form of definitive physical certificates and
that such certificates will bear a legend reflecting the substance
of this paragraph other than certificates representing Notes
transferred pursuant to clause (vi) above.
The Company and the Trustee and their respective counsel 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 proceeding or official inquiry with respect
to the matters covered hereby.
We acknowledge that the Company, others and you will rely upon
our confirmations, acknowledgments and agreements set forth herein,
and we agree to notify you promptly in writing if any of our
representations or warranties herein ceases to be accurate and
complete.
B-2-3
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
------------------------------------
(Name of Purchaser)
By:
------------------------------------
Name:
Title:
Address:
B-2-4
