Exhibit 4.1
EXECUTION COPY
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XXXX XX INDUSTRIES, INC., as Issuer
and
THE BANK OF NEW YORK, as Trustee
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INDENTURE
Dated as of October 29, 1997
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$275,000,000
4:% Convertible Subordinated Notes due 2004
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CROSS REFERENCE TABLE(1)/
TIA Indenture
Section Section
310(a)(1)................................................... 7.10
(a)(2).................................................. 7.10
(a)(3).................................................. N.A.(1)
(a)(4).................................................. N.A.
(b).....................................................7.08;.7.10
(c)..................................................... N.A.
311(a)...................................................... 7.11
(b)..................................................... 7.11
(c)..................................................... N.A.
312(a)...................................................... 2.05
(b)..................................................... 11.03
(c)..................................................... 11.03
313(a)...................................................... 7.06
(b)(1).................................................. N.A.
(b)(2).................................................. 7.06
(c)..................................................... 11.02
(d)..................................................... 7.06
314(a)......................................................4.02; 11.02
(c)(1).................................................. 11.04
(c)(2).................................................. 11.04
(c)(3).................................................. N.A.
(e)..................................................... 10.05
(f)..................................................... 4.03
315(a)...................................................... 7.01
(b).....................................................7.05; 11.02
(c)..................................................... 7.01
(e)..................................................... 6.11
316(a)(last sentence)....................................... 2.08
(a)(1)(A)............................................... 6.05
(a)(1)(B)............................................... 6.04
(a)(2).................................................. N.A.
(b)..................................................... 6.07
317(a)(1)................................................... 6.08
(a)(2).................................................. 6.09
(b)..................................................... 2.04
318(a)...................................................... 11.01
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1. Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of this Indenture.
2. N.A. means Not Applicable.
INDENTURE, dated as of October 29, 1997 between Xxxx XX Industries, Inc., a
Delaware corporation ("Xxxx XX" or the "Company"), and The Bank of New York, a
New York banking corporation and trust company (the "Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders (as defined below) of $275,000,000
aggregate principal amount of Xxxx IV's 4:% Convertible Subordinated Notes due
2004 or, if Bear Xxxxxxx & Co. Inc. (the "Initial Purchaser") exercises its
over-allotment option granted in the Purchase Agreement (as defined below), of
up to $316,250,000 aggregate principal amount of the Company's 4:% Convertible
Subordinated Notes due 2004 (in either case, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. A Person shall be deemed to "control"
(including the correlative meanings, the terms "controlling," "controlled by,"
and "under common control with") another Person if the controlling Person (i)
possesses, directly or indirectly, the power to direct or cause the direction of
the management or policies of the controlled Person, whether through ownership
of voting securities, by agreement or otherwise, or (ii) owns, directly or
indirectly, 10% or more of any class of the issued and outstanding equity
securities of the controlled Person.
"Applicable Procedures" means, with respect to any transfer or exchange of
beneficial interests in a Global Note, the rules and procedures of the
Depositary that apply to such transfer and exchange.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banking institutions in New York or the city in which the principal
corporate trust office of the Trustee is located are required to close.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease which
would at such time be so required to be capitalized on the balance sheet in
accordance with GAAP.
"Cedel" means Cedel Bank, sociJtJ anonyme.
"Common Stock" means any stock of any class of the Company that does not
have a preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and that is not subject to redemption by the Company. Subject to the
provisions of Section 11.06, however, shares issuable on conversion of Notes
shall include only shares of the class designated as common stock of the Company
at the date of this Indenture or shares of any class or classes resulting from
any reclassification or reclassifications thereof and that do not have a
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and that are not subject to redemption by the Company; provided that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion that the total
number of shares of such class resulting from all such reclassifications bear to
the total number of shares of all such classes resulting from all such
reclassifications.
"Conversion Price" shall have the meaning specified in Section 11.04.
"Credit Agreement" means the Amended and Restated Credit and Guarantee
Agreement, dated as of March 8, 1996, as amended from time to time, by and among
the Company and Dayco PTI S.p.A., as Borrowers, and certain other subsidiaries
of the Company, as Guarantors, The Chase Manhattan Bank, as Administrator and
Bid Agent, Bank of America National Trust and Savings Association, as
Documentation Agent, and the banks and other financial institutions that are
signatories thereto, and any refinancings or replacements thereof providing for
Indebtedness in principal amount of up to $500,000,000, less, in the case of any
such refinancings or replacements, the amount of all permanent reductions
thereunder.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Definitive Notes" means Notes that are in the form of EXHIBIT A-1 attached
hereto (but without including the text referred to in footnotes 1 and 3
thereto).
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to Section 2.06 of this Indenture, and,
thereafter, "Depositary" shall mean or include such successor.
"8 3/4% Notes" means the Company's 83/4% Senior Subordinated Notes due
April 1, 2003 issued pursuant to the Indenture, dated as of March 15, 1993,
between the Company and Citibank, N.A., as trustee.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, the Brussels
office, as operator of the Euroclear system.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
from time to time.
"Global Notes" means the Rule 144A Global Notes, the Regulation S Temporary
Global Notes and the Regulation S Permanent Global Notes.
"Holder" or "Noteholder" means a Person in whose name a Note is registered
on the Registrar's books.
"Indebtedness" of any Person means any indebtedness, contingent or
otherwise, in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement obligations with respect thereto) or
representing the balance deferred and unpaid of the purchase price of any
property (including pursuant to Capital Lease Obligations), if and to the extent
any of the foregoing indebtedness would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP (except that any such
balance that constitutes a trade payable and/or an accrued liability arising in
the ordinary course of business shall not be considered Indebtedness), and shall
also include, to the extent not otherwise included, any Capital Lease
Obligations, the maximum fixed repurchase price of any Redeemable Stock,
indebtedness secured by a Lien to which the property or assets owned or held by
such Person is subject, whether or not the obligations secured thereby shall
have been assumed, guarantees of items that would be included within this
definition to the extent of such guarantees (exclusive of whether such items
would appear upon such balance sheet), and net liabilities in respect of
Interest Rate Protection Obligations. For purposes of the preceding sentence,
the maximum fixed repurchase price of any Redeemable Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Stock as if such Redeemable Stock were repurchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture, provided that if such Redeemable Stock is not then permitted to be
repurchased, the repurchase price shall be the book value of such Redeemable
Stock. The amount of Indebtedness of any Person at any date shall be, without
duplication, (i) the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability of any such contingent
obligations at such date and (ii) in the case of Indebtedness of others secured
by a Lien to which the property or assets owned or held by such Person is
subject, the lesser of the fair market value at such date of any asset subject
to a Lien securing the Indebtedness of others and the amount of the Indebtedness
secured.
"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.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Initial Purchaser" has the meaning given in the preamble.
"Institutional Accredited Investor" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Institutional Accredited Investor Global Notes" means the permanent global
notes representing Notes sold to a limited number of Institutional Accredited
Investors in reliance on Rule 501(a)(1), (2), (3) or (7) that contain the
paragraph referred to in footnote 1 and the additional schedule referred to in
footnote 3 to the form of the Note attached hereto as EXHIBIT A-1, and that are
deposited with and registered in the name of the Depositary or its nominee.
"Lien" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, 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 any security interest in and any filing or other agreement to give
any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Liquidated Damages" means, with respect to any Notes, all unpaid
additional amounts owing by the Company pursuant to Section 5 of the
Registration Rights Agreement for such Notes.
"Note Custodian" means the Trustee, when serving as custodian for the
Depositary with respect to the Notes in global form, or any successor entity
thereto.
"Officer" means, with respect to any corporation, the Chairman of the
Board, any Vice Chairman, the President, any Vice President, the Treasurer, the
Secretary, any Assistant Treasurer or any Assistant Secretary of such
corporation.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 11.04 and 11.05, signed in the name of Xxxx XX
by any two of its Officers, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 11.04 and 11.05, rendered by legal counsel who is
acceptable to the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel, a Person who
has an account with DTC, Euroclear or Cedel, respectively (and, with respect to
DTC, shall include Euroclear and Cedel).
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Private Placement Legend" means the legend initially set forth on the
Notes in the form set forth in Section 2.06(g) hereof.
"Purchase Agreement" means that certain purchase agreement dated as of
October 23, 1997, between the Company and the Initial Purchaser.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under
the Securities Act.
"Redeemable Stock" means any capital stock or other equity interest which,
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable before the stated maturity of the Notes), or upon
the happening of any event, matures or is mandatorily redeemable, in whole or in
part, prior to the stated maturity of the Notes.
"Registration Rights Agreement" means the Registration Rights Agreement
dated October 29, 1997 between the Initial Purchaser and the Company, as such
agreement may be amended, modified or supplemented from time to time.
"Regulation S Temporary Global Notes" means the temporary global notes that
contain the paragraphs referred to in footnote 1 to the form of the Note
attached hereto as EXHIBIT A-2, and that are deposited with and registered in
the name of the Depositary or its nominee, representing a Note sold in reliance
on Regulation S.
"Regulation S Permanent Global Notes" means the permanent global notes that
do not contain the paragraphs referred to in footnote 1 to the form of the Note
attached hereto as EXHIBIT A-2, and that are deposited with and registered in
the name of the Depositary or its nominee, representing a Note sold in reliance
on Regulation S.
"Regulation S Global Notes" means the Regulation S Temporary Global Notes
or the Regulation S Permanent Global Notes, as applicable.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Restricted Beneficial Interest" means any beneficial interest of a
Participant or Indirect Participant in the Rule 144A Global Note or the
Regulation S Global Note.
"Restricted Global Notes" means the Rule 144A Global Notes and the
Regulation S Global Notes, all of which shall bear the Private Placement Legend.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 501(a)(1), (2), (3) or (7)" means Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Rule 144A Global Notes" means (i) the permanent global notes representing
Notes sold to QIBs in reliance on Rule 144A that contain the paragraph referred
to in footnote 1 and the additional schedule referred to in footnote 3 to the
form of the Note attached hereto as EXHIBIT A-1, and that are deposited with and
registered in the name of the Depositary or its nominee and (ii) the
Institutional Accredited Investor Global Notes.
"SEC" means the Securities and Exchange Commission.
"Senior Indebtedness" means the principal of, premium, if any, and interest
on any Indebtedness of the Company, whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed, unless, in the
case of any particular Indebtedness, the instrument under which such
Indebtedness is created, incurred, assumed or guaranteed expressly provides that
such Indebtedness shall not be senior or superior in right of payment to the
Notes. Without limiting the generality of the foregoing, "Senior Indebtedness"
shall include the principal of, premium, if any, and interest on all obligations
of every nature of the Company from time to time owed to (i) the lenders under
the Credit Agreement, including, without limitation, principal of and interest
on, and all fees and expenses payable under the Credit Agreement and (ii) the
holders of the 72% Notes, the 8:% Notes or the 7:% Notes.
"7 1/2% Notes" means the Company's 72% Senior Subordinated Notes due
September 1, 2007, issued pursuant to the Indenture, dated as of August 11, 1997
between the Company and Marine Midland Bank, as trustee.
"7 3/4% Notes" means the Company's 7:% Senior Subordinated Notes due April
1, 2006 issued pursuant to the Indenture, dated as of March 11, 1996, between
the Company and Fleet National Bank, as trustee.
"Shelf Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
"Subsidiary" means any corporation, association or other business entity of
which more than 50% of the total voting power of shares of capital stock or
other equity interest entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by any Person or one
or more of the other Subsidiaries of that Person or a combination thereof.
"TIA" means the Trust Indenture Act of 1939 as amended and 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.
"Transfer Restricted Notes" means Notes that bear or are required to bear
the legend set forth in Section 2.06(g).
"Trust Officer," when used with respect to the Trustee, means any officer
in the Corporate Trust Administration Department of the Trustee with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"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.
"Unrestricted Global Notes" means one or more Global Notes that do not and
are not required to bear the Private Placement Legend.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- ----------
"Act".............................................. 1.05
"Bankruptcy Law"................................... 6.01
"Change of Control................................. 3.05(4)
"Event of Default"................................. 6.01
"Exchange Act"..................................... 4.02
"Legal Holiday".................................... 11.08
"Non-Payment Default".............................. 10.03
"Notice of Default"................................ 6.01
"Paying Agent"..................................... 2.03
"Payment Default".................................. 10.03
"Register"......................................... 2.03
"Registrar"........................................ 2.03
"Securities Act"................................... 7.04
"U.S. Government Obligations"...................... 8.01
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, such provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture securities" means the Notes.
"Indenture security holder" means a Holder.
"Indenture to be qualified" means this Indenture.
"Indenture trustee" or "institutional trustee" means the Trustee.
"Obligor" on the indenture securities means Xxxx XX.
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 1.04. RULES OF CONSTRUCTION. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
SECTION 1.05. ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to Xxxx XX. 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 Xxxx XX, if made in the manner
provided in this Section.
(2) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Trustee deems sufficient.
(3) The ownership of Notes shall be proved by the Register.
(4) 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 Xxxx XX in reliance thereon,
whether or not notation of such action is made upon such Note.
(5) If Xxxx XX shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, Xxxx XX may at
its option, by or pursuant to a resolution of its board of directors, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but Xxxx XX shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders' of the requisite
proportion of outstanding 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. FORM AND DATING. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of EXHIBIT A-1 and EXHIBIT A-2
attached hereto. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. The form of the Notes and any notation,
legend or endorsement shall be in a form acceptable to Xxxx XX and the Trustee.
Each Note shall be dated the date of its authentication.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture. To the extent applicable, Xxxx
XX and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
(a) GLOBAL NOTES. The Notes are being offered and sold by the Company
pursuant to a Purchase Agreement relating to the Notes, dated October 23, 1997,
between the Company and the Initial Purchaser.
Notes offered and sold to QIBs in reliance on Rule 144A and/or to a limited
number of Institutional Accredited Investors in reliance on Rule 501(a)(1), (2),
(3) or (7) shall be issued initially in the form of Rule 144A Global Notes,
which shall be deposited on behalf of the purchasers of the Notes represented
thereby with the Note Custodian, and registered in the name of the Depositary or
a nominee of the Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the Rule
144A Global Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary or its nominee as
hereinafter provided.
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Note Custodian, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Cedel, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The "40-DAY RESTRICTED PERIOD" (as defined in
Regulation S) shall be terminated upon the receipt by the Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and Cedel certifying that they have received certification of
non-United States beneficial ownership of 100% of the aggregate principal amount
of the Regulation S Temporary Global Notes (except to the extent of any
beneficial owners thereof who acquired an interest therein pursuant to another
exemption from registration under the Securities Act and who will take delivery
of a beneficial ownership interest in a Rule 144A Global Note, all as
contemplated by Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate
from the Company certifying as to the same matters covered in clause (i) above.
Following the termination of the 40-day restricted period, beneficial interests
in the Regulation S Temporary Global Note shall be exchanged for beneficial
interests in Regulation S Permanent Global Notes pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Notes, the Trustee shall cancel the Regulation S Temporary Global Notes.
The aggregate principal amount of the Regulation S Temporary Global Notes and
the Regulation S Permanent Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers of interests as
hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each 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 reduced or increased, as appropriate, to reflect exchanges and transfers of
interests. 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 or the Note Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
Upon effectiveness of the Shelf Registration Statement, the Notes resold or
transferred pursuant to the prospectus forming part of the Shelf Registration
Statement may be represented by one or more permanent Global Notes in
definitive, fully registered form without interest coupons and without the
Private Placement Legend, registered in the name of the Depositary or a nominee
of the Depositary, duly executed by the Company and authenticated by the Trustee
as hereinafter provided. The aggregate principal amount of such global Notes may
from time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary or its nominee to reflect transfers of
beneficial interests from the Regulation S Permanent Global Note and the Rule
144A Global Notes, subject to the rules and procedures of Euroclear and Cedel,
as the case may be, and the Depositary.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations" and "Instructions to Participants" of Cedel shall be applicable to
interests in the Regulation S Temporary Global Notes and the Regulation S
Permanent Global Notes that are held by Participants through Euroclear or Cedel.
The Trustee shall have no obligation to notify Holders of any such procedures or
to monitor or enforce compliance with the same.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(b) BOOK-ENTRY PROVISIONS. This Section 2.01(b) shall apply only to Rule
144A Global Notes and Regulation S Permanent Global Notes deposited with or on
behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this
Section 2.01(b), authenticate and deliver the Global Notes that (i) shall be
registered in the name of the Depositary or the nominee of the Depositary and
(ii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions or held by the Trustee as Note Custodian.
Participants shall have no rights either under this Indenture with respect
to any Global Note held on their behalf by the Depositary or by the Note
Custodian as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants, the
operation of customary practices of such Depositary governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
(c) DEFINITIVE NOTES. Notes issued in certificated form shall be
substantially in the form of EXHIBIT A-1 attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
SECTION 2.02. EXECUTION AND AUTHENTICATION. The Notes shall be executed on
behalf of Xxxx XX by its Chairman of the Board, one of its Vice Chairmen, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any such Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who were at
any time the proper Officers of Xxxx XX shall bind Xxxx XX, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
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 in EXHIBIT A-1 or EXHIBIT
A-2 annexed hereto duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
made available for delivery hereunder.
The Trustee shall authenticate and make available for delivery Notes for
original issue in the aggregate principal amount of $275,000,000 (up to
$316,250,000 aggregate principal amount assuming the full exercise of the
over-allotment option granted to the Initial Purchaser), upon a direction that
it do so set forth in an Officers' Certificate of Xxxx XX, but without any
further action by Xxxx XX. Such order shall specify the amount of the Notes to
be authenticated and the date on which the original issue of Notes is to be
authenticated and delivered. The aggregate principal amount of Notes outstanding
at any time may not exceed the amounts provided in this Section 2.02, except as
provided in Section 2.07.
The Trustee shall act as the initial authenticating agent. Thereafter, the
Trustee may appoint an authenticating agent reasonably acceptable to Xxxx XX to
authenticate Notes. An authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as a Paying Agent to deal with Xxxx XX or an Affiliate of Xxxx XX.
The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 and any integral multiple thereof.
After a transfer of any Notes pursuant to a prospectus which is part of a
Shelf Registration Statement during the period of the effectiveness of such
Shelf Registration Statement with respect to the Notes, all requirements
pertaining to legends on such Note will cease to apply, the requirements
requiring any such Note issued to certain holders be issued in global form will
cease to apply, and a certificated Definitive Note without legends will be
available to the holder of such Notes to whom such Notes were so transferred
pursuant to a prospectus which is part of such Shelf Registration Statement.
SECTION 2.03. REGISTRAR AND PAYING AGENT. Xxxx XX shall maintain or cause
to be maintained an office or agency where Notes may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Notes may be presented or surrendered for purchase or payment or
conversion ("Paying Agent") and an office or agency where notices and demands to
or upon Xxxx XX in respect of the Notes and this Indenture may be served. The
Registrar shall keep a register of the Notes and of their transfer and exchange
(the "Register"). Xxxx XX may have one or more co-registrars and one or more
additional paying agents. The term Paying Agent includes any additional paying
agent.
Xxxx XX shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar (if not the Trustee or Xxxx XX). The
agreement shall implement the provisions of this Indenture that relate to such
agent. Xxxx XX shall notify the Trustee of the name and address of any such
agent. If Xxxx XX fails to maintain a Registrar, Paying Agent or agent for
service of notices or demands, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. Xxxx XX
or any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar or co-registrar or agent for service of notices and demands.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. Except as otherwise
provided herein, prior to each due date of the principal and interest on any
Note, Xxxx XX shall deposit with the Paying Agent a sum of money sufficient to
pay such principal and interest so becoming due. Xxxx XX shall require each
Paying Agent (other than the Trustee or Xxxx XX) to agree in writing that such
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal and interest on the
Notes (whether such money has been paid to it by Xxxx XX or any other obligor on
the Notes) and shall notify the Trustee of any default by Xxxx XX (or any other
obligor on the Notes) in making any such payment. At any time during the
continuance of any such default, the Paying Agent shall, upon the request of the
Trustee, forthwith pay to the Trustee all money so held in trust and account for
any money disbursed by it. Xxxx XX at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for any money disbursed by
it. Upon doing so, the Paying Agent shall have no further liability for the
money so paid over to the Trustee. If Xxxx XX, a Subsidiary or an Affiliate of
either of them acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund.
SECTION 2.05. 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 Holders. If the Trustee is not the Registrar, Xxxx XX
shall cause to be furnished to the Trustee not more than five days after each
record date and at such other times as the Trustee may request in writing,
within five Business Days of such request, a list in such form as the Trustee
may reasonably require of the names and addresses of Holders.
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and exchange of
beneficial interests in Global Notes shall be effected through the Depositary,
in accordance with this Indenture and the procedures of the Depositary therefor,
which shall include restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act. Beneficial interests in a
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in the same Global Note in accordance with the transfer
restrictions set forth in the legend in subsection (g) of this Section 2.06.
Transfers of beneficial interests in the Global Notes to Persons required to
take delivery thereof in the form of an interest in another Global Note shall be
permitted as follows:
(i) RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE. If, at
any time, an owner of a beneficial interest in a Rule 144A Global
Note deposited with the Depositary (or the Trustee as Note
Custodian) wishes to transfer its beneficial interest in such
Rule 144A Global Note to a Person who is required or permitted to
take delivery thereof in the form of an interest in a Regulation
S Global Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for
an equivalent beneficial interest in a Regulation S Global Note
as provided in this Section 2.06(a)(i). Upon receipt by the
Trustee of (1) instructions given in accordance with the
Applicable Procedures from a Participant directing the Trustee to
credit or cause to be credited a beneficial interest in the
Regulation S Global Note in an amount equal to the beneficial
interest in the Rule 144A Global Note to be exchanged, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the Participant account of the
Depositary and the Euroclear or Cedel account to be credited with
such increase, and (3) a certificate in the form of EXHIBIT B-1
hereto given by the owner of such beneficial interest stating
that the transfer of such interest has been made in compliance
with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 of
Regulation S, then the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate
principal amount at maturity of the applicable Rule 144A Global
Note and to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Regulation S
Global Note by the principal amount at maturity of the beneficial
interest in the Rule 144A Global Note to be exchanged or
transferred, to credit or cause to be credited to the account of
the Person specified in such instructions, a beneficial interest
in the Regulation S Global Note equal to the reduction in the
aggregate principal amount at maturity of the Rule 144A Global
Note, and to debit, or cause to be debited, from the account of
the Person making such exchange or transfer the beneficial
interest in the Rule 144A Global Note that is being exchanged or
transferred.
(ii) REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE. If, at
any time, after the expiration of the 40-day restricted period,
an owner of a beneficial interest in a Regulation S Global Note
deposited with the Depositary or with the Trustee as Note
Custodian wishes to transfer its beneficial interest in such
Regulation S Global Note to a Person who is required or permitted
to take delivery thereof in the form of an interest in a Rule
144A Global Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for
an equivalent beneficial interest in a Rule 144A Global Note as
provided in this Section 2.06(a)(ii). Upon receipt by the Trustee
of (1) instructions from Euroclear or Cedel, if applicable, and
the Depositary, directing the Trustee, as Registrar, to credit or
cause to be credited a beneficial interest in the Rule 144A
Global Note equal to the beneficial interest in the Regulation S
Global Note to be exchanged, such instructions to contain
information regarding the Participant account with the Depositary
to be credited with such increase, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the Participant account of the Depositary to be debited
from the account of the Person making such exchange or transfer
of the beneficial interest in the Regulation S Global Note that
is being exchanged or transferred, (3) a certificate executed by
the transferee in the form of EXHIBIT C attached hereto, if the
owner of the beneficial interest in the Regulation S Global Note
is transferring its beneficial interest in such Note to an
Institutional Accredited Investor and (4) a certificate in the
form of EXHIBIT B-2 attached hereto given by the owner of such
beneficial interest stating (A) if the transfer is pursuant to
Rule 144A, that the Person transferring such interest in a
Regulation S Global Note reasonably believes that the Person
acquiring such interest in a Rule 144A Global Note is a QIB and
is obtaining such beneficial interest in a transaction meeting
the requirements of Rule 144A and any applicable blue sky or
securities laws of any state of the United States, (B) that the
transfer complies with the requirements of Rule 144 under the
Securities Act, (C) if the transfer is to an Institutional
Accredited Investor, that such transfer is in compliance with the
Securities Act and a certificate in the form of EXHIBIT C
attached hereto has been executed by the Person acquiring such
interest and, if such transfer is in respect of an aggregate
principal amount of less than $100,000, an Opinion of Counsel
acceptable to the Company that such transfer is in compliance
with the Securities Act or (D) if the transfer is pursuant to any
other exemption from the registration requirements of the
Securities Act, that the transfer of such interest has been made
in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the
requirements of the exemption claimed, such statement to be
supported by an Opinion of Counsel from the transferee or the
transferor in form reasonably acceptable to the Company and to
the Registrar and in each case, in accordance with any applicable
securities laws of any state of the United States or any other
applicable jurisdiction, then the Trustee, as Registrar, shall
instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount at maturity of such Regulation S
Global Note and to increase or cause to be increased the
aggregate principal amount at maturity of the applicable Rule
144A Global Note by the principal amount at maturity of the
beneficial interest in the Regulation S Global Note to be
exchanged or transferred, and the Trustee, as Registrar, shall
instruct the Depositary, concurrently with such reduction, to
credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the
applicable Rule 144A Global Note equal to the reduction in the
aggregate principal amount at maturity of such Regulation S
Global Note and to debit or cause to be debited from the account
of the Person making such transfer the beneficial interest in the
Regulation S Global Note that is being exchanged or transferred.
(b) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive Notes
are presented by a Holder to the Registrar with a request to register the
transfer of the Definitive Notes or to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested only
if the Definitive Notes are presented or surrendered for registration of
transfer or exchange, are endorsed and contain a signature guarantee or
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney and contains a
signature guarantee, duly authorized in writing and the Registrar received the
following documentation (all of which may be submitted by facsimile):
(i) in the case of Definitive Notes that are Transfer
Restricted Notes, such request shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Note is being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, or such Transfer Restricted Note is
being transferred to the Company or any of its Subsidiaries,
a certification to that effect from such Holder (in
substantially the form of EXHIBIT B-3 hereto); or
(B) if such Transfer Restricted Note is being transferred to a
QIB in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with
Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of EXHIBIT B-3 hereto); or
(C) if such Transfer Restricted Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with
Rule 904 under the Securities Act, a certification to that
effect from such Holder (in substantially the form of EXHIBIT
B-3 hereto);
(D) if such Transfer Restricted Note is being transferred to
an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
and (C) above, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3 hereto), a
certification from the applicable transferee substantially in
the form of EXHIBIT C hereto, and, if such transfer is in
respect of an aggregate principal amount of Notes of less
than $100,000, an Opinion of Counsel acceptable to the
Company that such transfer is in compliance with the
Securities Act; or
(E) if such Transfer Restricted Note is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to that
effect from such Holder (in substantially the form of EXHIBIT
B-3 hereto) and an Opinion of Counsel from such Holder or the
transferee reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in compliance
with the Securities Act.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A RULE 144A
GLOBAL NOTE OR REGULATION S PERMANENT GLOBAL NOTE FOR
A DEFINITIVE NOTE.
(i) Any Person having a beneficial interest in a Rule 144A
Global Note or Regulation S Permanent Global Note may
upon request, subject to the Applicable Procedures,
exchange such beneficial interest for a Definitive Note.
Upon receipt by the Trustee of written instructions or
such other form of instructions as is customary for the
Depositary (or Euroclear or Cedel, if applicable), from
the Depositary or its nominee on behalf of any Person
having a beneficial interest in a Rule 144A Global Note
or Regulation S Permanent Global Note, and, in the case
of a Transfer Restricted Note, the following additional
information and documents (all of which may be submitted
by facsimile):
(A) if such beneficial interest is being transferred to
the Person designated by the Depositary as being the
beneficial owner, a certification to that effect
from such Person (in substantially the form of
EXHIBIT B-4 hereto);
(B) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from the transferor (in
substantially the form of EXHIBIT B-4 hereto);
(C) if such beneficial interest is being transferred
to an Institutional Accredited Investor, pursuant to
a private placement exemption from the
registration requirements of the Securities Act (and
based on an opinion of counsel if the Company so
requests), a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-4
hereto) and a certificate from the applicable
transferee (in substantially the form of EXHIBIT C
hereto and, if such transfer is in respect of an
aggregate principal amount of Notes of less than
$100,000, an Opinion of Counsel acceptable to the
Company that such transfer is in compliance with the
Securities Act); or
(D) if such beneficial interest is being transferred
in reliance on any other exemption from the
registration requirements of the Securities Act, a
certification to that effect from the transferor (in
substantially the form of EXHIBIT B-4 hereto) and an
Opinion of Counsel from the transferee or the
transferor reasonably acceptable to the Company and
to the Registrar to the effect that such transfer is
in compliance with the Securities Act, in which case
the Trustee or the Note Custodian, at the direction
of the Trustee, shall, in accordance with the
standing instructions and procedures existing
between the Depositary and the Note Custodian, cause
the aggregate principal amount of Rule 144A Global
Notes or Regulation S Permanent Global Notes, as
applicable, to be reduced accordingly and, following
such reduction, the Company shall execute and, the
Trustee shall authenticate and deliver to the
transferee a Definitive Note in the appropriate
principal amount.
(ii) Definitive Notes issued in exchange for a beneficial interest
in a Rule 144A Global Note or Regulation S Permanent Global
Note, as applicable, pursuant to this Section 2.06(c) 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.
The Trustee shall deliver such Definitive Notes to the Persons
in whose names such Notes are so registered. Following any such
issuance of Definitive Notes, the Trustee, as Registrar, shall
instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount at maturity of the applicable Global
Note to reflect the transfer.
(d) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES. Notwithstanding
any other provision of this Indenture (other than the provisions set forth in
subsection (f) of this Section 2.06), a Global Note may not be transferred as a
whole 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.
(e) TRANSFER AND EXCHANGE OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST IN
A GLOBAL NOTE. A Definitive Note may not be transferred or exchanged for a
beneficial interest in a Global Note.
(f) AUTHENTICATION OF DEFINITIVE NOTES IN ABSENCE OF DEPOSITARY. If at any
time:
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary
for the Global Notes and a successor Depositary for the
Global Notes is not appointed by the Company within 90 days
after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of
Definitive Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) LEGENDS.
(i) Except as permitted by the following paragraph (ii), (iii) and (iv),
each Note certificate (and all Notes issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the following form:
"THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTI TUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION; (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY
AND THE LAST DATE ON WHICH XXXX XX INDUSTRIES, INC. (THE "COMPANY") OR ANY
"AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE
COMPANY WAS THE OWNER OF THE NOTE (THE "RESTRICTION TERMINATION DATE")
RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK
ISSUABLE UPON CONVERSION OF SUCH NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN INSTITU TIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF
NEW YORK, AS TRUSTEE, A SIGNED LETTER CONTAINING CER TAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE
EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECU RITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE NOTE EVI DENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER
OF THE NOTE EVI DENCED HEREBY BEFORE THE RESTRICTION TERMINATION DATE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
BANK OF NEW YORK, AS TRUSTEE. IF THE PROPOSED TRANSFER IS PURSUANT TO
CLAUSE (C), (D) OR (E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE, SUCH CER TIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global
Note) pursuant to Rule 144 under the Securities Act or pursuant
to an effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Note that is a
Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Note for a
Definitive Note that does not bear the legend set forth in
(i) above and rescind any restriction on the transfer of
such Transfer Restricted Note upon receipt of a
certification from the transferring holder substantially in
the form of EXHIBIT B-4 hereto; and
(B) in the case of any Transfer Restricted Note represented
by a Global Note, such Transfer Restricted Note shall not be
required to bear the legend set forth in (i) above, but
shall continue to be subject to the provisions of Section
2.06(a) and (b) hereof; PROVIDED, HOWEVER, that with respect
to any request for an exchange of a Transfer Restricted Note
that is represented by a Global Note for a Definitive Note
that does not bear the legend set forth in (i) above, which
request is made in reliance upon Rule 144, the Holder
thereof shall certify in writing to the Registrar that such
request is being made pursuant to Rule 144 (such
certification to be substantially in the form of EXHIBIT B-4
hereto).
(iii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a
Global Note) in reliance on any exemption from the
registration requirements of the Securities Act (other than
exemptions pursuant to Rule 144A or Rule 144 under the
Securities Act) in which the Holder or the transferee
provides an Opinion of Counsel to the Company and the
Registrar in form and substance reasonably acceptable to the
Company and the Registrar (which Opinion of Counsel shall
also state that the transfer restrictions contained in the
legend are no longer applicable):
(A) in the case of any Transfer Restricted Note that is a
Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Note for a
Definitive Note that does not bear the legend set forth
in (i) above and rescind any restriction on the transfer
of such Transfer Restricted Note; and
(B) in the case of any Transfer Restricted Note
represented by a Global Note, such Transfer Restricted
Note shall not be required to bear the legend set forth
in (i) above, but shall continue to be subject to the
provisions of Section 2.06(a) and (b) hereof.
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
beneficial interests in Global Notes have been exchanged for Definitive Notes,
redeemed, repurchased or cancelled, all Global Notes shall be returned to or
retained and cancelled by the Trustee in accordance with Section 2.10 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the Trustee
or the Note Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any stamp or
transfer tax or similar governmental charge payable in
connection therewith.
(iii) All Global Notes and Definitive Notes issued
upon any registration of transfer or exchange
of Global Notes or Definitive Notes shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(iv) The Registrar shall not be required to register the
transfer of or to exchange a Note between a record date
and the next succeeding interest payment date.
(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any
Note is registered as the absolute owner of such Note for
the purpose of receiving payment of principal of and
interest on such Notes and for all other purposes, and
neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of
Section 2.02 hereof.
SECTION 2.07. REPLACEMENT NOTES. If (a) any mutilated Note is surrendered
to Xxxx XX or the Trustee, or (b) Xxxx XX and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Note, and there is
delivered to Xxxx XX and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to Xxxx XX or the Trustee that such Note has been acquired by a bona fide
purchaser, Xxxx XX shall execute, and upon its written request, the Trustee
shall authenticate and make available for delivery, 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.
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 Xxxx XX pursuant
to Section 4.11, Xxxx XX 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 2.07, Xxxx XX 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) in connection therewith.
Every new Note issued pursuant to this Section 2.07 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of Xxxx XX, whether or not the mutilated,
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 2.07 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen securities.
SECTION 2.08. OUTSTANDING NOTES; DETERMINATIONS OF HOLDERS' ACTION. Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those cancelled by it, those delivered to it for cancellation, those
referred to in Section 2.07 or purchased by Xxxx XX pursuant to Section 4.11 and
those described in this Section 2.08 as not outstanding. A Note does not cease
to be outstanding because Xxxx XX or an Affiliate thereof holds the Note;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Notes have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
Xxxx XX, any other obligor upon the Notes or any Affiliate of Xxxx XX 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 the Trustee knows based upon an examination of the Register 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 determinations pursuant to Articles 7 and 10).
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Note is
held by a bona fide purchaser.
If the Paying Agent (other than Xxxx XX) holds, in accordance with this
Indenture, at maturity, money sufficient to pay the Notes payable on that date,
then immediately on the date of maturity such Notes shall cease to be
outstanding and interest, if any, on such Notes shall cease to accrue.
SECTION 2.09. TEMPORARY NOTES. Pending the preparation of definitive Notes,
Xxxx XX may execute, and upon written request from Xxxx XX signed by two
Officers of Xxxx XX, the Trustee shall authenticate and make available for
delivery, 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 of Xxxx XX executing such Notes may determine, as
conclusively evidenced by their execution of such Notes.
If temporary Notes are issued, Xxxx XX 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 Xxxx XX designated for such
purpose pursuant to Section 2.03, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Notes, Xxxx XX shall execute and
the Trustee, upon written request of Xxxx XX signed by two Officers of Xxxx XX,
shall authenticate and make available for delivery 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 2.10. CANCELLATION. All Notes surrendered for payment, purchase by
Xxxx XX, redemption by Xxxx XX pursuant to Article 4, 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. Xxxx XX may
at any time deliver to the Trustee for cancellation any Notes previously
authenticated and made available for delivery hereunder which Xxxx XX may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Trustee. Xxxx XX may not reissue, or, except as expressly
permitted by this Indenture, issue new Notes to replace Notes it has paid or
delivered to the Trustee for cancellation. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section 2.10,
except as expressly permitted by this Indenture. All cancelled Notes held by the
Trustee shall be returned to Xxxx XX.
SECTION 2.11. CUSIP NUMBERS. Xxxx XX, in issuing the Notes may use "CUSIP"
numbers (if then generally in use), and the Trustee shall use CUSIP numbers in
notices of redemption or exchange as a convenience to Holders; PROVIDED that any
such notice shall state that no representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice of
redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Notes and any redemption shall not be
affected by any defect in or omission of such numbers.
SECTION 2.12. DEFAULTED INTEREST. If Xxxx XX defaults in a payment of
interest on the Notes, it shall 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, and such special record date, as
used in this Section 2.12 with respect to the payment of any defaulted interest,
shall mean the 15th day next preceding the date fixed by Xxxx XX for the payment
of defaulted interest, whether or not such day is a Business Day. At least 20
days before the subsequent special record date, Xxxx XX shall mail to the
Trustee a notice that states the subsequent special record date, the payment
date and the amount of defaulted interest to be paid. At least 15 days before
the subsequent special record date, Xxxx XX shall mail to each Holder a notice
that states the subsequent special record date, the payment date and the amount
of defaulted interest to be paid. Xxxx XX may also pay defaulted interest in any
other lawful manner.
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
SECTION 3.01. REDEMPTION PRICES. The Notes are not redeemable at the option
of the Company prior to November 3, 2000. At any time on or after that date, the
Notes may be redeemed at the Company's option, upon notice as set forth in
Section 3.02, in whole at any time or in part from time to time, at the
following prices (expressed in percentages of the principal amount), together
with accrued and unpaid interest and Liquidated Damages, if any, thereon to the
date fixed for redemption if redeemed during the 12-month period beginning
November 3 of the years indicated below:
REDEMPTION
YEAR PRICE
---- ----------
2000 ................................................ 102.375%
2001 ................................................ 101.583%
2002 ................................................ 100.792%
2003 and thereafter .................................... 100.000%
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF Notes. In case the Company
shall desire to exercise the right to redeem all or, as the case may be, any
part of the Notes pursuant to Section 3.1, it shall fix a date for redemption
and, in the case of any redemption pursuant to Section 3.1, it or, at its
request accompanied by the proposed form of notice of redemption (which must be
received by the Trustee at least ten days prior to the date the Trustee is
requested to give notice as described below, unless a shorter period is agreed
to by the Trustee), the Trustee in the name of and at the expense of the
Company, shall publish a notice in the Wall Street Journal and mail or cause to
be mailed a notice of such redemption at least 30 and not more than 60 days
prior to the date fixed for redemption to the holders of Notes so to be redeemed
as a whole or in part at their last addresses as the same appear on the Note
register, provided that if the Company shall give such notice, it shall also
give such notice, and notice of the Notes to be redeemed, to the Trustee. Such
mailing shall be by first class mail. The notice, if mailed in the manner herein
provided, shall be conclusively presumed to have been duly given, whether or not
the holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.
Each such notice of redemption shall identify the Notes to be redeemed
(including CUSIP numbers), specify the aggregate principal amount of Notes to be
redeemed, the date fixed for redemption, the redemption price at which Notes are
to be redeemed, the place or places of payment, that payment shall be made upon
presentation and surrender of such Notes, that interest accrued to the date
fixed for redemption shall be paid as specified in said notice and that on and
after said date, interest thereon or on the portion thereof to be redeemed shall
cease to accrue. Such notice shall also state the current conversion price and
the date on which the right to convert such Notes or portions thereof into
Common Stock shall expire. If fewer than all the Notes are to be redeemed, the
notice of redemption shall identify the Notes to be redeemed. In case any Note
is to be redeemed in part only, the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Note, a new Note or Notes
in principal amount equal to the unredeemed portion thereof shall be issued.
Prior to 10:00 a.m. on the redemption date specified in the notice of
redemption given as provided in this Section 3.02, the Company shall deposit
with the Trustee or with one or more paying agents (or, if the Company is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 2.04) an amount of money sufficient to redeem on the redemption date all
the Notes so called for redemption (other than those theretofore surrendered for
conversion into Common Stock) at the appropriate redemption price, together with
accrued interest to the date fixed for redemption. If any Note called for
redemption is converted pursuant hereto, any money deposited with the Trustee or
any paying agent or so segregated and held in trust for the redemption of such
Note shall be paid to the Company upon its request or, if then held by the
Company, shall be discharged from such trust. If fewer than all the Notes are to
be redeemed, the Company shall give the Trustee written notice in the form of an
Officers' Certificate not fewer than 45 days (or such shorter period of time as
may be acceptable to the Trustee) prior to the redemption date as to the
aggregate principal amount of Notes to be redeemed.
If fewer than all the Notes are to be redeemed, the Trustee shall select
the Notes or portions thereof to be redeemed (in principal amounts of $1,000 or
integral multiples thereof), by lot or, in its discretion, on a PRO RATA basis.
If any Note is to be redeemed in part only, a new Note or Notes in principal
amount equal to the unredeemed principal portion thereof shall be issued. If a
portion of a Holder's Notes is selected for partial redemption and such Holder
converts a portion of such Notes, such converted portion shall be deemed to be
taken from the portion selected for redemption. The Notes (or portions thereof)
so selected shall be deemed duly selected for redemption for all purposes
hereof, notwithstanding that any such Note is converted as a whole or in part
before the mailing of the notice of redemption.
Upon any redemption of less than all Notes, the Company and the Trustee may
treat as outstanding any Notes surrendered for conversion during the period of
15 days next preceding the mailing of a notice of redemption and need not treat
as outstanding any Note authenticated and delivered during such period in
exchange for the unconverted portion of any Note converted in part during such
period.
SECTION 3.03. PAYMENT OF NOTES CALLED FOR REDEMPTION. If notice of
redemption has been given as above provided, the Notes or portion of Notes with
respect to which such notice has been given shall, unless converted into Common
Stock pursuant to the terms hereof, become due and payable on the date and at
the place or places stated in such notice at the applicable redemption price,
together with interest thereon accrued to the date fixed for redemption, and on
and after said date (unless the Company shall default in the payment of such
Notes at the redemption price, together with interest thereon accrued to said
date), interest on the Notes or portion of Notes so called for redemption shall
cease to accrue, and such Notes shall cease after the close of business on the
Business Day next preceding the date fixed for redemption to be convertible into
Common Stock and, except as provided in Sections 2.04 and 8.04, to be entitled
to any benefit or security under this Indenture, and the holders thereof shall
have no right in respect of such Notes except the right to receive the
redemption price thereof and unpaid interest thereon to the date fixed for
redemption. On presentation and surrender of such Notes at a place of payment in
said notice specified, the said Notes or the specified portions thereof shall be
paid and redeemed by the Company at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided that
any semi-annual payment of interest becoming due on the date fixed for
redemption shall be payable to the holders of such Notes registered as such on
the relevant record date subject to the terms and provisions of the Notes.
Upon presentation of any Note redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in principal amount equal to the unredeemed portion of
the Notes so presented.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and premium, if any, shall, until paid or
duly provided for, bear interest from the date fixed for redemption at the rate
borne by the Note and such Note shall remain convertible into Common Stock until
the principal and premium, if any, shall have been paid or duly provided for.
SECTION 3.04. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In connection
with any redemption of Notes, the Company may arrange for the purchase and
conversion of any Notes by an agreement with one or more investment bankers or
other purchasers to purchase such Notes by paying to the Trustee in trust for
the Noteholders, on or prior to the Business Day prior to the date fixed for
redemption, an amount not less than the applicable redemption price, together
with interest accrued to the date fixed for redemption, of such Notes.
Notwithstanding anything to the contrary con tained in this Article 3, the
obligation of the Company to pay the redemption price of such Notes, together
with interest accrued to the date fixed for redemption, shall be deemed to be
satisfied and dis charged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, a copy of which shall be filed
with the Trustee prior to the date fixed for redemption, any Notes not duly
surrendered for conversion by the holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such holders and (not withstanding anything to the contrary
contained in Article 11) surrendered by such purchasers for conversion, all as
of the time immediately prior to the close of business on the date fixed for
redemp tion (and the right to convert any such Notes shall be deemed to have
been extended through such time), subject to payment of the above amount as
aforesaid. At the direction of the Company, the Trustee shall hold and dispose
of any such amount paid to it in the same manner as it would monies deposited
with it by the Company for the redemption of Notes. Without the Trustee's prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Notes shall increase or otherwise affect any of
the powers, duties, responsibilities or obligations of the Trustee as set forth
in this Indenture, and the Company agrees to indemnify the Trustee from, and
hold it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of any
Notes between the Company and such purchasers including the costs and expenses
incurred by the Trustee in the defense of any claim or liability arising out of
or in connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
SECTION 3.05. REPURCHASE UPON A CHANGE OF CONTROL.
(1) Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require that the Company repurchase such Holder's Notes in
whole or in part in integral multiples of $1,000, at a purchase price (the
"Change of Control Purchase Price") in cash in an amount equal to 100% of the
principal amount thereof, together with accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase (the "Change of Control
Purchase Date") pursuant to an offer (the "Change of Control Offer") made in
accordance with the procedures described below and the other procedures set
forth in this Indenture.
(2) Within 30 days following any Change of Control, the Company shall send
by first-class mail, postage prepaid, to the Trustee and to each Holder of
Notes, at such Holder's address appearing in the security register, a notice
stating, among other things, (i) that a Change of Control has occurred, (ii) the
Change of Control Purchase Price, (iii) the Change of Control Purchase Date,
which shall be a Business Day no earlier than 30 days nor later than 60 days
from the date such notice is mailed, or such later date as is necessary to
comply with requirements under the Exchange Act, (iv) that any Note not tendered
shall continue to accrue interest and to have all of the benefits of this
Indenture, (v) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Purchase Date, (vi) that Noteholders electing to have any Notes purchased
pursuant to a Change of Control Offer shall be required to surrender the Notes,
with the form entitled "Option of Noteholder to Elect Purchase" on the reverse
of the Notes completed, to the Company at the address specified in the notice
prior to the close of business on the third Business Day preceding the Change of
Control Purchase Date, (vii) that Noteholders shall be entitled to withdraw
their election if the Company receives, not later than the close of business on
the second Business Day preceding the Change of Control Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Noteholder, the principal amount of Notes delivered for purchase, and a
statement that such Noteholder is withdrawing his election to have such Notes
purchased, and (viii) that Noteholders whose Notes are being purchased only in
part shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be equal to
$1,000 in principal amount or an integral multiple thereof. The Company shall
comply, to the extent applicable, with the requirements of Rule 13e-4 and 14e-1
under the Exchange Act and any other secu rities laws and regulations thereunder
to the extent such laws and regulations are applicable in con nection with the
repurchase of the Notes in connection with a Change of Control.
(3) On the Change of Control Purchase Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Trustee an amount
equal to the Change of Control Purchase Price in respect of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate setting
forth the Notes or portions thereof ten dered to the Company. The Trustee shall
promptly mail to each Noteholder of Notes so accepted payment in an amount equal
to the purchase price of such Notes, and the Trustee shall promptly au
thenticate and mail to each Noteholder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered, if any; provided that each
such new Note shall be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
(4) A "Change of Control" means an event or series of events in which (i)
any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act) acquires "beneficial ownership" (as determined in accordance
with Rule 13d-3 under the Exchange Act), directly or indirectly, of more than
50% of the combined voting power of the then outstanding securities entitled to
vote generally in elections of directors of the Company (the "Voting Stock") or
(ii) the Company consolidates with or merges into any other corporation, or
conveys, transfers or leases all or substantially all of its assets to any
person, or any other corporation merges into the Company, and, in the case of
any such transaction, the outstanding Common Stock of the Company is changed or
exchanged as a result, unless the shareholders of the Company immediately before
such transaction own, directly or indirectly, at least 51% of the combined
voting power of the outstanding voting securities of the corporation resulting
from such transaction in substantially the same proportion as their ownership of
the Voting Stock immediately before such transaction; PROVIDED that a Change of
Control shall not be deemed to have occurred if either (i) the closing price per
share of the Common Stock for any 5 trading days within the period of 10
consecutive trading days ending immediately after the announcement of such
Change of Control shall equal or exceed 105% of the Conversion Price of the
Notes in effect on such trading day or (ii) at least 90% of the consideration in
the Change of Control transaction consists of shares of common stock traded on a
national securities exchange or quoted on the Nasdaq National Market, and as a
result of such transaction, the Notes become convertible solely into such common
stock.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. Xxxx XX shall pay the principal of and
interest (including interest accruing on or after the filing of a petition in
bankruptcy or reorganization relating to Xxxx XX, whether or not a claim for
post-filing interest is allowed in such proceeding) on the Notes on (or prior
to) the dates and in the manner provided in the Notes or pursuant to this
Indenture. An installment of principal and interest shall be considered paid on
the applicable date due if on such date the Trustee or the Paying Agent holds,
in accordance with this Indenture, money sufficient to pay all of such
installment then due. Xxxx XX shall pay interest on overdue principal and
interest on overdue installments of interest (including interest accruing on or
after the filing of a petition in bankruptcy or reorganization relating to Xxxx
XX whether or not a claim for post-filing interest is allowed in such
proceeding), to the extent lawful, at the rate per annum borne by the Notes,
which interest on overdue interest shall accrue from the date such amounts
became overdue.
SECTION 4.02. SEC REPORTS.
(1) Xxxx XX shall file with the Trustee and supply to each Holder, without
cost, within 15 days after it files the same with the SEC, copies of its annual
and quarterly reports, information, documents and other reports, (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which it is required to file with the SEC pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
In the event that Xxxx XX is at any time not subject to the reporting
requirements of the Exchange Act, it shall provide to the Trustee and supply to
each Holder without cost, within 15 days after it would have been required to
file such information with the SEC, financial statements, including any notes
thereto and, with respect to annual reports, an auditors' report by an
accounting firm of established national reputation and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations," both
comparable to that which Xxxx XX would have been required to include in such
annual reports, information, documents or other reports if Xxxx XX had been
subject to the requirements of such Sections 13 or 15(d) of the Exchange Act.
Xxxx XX also shall comply with the other provisions of TIA Section 314(a).
(2) So long as any Notes remain outstanding, Xxxx XX shall cause its annual
report to stockholders and any other financial reports furnished by it to
stockholders generally, to be mailed to the Holders at their addresses appearing
in the register of Notes maintained by the Registrar in each case at the time of
such mailing or furnishing to stockholders. If Xxxx XX is not required to
furnish annual or quarterly reports to its stockholders pursuant to the Exchange
Act, Xxxx XX shall cause its financial statements, including any notes thereto
and with respect to annual reports, an auditors' report by an accounting firm of
established national reputation and a "Management's Discussion and Analysis of
Financial Condition and Results of Operations," to be so filed with the Trustee
and mailed to the Holders within 120 days after the end of each of Xxxx IV's
fiscal years and within 60 days after the end of each of the first three
quarters of each fiscal year.
(3) Xxxx XX shall provide the Trustee with a sufficient number of copies of
all reports and other documents and information that Xxxx XX may be required to
deliver to the Holders under this Section 4.02.
SECTION 4.03. COMPLIANCE CERTIFICATES.
(1) Xxxx XX shall deliver to the Trustee within 90 days after the end of
each of Xxxx IV's fiscal years a certificate containing a certification from the
principal executive officer, principal financial officer or principal accounting
officer of Xxxx XX as to his or her knowledge of Xxxx IV's compliance with all
conditions and covenants under this Indenture. For purposes of this Section
4.03(l), such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture. If they do know of
such a Default or Event of Default, the certificate shall describe any such
Default or Event of Default and its status. Such certificate need not comply
with Sections 12.04 and 12.05.
(2) So long as not contrary to the then current recommendation of the
American Institute of Certified Public Accountants, Xxxx XX shall deliver to the
Trustee within 120 days after the end of each fiscal year a written statement by
Xxxx IV's independent certified public accountants stating (A) that their audit
examination has included a review of the terms of this Indenture and the Notes
as they relate to accounting matters, and (B) whether, in connection with their
audit examination, any Default has come to their attention and, if such a
Default has come to their attention, specifying the nature and period of the
existence thereof; PROVIDED, HOWEVER, that the independent certified public
accountants delivering such statement shall not be liable in respect of such
statement by reason of any failure to obtain knowledge of any such Default or
Event of Default that would not be disclosed in the course of an audit
examination conducted in accordance with GAAP.
(3) Xxxx XX shall deliver to the Trustee as soon as possible and in any
event within 15 days after Xxxx XX becomes aware of the occurrence of each
Default or Event of Default, which is continuing, an Officers' Certificate
(which need not comply with Sections 12.04 and 12.05) setting forth the details
of such Default or Event of Default, and the action which Xxxx XX proposes to
take with respect thereto.
SECTION 4.04. FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
Xxxx XX shall 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. Xxxx XX shall maintain or
cause to be maintained, within the Borough of Manhattan, the City of New York,
an office or agency of the Trustee, Registrar and Paying Agent where securities
may be presented or surrendered for payment, where Notes may be surrendered for
registration of transfer, exchange or redemption and where notices and demands
to or upon Xxxx XX in respect of the Notes and this Indenture may be served. The
office or agency of the Trustee at the address specified in Section 12.02 shall
initially be such office or agency for all of the aforesaid purposes. Xxxx XX
shall give prompt written notice to the Trustee of any change of location of
such office or agency. If at any time Xxxx XX shall fail to maintain or cause to
be maintained 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
12.02.
Xxxx XX 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. Xxxx XX shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in location of any such other office or agency.
SECTION 4.06. PAYMENT OF TAXES AND OTHER CLAIMS. Xxxx XX shall pay or
discharge or cause to be paid or discharged, before any penalty accrues thereon,
(i) all material taxes, assessments and governmental charges levied or imposed
upon Xxxx XX or any Subsidiary thereof upon the income, profits or property of
Xxxx XX or any Subsidiary thereof and (ii) all material lawful claims for labor,
materials and supplies which, if unpaid, would by law become a lien upon the
property of Xxxx XX or any Subsidiary thereof; PROVIDED that none of Xxxx XX or
any Subsidiary thereof shall be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claims the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision has been made or where
the failure to effect such payment or discharge is not adverse in any material
respect to the Holders.
SECTION 4.07. CORPORATE EXISTENCE. Subject to Article 5, Xxxx XX will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other existence
of any of its Subsidiaries in accordance with the respective organizational
documents of such Subsidiary and the rights (charter and statutory), licenses
and franchises of Xxxx XX and its Subsidiaries; PROVIDED, HOWEVER, that Xxxx XX
shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
board of directors of Xxxx XX shall determine that the preservation thereof is
no longer desirable in the conduct of the business of Xxxx XX and its
Subsidiaries taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.08. MAINTENANCE OF PROPERTIES AND Insurance. Xxxx XX shall cause
all material properties owned by or leased to it or any of its Subsidiaries and
used or useful in the conduct of its business or the business of such Subsidiary
to be maintained and kept in normal condition, repair and working order and
supplied with all necessary equipment and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of Xxxx XX 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 4.08 shall prevent Xxxx XX or
any Subsidiary thereof from discontinuing the maintenance of any such
properties, if such discontinuance is desirable in the conduct of its business
or the business of such Subsidiary.
Xxxx XX shall provide or cause to be provided, for itself and any of its
Subsidiaries, insurance (including appropriate self-insurance) against loss or
damage of the kinds customarily insured against by corporations similarly
situated and owning like properties, including, but not limited to, public
liability insurance, with reputable insurers in such amounts with such
deductibles and by such methods as shall be customary for corporations similarly
situated in the industry.
SECTION 4.09. STAY, EXTENSION AND USURY LAWS. Xxxx XX covenants (to the
extent it may lawfully do so) that it will not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter enforce,
which may affect the covenants or the performance of this Indenture; and Xxxx XX
(to the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
SECTION 4.10. INVESTMENT COMPANY ACT. Xxxx XX shall not become an
investment company subject to registration under the Investment Company Act of
1940, as amended.
SECTION 4.11. RULE 144A INFORMATION REQUIREMENT. The Company will furnish
to the Holders or beneficial holders of the Notes and prospective purchasers of
the Notes designated by the holders of Transfer Restricted Notes, upon the
request of such Holders or beneficial holders, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act until such time
as the Company has registered the Notes for resale under the Securities Act.
SECTION 4.12. NOTICE OF REGISTRATION DEFAULT. The Company will notify the
Trustee of the existence of any event under the Registration Rights Agreement
which gives rise to Liquidated Damages under Section 5 thereof and of the amount
of Liquidated Damages payable as a result of such event. Unless and until the
Trustee receives such notice, it may assume that no such event exists and that
Liquidated Damages are not payable by the Company.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. MERGER, CONSOLIDATION AND SALE OF ASSETS. The Company shall
not consolidate with or merge with or into, or sell, convey, transfer or lease
all or substantially all its assets (determined on a consolidated basis),
whether in a single transaction or a series of related transactions, to any
person unless:
(i) either the Company is the resulting, surviving or transferee person
(the "Successor Company") or the Successor Company is a corporation organized
and existing under the laws of the United States or any State thereof or the
District of Columbia, and the Successor Company (if not the Company) expressly
assumes by a supplemental indenture, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Company under this
Indenture and the Notes, including the conversion rights described hereafter
under Article 11 hereunder;
(ii) immediately after giving effect to such transaction no Event of
Default has happened and is continuing; and
(iii) the Company delivers to the Trustee an Officers' Certificate and an
opinion of counsel, each stating that such consolidation, merger or transfer and
such supplemental indenture (if any) comply with this Indenture.
SECTION 5.02. SUCCESSOR COMPANY TO BE SUBSTITUTED. In case of any such
consolidation, merger, sale, conveyance, transfer or lease and upon the
assumption by the Successor Company, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of, premium and Liquidated Damages, if any,
and interest on all of the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Company,
such Successor Company shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party hereto. When a
Successor Company duly assumes all the obligations of the Company pursuant to
this Indenture and the Notes, the predecessor shall be released from all such
obligation.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs if one of the
following shall have occurred and be continuing:
(1) Xxxx XX defaults in the payment of the principal of or premium or
Liquidated Damages, if any, on the Notes when due at maturity, upon
redemption or otherwise, including failure by the Xxxx XX to purchase the
Notes when required under Section 3.05 (whether or not such payment shall
be prohibited by Article 10 of this Indenture); or
(2) Xxxx XX defaults for 30 days in payment of any installment of
interest on the Notes as and when the same shall become due and payable
(whether or not such payment shall be prohibited by Article 10 of this
Indenture); or
(3) Xxxx XX defaults for 90 days after notice in the observance or
performance of any other covenants in the Indenture (other than a default
in the performance or breach of a covenant or agreement that is
specifically dealt with elsewhere in this Section 6.01); or
(4) Xxxx XX or any of its Subsidiaries pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding;
(C) consents to the appointment of a custodian of it or for all
or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(E) admits in writing its inability to pay its debts
generally as they become due; or
(5) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against Xxxx XX or any of its Subsidiaries
in an involuntary case or proceeding;
(B) appoints a custodian of Xxxx XX or any of its Subsidiaries
for all or substantially all of its property;
(C) orders the liquidation of Xxxx XX or any of its
Subsidiaries;
(D) and in each case the order or decree remains unstayed and
in effect for 60 days.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar Federal
or state law for the relief of debtors. "Custodian" means any receiver, trustee,
assignee, liquidator, sequestrator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies Xxxx XX or the Holders of at least 25% in aggregate principal
amount of Notes at the time outstanding notify Xxxx XX and the Trustee, of the
Default and Xxxx XX does not cure such Default within the time specified in
clause (2) above after 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."
SECTION 6.02. ACCELERATION. If any Event of Default under clauses (1), (2)
or (3) of Section 6.01 occurs and is continuing, the Trustee may, by notice to
Xxxx XX, or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding may, by notice to Xxxx XX and the Trustee (each, an
"Acceleration Notice"), and the Trustee shall, upon the request of such Holders,
declare the principal of, and premium and Liquidated Damages, if any, on the
Notes to be due and payable immediately. If any Event of Default under clauses
(4) or (5) of Section 6.01 occurs, all principal of, premium and Liquidated
Damages, if any, on the Notes will IPSO FACTO become and be immediately due and
payable. Except as set forth in Section 10.05, the Holders of a majority in
aggregate principal amount of the Notes then outstanding by written notice to
the Trustee and to Xxxx XX may cancel such declaration and may waive past
defaults (except an acceleration due to a default in payment of the principal or
interest on any of the Notes) if all existing Events of Default have been cured
except non- payment of principal or interest that has become due solely because
of the acceleration.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Notes or does not produce any of the Notes in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of, or acquiescence in, the Event of Default. No remedy is
exclusive of any other remedy. Except as set forth in Section 2.07, all remedies
are cumulative to the extent permitted by law.
SECTION 6.04. CONTROL BY MAJORITY. Subject to the duty of the Trustee
following an Event of Default to act with the required standard of care, the
Trustee will not be under an obligation to exercise any of its rights or powers
provided herein at the request or direction of any of the Holders, unless such
Holders shall have offered to the Trustee satisfactory indemnity against any
associated loss, liability or expense. Subject to such provisions for the
indemnification of the Trustee, the Holders of a majority in aggregate principal
amount of the Notes then outstanding shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee.
SECTION 6.05. LIMITATION ON SUITS. Except as provided in Section 6.07, a
Holder 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 against any loss, liability or expense satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 30 days after
receipt of the notice, the request and the offer of security or indemnity; and
(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 30-day period.
A Holder may not use this Indenture to prejudice the rights of any other
Holder or to obtain a preference or priority over any other Holder.
SECTION 6.06. 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 or interest, in respect of the Notes held by such Holder,
on or after the respective due dates expressed in the Notes or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected adversely without the consent of each such Holder.
SECTION 6.07. COLLECTION SUIT BY TRUSTEE. If an Event of Default described
in Section 6.01(1) occurs and is continuing, the Trustee may recover judgment in
its own name and as trustee of an express trust against Xxxx XX for the whole
amount owing with respect to the Notes and the amounts provided for in Section
7.07.
SECTION 6.08. 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
Xxxx XX or the property of Xxxx XX, the Trustee shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount of the principal amount
and interest on the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding; and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian 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 7.07.
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 6.09. PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Notes for the
principal and interest, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Notes for principal and
interest respectively; and
THIRD: the balance, if any, to Xxxx XX.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.09.
SECTION 6.10. 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, 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 6.10
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.06 or a suit by Holders of more than 10% in aggregate principal amount of the
Notes at the time outstanding.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(A) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(B) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, in the case of any
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
The Trustee shall not be liable for any interest on any money received by
it.
(3) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(A) this paragraph (3) does not limit the effect of paragraph (2)
of this Section 7.01;
(B) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(C) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(4) Whether or not expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to paragraphs (1), (2), (3)
and (5) of this Section 7.01.
(5) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives security or indemnity satisfactory to it against any loss,
liability or expense.
(6) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money held by it hereunder.
SECTION 7.02. RIGHTS OF TRUSTEE.
(1) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require (and in
the circumstances described in Section 314(c) of the TIA shall) an Officers'
Certificate and an Opinion of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel.
(3) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(5) The Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(6) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security and indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with Xxxx XX or its Affiliates with the same rights it would have if it
were not Trustee. Any Paying Agent, Registrar or co- registrar may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for Xxxx IV's use of the proceeds from the Notes, and it shall not
be responsible for any statement in a registration statement for the Notes when
filed under the Securities Act of 1933, as amended (the "Securities Act"),
(other than statements contained in a Form T-1 when filed with the SEC under the
TIA) or in this Indenture or the Notes (other than its certificate of
authentication), or the determination as to which beneficial owners are entitled
to receive any notices hereunder.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Holder as their
names and addresses appear on the Register notice of the Default within 90 days
after it becomes known to the Trustee unless such Default shall have been cured
or waived. Except in the case of a Default described in Section 6.01(l), the
Trustee may withhold such notice if and so long as its board of directors, the
executive committee of its board of directors or a committee of Trust Officers
in good faith determines that the withholding of such notice is in the interests
of Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each May
15 beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder a brief report dated as of such reporting date that
complies with Section 313(a) of the TIA. The Trustee shall also transmit all
reports as required by Section 313(b) of the TIA to such Holders. The Trustee
shall transmit such reports in such manner as required by Section 313(c) of the
TIA.
A copy of each report at the time of its mailing to Holders shall be filed
with Xxxx XX, the SEC and each stock exchange on which the Notes are listed.
Xxxx XX shall promptly notify the Trustee whenever the Notes become listed on
any stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. Xxxx XX agrees:
(1) To pay to the Trustee from time to time such compensation as shall be
agreed in writing between Xxxx XX and the Trustee for all services rendered by
it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) To reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses, disbursements and advances of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) To indemnify the Trustee for, and to hold it harmless against, any and
all loss, liability or expense incurred without negligence, willful misconduct
or bad faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Trustee shall have a claim and lien prior to the Notes as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 7.07, except with respect to funds
held in trust for the payment of principal of or interest on particular Notes.
Xxxx IV's payment obligations pursuant to this Section 7.07 shall survive
the resignation or removal of the Trustee and the discharge of this Indenture.
When the Trustee renders services or incurs expenses after the occurrence of a
Default specified in Section 6.01(4) or (5), the compensation for services and
expenses are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying Xxxx XX in writing at least 30 days prior to the date of the proposed
resignation; PROVIDED, however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 7.08.
The Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may remove the Trustee by so notifying the Trustee and Xxxx XX. Xxxx
XX may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an order for relief
is entered with respect to the Trustee under any Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, Xxxx XX shall promptly appoint, by resolution of its
board of directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to Xxxx XX. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. Subject to
payment of all amounts owing to the Trustee under Section 7.07 and subject
further to its lien under Section 7.07, the retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, Xxxx XX or the
Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets (including the trust created by the
Indenture) to, another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee; PROVIDED
that such successor is eligible and qualified under Section 7.10.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all times
satisfy requirements of Section 310(a)(1) of the TIA. The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with
Section 310(b) of the TIA. In determining whether the Trustee has conflicting
interests as defined in Section 310(b)(1) of the TIA, the provisions contained
in the proviso to Section 310(b)(1) of the TIA shall be deemed incorporated
herein.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST XXXX XX. The
Trustee is subject to Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated therein.
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. LEGAL DEFEASANCE AND COVENANT DEFEASANCE OF THE NOTES.
(1) The Company may, at its option by Board Resolution, at any time, with
respect to the Notes, elect to have either paragraph (2) or paragraph (3) below
be applied to the outstanding Notes upon compliance with the conditions set
forth in paragraph (4).
(2) Upon the Company's exercise under paragraph (1) of the option
applicable to this paragraph (2), the Indenture will cease to be in effect
(except as described in Section 8.03 hereof) and the indebtedness on all
outstanding Notes will be discharged (hereinafter, "legal defeasance"). For this
purpose, such legal defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of the Sections of and matters under this Indenture referred to in
clauses (a) and (b) of this paragraph (2) and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned, except for the following, which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of holders of outstanding
Notes to receive solely from the trust fund described in paragraph (4) below and
as more fully set forth in such paragraph, payments in respect of the principal
of, premium, if any, and interest on such Notes when such payments are due and
(b) obligations listed in Section 8.03.
(3) Upon the Company's exercise under paragraph (1) of the option
applicable to this paragraph (3), the Company shall be released from its
obligations under Section 3.05 and Article 4 with respect to the outstanding
Notes (hereinafter, "covenant defeasance"), and the Notes shall thereafter be
deemed to be not "outstanding" for the purpose of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the outstanding Notes, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document, and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby.
(4) The following shall be the conditions to application of either
paragraph (2) or paragraph (3) above to the outstanding Notes:
(a) The Company shall have irrevocably deposited in trust with the
Trustee, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Notes, of cash, U.S. Government Obligations or a
combination thereof, in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay the
principal of, premium and Liquidated Damages, if any, and interest on the
Notes then outstanding in accordance with the terms of the Indenture and
the Notes;
(b) Such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Company is a party or by which it is bound;
(c) (i) In the case of legal defeasance under paragraph (2) above, the
Company has delivered to the Trustee an opinion of counsel stating that (x)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case to
the effect that, based thereon, the Holders of Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit and covenant defeasance by the Company and will be subject to
federal income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit and legal defeasance had
not occurred; or (ii) in the case of covenant defeasance under paragraph
(3) above, the Company has delivered to the Trustee an Officers'
Certificate and an opinion of counsel to the effect that, the Holders of
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and covenant defeasance by the Company
and will be subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such deposit
and covenant defeasance had not occurred;
(d) The Company has delivered to the Trustee an opinion of counsel to
the effect that after the 123rd day following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an opinion of counsel stating that all conditions related to the legal
or covenant defeasance, as applicable, have been complied with.
provided, that no deposit under clause (a) shall be effective to terminate the
obligations of the Company under the Notes or this Indenture prior to the
passage of 123 days following such deposit.
SECTION 8.02 TERMINATION OF OBLIGATIONS UPON CANCELLATION OF THE NOTES. In
addition to the Company's rights under Section 8.01, the Company may terminate
all of its obligations under this Indenture (subject to Section 8.03) when:
(1) the Company shall have paid or caused to be paid the principal of,
premium and Liquidated Damages, if any, and interest on the Notes as and
when the same shall have become due and payable;
(2) all outstanding Notes (except lost, stolen or destroyed Notes
which have been replaced or paid) have been delivered to the Trustee for
cancellation; or
(3) (A) the Notes not previously delivered to the Trustee for
cancellation shall have become due and payable or are by their terms to
become due and payable within one year or are to be called for redemption
under arrangements satisfactory to the Trustee upon delivery of notice and
(B) the Company shall have irrevocably deposited with the Trustee, as trust
funds, cash, in an amount sufficient to pay principal of and interest on
the outstanding Notes, to maturity or redemption, as the case may be. Such
trust may only be established (x) if such deposit will not result in a
breach or violation of, or constitute a default under, any agreement or
instrument pursuant to which the Company is a party or by which it is bound
and (y) the Company has delivered to the Trustee an Officers' Certificate
and an opinion of counsel, each stating that all conditions related to such
defeasance have been complied with.
SECTION 8.03. SURVIVAL OF CERTAIN OBLIGATIONS. Notwithstanding the
satisfaction and discharge of this Indenture and of the Notes referred to in
Section 8.01 or 8.02, the respective obligations of the Company and the Trustee
under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01, 6.04, 6.09, 7.01, 7.07, 7.08,
Article 10 and Article 11 shall survive until the Notes are no longer
outstanding, and thereafter, the obligations of the Company and the Trustee
under Article 10 and in Section 7.07 shall sur vive. Nothing contained in this
Article 8 shall abrogate any of the rights, obligations or duties of the Trustee
under this Indenture.
SECTION 8.04. ACKNOWLEDGMENT OF DISCHARGE BY Trustee. Subject to Section
8.07, after (i) the conditions of Section 8.01 or 8.02 have been satisfied, (ii)
the Company has paid or caused to be paid all other sums payable hereunder by
the Company and (iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent referred to in clause (i) above relating to the satisfaction and
discharge of this Indenture have been complied with, the Trustee upon written
request shall acknowledge in writing the discharge of the Company's obligations
under this Indenture except for those surviving obligations specified in Section
8.03.
SECTION 8.05. APPLICATION OF TRUST ASSETS. The Trustee shall hold any cash
or U.S. Government Obligations deposited with it in the irrevocable trust
established pursuant to Section 8.01 or 8.02, as the case may be. The Trustee
shall apply the deposited cash or the U.S. Government Obligations, together with
earnings thereon in accordance with this Indenture and the terms of the
irrevocable trust agreement established pursuant to Section 8.01 or 8.02, as the
case may be, to the payment of principal of, premium, if any, and interest on
the Notes. The cash or U.S. Government Obligations so held in trust and
deposited with the Trustee in compliance with Section 8.01 or 8.02, as the case
may be, shall not be part of the trust estate under this Indenture, but shall
constitute a separate trust fund for the benefit of all holders entitled
thereto. Except as specifically provided herein, the Trustee shall not be
requested to invest any amounts held by it for the benefit of the holders or pay
interest on uninvested amounts to any holder.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.01 hereof or Section 8.02 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the holders of outstanding
Notes.
SECTION 8.06. REPAYMENT TO THE COMPANY; UNCLAIMED MONEY. Subject to
applicable laws governing escheat of such property, and upon termination of the
trust established pursuant to Section 8.01 hereof or 8.02 hereof, as the case
may be, the Trustee shall promptly pay to the Company upon written request any
excess cash or U.S. Government Obligations held by them. Additionally, if any
amounts for the payment of principal, premium and Liquidated Damages, if any, or
interest remain unclaimed for two years, the Trustee shall, upon written
request, pay such amounts back to the Company forthwith. Thereafter, all
liability of the Trustee with respect to such amounts shall cease. After payment
to the Company, holders entitled to such payment must look to the Company for
such payment as general creditors unless an applicable abandoned property law
designates another person.
SECTION 8.07. REINSTATEMENT. If the Trustee is unable to apply any cash or
U.S. Government Obligations in accordance with Section 8.01 or 8.02 by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.01 or 8.02 until such time as the Trustee is permitted to apply all such cash
or U.S. Government Obligations in accordance with Section 8.01 or 8.02, as the
case may be; provided that if the Company makes any payment of principal of,
premium, if any, or interest on any Notes following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the holders of
such Notes to receive such payment from the amounts held by the Trustee.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. From time to time, when
authorized by a resolution of its board of directors, Xxxx XX and the Trustee,
without notice to or the consent of the Holders of the Notes issued hereunder,
may amend or supplement this Indenture or the Notes as follows:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes so long as such uncertificated Notes are in registered form
for purposes of the Internal Revenue Code of 1986, as amended;
(4) to make any other change that does not adversely affect the rights of
any Holder; or
(5) to comply with any requirement of the SEC in connection with the
qualification of the Trustee under the TIA.
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, Xxxx XX and the Trustee may amend this Indenture or the Notes
or may waive compliance in a particular instance by Xxxx XX with any provisions
of this Indenture or the Notes and may waive any past default under this
Indenture other than a default in the payment of principal of, or interest on,
any Note or in respect of a covenant or provision which cannot be modified or
amended without the consent of the Holder of each Note under this Section 9.02.
However, without the consent of each Holder affected thereby, a waiver or an
amendment to this Indenture or the Notes may not:
(1) extend the fixed maturity of any Note, or reduce the rate or extend the
time of payment of interest thereon;
(2) reduce the principal amount thereof or premium and Liquidated Damages,
if any, thereon;
(3) reduce any amount payable upon redemption thereof;
(4) impair or affect the right of a Holder to institute suit for the
payment thereof;
(5) change the currency in which the Notes are payable;
(6) make any change to Article 10 of this Indenture in a manner adverse to
the Holders of Notes; or
(7) impair the right to convert the Notes into Common Stock subject to the
terms set forth in the Indenture.
Without the consent of the Holders of all of the Notes then outstanding, a
waiver or an amendment to this Indenture may not reduce the aforesaid percentage
of Notes.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
In the event that certain Holders are willing to defer or waive certain
obligations of Xxxx XX hereunder with respect to Notes held by them, such
deferral or waiver shall not be deemed to affect any other Holder who receives
the subject payment or performance in a timely manner.
After an amendment or waiver under this Section 9.02 becomes effective,
Xxxx XX shall mail to each Holder a notice briefly describing the amendment or
waiver. Any failure of Xxxx XX to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amendment or
waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to this
Indenture or the Notes at a time when this Indenture shall be qualified under
the TIA shall be set forth in a supplement that complies with the TIA as then in
effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS. Until
an amendment, waiver or other action by Holders becomes effective, a consent to
it or any other action 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 consent of the requisite aggregate principal amount of the
Notes then outstanding has been obtained and not revoked. After an amendment,
waiver or action becomes effective, it shall bind every Holder, except as
provided in Section 9.02.
Xxxx XX may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver. If a record date is fixed, then, notwithstanding the first two sentences
of the immediately preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. Notes authenticated and
made available for delivery after the execution of any supplemental indenture
pursuant to this Article 9 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 Xxxx XX shall so determine, new Notes so modified as
to conform, in the opinion of the Trustee and the board of directors of the
Company, to any such supplemental indenture may be prepared and executed by Xxxx
XX and authenticated and made available for delivery by the Trustee 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
supplemental indenture does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. If it does, the Trustee may, but need not sign it.
In signing such amendment the Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Officers' Certificate and Opinion of Counsel
stating that such supplemental indenture is authorized or permitted by this
Indenture.
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article 9, 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 made available for delivery hereunder shall be bound thereby.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE. Xxxx XX agrees, and each Holder by
accepting a Note agrees, that the indebtedness evidenced by the Notes (including
principal and interest) is subordinated in right of payment, to the extent and
in the manner provided in this Article 10 to the prior payment in full of all
Senior Indebtedness, and that the subordination is for the benefit of the
holders of the Senior Indebtedness.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any (i)
distribution to creditors of the Company in a liquidation or dissolution of Xxxx
XX, (ii) in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to Xxxx XX or its property or (iii) assignment for the
benefit of creditors or any marshalling of the assets and liabilities of Xxxx
XX.
(1) holders of all Senior Indebtedness will first be entitled to
receive payment in full of all amounts due or to become due thereon before
the Holders of the Notes will be entitled to receive any payment in respect
of the principal of, premium and Liquidated Damages, if any, or interest on
the Notes; and
(2) until the Senior Indebtedness (as provided in subsection (1)
above) is paid in full in cash or, at the option of the holders of the
Senior Indebtedness, cash equivalents, any distribution to which Holders
would be entitled but for this Article 10 shall be made to holders of
Senior Indebtedness, as their interests may appear, except that Holders may
receive securities that are subordinated at least to the same extent as the
Notes are subordinated to Senior Indebtedness (and to any securities issued
in exchange for Senior Indebtedness).
For purposes of this Article 10, a distribution may consist of cash,
securities or other property, by setoff or otherwise.
The consolidation of Xxxx XX with, or the merger of Xxxx XX into, another
corporation or the liquidation or dissolution of Xxxx XX following the
conveyance or transfer of its properties and assets substantially as an entirety
to another Person upon the terms and conditions set forth in Article 5 shall not
be deemed a dissolution, winding up, liquidation or reorganization for the
purposes of this Section 10.02 if the corporation formed by such consolidation
or into which Xxxx XX is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer
comply with the conditions set forth in Article 5.
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS. Upon the final maturity of
any Senior Indebtedness by lapse of time, acceleration or otherwise, all such
Senior Indebtedness shall first be paid in full in cash, or such payment duly
provided for in cash or in a manner satisfactory to the holders of such Senior
Indebtedness, before any payment is made by Xxxx XX or any Person acting on
behalf of Xxxx XX on account of the principal or interest of the Notes.
Until all Senior Indebtedness has been paid in full, in cash or cash
equivalents, Xxxx XX may not, directly or indirectly, make any payment upon or
in respect to the Notes (except in such Subordinated Securities) if:
(i) a default in the payment of the principal of, premium and
Liquidated Damages, if any, or interest on Senior Indebtedness occurs
and is continuing beyond any applicable grace period or
(ii) a default, other than a Payment Default, on any Senior
Indebtedness occurs and is continuing beyond any applicable grace
period with respect to Senior Indebtedness that permits holders of the
Senior Indebtedness as to which such default relates to accelerate its
maturity (a "Non-Payment Default"), and the Trustee receives a notice
of such default (a "Payment Blockage Notice") from the representative
or representatives of holders of at least a majority in principal
amount of Senior Indebtedness then outstanding.
SECTION 10.04. NO SUSPENSION OF REMEDIES. Payments on the
Notes may and shall be resumed (a) in the case of a payment default, upon the
date on which such default is cured or waived, or (b) in the case of a
non-payment default, 179 days after the date on which the applicable Payment
Blockage Notice is received (or sooner, if such default is cured or waived),
unless the maturity of any Senior Indebtedness has been accelerated. No new
period of payment blockage may be commenced within 360 days after the receipt by
the Trustee of any prior Payment Blockage Notice. No nonpayment default that
existed or was continuing on the date of delivery of any Payment Blockage Notice
to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage
Notice.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER. In the
event that the Trustee (or paying agent if other than the Trustee) or any Holder
receives any payment of principal or interest with respect to the Notes at a
time when such payment is prohibited under the Indenture, such payment shall be
held in trust for the benefit of, and shall be paid over and delivered to, the
holders of Senior Indebtedness or their representative as their respective
interests may appear.
If a distribution is made to Holders that because of this
Article 10 should not have been made to them, the Holders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness (pro rata
as to each of such holders on the basis of the respective amounts of Senior
Indebtedness held by them) or their representative, as their respective
interests may appear, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness in full
in accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
SECTION 10.06. NOTICE BY XXXX XX. Xxxx XX shall promptly
notify the Trustee and the Paying Agent of any facts known to Xxxx XX that would
cause a payment of principal of or interest on the Notes to violate this Article
10, but failure to give such notice shall not affect the subordination of the
Notes to the Senior Indebtedness provided in this Article 10. Nothing in this
Article 10 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 10.07. SUBROGATION. After all Senior Indebtedness is
paid in full and until the Notes are paid in full, Holders shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the Notes) to
the rights of holders of Senior Indebtedness to receive distributions applicable
to Senior Indebtedness to the extent that distributions otherwise payable to the
Holders have been applied to the payment of Senior Indebtedness.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article 10 shall
have been applied pursuant to the provisions of this Article 10 to the payment
of all amounts payable in respect of the Senior Indebtedness of Xxxx XX, then
and in such case, the Holders shall be entitled to receive from the holders of
such Senior Indebtedness at the time outstanding any payments or distributions
received by such holders of Senior Indebtedness in excess of the amount
sufficient to pay all amounts payable in respect of the Senior Indebtedness of
Xxxx XX in full in cash or, at the option of the holders of Senior Indebtedness,
cash equivalents.
SECTION 10.08. RELATIVE RIGHTS. This Article 10 defines the
relative rights of Holders and holders of Senior Indebtedness. Nothing in this
Indenture shall:
(1) impair, as between Xxxx XX and Holders, the obligation of
Xxxx XX, which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of
Xxxx XX other than holders of Senior Indebtedness; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders of Senior Indebtedness under this Article 10.
If Xxxx XX fails because of this Article 10 to pay principal
of or interest on a Note on the due date, the failure is still a Default or
Event of Default.
The provisions of this Article 10 shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any Senior Indebtedness is rescinded or must otherwise be returned by any holder
of Senior Indebtedness upon the insolvency, bankruptcy or reorganization of Xxxx
XX or otherwise, all as though such payment had not been made.
SECTION 10.09. NO WAIVER OF SUBORDINATION PROVISIONS. No right
of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by Xxxx XX or by its failure to comply with this Indenture.
The holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Notes and without incurring responsibility to the Holders of the Notes and
without impairing or releasing the subordination provided in this Article 10 or
the obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing senior
Indebtedness; (3) release any person liable in any manner for the collection or
payment of Senior Indebtedness; and (4) exercise or refrain from exercising any
rights against Xxxx XX or any other Person.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
representative.
Upon any payment or distribution of assets of Xxxx XX referred
to in this Article 10, the Trustee and the Holders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such representative or of the liquidating trustee or agent or
other person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
Xxxx XX, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
In the event that the Trustee determines, in good faith, that further evidence
is required with respect to the right of any Person, as a holder of Senior
Indebtedness, to participate in any payment or distribution pursuant to this
Section 10.10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section 10.10, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT. The Trustee
or Paying Agent shall not at any time be charged with the knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until an Officer in the Corporate Trust Administration
Department of the Trustee and each Paying Agent shall have received written
notice thereof from a holder (or the agent) of Senior Indebtedness who shall
have been certified by Xxxx XX or otherwise established to the satisfaction of
the Trustee to be such holder or agent; and, prior to the receipt of any such
written notice, the Trustee and each Paying Agent shall be entitled to assume
conclusively that no such facts exist. Unless at least three Business Days prior
to the date on which by the terms of this Indenture any monies are to be
deposited by Xxxx XX with the Trustee or any Paying Agent (whether or not in
trust) for any purpose (including, without limitation, the payment of the
principal of or interest on any Note) the Trustee and each Paying Agent shall
have received with respect to such monies the notice provided for in the
foregoing sentence, the Trustee and each Paying Agent shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such date. The foregoing shall not apply
to the Paying Agent if Xxxx XX is Paying Agent.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION; NO
FIDUCIARY DUTY TO HOLDERS OF SENIOR INDEBTEDNESS. Each Holder of a Note by his
acceptance thereof authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Article 10, and appoints the Trustee as attorney-in-fact for
any and all purposes. Notwithstanding anything to the contrary in this Article
10, the Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall have no duties to such holders, except as
expressly set forth in this Article 10 and no implied covenants or obligation
shall be read into this Indenture against the Trustee. The Trustee shall not be
liable to holders of Senior Indebtedness if it shall mistakenly pay over or
distribute to or on behalf of Holders of Notes or Xxxx XX monies or assets to
which any holders of Senior Indebtedness shall be entitled by virtue of this
Article 10.
SECTION 10.13. MISCELLANEOUS.
(a) All rights and interests under this Article 10 of the
holders of Senior Indebtedness, and all agreements and obligations of the
Holders, the Trustee and Xxxx XX under this Article 10, shall remain in full
force and effect irrespective of:
(i) any lack of validity or enforceability of the Credit
Agreement, the notes or security instruments issued pursuant thereto or any
other agreement or instrument relating thereto;
(ii) any exchange, release or non-perfection of any lien
securing Senior Indebtedness, or any release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the Senior
Indebtedness; or
(iii) any other circumstance that might otherwise constitute a
defense available to, or a discharge of Xxxx XX in respect of Senior
Indebtedness.
(b) The provisions of this Article 10 constitute a continuing
agreement and shall (i) remain in full force and effect until the Senior
Indebtedness shall have been paid in full, (ii) be binding upon the Holders and
the Trustee, Xxxx XX and their successors and assigns, and (iii) inure to the
benefit of and be enforceable by each other holder of Senior Indebtedness and
its successors, transferees and assigns.
ARTICLE 11
CONVERSION OF NOTES
SECTION 11.01. RIGHT TO CONVERT. Subject to and upon
compliance with the provisions of this Indenture, Holders of Notes shall be
entitled at any time after 60 days following the latest date of original
issuance of the Notes through the close of business on November 1, 2004, subject
to prior redemption, to convert any Notes, or portions thereof (in denominations
of $1,000 in principal amount or multiples thereof), into that number of fully
paid and nonassessable shares of Common Stock (as such shares shall then be
constituted) obtained by dividing the aggregate principal amount of the Notes or
portion thereof surrendered for conversion by the Conversion Price in effect at
such time rounded to the nearest 1/100,000th of a share (with .000005 being
rounded upward), by surrender of the Note so to be converted in whole or in part
in the manner provided in Section 14.02; PROVIDED that in the case of Notes
called for redemption, conversion rights will expire immediately prior to the
close of business on the last business day before the date fixed for redemption,
unless the Company defaults in payment of the redemption price. A holder of
Notes is not entitled to any rights of a holder of Common Stock until such
holder has converted such holder's Notes to Common Stock and only to the extent
such Notes are deemed to have been converted to Common Stock under this Article
11.
SECTION 11.02. EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF
COMMON STOCK ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS. In order to
exercise the conversion privilege with respect to any Note in definitive form,
the holder of any such Note to be converted in whole or in part shall surrender
such Note, duly endorsed, at an office or agency maintained by the Company
pursuant to Section 2.03, accompanied by the funds, if any, required by the
penultimate paragraph of this Section 11.02, and shall give written notice of
conversion in the form provided on the form of Note (or such other notice that
is acceptable to the Company) to the office or agency that the holder elects to
convert such Note or the portion thereof specified in said notice. Such notice
shall also state the name or names (with address) in which the certificate or
certificates for shares of Common Stock that shall be issuable on such
conversion shall be issued and shall be accompanied by an amount of cash
required to pay transfer taxes, if required pursuant to Section 11.07. Each such
Note surrendered for conversion shall, unless the shares issuable on conversion
are to be issued in the name of the holder of such Note as it appears on the
Note register, be duly endorsed by, or be accompanied by instruments of transfer
in form satisfactory to the Company duly executed by, the holder or his duly
authorized attorney.
In order to exercise the conversion privilege with respect to
any interest in a global Note, the beneficial holder must complete the
appropriate instruction form for conversion pursuant to the Depositary's
book-entry conversion program and follow the other procedures set forth in such
program.
As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to compliance with any
restrictions on transfer if shares issuable on conversion are to be issued in a
name other than that of the Noteholder (as if such transfer were a transfer of
the Note or Notes (or a portion thereof) so converted), the Company shall issue
and shall deliver to such holder at the office or agency maintained by the
Company for such purpose pursuant to Section 2.03, a certificate or certif
icates for the number of full shares issuable upon the conversion of such Note
or portion thereof in accordance with the provisions of this Article 11 and a
check or cash in respect of any fractional interest in respect of a share of
Common Stock arising upon such conversion, as provided in Section 11.03. In case
any Note of a denomination greater than $1,000 shall be surrendered for partial
conversion, and subject to Section 2.02, the Company shall execute and the
Trustee shall authenticate and make available for delivery to the holder of the
Note so surrendered, without charge to him, a new Note or Notes in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Note.
Each conversion shall be deemed to have been effected as to
any such Note (or portion thereof) on the date on which the requirements set
forth above in this Section 11.02 have been satisfied as to such Note (or
portion thereof), and the person in whose name any certificate or certificates
for shares of Common Stock shall be issuable upon such conversion shall be
deemed to have become on said date the holder of record of the shares
represented thereby; PROVIDED that any such surrender on any date when the stock
transfer books of the Company shall be closed shall constitute the person in
whose name the certificates are to be issued as the record holder thereof for
all purposes on the next succeeding day on which such stock transfer books are
open, but such conversion shall be at the Conversion Price in effect on the date
upon which such Note shall have been surrendered.
Any Note or portion thereof surrendered for conversion during
the period from the close of business on the record date for any interest
payment date to the opening of business on the corresponding interest payment
date shall (unless such Note or portion thereof being converted shall have been
called for redemption on a date during the period from the close of business on
or after any record date to the close of business on the corresponding payment
date) be accompanied by payment, in funds acceptable to the Company, of an
amount equal to the interest otherwise payable on such interest payment date on
the principal amount being converted; PROVIDED that no such payment need be made
if there shall exist at the time of conversion a default in the payment of
interest on the Notes. An amount equal to such payment shall be paid by the
Company on such interest payment date to the holder of such Note at the close of
business on such record date; PROVIDED that if the Company shall default in the
payment of interest on such interest payment date, such amount shall be paid to
the person who made such required payment. The interest payment with respect to
a Note called for redemption on a date during the period from the close of
business on or after any record date to the close of business on the business
day following the corresponding interest payment date shall be payable on the
corresponding interest payment date to the registered Holder at the close of
business on that record date (notwithstanding the conversion of such Note before
the corresponding interest payment date) and a Holder who elects to convert need
not include funds equal to the interest paid. Except as provided above in this
Section 11.02, no adjustment shall be made for interest accrued on any Note
converted or for dividends on any shares issued upon the conversion of such Note
as provided in this Article 11.
Upon the conversion of an interest in a Global Note, the
Trustee or the Note Custodian, at the direction of the Trustee, shall make a
notation on such Global Note as to the reduction in the principal amount
represented thereby.
SECTION 11.03 CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES. No
fractional shares of Common Stock or scrip representing fractional shares shall
be issued upon conversion of Notes. If more than one Note shall be surrendered
for conversion at one time by the same holder, the number of fully paid and
non-assessable shares of Common Stock issuable upon conversion of a Note shall
be determined by dividing the aggregate principal amount of the Note or portion
thereof surrendered for conversion by the Conversion Price in effect at such
time. The aggregate number of shares of Common Stock issuable upon conversion
shall be rounded to the nearest 1/100,000th of a share (with .000005 being
rounded upward). If any fractional share of stock would be issuable upon the
conversion of any Note or Notes, the Company shall make an adjustment therefor
in cash at the current market value thereof. The current market value of a share
of Common Stock shall be determined by multiplying the fractional share by the
Closing Price on the Trading Day immediately preceding the date on which the
Notes (or specified por tions thereof) are deemed to have been converted.
SECTION 11.04. CONVERSION PRICE. The Conversion Price shall be
as specified in the forms of Notes (herein called the "Conversion Price")
attached as Exhibits A-1 and A-2 hereto, subject to adjustment as provided in
this Article 11.
SECTION 11.05. ADJUSTMENT OF CONVERSION PRICE. The Conversion
Price shall be adjusted from time to time by the Company as follows:
(1) In case the Company shall (i) pay a dividend of its Common
Stock or make a distribution on its Common Stock in shares of its
Common Stock, (ii) subdivide or split its outstanding Common Stock into
a greater number of shares, (iii) combine its outstanding Common Stock
into a smaller number of shares or (iv) issue any shares of capital
stock by reclassification of its Common Stock, the Conversion Price in
effect immediately prior thereto shall be adjusted so that the Holder
of any Notes thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock of the Company which such
Holder would have owned or have been entitled to receive after the
occurrence of any of the events described above had such Notes been
surrendered for conversion immediately prior to the occurrence of such
event or the record date therefor, which is earlier. An adjustment made
pursuant to this subsection (a) shall be come effective immediately
after the close of business on the Record Date for determination of
stockholders entitled to receive such dividend or distribution in the
case of a dividend or distribution and shall become effective
immediately after the close of business on the effective date in the
case of a subdivision, split, combination or reclassification. Any
shares of Common Stock issuable in payment of a dividend shall be
deemed to have been issued immediately prior to the close of business
on the Record Date for such dividend for purposes of calculating the
number of outstanding shares of Common Stock under Sections
11.05(2) and (3).
(2) In case the Company shall issue rights, options or
warrants to all holders of its outstanding shares of Common Stock
entitling them (for a period expiring within 45 days after the date
fixed for determination of stockholders entitled to receive such
rights, options or warrants) to subscribe for or purchase shares of
Common Stock at a price per share less than the Current Market Price
(as defined in Section 11.05 (7)(b) on the Record Date (as defined in
Section 11.05(7)) fixed for determination of stockholders entitled to
receive such rights, options or war rants, the Conversion Price shall
be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the opening of business
on the date after the Record Date by a fraction, the numerator of which
shall be the number of shares of Common Stock out standing at the close
of business on the Record Date plus the number of shares that the
aggregate offering price of the total number of shares so offered would
purchase at such Current Market Price, and 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. Such
adjustment shall become effective immediate ly after the opening of
business on the day following the Record Date fixed for determination
of stockholders entitled to receive such rights, options or warrants.
To the extent that shares of Common Stock are not delivered by the
Company after the expiration or termination of such rights, options or
warrants, the Conversion Price shall be readjusted effective
immediately after the close of business on the day on which expiration
or termination occurs to the Conversion Price that would then be in
effect had the adjustments made upon the issuance of such rights,
options or warrants been made on the basis of delivery of only the
number of shares of Common Stock actually delivered. In the event that
such rights, options or warrants are not so issued, the Con version
Price shall again be adjusted to be the Conversion Price that would
then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights, options or warrants had
not been fixed. In determining whether any rights, options 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, options
or warrants, the value of such consideration, if other than cash, to be
determined by the Board of Directors.
(3) [INTENTIONALLY OMITTED]
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock shares of any class of
capital stock of the Company (other than any dividends or distributions
to which Section 11.05(1) applies) or evidences of its indebtedness or
assets (including securities, but excluding any rights, options or
warrants referred to in Section 11.05(2), and excluding any dividend or
distribution (x) in connection with the liquidation, dissolution or
winding-up of the Company, whether voluntary or involuntary, (y)
exclusively in cash or (z) referred to in Section 11.05(1) (any of the
foregoing hereinafter in this Section 11.05(4) called the
"Securities")), then, in each such case, the Conversion Price shall be
reduced 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 with respect to such distribution
by a fraction of which the numerator shall be the Current Market Price
(determined as provided in Section 11.05(7)) on such date less the fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution)
on such date of the portion of the Securities so distributed applicable
to one share of Common Stock and the denominator shall be such Current
Market Price, such reduction to become effective immediately prior to
the opening of business on the day following the Record Date; provided
that in the event the then fair market value (as so determined) of the
portion of the Securities so distributed 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 Noteholder shall have the right to
receive upon conversion the amount of Securities such holder would have
received had such holder converted each Note on such 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
that would then be in effect if such dividend or distribution had not
been de clared. If the Board of Directors determines the fair market
value of any distribution for purposes of this Section 11.05(4) by
reference to the actual or when issued trading market for any
securities comprising all or part of such distribution, it must in
doing so consider the prices in such market over the same period used
in computing the Current Market Price pursuant to Section 11.05(7) to
the extent possible.
Notwithstanding the foregoing provisions of this Section
11.05(4), no adjustment shall be made hereunder for any distribution of
Securities if the Company makes proper provision so that each
Noteholder who converts a Note (or any portion thereof) after the date
fixed for determination of stockholders entitled to receive such
distribution to receive upon such conversion, in addition to the shares
of Common Stock issuable upon such conversion, the amount and kind of
Securities which such Noteholder would have received if such Noteholder
had, immediately prior to the Record Date for such distribution,
converted its Notes into Common Stock; provided that, with respect to
any Securities that are convertible, exchangeable or exercis able, the
foregoing provision shall only apply to the extent (and so long as) the
Securities receivable upon conversion of such Note would be
convertible, exchangeable or exercisable, as applicable, without any
loss of rights or privileges for a period of at least 60 days following
conversion of such Note.
Rights, options or warrants distributed by the Company to all
holders of Common Stock that entitle the holders thereof to purchase
shares of the Company's capital stock (either initially or under
certain circumstances), and that, until the occurrence of an event (the
"Trigger Event") (i) are deemed to be transferred with the Common
Stock, (ii) are not exercisable and (iii) are also issued in respect of
future issuances of Common Stock, shall not be deemed to be distributed
for purposes of this Section 11.05(4) (and no adjustment to the
Conversion Price under Section 11.05(4) shall be required) until the
occurrence of the earliest Trigger Event. In addition, in the event of
any distribution of rights, options or warrants, or any Trigger Event
with respect thereto, that shall have resulted in an adjustment to the
Conversion Price under this Section 11.05(4), (1) in the case of any
such rights, options or warrants that 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 repur chase price received by a holder of Common Stock
with respect to such rights, options or war rants (assuming such holder
had retained such rights, options 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, options or warrants all of which shall have
expired or been terminated without exercise by any holder thereof, the
Conversion Price shall be readjusted as if such issuance had not
occurred.
For purposes of this Section 11.05(4) and Sections 11.05(1)
and (2) any dividend or distribution to which this Section 11.05(4) is
applicable that also includes shares of Common Stock, or rights,
options or warrants to subscribe for or purchase shares of Common Stock
(or both), shall be deemed instead to be (1) a dividend or distribution
of the evidences of indebt edness, assets or shares of capital stock
other than such shares of Common Stock or rights, options or warrants
(and any Conversion Price reduction required by this Section 11.05(4)
with respect to such dividend or distribution shall then be made)
immediately followed by (2) a dividend or distribution of such shares
of Common Stock or such rights, options or warrants (and any further
Conversion Price reduction required by Sections 11.05(1) and (2) with
respect to such dividend or distribution shall then be made) except (A)
the Record Date of such dividend or distribution shall be substituted
as "the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution" and "the date fixed for
such determination" within the meaning of Sections 11.05(1) and (2) 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
11.05(1).
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed upon a merger or consolidation to which Section
11.06 applies or as part of a distribution referred to in Section
11.05(4) for which an adjustment to the Conversion Price is provided
therein) in an aggregate amount that, combined together with (1) the
aggregate amount of any other such distributions to all holders of its
Common Stock made exclusively in cash within the 12 months preceding the
date of payment of such distribution, and in respect of which no
adjustment pursuant to this Section 11.05(5) has been made, and (2) the
aggregate of any cash plus the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) of con sideration payable in respect of
any tender offer by the Company or any of its subsidiaries for all or
any portion of the Common Stock concluded within the 12 months preceding
the date of payment of such distribution, and in respect of which no
adjustment pursuant to Section 11.05(6) has been made, exceeds 20.0% of
the product of the Current Market Price (determined as provided in
Section 11.05(7)) on the Record Date with respect to such distribution
times the number of shares of Common Stock outstanding on such date,
then, and in each such case, immediately after the close of business on
such date, unless the Company elects to reserve such cash for
distribution to the holders of the Notes upon the conversion of the
Notes so that any such holder converting Notes shall receive upon such
conversion, in addition to the shares of Common Stock to which such
holder is entitled, the amount of cash which such holder would have
received if such holder had, immediately prior to the Record Date for
such distribution of cash, converted its Notes into Common Stock, 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 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) the excess of
such combined amount over such 20.0% 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; PROVIDED
that in the event the portion of the cash so distributed applicable to
one share of Common Stock is equal to or greater than the Current Market
Price of the Common Stock on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder
shall have the right to receive upon conversion the amount of cash such
holder would have received had such holder converted each Note on the
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 that would then be in effect if such dividend or
distribution had not been declared.
(6) 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 of cash plus other
consideration having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described 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 described in a
Board Resolution), as of the expiration of such tender offer, of
consideration payable in respect of any other tender offer, by the
Company or any of its subsidiaries for all or any portion of the Common
Stock expiring within the 12 months preceding the expiration of such
tender offer, and in respect of which no adjustment pursuant to this
Section 11.05(6) 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
11.05 (5) has been made, exceeds 20.0% of the product of the Current
Market Price (determined as provided in Section 11.05(7)) as of the last
time (the "Expiration Time") tenders could have been made pursuant to
such tender offer (as it may be amended) multiplied by 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 of which the numerator shall be the number of shares
of Common Stock outstanding (in cluding any tendered shares) on the
Expiration Time multiplied by the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consider ation 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
to become effective immediately prior to the opening of business on the
day following the Expiration Time. In the event that the Company 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 Conversion Price that would then be in
effect if such tender offer had not been made.
(7) For purposes of this Article 11, the following terms shall
have the meaning indicated:
(a) "Closing Price" with respect to any securities on
any day shall mean the closing sale price regular way on such
day or, in case no such sale takes place on such day, the
average of the reported closing bid and asked prices, regular
way, in each case on the New York Stock Exchange, or, if such
security is not listed or admitted to trading on such
Exchange, on the principal national security exchange or
quotation system on which such security is quoted or listed or
admitted to trading, or, if not quoted or listed or admitted
to trading on any national securities exchange or quotation
system, the average of the closing bid and asked prices of
such security on the over-the-counter market on the day in
question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting
service, or if not so available, in such manner as furnished
by any New York Stock Exchange member firm selected from time
to time by the Board of Directors for that purpose, or a price
determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution.
(b) "Current Market Price" shall mean, except as set
forth in the next suceeding sentence, the average of the daily
Closing Prices per share of Common Stock for the ten
consecutive Trading Days immediately prior to the date in
question; provided that (1) if the "ex" date (as hereinafter
defined) for any event (other than the issuance or
distribution or Change of Control requiring such computation)
that requires an adjustment to the Conversion Price pursuant
to Section 11.05(1), (2), (3), (4), (5) or (6) occurs during
such ten consecutive Trading Days, the Closing Price for each
Trading Day prior to 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, (2) if the "ex" date
for any event (other than the issuance, distribution or Change
of Control requiring such computation) that requires an
adjustment to the Conversion Price pursuant to Section
11.05(1), (2), (3), (4), (5) or (6) 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 (3) if the "ex" date for the issuance,
distribution or Change of Control requiring such computation
is prior to the day in question, after taking into account any
adjustment required pursuant to clause (1) or (2) 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 11.05(4)
or (5), whose determination shall be conclusive and described
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. For purposes of any computation
under Section 11.05(6), 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 nine succeeding Trading Days; provided that if
the "ex" date for any event (other than the tender or exchange
offer requiring such computation) that requires an adjustment
to the Conversion Price pursuant to Section 11.05(1), (2),
(3), (4), (5) or (6) occurs on or after the Expiration Time
for the tender or exchange 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, (1) when used
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, (2) when used 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 (3) when used
with respect to any tender or exchange offer means the first
date on which the Common Stock trades regular way on such
exchange or in such market after the expiration of such offer.
Notwithstanding the foregoing, whenever successive adjustments
to the Conversion Price are called for pursuant to this
Section 11.05, such adjustments shall be made to the Current
Market Price as may be necessary or appropriate to effectuate
the intent of this Section 11.05 and to avoid unjust or
inequitable results as determined in good faith by the Board
of Directors.
(c) "fair market value" shall mean the amount that a
willing buyer would pay a willing seller in an arm's-length
transaction.
(d) "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).
(e) "Trading Day" shall mean (x) if the applicable
security is listed or admitted for trading on the New York
Stock Exchange or another national security ex change, a day
on which the New York Stock Exchange or such other national
security exchange is open for business or (y) if the
applicable security is quoted on the Nasdaq National Market, a
day on which trades may be made thereon or (z) if the
applicable security is not so listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a day on
which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(8) The Company may make such reductions in the Conversion
Price, in addition to those required by Sections 11.05(1), (2), (3),
(4), (5) and (6), 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 20
days, the reduction is irrevocable during the period and the Board of
Directors shall have made a determination that such reduction would be
in the best interests of the Company, which determination shall be
conclusive and described in a Board Resolution. Whenever the Conversion
Price is reduced pursuant to the preceding sentence, the Company shall
mail to all holders of record of the Notes a notice of the reduction at
least 15 days prior to the date the reduced Conversion Price takes
effect, and such notice shall state the reduced Conversion Price and
the period it shall be in effect.
(9) 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, that any adjustments that by reason
of this Section 11.05(9) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Article 11 shall be made by the Company and
shall be made to the nearest 1/100,000 (with 0.000005 being rounded
upward).
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value, or
to or from no par value, of the Common Stock.
To the extent the Notes become convertible into cash, assets,
property or securities (other than Common Stock of the Company), no
adjustment need be made thereafter as to the cash, assets, property or
such securities (except as such securities may otherwise by their terms
provide), and interest shall not accrue on such cash.
(10) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly file with the Trustee and any
conversion agent other than the Trustee an Officers' Certificate
setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
Promptly after delivery of such certificate, the Company shall prepare
a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the
Conversion Price to the holder of each Note at his last address
appearing on the Register provided for in Section 2.03, within 20 days
after execution thereof. Failure to deliver such notice shall not
effect the legality or validity of any such adjust ment.
(11) In any case in which this Section 11.05 provides that an
adjustment shall become effective immediately after a Record Date for
an event, the Company may defer until the occur rence 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 11.03.
SECTION 11.06. EFFECT OF RECLASSIFICATION, CONSOLIDATION,
MERGER OR SALE. If any of the following events occur, namely (i) any
reclassification or change of the Common Stock (other than a change in par
value, or from par value to no par value or resulting from a subdivision or
combination), (ii) a consolidation or merger involving 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 (iii) any sale or conveyance
of the properties and assets of the Company as, or substantially as, an entirety
(determined on a consolidated basis) 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, then the Company or the successor or purchasing corporation,
as the case may be, shall execute with the Trustee a supplemental indenture
(which shall comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture if such supplemental indenture is then
required to so comply) providing that the Notes shall be convertible into the
kind and amount of shares of stock and other securities or property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance by a holder of a number of shares of
Common Stock issuable upon conversion of such Notes (assuming, for such
purposes, a sufficient number of authorized shares of Common Stock available to
convert all such Notes) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance, assuming such holder of
Common Stock did not exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
(provided that, if the kind or amount of securities, cash or other property
receivable upon such reclassification, change, consolidation, merger,
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
("non-electing share"), then for the purposes of this Section 11.06 the kind and
amount of securities, cash or other property receivable upon such
reclassification, change, consolidation, merger, 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 that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
11.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each holder of Notes, at his address
appearing on the Note register provided for in Section 2.03, within 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 11.06 shall similarly
apply to successive reclassifications, changes, consolidations, mergers,
combinations, sales and conveyances.
SECTION 11.07. TAXES ON SHARES ISSUED. The issuance of stock
certificates on conversions of Notes shall be made without charge to the
converting Noteholder for any transfer or similar tax in respect of the issue
thereof. The Company shall not, however, be required to pay any tax that may be
payable in respect of any transfer involved in the issue and delivery of stock
in any name other than that of the holder of any Note converted, and the Company
shall not be required to issue or deliver any such stock certificate unless and
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid.
SECTION 11.08. RESERVATION OF SHARES; SHARES TO BE FULLY PAID;
LISTING OF COMMON STOCK. The Company shall provide, free from preemptive rights,
out of its authorized but unissued shares or shares held in treasury, sufficient
shares to provide for the conversion of the Notes from time to time as such
Notes are presented for conversion.
Before taking any action that would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the shares of
Common Stock issuable upon conversion of the Notes, the Company shall take all
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue shares of such Common Stock at
such adjusted Conversion Price.
The Company covenants that all shares of Common Stock that may
be issued upon conversion of Notes shall, upon issuance, be fully paid and
nonassessable by the Company and free from all taxes (other than transfer and
similar taxes as set forth in Section 11.07), liens and charges with respect to
the issuance thereof.
The Company further covenants that it shall, if permitted by
the rules of the New York Stock Exchange, list and keep listed, so long as the
Common Stock shall be so listed on such exchange, all Common Stock issuable upon
conversion of the Notes.
SECTION 11.09. RESPONSIBILITY OF TRUSTEE. The Trustee and any
other conversion agent shall not at any time be under any duty or responsibility
to any holder of Notes to determine whether any facts exist that may require any
adjustment of the Conversion Price, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. The Trustee and any other conversion agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, that may at any time
be issued or delivered upon the conversion of any Note; and the Trustee and any
other conversion agent make no representations with respect thereto. Subject to
the provisions of Section 7.01, neither the Trustee nor any conversion agent
shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Note for the purpose of conversion or
to comply with any of the duties, responsibilities or covenants of the Company
contained in this Article 11. Without limiting the generality of the foregoing,
neither the Trustee nor any conversion agent shall be under any responsibility
to determine whether a supplemental indenture under Section 11.06 hereof need to
be entered into or the correctness of any provisions con tained in any
supplemental indenture entered into pursuant to Section 11.06 relating either to
the kind or amount of shares of stock or securities or property (including cash)
receivable by Noteholders upon the conversion of their Notes after any event
referred to in such Section 11.06 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 7.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers' Certificate (which the Company shall be
obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
SECTION 11.10. NOTICE TO HOLDERS PRIOR TO CERTAIN
ACTIONS. In case:
(1) the Company makes any distribution or dividend that would
require an adjustment in the Conversion Price pursuant to Section
11.05; or
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 11.06; or
(3) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note register, as promptly as
possible but in any event at least 15 days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record date is
to be taken for the purpose of such dividend, distribution, rights, options 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,
options or warrants are to be determined or (y) the date on which such
reclassification, change, consolidation, merger, sale, conveyance, transfer,
dissolution, liquidation or winding-up is expected to become effective or occur
and the date as of which it is expected that holders of record of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, change, consolidation, merger,
sale, conveyance, 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 referenced in clauses (1) through (3) of this
Section 11.10.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. If any provision
of this Indenture limits, qualifies or conflicts with the duties imposed by
operation of subsection (c) of Section 318 of the TIA, the duties imposed by the
TIA shall control. The provisions of Sections 310 to 317, inclusive, of the TIA
that impose duties on any Person (including provisions automatically deemed
included in an indenture unless the indenture provides that such provisions are
excluded) are a part of and govern this Indenture, except as, and to the extent,
expressly excluded from this Indenture, as permitted by the TIA.
SECTION 12.02. NOTICES. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail, postage
prepaid, or overnight air courier guaranteeing next day delivery, addressed as
follows:
if to Xxxx XX:
Xxxx XX Industries, Inc.
000 Xxxx Xxxxx Xxxxxxx Xxxxxxx
X.X. Xxx 000
Xxxxxxx, Xxx Xxxx 00000-0000
Attention: President
if to the Trustee:
The Bank of New York
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration (Xxxx XX
Industries, Inc.)
The address of the office or agency of the Trustee in the
Borough of Manhattan, the City of New York at which Notes may be presented for
payment or for registration of transfer, exchange, redemption or conversion is
the same as listed above.
Xxxx XX or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications or
presentation of securities.
Any notice or communication given to a Holder shall be mailed
to the Holder at the Holder's address as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not received by the addressee, except that no notice or
communication to the Trustee shall be deemed given unless actually received by
the Trustee.
If Xxxx XX mails a notice or communication to the Holders, it
shall mail a copy to the Trustee and each Registrar, Paying Agent or
co-registrar.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant Section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Notes. Xxxx XX, the
Trustee, the Registrar, the Paying Agent and anyone else shall have the
protection of Section 312(c) of the TIA.
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by Xxxx XX to the Trustee to take any
action under this Indenture, Xxxx XX 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 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate and 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; PROVIDED, HOWEVER, that with
respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
SECTION 12.06. SEVERABILITY 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 12.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.
The Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and Paying Agent may make reasonable rules for their functions.
SECTION 12.08. 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 principal or interest installment shall
accrue for the intervening period.
SECTION 12.09. GOVERNING LAW. THIS INDENTURE AND THE NOTES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
SECTION 12.10. NO RECOURSE AGAINST OTHERS. A director,
officer, employee or stockholder, as such, of Xxxx XX shall not have any
liability for any obligations of Xxxx XX 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 Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
SECTION 12.11. SUCCESSORS. All agreements of Xxxx XX in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 12.12. MULTIPLE ORIGINALS. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
[SIGNATURE PAGE TO FOLLOW]
SIGNATURES
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.
XXXX XX INDUSTRIES, INC.
BY:____________________________
Name:
Title:
THE BANK OF NEW YORK
BY:_______________________________
Name:
Title:
EXHIBIT A-1
[FORM OF FACE OF CONVERTIBLE SUBORDINATED NOTE]
XXXX XX INDUSTRIES, INC.
4:% Convertible Subordinated Note due 2004
CUSIP No. 570-387-AN0 [QIB]
570-387-AP5 [IAI]
$-------
No.------
Xxxx XX Industries, Inc., a Delaware corporation ("Xxxx XX,"
which term includes any successor corporation under the Indenture hereinafter
referred to), promises to pay to ----------------------- or registered assigns,
the principal amount of Dollars on November 1, 2004.
Interest Payment Dates: May 1 and November 1, commencing May
1, 1998.
Record Dates: April 15 and October 15.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, Xxxx XX has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon and attested by its
Secretary or one of its Assistant Secretaries.
XXXX XX INDUSTRIES, INC.
Attested By:_______________________ By:_________________________
Name: Name
Title Title:
[SEAL]
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
By:___________________________
Authorized Officer
[FORM OF REVERSE SIDE OF CONVERTIBLE SUBORDINATED NOTE]
4:% Convertible Subordinated Note due 2004
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.](3)
"THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED HEREBY AND
THE LAST DATE ON WHICH XXXX XX INDUSTRIES, INC. (THE "COMPANY") OR ANY
"AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS
THE OWNER OF THE NOTE (THE "RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE
TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION
OF SUCH NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE, A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO A REGISTRA TION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY BEFORE THE RESTRICTION
TERMINATION DATE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE BANK OF NEW YORK, AS TRUSTEE. IF THE PRO POSED TRANSFER IS
PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE, SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THIS LEGEND WILL BE REMOVED UPON THE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULA TION S UNDER THE SECURITIES ACT.
-----------------
3. This paragraph should be included only if the Note is issued in global form.
Capitalized terms used herein have the meaning assigned to
them in the Indenture unless otherwise indicated.
1. INTEREST
Xxxx XX Industries, Inc., a Delaware corporation ("Xxxx XX"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above. Interest will be payable semi- annually on each interest
payment date referred to on the face hereof, commencing May 1, 1998. Interest on
the Notes will accrue from the most recent date to which interest has been paid,
or if no interest has been paid, from date of the Indenture; PROVIDED that, if
there is no existing Event of Default in the payment of interest and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding interest payment date, interest shall accrue from such
interest payment date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
Xxxx XX shall pay interest on overdue principal and interest
on overdue installments of interest, to the extent lawful, at the rate per annum
borne by the Notes.
2. METHOD OF PAYMENT
Xxxx XX will pay interest on the Notes (except defaulted
interest) to the persons who are registered Holders at the close of business on
the record dates referred to on the face hereof immediately preceding the
respective interest payment dates even if the Note is cancelled on registration
of transfer or registration of exchange. Holders must surrender Notes to a
Paying Agent to collect principal payments. Xxxx XX will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, Xxxx XX may pay
principal and interest by its check payable in such money. It may mail an
interest payment to a Holder's registered address.
-----------------
4. This paragraph should be removed upon the sale or transfer of the Notes
pursuant to an effective registration statement under the Securities Act or
pursuant to Rule 144 under the Securities Act.
3. PAYING AGENT AND REGISTRAR
Initially, the Trustee will act as Paying Agent and Registrar.
Xxxx XX may appoint and change any Paying Agent or Registrar without notice,
other than notice to the Trustee. Xxxx XX or any subsidiary or an Affiliate of
either of them may act as Paying Agent, Registrar or co-registrar.
4. INDENTURE
Xxxx XX issued the Notes under an Indenture, dated as of
October 29, 1997 (the "Indenture"), between Xxxx XX 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 amended and as in
effect on the date of the Indenture (the "TIA"), and as provided in the
Indenture. The Notes are subject to all such terms, and Holders are referred to
the Indenture and the TIA for a statement of those terms.
The Notes are general obligations of Xxxx XX limited to
$275,000,000 aggregate principal amount (or, if the Initial Purchaser's
over-allotment option is exercised in full, $316,250,000 in aggregate principal
amount) and subordinated in right of payment to all existing and future Senior
Indebtedness of the Company.
5. OPTIONAL REDEMPTION
The Notes are not redeemable at the option of the Company
prior to November 3, 2000. At any time on or after that date, the Notes may be
redeemed at the Company's option, upon notice as set forth in Section 3.02 of
the Indenture, in whole at any time or in part from time to time, at the
optional redemption prices set forth below plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date fixed for redemption if redeemed
during the twelve-month period beginning November 3 of the years indicated:
Redemption
Year Price
2000.............................................. 102.375%
2001.............................................. 101.583%
2002.............................................. 100.792%
2003 and thereafter............................... 100.000%
6. MANDATORY REDEMPTION
Except as set forth in paragraph 7 below, the Company shall
not be required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER
Upon the occurrence of a Change of Control, each Holder of
Notes shall have the right to require that the Company repurchase such Holder's
Notes in whole or in part in integral multiples of $1,000, at a purchase price
in cash in an amount equal to 100% of the principal amount thereof, together
with accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase pursuant to an offer made in accordance with the procedures described
in the Indenture.
8. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first class mail at
least 30 days but not more that 60 days before the redemption date to each
Holder of Notes to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Note or portions thereof
called for redemption.
9. SUBORDINATION
The Notes are subordinated to Senior Indebtedness. To the
extent provided in the Indenture, Senior Indebtedness must be paid before the
Notes may be paid. Xxxx XX agrees, and each Holder by accepting a Note agrees,
to such subordination and authorizes the Trustee to give it effect.
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in 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
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Notes selected for redemption (except, in the case of a Note
to be redeemed in part, the portion of the Note not to be redeemed) or any Notes
for a period of 15 days before a selection of Notes to be redeemed.
11. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the owner
of this Note for all purposes.
12. SUPPLEMENTAL INDENTURES
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 noncompliance with certain
provisions 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
Holder, Xxxx XX and the Trustee may amend the Indenture or the Notes to make
provision with respect to the conversion rights of the holders of Notes pursuant
to the requirements of Section 11.06 of the Indenture; subject to Article 10 of
the Indenture, to convey, trans fer, assign, mortgage or pledge to the Trustee
as security for the Notes, any property or assets; to evidence the succession of
another person to the Company, or successive successions, and the assump tion by
the Successor Company of the covenants, agreements and obligations of the
Company pursuant to Article 5 of the Indenture; to add to the covenants of the
Company such further covenants, restrictions or conditions as the Board of
Directors and the Trustee shall consider to be for the benefit of the holders of
Notes and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions or conditions a default
or an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; PROVIDED THAT in
respect of any such additional covenant, restriction or condition, such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default; to provide
for the issuance under the Indenture of Notes in coupon form and to provide for
exchangeability of such Notes with the Notes issued hereunder in fully
registered form and to make all appropriate changes for such purpose; to cure
any ambiguity or to correct or supplement any provision contained in the
Indenture or in any supplemental indenture; to evidence and provide for the
acceptance of appointment of a successor Trustee with respect to the Notes; or
to modify, eliminate or add provisions to the Indenture to such extent necessary
to effect the qualification of the Indenture under the Trust Indenture Act.
13. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include: (1) failure to
pay principal, premium or Liquidated Damages, of any, Note when due at maturity,
upon redemption or otherwise; (2) failure to pay any interest on any Note when
due and payable, continued for 30 days; (3) failure to perform any other
covenant of the Company in the Indenture, continued for 90 days after written
notice as provided in the Indenture; and (4) certain events in bankruptcy,
insolvency or reorganization involving the Company. If an Event of Default
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.
Holders 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.
14. CONVERSION
The Holders of Notes will be entitled at any time after 60
days following the latest date of original issuance thereof through the close of
business November 1, 2004, subject to prior redemption, to convert any Notes or
portions thereof (in denominations of $1,000 in principal amount or multiples
thereof) into Common Stock at the conversion price of $32.8125 per share,
subject to adjustment under certain circumstances provided in the Indenture;
PROVIDED that in the case of Notes called for redemption, conversion rights will
expire immediately prior to the close of business on the last business day
before the date fixed for redemption, unless the Company defaults in payment of
the redemption price.
In order to exercise the conversion privilege with respect to
any Note in definitive form, the holder of any such Note to be converted in
whole or in part shall surrender such Note, duly endorsed, at an office or
agency maintained by the Company pursuant to Section 2.03 of the Indenture,
accompanied by the funds, if any, required by Section 11.02 of the Indenture,
and shall give written notice of conversion in the form provided on the form of
Note (or such other notice that is acceptable to the Company) to the office or
agency that the holder elects to convert such Note or the portion thereof
specified in said notice. Such notice shall also state the name or names (with
address) in which the certificate or certificates for shares of Common Stock
that shall be issuable on such conversion shall be issued and shall be
accompanied by transfer taxes, if required pursuant to Section 11.07. Each such
Note surrendered for conversion shall, unless the shares issuable on conversion
are to be issued in the name of the holder of such Note as it appears on the
Note register, be duly endorsed by, or be accompanied by instruments of transfer
in form satisfactory to the Company duly executed by, the holder or his duly
authorized attorney.
Except under certain circumstances, no adjustment will be made
on conversion of any Notes for interest accrued thereon or for dividends paid on
any Common Stock issued. Holders of Notes at the close of business on a record
date will be entitled to receive the interest payable on such Notes on the
corresponding interest payment date. However, Notes surrendered for conversion
after the close of business on a record date, and before the opening of business
on the corresponding interest payment date must be accompanied by funds equal to
the interest payable on such succeeding interest payment date on the principal
amount so converted (unless such Note is subject to redemption on a redemption
date between such record date and the close of business on the corresponding
interest payment date). The interest payment with respect to a Note called for
redemption on a date during the period from the close of business on or after
any record date to the close of business on the business day following the
corresponding interest payment date will be payable on the corresponding
interest payment date to the registered Holder at the close of business on that
record date (notwithstanding the conversion of such Note before the close of
business on the corresponding interest payment date) and a Holder of Notes who
elects to convert need not include funds equal to the interest to be paid. The
Company is not required to issue fractional shares of Common Stock upon
conversion of Notes and, in lieu thereof, will pay a cash adjustment based upon
the closing price of the Common Stock on the last business day prior to the date
of conversion.
The above description of conversion of the Notes is qualified
by reference to, and is subject in its entirety by, the more complete
description thereof contained in the Indenture.
15. REGISTRATION RIGHTS
The Holder of this Note is entitled to the benefits of a
Registration Rights Agreement, dated as of October 29, 1997, among the Company
and the Initial Purchaser (the "Registration Rights Agreement"). Pursuant to the
Registration Rights Agreement the Company has agreed for the benefit of the
Holders of the Notes that it will (i) file with the Commission within 90 days
after the original issuance date of the Notes a shelf registration statement
(the "Shelf Registration Statement") on such form as the Company deems
appropriate covering resales by the Holders of Notes and the shares of Common
Stock issuable upon conversion of the Notes (the "Shares"), (ii) use all
reasonable efforts to cause the Shelf Registration Statement to become effective
within 150 days and (iii) keep such Shelf Registration Statement effective until
such date that is two years after the latest date of original issuance of the
Notes.
If (a) on or after 90 days following the Issue Date, a Shelf
Registration Statement has not been filed with the Commission or (b) on or prior
to 150 days following the Issue Date, such Shelf Registration Statement is not
declared effective or (c) the Shelf Registration Statement has been declared
effective by the Commission and ceases to be effective (without being succeeded
on the same day by a post-effective amendment to such Shelf Registration
Statement that cures such failure and that is immediately declared effective) or
use of the Prospectus is suspended, pursuant to the Registration Rights
Agreement during the registration period for a time which shall exceed 60 days
in the aggregate during any 360 day period (each, a "Registration Default"),
additional amounts ("Liquidated Damages") will be payable with respect to the
Notes, from and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured. Liquidated
Damages will be paid semi-annually in arrears, with the first semi-annual
payment due on the first payment date following the date on which the
Noteholders are first entitled to receive Liquidated Damages, and will be
payable at a rate per annum of 25 basis points (0.25%) of the principal amount.
Following the cure of all Registration Defaults, the accrual of Liquidated
Damages will cease.
16. TRUSTEE DEALINGS WITH XXXX XX
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 Xxxx XX or its Affiliates and may otherwise deal with Xxxx XX or
its Affiliates with the same rights it would have if it were not Trustee.
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of Xxxx
XX shall not have any liability for any obligations of Xxxx XX 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 Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
18. AUTHENTICATION
This Note shall not be valid until an authorized officer of
the Trustee manually signs the Trustee's Certificate of Authentication on the
other side of this Note.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TENANT (=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).
20. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the money back to
Xxxx XX at its request. After that, Holders entitled to money must look to Xxxx
XX for payment.
21. DISCHARGE PRIOR TO MATURITY
If Xxxx XX deposits with the Trustee or Paying Agent money or
U.S. Government Obligations sufficient to pay the principal of and interest on
the Notes to maturity, Xxxx XX will be discharged from the Indenture except for
certain Sections thereof.
22. GOVERNING LAW
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to:
------------------------------------------------------------------------------
(insert assignee's social security or tax I.D. number)
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------------------------------------------------------------------------------
------------------------------------------------------------------------------
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(print or type assignee's name, address and zip code)
and irrevocably appoint --------------------------------------- agent to
transfer this Note on the books of Xxxx XX. The agent may substitute another to
act for him.
Dated: _________________ SIGNATURE: ____________________________
(Sign exactly as your
name appears on the
other side of this
Note)
Signature
Guarantee*:___________________________________________________________
* Signature must be guaranteed by an eligible guarantor
institution within the meaning of Securities and Exchange
Commission Rule 17Ad-15 (including banks, stock brokers,
savings and loan associations, national securities
exchanges, registered securities associations, clearing
agencies and credit unions) with membership or
participation in an approved signature guarantee medallion
program if this Note is to be delivered other than to and
in the name of the registered holder.
SCHEDULE OF EXCHANGES FOR OTHER NOTES (5)
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Amount of Principal Amount of this Signature of
Amount of decrease in increase in Global Note authorized officer of
Date of Principal Amount of Principal Amount of following such decrease Trustee or Note
this Global Note this Global Note (or increase) Custodian
---------------
5. This should be included only if the Senior Subordinated
Note is issued in global form.
EXHIBIT A-2
[FORM OF FACE OF REGULATION S TEMPORARY GLOBAL NOTE]
XXXX XX INDUSTRIES, INC.
4:% Convertible Subordinated Note due 2004
CUSIP No.U57-045-AB9 [REG S]
No.-------- $--------
Xxxx XX Industries, Inc., a Delaware corporation ("Xxxx XX," which
term includes any successor corporation under the Indenture hereinafter referred
to), promises to pay to ----------------- or registered assigns, the
principal amount of ----------- Dollars on November 1, 2004.
Interest Payment Dates: May 1 and November 1, commencing
May 1, 1998.
Record Dates: April 15 and October 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
IN WITNESS WHEREOF, Xxxx XX has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon and attested by its
Secretary or one of its Assistant Secretaries.
XXXX XX INDUSTRIES, INC.
Attested by: _______________________ By: ______________________
Name: Name:
Title: Title:
[SEAL]
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
By:_____________________________
Authorized Officer
[FORM OF REVERSE SIDE OF REGULATION S TEMPORARY GLOBAL NOTE]
4:% Convertible Subordinated Note due 2004
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.] (6)
"THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTI
TUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR")
OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED
HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT PRIOR TO
THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF
THE NOTE EVIDENCED HEREBY AND THE LAST DATE ON WHICH XXXX XX
INDUSTRIES, INC. (THE "COMPANY") OR ANY "AFFILIATE" (AS DEFINED IN RULE
144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF THE NOTE
(THE "RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE TRANSFER THE
NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
SUCH NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE,
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (D)
OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE NOTE EVIDENCED HEREBY BEFORE THE RESTRICTION
TERMINATION DATE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE BANK OF NEW YORK, AS TRUSTEE. IF THE
PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK,
AS TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS
LEGEND WILL BE REMOVED UPON THE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATIONS UNDER THE
SECURITIES ACT.
-----------
6. This paragraph should be included only if the Note is issued in Global Form.
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE
CONVERTIBLE SUBORDINATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST
HEREON PRIOR TO THE EXCHANGE OF THIS CONVERTIBLE SUBORDINATED NOTE FOR
A REGULATION S PERMANENT GLOBAL NOTE AS CONTEMPLATED BY THE INDENTURE.
Until this Regulation S Temporary Global Note is exchanged for
Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to
receive payments of interest or Liquidated Damages, if any, hereon although
interest and Liquidated Damages, if any, will continue to accrue; until so
exchanged in full, this Regulation S Temporary Global Note shall in all other
respects be entitled to the same benefits as other Convertible Subordinated
Notes under the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or in
part for one or more Regulation S Permanent Global Notes or Rule 144A Global
Notes only (i) on or after the termination of the 40-day restricted period (as
defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture.
Upon exchange of this Regulation S Temporary Global Note for one or more
Regulation S Permanent Global Notes or Rule 144A Global Notes, the Trustee shall
cancel this Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This Regulation
S Temporary Global Note shall be governed by and construed in accordance with
the laws of the State of the New York. All references to "$," "Dollars,"
"dollars" or "U.S. $" are to such coin or currency of the United States of
America as at the time shall be legal tender for the payment of public and
private debts therein."](7)
--------------
7. These paragraphs should be removed upon the exchange of the Regulation S
Temporary Global Notes for Regulation S Permanent Global Notes pursuant to the
Indenture.
Capitalized terms used herein have the meaning assigned to
them in the Indenture unless otherwise indicated.
1. INTEREST
Xxxx XX Industries, Inc., a Delaware corporation ("Xxxx XX"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above. Interest will be payable semi- annually on each interest
payment date referred to on the face hereof, commencing May 1, 1998. Interest on
the Notes will accrue from the most recent date to which interest has been paid,
or if no interest has been paid, from date of the Indenture; PROVIDED that, if
there is no existing Event of Default in the payment of interest and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding interest payment date, interest shall accrue from such
interest payment date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
Xxxx XX shall pay interest on overdue principal and interest
on overdue installments of interest, to the extent lawful, at the rate per annum
borne by the Notes.
2. METHOD OF PAYMENT
Xxxx XX will pay interest on the Notes (except defaulted
interest) to the persons who are registered Holders at the close of business on
the record dates referred to on the face hereof immediately preceding the
respective interest payment dates even if the Note is cancelled on registration
of transfer or registration of exchange. Holders must surrender Notes to a
Paying Agent to collect principal payments. Xxxx XX will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, Xxxx XX may pay
principal and interest by its check payable in such money. It may mail an
interest payment to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR
Initially, the Trustee will act as Paying Agent and Registrar.
Xxxx XX may appoint and change any Paying Agent or Registrar without notice,
other than notice to the Trustee. Xxxx XX or any subsidiary or an Affiliate of
either of them may act as Paying Agent, Registrar or co-registrar.
4. INDENTURE
Xxxx XX issued the Notes under an Indenture, dated as of
October 29, 1997 (the "Indenture"), between Xxxx XX 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 amended and as in
effect on the date of the Indenture (the "TIA"), and as provided in the
Indenture. The Notes are subject to all such terms, and Holders are referred to
the Indenture and the TIA for a statement of those terms.
The Notes are general obligations of Xxxx XX limited to
$275,000,000 aggregate principal amount (or, if the Initial Purchaser's
over-allotment option is exercised in full, $316,250,000 in aggregate principal
amount) and subordinated in right of payment to all existing and future Senior
Indebtedness of the Company.
5. OPTIONAL REDEMPTION
The Notes are not redeemable at the option of the Company
prior to November 3, 2000. At any time on or after that date, the Notes may be
redeemed at the Company's option, upon notice as set forth in Section 3.02 of
the Indenture, in whole at any time or in part from time to time, at the
optional redemption prices set forth below plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date fixed for redemption if redeemed
during the twelve-month period beginning November 3 of the years indicated:
Date Redemption
Price
2000.......................... 102.375%
2001.......................... 101.1875%
2002.......................... 100.792%
6. MANDATORY REDEMPTION
Except as set forth in paragraph 7 below, the Company shall
not be required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER
Upon the occurrence of a Change of Control, each Holder of
Notes shall have the right to require that the Company repurchase such Holder's
Notes in whole or in part in integral multiples of $1,000, at a purchase price
in cash in an amount equal to 100% of the principal amount thereof, together
with accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase pursuant to an offer made in accordance with the procedures described
IN THE INDENTURE.
8. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first class mail at
least 30 days but not more that 60 days before the redemption date to each
Holder of Notes to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Note or portions thereof
called for redemption.
9. SUBORDINATION
The Notes are subordinated to Senior Indebtedness. To the
extent provided in the Indenture, Senior Indebtedness must be paid before the
Notes may be paid. Xxxx XX agrees, and each Holder by accepting a Note agrees,
to such subordination and authorizes the Trustee to give it effect.
10. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in 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
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Notes selected for redemption (except, in the case of a Note
to be redeemed in part, the portion of the Note not to be redeemed) or any Notes
for a period of 15 days before a selection of Notes to be redeemed.
11. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the owner
of this Note for all purposes.
12. SUPPLEMENTAL INDENTURES
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 noncompliance with certain
provisions 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 in denture, without the consent of any
Holder, Xxxx XX and the Trustee may amend the Indenture or the to make provision
with respect to the conversion rights of the holders of Notes pursuant to the
requirements of Section 11.06 of the Indenture; subject to Article 10 of the
Indenture, to convey, trans fer, assign, mortgage or pledge to the Trustee as
security for the Notes, any property or assets; to evidence the succession of
another person to the Company, or successive successions, and the assump tion by
the Successor Company of the covenants, agreements and obligations of the
Company pursuant to Article 5 of the Indenture; to add to the covenants of the
Company such further covenants, restrictions or conditions as the Board of
Directors and the Trustee shall consider to be for the benefit of the holders of
Notes and to make the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions or conditions a default
or an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; PROVIDED THAT in
respect of any such additional covenant, restriction or condition, such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default; to provide
for the issuance under the Indenture of Notes in coupon form and to provide for
exchangeability of such Notes with the Notes issued hereunder in fully
registered form and to make all appropriate changes for
such purpose; to cure any ambiguity or to correct or supplement any provision
contained in the Indenture or in any supplemental indenture; to evidence and
provide for the acceptance of appointment of a successor Trustee with respect to
the Notes; or to modify, eliminate or add provisions to the Indenture to such
extent necessary to effect the qualification of the Indenture under the Trust
Indenture Act.
13. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include: (1) failure to
pay principal, premium or Liquidated Damages, if any, of any Note when due at
maturity, upon redemption or otherwise; (2) failure to pay any interest on any
Note when due and payable, continued for 30 days; (3) failure to perform any
other covenant of the Company in the Indenture, continued for 90 days after
written notice as provided in the Indenture; and (4) certain events in
bankruptcy, insolvency or reorganization involving the Company. If an Event of
Default 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.
Holders 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.
14. CONVERSION
The Holders of Notes will be entitled at any time after 60
days following the latest date of original issuance thereof through the close of
business November 1, 2004, subject to prior redemption, to convert any Notes or
portions thereof (in denominations of $1,000 in principal amount or multiples
thereof) into Common Stock at the conversion price of $32.8125 per share,
subject to adjustment under certain circumstances provided in the Indenture;
PROVIDED that in the case of Notes called for redemption, conversion rights will
expire immediately prior to the close of business on the last business day
before the date fixed for redemption, unless the Company defaults in payment of
the redemption price.
In order to exercise the conversion privilege with respect to
any Note in definitive form, the holder of any such Note to be converted in
whole or in part shall surrender such Note, duly endorsed, at an office or
agency maintained by the Company pursuant to Section 2.03 of the Indenture,
accompanied by the funds, if any, required by Section 11.02 of the Indenture,
and shall give written notice of conversion in the form provided on the form of
Note (or such other notice that is acceptable to the Company) to the office or
agency that the holder elects to convert such Note or the portion thereof
specified in said notice. Such notice shall also state the name or names (with
address) in which the certificate or certificates for shares of Common Stock
that shall be issuable on such conversion shall be issued and shall be
accompanied by transfer taxes, if required pursuant to Section 11.07. Each such
Note surrendered for conversion shall, unless the shares issuable on conversion
are to be issued in the name of the holder of such Note as it appears on the
Note register, be duly endorsed by, or be accompanied by instruments of transfer
in form satisfactory to the Company duly executed by, the holder or his duly
authorized attorney.
Except under certain circumstances, no adjustment will be made
on conversion of any Notes for interest accrued thereon or for dividends paid on
any Common Stock issued. Holders of Notes at the close of business on a record
date will be entitled to receive the interest payable on such Notes on the
corresponding interest payment date. However, Notes surrendered for conversion
after the close of business on a record date, and before the opening of business
on the corresponding interest payment date must be accompanied by funds equal to
the interest payable on such succeeding interest payment date on the principal
amount so converted (unless such Note is subject to redemption on a redemption
date between such record date and the close of business on the corresponding
interest payment date). The interest payment with respect to a Note called for
redemption on a date during the period from the close of business on or after
any record date to the close of business on the business day following the
corresponding interest payment date will be payable on the corresponding
interest payment date to the registered Holder at the close of business on that
record date (notwithstanding the conversion of such Note before the close of
business on the corresponding interest payment date) and a Holder of Notes who
elects to convert need not include funds equal to the interest to be paid. The
Company is not required to issue fractional shares of Common Stock upon
conversion of Notes and, in lieu thereof, will pay a cash adjustment based upon
the closing price of the Common Stock on the last business day prior to the date
of conversion.
The above description of conversion of the Notes is qualified
by reference to, and is subject in its entirety by, the more complete
description thereof contained in the Indenture.
15. REGISTRATION RIGHTS
The Holder of this Note is entitled to the benefits of a
Registration Rights Agreement, dated as of October 29, 1997, among the Company
and the Initial Purchaser (the "Registration Rights Agreement"). Pursuant to the
Registration Rights Agreement the Company has agreed for the benefit of the
Holders of the Notes that it will (i) file with the Commission within 90 days
after the original issuance date of the Notes a shelf registration statement
(the "Shelf Registration Statement") on such form as the Company deems
appropriate covering resales by the Holders of Notes and the shares of Common
Stock issuable upon conversion of the Notes (the "Shares"), (ii) use all
reasonable efforts to cause the Shelf Registration Statement to become effective
within 150 days and (iii) keep such Shelf Registration Statement effective
generally until such date that is two years after the latest date of original
issuance of the Notes.
If (a) on or after 90 days following the Issue Date, a Shelf
Registration Statement has not been filed with the Commission or (b) on or prior
to 150 days following the Issue Date, such Shelf Registration Statement is not
declared effective or (c) the Shelf Registration Statement has been declared
effective by the Commission and ceases to be effective (without being succeeded
on the same day by a post-effective amendment to such Shelf Registration
Statement that cures such failure and that is immediately declared effective) or
use of the Prospectus is suspended, pursuant to the Registration Rights
Agreement during the registration period for a time which shall exceed 60 days
in the aggregate during any 360 day period (each, a "Registration Default"),
additional amounts ("Liquidated Damages") will be payable with respect to the
Notes, from and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured. Liquidated
Damages will be paid semi-annually in arrears, with the first semi-annual
payment due on the first payment date following the date on which the
Noteholders are first entitled to receive Liquidated Damages, and will be
payable at a rate per annum of 25 basis points (0.25%) of the principal amount.
Following the cure of all Registration Defaults, the accumulation of Liquidated
Damages will cease.
16. TRUSTEE DEALINGS WITH XXXX XX
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 Xxxx XX or its Affiliates and may otherwise deal with Xxxx XX or
its Affiliates with the same rights it would have if it were not Trustee.
17. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of Xxxx
XX shall not have any liability for any obligations of Xxxx XX 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 Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
18. AUTHENTICATION
This Note shall not be valid until an authorized officer of
the Trustee manually signs the Trustee's Certificate of Authentication on the
other side of this Note.
19. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TENANT (=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).
20. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the money back to
Xxxx XX at its request. After that, Holders entitled to money must look to Xxxx
XX for payment.
21. DISCHARGE PRIOR TO MATURITY
If Xxxx XX deposits with the Trustee or Paying Agent money or
U.S. Government Obligations sufficient to pay the principal of and interest on
the Notes to maturity, Xxxx XX will be discharged from the Indenture except for
certain Sections thereof.
22. GOVERNING LAW
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to:
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(insert assignee's social security or tax I.D. number)
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(print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________ agent to
transfer this Note on the books of Xxxx XX. The agent may substitute another to
act for him.
Dated: ________________ SIGNATURE: _____________________________
(Sign exactly as your
name appears on the
other side of this
Note)
Signature
Guarantee*:__________________________________________________________
* Signature must be guaranteed by an eligible guarantor
institution within the meaning of Securities and Exchange
Commission Rule 17Ad-15 (including banks, stock brokers,
savings and loan associations, national securities
exchanges, registered securities associations, clearing
agencies and credit unions) with membership or
participation in an approved signature guarantee medallion
program if this Note is to be delivered other than to and
in the name of the registered holder.
SCHEDULE OF EXCHANGES OF NOTES (8)
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or a Definitive Note for an interest in this Global Note,
have been made:
Amount of Principal Amount of this Signature of
Amount of decrease in increase in Global Note authorized officer of
Date of Principal Amount of Principal Amount of following such decrease Trustee or Note
this Global Note this Global Note (or increase) Custodian
---------------
8. This should be included only if the Note is issued in global form.
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(i) of the Indenture)
The Bank of New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 4:% Convertible Subordinated Notes due 2004 of Xxxx
XX Industries, Inc.
Reference is hereby made to the Indenture, dated as of October 29,
1997 (the "Indenture"), between Xxxx XX Industries, Inc., a Delaware corporation
(the "Company") and The Bank of New York, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $ _______________ principal amount of the
above referenced securities (the "Convertible Subordinated Notes") which are
evidenced by one or more Rule 144A Global Notes and held with the Depositary in
the name of ______________________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Convertible Subordinated
Notes to a Person who will take delivery thereof in the form of an equal
principal amount of Convertible Subordinated Notes evidenced by one or more
Regulation S Global Notes, which amount, immediately after such transfer, is to
be held with the Depositary through Euroclear or Cedel or both.
In connection with such request and in respect of such Convertible
Subordinated Notes, the Transferor hereby certifies that such transfer has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with Rule 903 or Rule 904 under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor hereby further certifies that:
(1) The offer of the Convertible Subordinated Notes was not made to a
person in the United States;
(2) either:
(a) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed and believes that the
transferee was outside the United States; or
(b) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to
evade the registration provisions of the Securities
Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the
Depositary through Euroclear or Cedel or both.
Upon giving effect to this request to exchange a beneficial interest in a
Rule 144A Global Note for a beneficial interest in a Regulation S Global Note,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Convertible
Subordinated Notes, the additional restrictions applicable to transfers of
interest in the Regulation S Temporary Global Note.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and Bear, Xxxxxxx & Co. Inc., the initial
purchaser of such Convertible Subordinated Notes being transferred. Terms used
in this certificate and not otherwise defined in the Indenture have the meanings
set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:____________________
Name:
Title:
Dated:
cc: Xxxx XX Industries, Inc.
Bear, Xxxxxxx & Co. Inc.
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
The Bank of New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 4:% Convertible Subordinated Notes due 2004 of Xxxx
XX Industries, Inc.
Reference is hereby made to the Indenture, dated as of October 29,
1997 (the "Indenture"), between Xxxx XX Industries, Inc., a Delaware corporation
(the "Company") and The Bank of New York, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $_________ principal amount of the above
referenced securities (the "Convertible Subordinated Notes") which are evidenced
by one or more Regulation S Global Notes and held with the Depositary through
Euroclear or Cedel in the name of __________________________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Convertible Subordinated Notes to a Person who will take
delivery thereof in the form of an equal principal amount of Convertible
Subordinated Notes evidenced by one or more Rule 144A Global Notes, to be held
with the Depositary.
In connection with such request and in respect of such Convertible
Subordinated Notes, the Transferor hereby certifies
that:
[CHECK ONE]
[ ] such transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the Convertible Subordinated Notes are being
transferred to a Person that the Transferor reasonably believes is
purchasing the Convertible Subordinated Notes for its own account, or
for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A;
or
[ ] such transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption under the
Securities Act other than Rule 144A, Rule 144 or Rule 904 and the
Transferor further certifies that the Transfer complies with the
transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Convertible Subordinated Notes bearing the
Private Placement Legend and the requirements of the exemption
claimed, which certification is supported by (x) if such transfer is
in respect of a principal amount of Convertible Subordinated Notes at
the time of Transfer of $100,000 or more, a certificate executed by
the Transferee in the form of EXHIBIT C to the Indenture, or (y) if
such Transfer is in --------- respect of a principal amount of
Convertible Subordinated Notes at the time of transfer of less than
$100,000, (1) a certificate executed by the Transferee in the form of
EXHIBIT ------- C to the Indenture and (2) an Opinion of Counsel
provided by - the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that (1)
such Transfer is in compliance with the Securities Act and (2) such
Transfer complies with any applicable blue sky securities laws of any
state of the United States;
or
[ ] such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Convertible Subordinated Notes are being transferred in compliance
with the transfer restrictions applicable to the Definitive Notes and
in accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by the
Transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form reasonably acceptable to the
Company and to the Registrar, to the effect that such transfer is in
compliance with the Securities Act;
and such Convertible Subordinated Notes are being transferred in compliance with
any applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest
in Regulation S Global Notes for a beneficial interest in 144A Global
Convertible Subordinated Notes, the resulting beneficial interest shall be
subject to the restrictions on transfer applicable to Rule 144A Global Notes
pursuant to the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and Bear, Xxxxxxx & Co. Inc., the
initial purchaser of such Convertible Subordinated Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:______________________
Name:
Title:
Dated:
cc: Xxxx XX Industries, Inc.
Bear, Xxxxxxx & Co. Inc.
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE CONVERTIBLE SUBORDINATED NOTES
(Pursuant to Section 2.06(b) of the Indenture)
The Bank of New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 4:% Convertible Subordinated Notes due 2004 of Xxxx
XX Industries, Inc.
Reference is hereby made to the Indenture, dated as of October 29,
1997 (the "Indenture"), between Xxxx XX Industries, Inc., a Delaware corporation
(the "Company") and The Bank of New York, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $ principal amount of the above
referenced securities (the "Convertible Subordinated Notes") which are evidenced
by one or more Definitive Convertible Subordinated Notes in the name of (the
"Transferor"). The Transferor has requested an exchange or transfer of such
Definitive Convertible Subordinated Note(s) in the form of an equal principal
amount of Convertible Subordinated Notes evidenced by one or more Definitive
Convertible Subordinated Notes, to be delivered to the Transferor or, in the
case of a transfer of such Convertible Subordinated Notes, to such Person as the
Transferor instructs the Trustee.
In connection with such request and in respect of the Convertible
Subordinated Notes surrendered to the Trustee herewith for exchange (the
"Surrendered Convertible Subordinated Notes"), the Holder of such Surrendered
Convertible Subordinated Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Convertible Subordinated Notes are being acquired for
the Transferor's own account, without transfer;
or
[ ] the Surrendered Convertible Subordinated Notes are being transferred
to the Company;
or
[ ] the Surrendered Convertible Subordinated Notes are being
transferred pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Surrendered Convertible
Subordinated Notes are being transferred to a Person that
the Transferor reasonably believes is purchasing the
Surrendered Convertible Subordinated Notes for its own
account, or for one or more accounts with respect to
which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A, in
each case in a transaction meeting the requirements of
Rule 144A;
or
[ ] the Surrendered Convertible Subordinated Notes are being transferred
in a transaction permitted by Rule 144 under the Securities Act;
or
[ ] the Surrendered Convertible Subordinated Notes are being transferred
pursuant to an exemption under the Securities Act other than Rule
144A, Rule 144 or Rule 904 and the Transferor further certifies that
the Transfer complies with the transfer restrictions applicable to
beneficial interests in Global Notes and Definitive Convertible
Subordinated Notes bearing the Private Placement Legend and the
requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount
of Convertible Subordinated Notes at the time of Transfer of $100,000
or more, a certificate executed by the Transferee in the form of
EXHIBIT C to the Indenture, or (y) if such Transfer is in
respect of a principal amount of Convertible Subordinated Notes at the
time of transfer of less than $100,000, (1) a certificate executed by
the Transferee in the form of EXHIBIT C to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this
certification), to the effect that (1) such Transfer is in compliance
with the Securities Act and (2) such Transfer complies with any
applicable blue sky securities laws of any state of the United States;
or
[ ] the Surrendered Convertible Subordinated Notes are being transferred
pursuant to an effective registration statement under the Securities
Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Convertible Subordinated Notes are being transferred in compliance
with the transfer restrictions applicable to the Definitive Notes and
in accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by the
transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form reasonably acceptable to the
Company and to the Registrar, to the effect that such transfer is in
compliance with the Securities Act;
and the Surrendered Convertible Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and Bear, Xxxxxxx & Co. Inc., the
initial purchasers of such Convertible Subordinated Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_______________________
Name:
Title:
Dated:
cc: Xxxx XX Industries, Inc.
Bear, Xxxxxxx & Co. Inc.
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR REGULATION S
PERMANENT GLOBAL NOTE
TO DEFINITIVE CONVERTIBLE SUBORDINATED NOTE
(Pursuant to Section 2.06(c) of the Indenture)
The Bank of New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 4:% Convertible Subordinated Notes due 2004 of Xxxx
XX Industries, Inc.
Reference is hereby made to the Indenture, dated as of October 29,
1997 (the "Indenture"), between Xxxx XX Industries, Inc., a Delaware corporation
(the "Company") and The Bank of New York, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $__________ principal amount of the above
referenced securities (the "Convertible Subordinated Notes") which are evidenced
by a beneficial interest in one or more Rule 144A Global Notes or Regulation S
Permanent Global Notes and held with the Depositary (through Euroclear or Cedel
in the case of a Regulation S Permanent Global Note) in the name of (the
"Transferor"). The Transferor has requested an exchange or transfer of such
beneficial interest in the form of an equal principal amount of Convertible
Subordinated Notes evidenced by one or more Definitive Convertible Subordinated
Notes, to be delivered to the Transferor or, in the case of a transfer of such
Convertible Subordinated Notes, to such Person as the Transferor instructs the
Trustee.
In connection with such request and in respect of the Convertible
Subordinated Notes surrendered to the Trustee herewith for exchange (the
"Surrendered Convertible Subordinated Notes"), the Holder of such Surrendered
Convertible Subordinated Notes hereby certifies that:
[CHECK ONE]
[ ] the Surrendered Convertible Subordinated Notes are being transferred
to the beneficial owner of such Convertible Subordinated Notes;
or
[ ] the Surrendered Convertible Subordinated Notes are being transferred
pursuant to and in accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the
Surrendered Convertible Subordinated Notes are being transferred to a
Person that the Transferor reasonably believes is purchasing the
Surrendered Convertible Subordinated Notes for its own account, or for
one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in
each case in a transaction meeting they requirements of Rule 144A;
or
[ ] the Surrendered Convertible Subordinated Notes are being transferred
in a transaction permitted by Rule 144 under the Securities Act;
or
[ ] the Surrendered Convertible Subordinated Notes are being transferred
pursuant to an effective registration statement under the Securities
Act;
or
[ ] the Surrendered Convertible Subordinated Notes are being transferred
pursuant to an exemption under the Securities Act other than Rule
144A, Rule 144 or Rule 904 and the Transferor further certifies that
the Transfer complies with the transfer restrictions applicable to
beneficial interests in Global Notes and Definitive Convertible
Subordinated Notes bearing the Private Placement Legend and the
requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount
of Convertible Subordinated Notes at the time of Transfer of $100,000
or more, a certificate executed by the Transferee in the form of
EXHIBIT C to the Indenture, or (y) if such Transfer is in respect of a
principal amount of Convertible Subordinated Notes at the time of
transfer of less than $100,000, (1) a certificate executed in the form
of EXHIBIT C to the Indenture and (2) an Opinion of Counsel provided
by the Transferor or the Transferee (a copy of which the Transferor
has attached to this certification), to the effect that (1) such
Transfer is in compliance with the Securities Act and (2) such
Transfer complies with any applicable blue sky securities laws of any
state of the United States;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A
or Rule 144, and the Transferor hereby further certifies that the
Convertible Subordinated Notes are being transferred in compliance
with the transfer restrictions applicable to the Global Notes and in
accordance with the requirements of the exemption claimed, which
certification is supported by an Opinion of Counsel, provided by the
transferor or the transferee (a copy of which the Transferor has
attached to this certification) in form reasonably acceptable to the
Company and to the Registrar, to the effect that such transfer is in
compliance with the Securities Act;
and the Surrendered Convertible Subordinated Notes are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and Bear, Xxxxxxx & Co. Inc., the
initial purchaser of such Convertible Subordinated Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_________________________
Name:
Title:
Dated:
cc: Xxxx XX Industries, Inc.
Bear, Xxxxxxx & Co. Inc.
EXHIBIT C
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
The Bank of New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 4:% Convertible Subordinated Notes due 2004 of Xxxx
XX Industries, Inc.
Reference is hereby made to the Indenture, dated as of October 29,
1997 (the "Indenture"), between Xxxx XX Industries, Inc., a Delaware corporation
(the "Company") and Bank of New York, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $__________
aggregate principal amount of:
(a) [ ] Beneficial interests in the above referenced securities
(the "Convertible Subordinated Notes"), or
(b) [ ] Definitive Convertible Subordinated Notes,
we confirm that:
1. We understand that any subsequent transfer of the Convertible
Subordinated Notes of any interest therein is subject to certain restrictions
and conditions set forth in the Indenture and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Convertible Subordinated
Notes or any interest therein except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Convertible
Subordinated Notes have not been registered under the Securities Act, and that
the Convertible Subordinated Notes and any interest therein may not be offered
or sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell the Convertible Subordinated Notes or any
interest therein, (A) we will do so only (1)(a) to a person who the Seller
reasonably believes is a qualified institutional buyer (as defined in Rule 144A
under the Securities Act) in a transaction meeting the requirements of 144A, (b)
in a transaction meeting the requirements of Rule 144 under the Securities Act,
(c) outside the United States to a foreign person in a transaction meeting the
requirements of Rule 904 of the Securities Act, or (d) in accordance with
another exemption from the registration requirements of the Securities Act (and
based upon an opinion of counsel), (2) to the Company or any of its subsidiaries
or (3) pursuant to an effective registration statement and, in each case, in
accordance with any applicable securities laws of any State of the United States
or any other applicable jurisdiction and (B) we will, and each subsequent holder
will be required to, notify any purchaser from it of the security evidenced
hereby of the resale restrictions set forth in (A) above.
3. We understand that, on any proposed resale of the Convertible
Subordinated Notes or beneficial interests, we will be required to furnish to
you and the Company such certifications, legal opinions and other information as
you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the
Convertible Subordinated Notes purchased by us will bear a legend to the
foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Convertible
Subordinated Notes, and we and any accounts for which we are acting are each
able to bear the economic risk of our or its investment.
5. We are acquiring the Convertible Subordinated Notes or
beneficial interests therein purchased by us for our own account or for one or
more accounts (each of which is an institutional "accredited investor") as to
each of which we exercise sole investment discretion.
6. We are not acquiring the Convertible Subordinated Notes
with a view to any distribution thereof that would violate the Securities Act or
the securities laws of any State of the United States.
___________________________________
Name
___________________________________
Address
____________________________________
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.........................................1
SECTION 1.02. OTHER DEFINITIONS...................................6
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT.......................................6
SECTION 1.04. RULES OF CONSTRUCTION...............................7
SECTION 1.05. ACTS OF HOLDERS.....................................7
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.....................................8
SECTION 2.02. EXECUTION AND AUTHENTICATION.......................10
SECTION 2.03. REGISTRAR AND PAYING AGENT.........................11
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST................11
SECTION 2.05. NOTEHOLDER LISTS...................................11
SECTION 2.06. TRANSFER AND EXCHANGE..............................12
SECTION 2.07. REPLACEMENT NOTES..................................19
SECTION 2.08. OUTSTANDING NOTES; DETERMINATIONS OF
HOLDERS' ACTION....................................20
SECTION 2.09. TEMPORARY NOTES....................................20
SECTION 2.10. CANCELLATION.......................................21
SECTION 2.11. CUSIP NUMBERS......................................21
SECTION 2.12. DEFAULTED INTEREST.................................21
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
SECTION 3.01. REDEMPTION PRICES.................................21
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF NOTES..........22
SECTION 3.03. PAYMENT OF NOTES CALLED FOR REDEMPTION............23
SECTION 3.04. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.....24
SECTION 3.05. REPURCHASE UPON A CHANGE OF CONTROL...............24
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES...................................26
SECTION 4.02. SEC REPORTS........................................26
SECTION 4.03. COMPLIANCE CERTIFICATES............................26
SECTION 4.04. FURTHER INSTRUMENTS AND ACTS.......................27
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY....................27
SECTION 4.06. PAYMENT OF TAXES AND OTHER CLAIMS..................28
SECTION 4.07. CORPORATE EXISTENCE................................28
SECTION 4.08. MAINTENANCE OF PROPERTIES AND INSURANCE............28
SECTION 4.09. STAY, EXTENSION AND USURY LAWS.....................28
SECTION 4.10. INVESTMENT COMPANY ACT.............................29
SECTION 4.11. RULE 144A INFORMATION REQUIREMENT..................29
SECTION 4.12. NOTICE OF REGISTRATION DEFAULT.....................29
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. MERGER, CONSOLIDATION AND SALE OF ASSETS...........29
SECTION 5.02. SUCCESSOR COMPANY TO BE SUBSTITUTED................29
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT..................................30
SECTION 6.02. ACCELERATION.......................................31
SECTION 6.03. OTHER REMEDIES.....................................31
SECTION 6.04. CONTROL BY MAJORITY................................31
SECTION 6.05. LIMITATION ON SUITS................................31
SECTION 6.06. RIGHTS OF HOLDERS TO RECEIVE PAYMENT...............32
SECTION 6.07. COLLECTION SUIT BY TRUSTEE.........................32
SECTION 6.08. TRUSTEE MAY FILE PROOFS OF CLAIM...................32
SECTION 6.09. PRIORITIES.........................................33
SECTION 6.10. UNDERTAKING FOR COSTS..............................33
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE..................................33
SECTION 7.02. RIGHTS OF TRUSTEE..................................34
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.......................35
SECTION 7.04. TRUSTEE'S DISCLAIMER...............................35
SECTION 7.05. NOTICE OF DEFAULTS.................................35
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS......................35
SECTION 7.07. COMPENSATION AND INDEMNITY.........................35
SECTION 7.08. REPLACEMENT OF TRUSTEE.............................36
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER........................37
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION......................37
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST XXXX XX....................................37
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. LEGAL DEFEASANCE AND COVENANT
DEFEASANCE OF THE NOTES............................37
SECTION 8.02 TERMINATION OF OBLIGATIONS UPON
CANCELLATION OF THE NOTES..........................39
SECTION 8.03. SURVIVAL OF CERTAIN OBLIGATIONS....................39
SECTION 8.04. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.............39
SECTION 8.05. APPLICATION OF TRUST ASSETS........................39
SECTION 8.06. REPAYMENT TO THE COMPANY; UNCLAIMED MONEY..........40
SECTION 8.07. REINSTATEMENT......................................40
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS..........................40
SECTION 9.02. WITH CONSENT OF HOLDERS.............................41
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.................42
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS,
WAIVERS AND ACTIONS.................................42
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES....................42
SECTION 9.06. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES.............42
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES...................42
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE...........................42
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY...............43
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS.....................43
SECTION 10.04. NO SUSPENSION OF REMEDIES..........................44
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER................44
SECTION 10.06. NOTICE BY XXXX XX..................................44
SECTION 10.07. SUBROGATION........................................44
SECTION 10.08. RELATIVE RIGHTS....................................45
SECTION 10.09. NO WAIVER OF SUBORDINATION PROVISIONS..............45
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE...........45
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT.................46
SECTION 10.12. AUTHORIZATION TO EFFECT
SUBORDINATION; NO FIDUCIARY DUTY TO
HOLDERS OF SENIOR INDEBTEDNESS.....................46
SECTION 10.13. MISCELLANEOUS......................................46
ARTICLE 11
CONVERSION OF NOTES
SECTION 11.01. RIGHT TO CONVERT...................................47
SECTION 11.02. EXERCISE OF CONVERSION PRIVILEGE;
ISSUANCE OF COMMON
STOCK ON CONVERSION; NO ADJUSTMENT FOR
INTEREST OR DIVIDENDS..............................47
SECTION 11.03 CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES.........49
SECTION 11.04. CONVERSION PRICE...................................49
SECTION 11.05. ADJUSTMENT OF CONVERSION PRICE.....................49
SECTION 11.06. EFFECT OF RECLASSIFICATION,
CONSOLIDATION, MERGER OR SALE......................57
SECTION 11.07. TAXES ON SHARES ISSUED.............................58
SECTION 11.08. RESERVATION OF SHARES; SHARES TO BE
FULLY PAID; LISTING
OF COMMON STOCK....................................58
SECTION 11.09. RESPONSIBILITY OF TRUSTEE..........................58
SECTION 11.10. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS.........59
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.......................59
SECTION 12.02. NOTICES............................................60
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS........61
SECTION 12.04. CERTIFICATE AND OPINION AS TO
CONDITIONS PRECEDENT...............................61
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION............................................61
SECTION 12.06. SEVERABILITY CLAUSE................................61
SECTION 12.07. RULES BY TRUSTEE, PAYING AGENT AND
REGISTRAR..........................................61
SECTION 12.08. LEGAL HOLIDAYS.....................................61
SECTION 12.09. GOVERNING LAW......................................62
SECTION 12.10. NO RECOURSE AGAINST OTHERS.........................62
SECTION 12.11. SUCCESSORS.........................................62
SECTION 12.12. MULTIPLE ORIGINALS.................................62
