Exhibit D (30)
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INTERLIANT, INC.
and
THE CHASE MANHATTAN BANK,
as Trustee
INDENTURE
__________________________
Dated as of ___, 2001
___________________________
10% Convertible Senior Notes due 2006
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TABLE OF CONTENTS
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ARTICLE 1 Definitions and Other Provisions of General Application.............................................. 1
SECTION 1.01. Definitions..................................................................... 1
SECTION 1.02. Other Definitions............................................................... 8
SECTION 1.03. Compliance Certificates and Opinions............................................ 9
SECTION 1.04. Form of Documents Delivered to Trustee.......................................... 10
SECTION 1.05. Acts of Holders................................................................. 10
SECTION 1.06. Notices, Etc., to Trustee and Company........................................... 12
SECTION 1.07. Notice to Holders; Waiver....................................................... 12
SECTION 1.08. Effect of Headings and Table of Contents........................................ 13
SECTION 1.09. Successors and Assigns.......................................................... 13
SECTION 1.10. Separability Clause............................................................. 13
SECTION 1.11. Benefits of Indenture........................................................... 13
SECTION 1.12. Governing Law................................................................... 13
SECTION 1.13. Legal Holidays.................................................................. 13
SECTION 1.14. Personal Immunity from Liability for Incorporators, Stockholders, Etc........... 14
SECTION 1.15. Conflict with Trust Indenture Act............................................... 14
ARTICLE 2 Securities Forms..................................................................................... 14
SECTION 2.01. Forms of Securities............................................................. 14
SECTION 2.02. Form of Trustee's Certificate of Authentication................................. 14
SECTION 2.03. Securities Issuable in Global Form.............................................. 15
ARTICLE 3 The Securities....................................................................................... 16
SECTION 3.01. Title and Term.................................................................. 16
SECTION 3.02. Denominations................................................................... 16
SECTION 3.03. Execution, Authentication, Delivery and Dating.................................. 16
SECTION 3.04. Registration, Registration of Transfer and Exchange............................. 17
SECTION 3.05. Mutilated, Destroyed, Lost and Stolen Securities................................ 22
SECTION 3.06. Payment of Interest; Interest Rights Preserved.................................. 23
SECTION 3.07. Persons Deemed Owners........................................................... 25
SECTION 3.08. Cancellation.................................................................... 25
SECTION 3.09. Computation of Interest......................................................... 25
SECTION 3.10. CUSIP Numbers................................................................... 25
ARTICLE 4 Remedies............................................................................................. 26
SECTION 4.01. Events of Default............................................................... 26
SECTION 4.02. Acceleration of Maturity; Rescission and Annulment.............................. 28
SECTION 4.03. Collection of Indebtedness and Suits for Enforcement by
TABLE OF CONTENTS
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SECTION 7.02. Rights and Duties of Successor Corporation........................................ 41
SECTION 7.03. Officers' Certificate and Opinion of Counsel...................................... 42
ARTICLE 8 Supplemental Indentures................................................................................ 42
SECTION 8.01. Supplemental Indentures Without Consent of Holders................................ 42
SECTION 8.02. Supplemental Indentures with Consent of Holders................................... 43
SECTION 8.03. Execution of Supplemental Indenture............................................... 44
SECTION 8.04. Effect of Supplemental Indentures................................................. 44
SECTION 8.05. Conformity with Trust Indenture Act............................................... 44
SECTION 8.06. Reference in Securities to Supplemental Indentures................................ 44
ARTICLE 9 Covenants.............................................................................................. 44
SECTION 9.01. Payment of Principal, Premium, If Any, and Interest............................... 44
SECTION 9.02. Maintenance of Office or Agency................................................... 45
SECTION 9.03. Money for Securities Payments to Be Held in Trust................................. 45
SECTION 9.04. Existence......................................................................... 46
SECTION 9.05. Payment of Taxes and Other Claims................................................. 47
SECTION 9.06. Statement as to Compliance; Notice of Default..................................... 47
SECTION 9.07. Waiver of Certain Covenants....................................................... 47
SECTION 9.08. Rule 144A Information Requirement................................................. 47
SECTION 9.09. Additional Indebtedness........................................................... 48
ARTICLE 10 Redemption of Securities.............................................................................. 48
SECTION 10.01. Redemption by the Company......................................................... 48
SECTION 10.02. Election to Redeem; Notice to Trustee............................................. 48
SECTION 10.03. Selection by Trustee of Securities to Be Redeemed................................. 49
SECTION 10.04. Notice of Redemption.............................................................. 49
SECTION 10.05. Deposit of Redemption Price....................................................... 50
SECTION 10.06. Securities Payable on Redemption Date............................................. 50
SECTION 10.07. Securities Redeemed in Part....................................................... 51
ARTICLE 11 Repurchase at Option of Holders upon Change in Control................................................ 51
SECTION 11.01. Right to Require Repurchase....................................................... 51
SECTION 11.02. Conditions to the Company's Election to Pay the Repurchase Price in Common
Stock............................................................................. 51
SECTION 11.03. Notices; Method of Exercising Repurchase Right, Etc............................... 52
SECTION 11.04. Certain Definitions............................................................... 55
SECTION 11.05. Change in Control................................................................. 55
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TABLE OF CONTENTS
(continued)
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Trustee........................................................................... 29
SECTION 4.04. Trustee May File Proofs of Claim.................................................. 29
SECTION 4.05. Trustee May Enforce Claims Without Possession of Securities....................... 30
SECTION 4.06. Application of Money Collected.................................................... 30
SECTION 4.07. Limitation on Suits............................................................... 31
SECTION 4.08. Unconditional Right of Holders to Receive Principal, Premium, If Any, and
Interest.......................................................................... 31
SECTION 4.09. Restoration of Rights and Remedies................................................ 32
SECTION 4.10. Rights and Remedies Cumulative.................................................... 32
SECTION 4.11. Delay or Omission Not Waiver...................................................... 32
SECTION 4.12. Control by Holders of Securities.................................................. 32
SECTION 4.13. Waiver of Past Defaults........................................................... 32
SECTION 4.14. Waiver of Usury, Stay or Extension Laws........................................... 33
SECTION 4.15. Undertaking for Costs............................................................. 33
ARTICLE 5 The Trustee............................................................................................ 34
SECTION 5.01. General........................................................................... 34
SECTION 5.02. Certain Rights of Trustee......................................................... 34
SECTION 5.03. Individual Rights of Trustee...................................................... 36
SECTION 5.04. Trustee's Disclaimer.............................................................. 36
SECTION 5.05. Notice of Default................................................................. 36
SECTION 5.06. Conflicting Interests of Trustee.................................................. 36
SECTION 5.07. Compensation and Indemnity........................................................ 37
SECTION 5.08. Replacement of Trustee............................................................ 37
SECTION 5.09. Successor Trustee by Merger, Etc.................................................. 38
SECTION 5.10. Eligibility....................................................................... 38
SECTION 5.11. Money Held in Trust............................................................... 39
SECTION 5.12. Preferential Collection of Claims................................................. 39
SECTION 5.13. Trustee's Application for Instructions from the Company; Liquidated
Damages........................................................................... 39
ARTICLE 6 Holders' Lists and Reports by Trustee and Company...................................................... 40
SECTION 6.01. Disclosure of Names and Addresses of Holders...................................... 40
SECTION 6.02. Reports by Trustee................................................................ 40
SECTION 6.03. Reports by Company................................................................ 40
SECTION 6.04. Company to Furnish Trustee Names and Addresses of Holders......................... 41
ARTICLE 7 Consolidation, Merger, Sale, Lease or Conveyance....................................................... 41
SECTION 7.01. Consolidations and Mergers of Company and Sales, Leases and Conveyances
Permitted Subject to Certain Conditions........................................... 41
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TABLE OF CONTENTS
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ARTICLE 12 Conversion............................................................................................ 56
SECTION 12.01. Conversion Privilege, Conversion Rate and Conversion Price........................ 56
SECTION 12.02. Exercise of Conversion Privilege.................................................. 57
SECTION 12.03. Fractions of Shares............................................................... 58
SECTION 12.04. Adjustment of Conversion Rate..................................................... 59
SECTION 12.05. Notice of Adjustments of Conversion Rate.......................................... 64
SECTION 12.06. Notice of Certain Corporate Action................................................ 64
SECTION 12.07. Company's Obligation Regarding Common Stock....................................... 65
SECTION 12.08. Taxes on Conversions.............................................................. 65
SECTION 12.09. Covenant as to Common Stock....................................................... 66
SECTION 12.10. Cancellation of Converted Securities.............................................. 66
SECTION 12.11. Provisions in Case of Reclassification, Consolidation, Merger or Sale of
Assets............................................................................ 66
SECTION 12.12. Company's Obligation.............................................................. 66
SECTION 12.13. Responsibility of the Trustee for Conversion Procedures........................... 66
ARTICLE 13 Subordination......................................................................................... 67
SECTION 13.01. Securities Subordinate to Senior Indebtedness..................................... 67
SECTION 13.02. Payment over of Proceeds upon Dissolution, Etc.................................... 67
SECTION 13.03. No Payment When Senior Indebtedness in Default.................................... 68
SECTION 13.04. Payment Permitted If No Default................................................... 69
SECTION 13.05. Subrogation to Rights of Holders of Senior Indebtedness........................... 69
SECTION 13.06. Provisions Solely to Define Relative Rights....................................... 70
SECTION 13.07. Trustee to Effectuate Subordination............................................... 70
SECTION 13.08. No Waiver of Subordination Provisions............................................. 70
SECTION 13.09. Notice to Trustee................................................................. 71
SECTION 13.10. Reliance on Judicial Order or Certificate of Liquidating Agent.................... 72
SECTION 13.11. Trustee Not Fiduciary for Holders of Senior Indebtedness.......................... 72
SECTION 13.12. Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights.................................................................. 72
SECTION 13.13. Article Applicable to Paying Agents............................................... 72
SECTION 13.14. Certain Conversions Deemed Payment................................................ 73
SIGNATURES
EXHIBIT A - FORM OF SECURITY
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Exhibit (d)(30)
INDENTURE, dated as of ___, 2001, between INTERLIANT, INC., a Delaware
corporation (the "Company"), having its principal office at Two Xxxxxxxxxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and THE CHASE MANHATTAN BANK, a New
York corporation, as Trustee hereunder (the "Trustee"), having a corporate trust
office at 000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS OF THE COMPANY
The Company has duly authorized the issue of its 10% Convertible Senior
Notes due 2006, and to provide for such issuance, the Company has duly
authorized the execution and delivery of this Indenture.
Upon qualification of this Indenture under the Trust Indenture Act of
1939 (the "TIA"), it shall be subject to the provisions of such Act that are
deemed to be incorporated into this Indenture and shall, to the extent
applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all the Holders of the Securities, as
follows:
ARTICLE 1
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular,
and references to he or him or she or her are intended to be gender neutral;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein;
(3) the word "including" means "including without limitation;"
and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.05.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 4.01.
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"Board of Directors" means the board of directors of the Company, the
executive committee of that board or any committee of that board duly authorized
to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York
or, when used with respect to any Place of Payment, such Place of Payment, are
authorized or obligated by law, regulation or executive order to close.
"Capitalized Lease Obligations" mean, with respect to any Person, all
obligations and liabilities (contingent or otherwise) of such Person in respect
of leases required, in conformity with generally accepted accounting principles,
to be accounted for as capitalized lease obligations on the balance sheet of
such Person and all obligations and other liabilities, contingent or otherwise,
under any lease or related document, including, without limitation, the balance
deferred and unpaid on any purchase price of any property and a purchase
agreement in connection with the lease of real property that provides that such
Person is contractually obligated to purchase or cause a third party to purchase
the leased property and thereby guarantee a minimum residual value of the leased
property to the lessor and the obligations of such Person under such lease or
related document to purchase or to cause a third party to purchase such leased
property.
"Closing Date" means ______, 2001.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after execution of
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this instrument such Commission is not existing and performing substantially the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Stock" means the common stock of the Company, $0.01 par value,
as it exists on the date of this Indenture and any shares of any class or
classes of capital stock of the Company resulting from any reclassification or
reclassifications thereof.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chief Executive
Officer, Chief Financial Officer, the President or a Vice President of the
Company and delivered to the Trustee.
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article 12.
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"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business as it relates to this
Indenture shall be principally administered and as to which notice to that
effect has been delivered to the Company and the Holders in accordance with the
provisions hereof, which office at the date hereof is located at The Chase
Manhattan Bank, 450 West 33/rd/ Street, 00/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Institutional Trust Services (Interliant, Inc. 10% Convertible Senior
Notes due 2006).
"Corporation" means a corporation, association, partnership, company
(including limited liability company), joint-stock company or business trust.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Dollar" or "$" means a dollar or other equivalent unit in 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.
"DTC" means The Depository Trust Company.
"Existing Earnout Obligations" means obligations or liabilities of the
Company or its Subsidiaries incurred in connection with the acquisition by the
Company or a Subsidiary prior to the date of this Indenture of a particular
company or business that are payable on a deferred basis and are based primarily
upon the performance of such company or business after the date of its
acquisition by the Company or a Subsidiary.
"Government Obligations" means securities that are (i) direct
obligations of the United States of America, for the payment of which its full
faith and credit is pledged, or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
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of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means the Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, and without
duplication, (a) all indebtedness, obligations and other liabilities, contingent
or otherwise, of such Person for borrowed money (including obligations of such
Person in respect of overdrafts, foreign exchange contracts, currency exchange
or similar agreements, interest rate protection, hedging or similar agreements,
and any loans or advances from banks, whether or not evidenced by notes or
similar instruments) or evidenced by bonds, debentures, notes or similar
instruments (whether or not the recourse of the holder is to the whole of the
assets of such Person or to only a portion thereof), other than any account
payable or other accrued current liability or current obligation, in each case
not constituting indebtedness, obligations or other liabilities for borrowed
money and incurred in the ordinary course of business in connection with the
obtaining of materials or services; (b) all reimbursement obligations and other
liabilities, contingent or otherwise, of such Person with respect to letters of
credit, bank guarantees, bankers' acceptances, security purchase facilities or
similar credit transactions; (c) all obligations and liabilities, contingent or
otherwise, in respect of deferred and unpaid balances on any purchase price of
any property, other than any account payable or other accrued current liability
or current obligation, in each case not constituting indebtedness, obligations
or other liabilities for borrowed money and incurred in the ordinary course of
business in connection with the obtaining of materials or services; (d) all
Capitalized Lease Obligations; (e) all obligations of such Person, contingent or
otherwise, with respect to an interest rate or other swap, cap or collar
agreement or other similar instrument or agreement or foreign currency hedge,
exchange, purchase or similar instrument or agreement; (f) all direct or
indirect guarantees or similar agreements by such Person in respect of, and
obligations or liabilities, contingent or otherwise, of such Person to purchase
or otherwise acquire or otherwise assure a creditor against loss in respect of,
indebtedness, obligations or liabilities of another Person of the kind described
in clauses (a) through (e); (g) recourse or repurchase obligations arising in
connection with sales of assets in transactions that are in the nature of
asset-based financings, whether or not such transactions are treated as sales
under generally accepted accounting principles or bankruptcy, tax or other
applicable laws, where such recourse or repurchase obligations arise out of the
failure of such assets to provide the economic benefit to which the purchaser is
entitled under the agreements relating to such transactions; (h) any
indebtedness or other obligations described in clauses (a) through (g) secured
by any mortgage, pledge, lien or other encumbrance existing on property that is
owned or held by such Person, regardless of whether the indebtedness or other
obligation secured thereby shall have been assumed by such Person; and (i) any
and all deferrals, renewals, extensions, refinancing, replacements,
4
restatements and refundings of, or amendments, modifications or supplements to,
or any indebtedness or obligation issued in exchange for, any indebtedness,
obligation or liability of the kind described in clauses (a) through (h).
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means, with respect to any Security, the Stated
Maturity of an installment of interest on such Security.
"Maturity" means the date on which the principal of the Securities
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or upon conversion or by declaration of acceleration, notice of
redemption, notice of option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel for the
Company and who shall be reasonably satisfactory to the Trustee.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder, money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities that have been paid pursuant to Section 9.01
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or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
(iv) Securities converted into Common Stock pursuant to or in
accordance with this Indenture; and
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(v) Securities repurchased by delivery of shares of Common Stock
in accordance with Article 11;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities that the Trustee knows to
be so owned shall be so disregarded. Securities so owned that have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person (including the Company) authorized by
the Company to pay the principal of (and premium, if any) or interest required
to be paid in cash on any Securities on behalf of the Company.
"Permitted Holders" shall mean Web Hosting Organization LLC,
Charterhouse Group International, Inc., Charterhouse Equity Partners III, L.P.,
SOFTBANK Technology Ventures IV, L.P., WHO Management LLC and SOFTBANK
Technology Advisors Fund, L.P., SOFTBANK Technology Ventures VI L.P. and their
respective Affiliates (other than their other portfolio companies), including
any Person (other than their other portfolio companies) in which any of the
foregoing, individually or collectively, owns beneficially more than 50% of the
total voting power of the shares, interests, participations or other equivalents
of corporate stock, partnership or limited liability company interests or any
other participation, right or other interest in the nature of an equity interest
of such Person.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means the place or places where the principal of
(and premium, if any), interest required to be paid in cash on and the
Redemption Price and the Repurchase Price with respect to the Securities are
payable as specified by Section 9.02.
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"Predecessor Security" means, with respect to any Security, every
previous Security evidencing all or a portion of the same debt as that evidenced
by such Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.05 in exchange for or in lieu of a
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mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
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"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of ______, 2001, between the Company and the Initial
Purchasers, as such term is defined therein.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities means the date specified for that purpose as contemplated
by Section 3.06, whether or not a Business Day.
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"Responsible Officer," when used with respect to the Trustee, means any
officer in the Corporate Trust Office and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of such officer's knowledge and familiarity with the particular
subject.
"Rule 144A" shall mean Rule 144A as promulgated under the Securities
Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Security" means all 10% Convertible Senior Notes due 2006 issued
pursuant to this Indenture (including, without limitation, any Additional
Securities), all of which shall be in the form of Exhibit A attached hereto.
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"Senior Indebtedness" means the principal of, premium, if any, interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) and all other amounts
owed in respect of all (x) Capitalized Lease Obligations of the Company, (y)
Working Capital Indebtedness of the Company and (z) such other Indebtedness as
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall agree constitutes "Senior Indebtedness" under this
Indenture, in each case, whether outstanding on the date of this Indenture or
thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the
Company (including all deferrals, renewals, extensions, refinancings,
replacements, restatements or refundings of, or amendments, modifications or
supplements to, the foregoing); except for (i) any such Indebtedness that is by
its terms subordinated to or ranking equal with the Securities, (ii) any such
Indebtedness that is by its terms subordinated to any other Indebtedness or
other obligation, and (iii) any Indebtedness owed to a Subsidiary or an
Affiliate of the Company.
"Significant Subsidiary" means any Subsidiary that is a "significant
subsidiary" (as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities means a date fixed by the Trustee pursuant to Section 3.06.
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"Stated Maturity" means the date specified in the Securities as the
fixed date on which the principal of, or interest on, such Securities is due and
payable.
"Subsidiary" means a corporation a majority of the outstanding voting
securities of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries of the Company, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting securities"
means shares, interests, participations or other equivalents of corporate stock,
partnership or limited liability company interests or any other participation,
right or other interest in the nature of an equity interest that ordinarily have
voting power for the election of directors, managers or trustees, whether at all
times or only so long as no senior class of equity interest has such voting
power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
and the rules and regulations promulgated thereunder, as amended and in force on
the date this Indenture is qualified thereunder; provided, however, that in the
event the Trust Indenture Act of 1939 or such rules and regulations are amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 and such rules and regulations as so
amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"Working Capital Indebtedness" means any Indebtedness of the Company
that (i) is used solely for ordinary course of business working capital
purposes, (ii) is provided by one or more banks or other institutions that in
the ordinary course of their business make loans of the type made to the
Company, or by a strategic debt or equity investor in the Company, and (iii) is
on terms and conditions customary for working capital loans made by such banks,
institutions or strategic investors.
SECTION 1.02. Other Definitions.
Defined
Term in Section
"Additional Securities" ....................... 3.06
----
"Average Sale Price" .......................... 12.04
-----
"Change in Control" ........................... 11.05
-----
"Change in Control Purchase Notice" ........... 11.03
-----
"Closing Price" ............................... 12.03
-----
"Commencement Date" ........................... 12.04
-----
"Company Notice" .............................. 11.03
-----
"Conversion Price" ............................ 12.01
-----
8
"Conversion Rate" .......................... 12.01
-----
"Current Event" ............................ 12.04
-----
"Custodian" ................................ 4.01
----
"Defaulted Interest" ....................... 3.06
----
"Event of Default" ......................... 4.01
----
"Ex-Dividend Time" ......................... 12.04
-----
"Expiration Time" .......................... 12.04
-----
"Indemnities" .............................. 5.07
----
"Material Adverse Effect" .................. 9.04
----
"Notice of Default" ........................ 4.01
----
"Redemption" ............................... 10.01
-----
"Redemption Price" ......................... 10.01
-----
"Other Event" .............................. 12.04
-----
"Purchased Shares" ......................... 12.04
-----
"Redeemable Capital Stock" ................. 11.05
-----
"Reference Date" ........................... 12.04
-----
"Repurchase Date" .......................... 11.01
-----
"Repurchase Price" ......................... 11.01
-----
"Restricted Securities" .................... 3.04
----
"Security Register" ........................ 3.04
----
"Security Registrar" ....................... 3.04
----
"Senior Indebtedness Default Notice" ....... 13.03
-----
"Time of Determination" .................... 12.04
-----
"Trading Day" .............................. 12.03
-----
SECTION 1.03. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
9
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.04. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which such certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.05. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agents duly appointed in writing. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company and any
agent of the Trustee or the Company, if made in the manner provided in this
Section 1.05.
----
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
10
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of the Securities shall be proved by the Security
Register.
(d) (i) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, in or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to effect such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so; provided that the Company shall not
be entitled to set a record date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of any notice, declaration,
request or direction referred to in clause 1.05(d)(iii) below. Notwithstanding
------------
TIA Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be effected before or after such record date,
but only the Holders of record at the close of business on such record date
shall be deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(ii) Subject to clause 1.05(d)(iii) below, in the absence of any such
------------
record date fixed by the Company, regardless as to whether any solicitation of
the Holders is occurring on behalf of the Company or any Holder, the Trustee
may, at its option, fix in advance a record date for the determination of such
Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Trustee shall have no obligation to do so.
Any such record date shall be a date not more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no later than the
date of such solicitation.
(iii) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (A) any notice of default, (B) any declaration of acceleration
referred to in Section 4.02, (C) any request to institute proceedings referred
----
to in Section 4.07(b), or (D) any direction referred to in Section 4.12, and may
------- ----
also set an expiration date by which the relevant Act must be taken. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such Act shall be
effective hereunder unless taken on or prior to any applicable expiration date
by Holders of the requisite
11
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action (whereupon the record date previously set shall
automatically and without any action by any Person be canceled and of no
effect), nor shall anything in this paragraph be construed to render ineffective
any Act taken by Holders of the requisite principal amount of Outstanding
Securities on the date such Act is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed Act by Holders and the applicable
expiration date to be given to the Company in writing and to each Holder of
Outstanding Securities in the manner set forth in Section 1.07.
----
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Conversion Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 1.06. Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or other Act of Holders or
other notice or communication provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee, delivered in person, mailed by first class mail, postage
prepaid, or sent by facsimile or overnight courier, at its Corporate Trust
Office, Attention: Institutional Trust Services (Interliant, Inc. 10%
Convertible Senior Notes due 2006); provided that notices or other
communications to the Trustee shall only be deemed given when actually received
by the Trustee,
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and delivered in person, mailed by first class mail, postage prepaid, or
sent by facsimile or overnight courier, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
Indenture; provided that the Company may, by notice furnished in writing to the
Trustee, designate additional or different addresses for subsequent notices or
communications by the Company.
SECTION 1.07. Notice to Holders; Waiver. Where this Indenture provides for
notice of any event to Holders by the Company or the Trustee, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders given as provided herein. Any notice mailed to a Holder in the
12
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders as shall be made with the
approval of the Trustee shall constitute a sufficient notification to such
Holders for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this
Indenture or in any Security shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto, any Security Registrar, any Paying Agent, any Conversion Agent
and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities shall
be governed by and construed in accordance with the law of the State of New York
without regard to conflict of laws principles.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repurchase Date, Stated Maturity or Maturity of any
Security or the last date on which a Holder has the right to convert his
Securities shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security), payment
of Redemption Price, Repurchase Price, interest or principal (and premium, if
any), or conversion of the Securities, need not be made at such Place of Payment
on such date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on
13
the Interest Payment Date, Redemption Date, Repurchase Date or at the Stated
Maturity or Maturity or on such last day for conversion; provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repurchase Date, Stated Maturity or
Maturity or on such last day for conversion, as the case may be.
SECTION 1.14. Personal Immunity from Liability for Incorporators,
Stockholders, Etc. No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Security, or for any claim based
thereon, or otherwise in respect of any Security, or based on or in respect of
this Indenture or any indenture supplemental hereto, against any incorporator,
or against any past, present or future stockholder, director or officer, as
such, of the Company or of any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being expressly waived and released as
a condition of, and as consideration for, the execution of this Indenture and
the issue of Securities.
SECTION 1.15. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the TIA that is
required or deemed under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be. To the extent that any provision of a Security
conflicts with a provision in this Indenture, the provision of this Indenture
shall control.
ARTICLE 2
Securities Forms
SECTION 2.01. Forms of Securities. The Securities shall be in
substantially the form of Exhibit A hereto, and shall have such notations,
legends or endorsements required by law, stock exchange rule or usage (but which
shall not affect the rights or duties of the Trustee) or as otherwise indicated
in Exhibit A hereto and Section 3.04.
----
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities described in the within-mentioned
Indenture.
DATED: THE CHASE MANHATTAN BANK
as Trustee
By: _________________________________________
Authorized Signatory
14
SECTION 2.03. Securities Issuable in Global Form. Except as otherwise
provided in this Section 2.03 or in Section 3.04, the Securities shall be
---- ----
issuable only in global form and deposited with The Chase Manhattan Bank, at the
Corporate Trust Office, as custodian for DTC or the nominees thereof, and any
such Security shall represent such of the Outstanding Securities as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be increased or decreased to reflect exchanges and/or the payment of
interest that is payable in the form of Additional Securities. Any endorsement
of a Security in global form to reflect the amount, or any increase or decrease
in the amount, of Outstanding Securities represented thereby shall be made by
the Trustee in such manner and upon instructions given by such Person or Persons
as shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.03. Subject to the provisions of Section 3.03, the
---- ----
Trustee shall deliver and redeliver any Security in global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.03 has been,
----
or simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.03 and need not be accompanied by an
----
Opinion of Counsel.
The provisions of the last sentence of Section 3.03 shall apply to any
----
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 1.03 and need not be accompanied by an Opinion of Counsel)
----
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03.
----
Notwithstanding the provisions of Section 3.07, payment of principal of
----
and any premium and interest on any Security in global form shall be made to the
Person or Persons specified in such Security.
All Securities issued in global form shall bear the following legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
15
THE GLOBAL SECURITIES MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART,
ONLY TO A NOMINEE OF DTC, OR BY A NOMINEE OF DTC TO DTC, OR TO A SUCCESSOR TO
DTC FOR SUCH GLOBAL SECURITY SELECTED OR APPROVED BY THE COMPANY OR TO A NOMINEE
OF SUCH SUCCESSOR TO DTC.
ARTICLE 3
The Securities
SECTION 3.01. Title and Term. The Securities shall be and are hereby
authorized to be designated as "10% Convertible Senior Notes due 2006", limited
in aggregate principal amount to $54,600,000 plus the amount of any Additional
Securities issued pursuant to Section 3.06. The Securities shall mature and the
----
principal thereof shall be due and payable, together with all accrued and unpaid
interest thereon, on ________ __, 2006. The Securities shall be convertible into
shares of Common Stock to the extent and in the manner provided in Article 12.
--
SECTION 3.02. Denominations. The Securities shall be issuable in
denominations of $1.00 or integral multiples thereof. The Company shall not
issue any Securities (including Additional Securities) in any denomination of
less than $1.00 and the principal amount of any such Security to be issued shall
be rounded down to the nearest $1.00. All amounts not included in any Security
as a result of such Security being rounded down to the nearest $1.00 shall be
forever forfeited.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by the Chief Executive
Officer, the Chief Financial Officer, the President or a Vice President of the
Company. The signature of any of these individuals on the Securities may be a
manual or facsimile signature of such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of an individual
who was at any time the proper officer of the Company shall bind the Company,
notwithstanding that such individual shall have ceased to hold such office prior
to the authentication and delivery of such Securities or did not hold such
office at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, executed by the Company, to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section
2.02, duly executed by the Trustee by manual signature of an authorized
----
signatory, and such certificate upon any Security shall be conclusive evidence,
and the
16
only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.08 together
----
with a written statement (which need not comply with Section 1.03 and need not
----
be accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture, such
Security shall be deemed not to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.
SECTION 3.04. Registration, Registration of Transfer and Exchange.
(a) The Company shall cause to be kept at one of its offices or
agencies maintained pursuant to Section 9.02, a register for the Securities (the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Securities and
of transfers of the Securities. The Security Register shall be in written form
or any other form capable of being converted into written form within a
reasonable time. Said office or agency is hereby appointed as "Security
Registrar" for the purpose of registering the Securities and transfers of the
Securities on such Security Register as herein provided. In the event that the
Trustee shall not be Security Registrar, it shall have the right to examine the
Security Register at all reasonable times.
Subject to the provisions of this Section 3.04 and except as otherwise
----
provided in any Security, including any legend thereon, upon surrender for
registration of transfer of any Security at any office or agency of the Company
in a Place of Payment, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities, of any authorized denominations and of
a like aggregate principal amount, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 3.04, at the option of the
----
Holder, the Securities may be exchanged for other Securities, of any authorized
denomination or denominations and of a like aggregate principal amount,
containing identical terms and provisions, upon surrender of the Securities to
be exchanged at any such office or agency. Whenever any such Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, any global Security shall be
exchangeable only as provided in this paragraph. The depositary for the global
Securities shall be DTC, and the global Securities may be transferred, in whole
but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to
a successor to DTC for such global Security selected or approved by the Company
or to a nominee of such successor to DTC. If at any time DTC notifies the
Company that it is unwilling or unable to continue as depositary for the
applicable global Security or Securities or if at any time DTC ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, if so
required by applicable law or regulation, the Company shall appoint a successor
depositary with respect to such global Security or Securities. If (x) a
successor depositary for such global Security or Securities is not appointed by
the Company within 90 days after the Company receives such notice
17
or becomes aware of such unwillingness, inability or ineligibility, or (y) a
Default or an Event of Default has occurred and is continuing, or (z) the
Company, in its sole discretion, executes and delivers to the Trustee and the
Security Registrar an Officers' Certificate stating that definitive Securities
may be issued in exchange for interests in a global Security or Securities, then
the Company shall execute, and the Trustee shall authenticate and deliver,
definitive Securities of like rank, tenor and terms in definitive form,
registered in such names as DTC shall direct and bearing such legends as the
Company shall specify, in an aggregate principal amount equal to the principal
amount of such global Security or Securities. If a Security is issued in
exchange for any portion of a global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Security, but, subject to Section 3.06(c), will be
-------
payable on such Interest Payment Date or proposed date for payment, as the case
may be, only to the Person to whom interest in respect of such portion of such
global Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange or redemption shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 10.07 or 11.03(f) not involving any transfer.
----- --------
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security during a period
beginning at the opening of business 15 days before the date of the mailing of a
notice of redemption with respect to the Securities to be redeemed under Section
10.04 and ending at the close of business on the day of the mailing of the
-----
relevant notice of redemption, or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except, in the case
of any Security to be redeemed in part, the portion thereof not to be redeemed,
or (iii) to issue, register the transfer of or exchange any Security that has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
(b) Every Security that bears or is required under this Section
3.04(b) to bear the legend set forth in this Section 3.04(b) (together with any
------- -------
Common Stock issued upon conversion or
18
exchange of the Securities (including any exchange constituting payment of the
Repurchase Price for Securities pursuant to Article 11) and required to bear the
legend set forth in Section 3.04(c), collectively, the "Restricted Securities")
-------
shall be subject to the restrictions on transfer set forth in this Section
3.04(b) (including one of the legends set forth below), unless such restrictions
-------
on transfer shall be waived by written consent of the Company, and the holder of
each such Restricted Security, by such holder's acceptance thereof, agrees to be
bound by all such restrictions on transfer. As used in Sections 3.04(b) and
-------
3.04(c), the term "transfer" encompasses any sale, pledge, transfer or other
-------
disposition whatsoever of any Restricted Security.
Until two years after the original issuance date of any Security, any
certificate evidencing such Security (and all Securities issued in exchange
therefor or substitution thereof, other than Common Stock, if any, issued upon
conversion thereof or upon payment of the Repurchase Price therefor pursuant to
Article 11, which shall bear the legend set forth in Section 3.04(c), if
-------
applicable) shall bear a legend in substantially the following form (unless such
Securities have been transferred pursuant to a registration statement that has
been declared effective under the Securities Act (and which continues to be
effective at the time of such transfer), pursuant to the exemption from
registration provided by Rule 144 under the Securities Act, or unless otherwise
agreed by the Company in writing, with notice thereof to the Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT); (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE
SECURITY EVIDENCED HEREBY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OR EXCHANGE OF SUCH SECURITY
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)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER
19
AND SUBMIT THIS CERTIFICATE TO THE CHASE MANHATTAN BANK, AS TRUSTEE. IF THE
PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE CHASE MANHATTAN BANK, 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 EARLIER
OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(C) OR 2(D)
ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY
EVIDENCED HEREBY.
Any Security (or Security issued in exchange or substitution therefor) as
to which such restrictions on transfer shall have expired in accordance with
their terms may, upon surrender of such Security for exchange to the Security
Registrar in accordance with the provisions of this Section 3.04, be exchanged
----
for a new Security or Securities, of like tenor and aggregate principal amount,
which shall not bear the restrictive legend required by this Section 3.04(b).
-------
At such time as all interests in the global Security have been redeemed,
converted, canceled, repurchased or transferred, the global Security shall be,
upon receipt thereof, canceled by the Trustee in accordance with standing
procedures and instructions existing between the depositary and the custodian.
(c) Until two years after the original issuance date of any Security,
any stock certificate representing Common Stock issued upon conversion or
exchange of such Security (including any exchange constituting payment of the
Repurchase Price for any Securities pursuant to Article 11) shall bear a legend
in substantially the following form (unless such Common Stock has been sold
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act or pursuant to a registration statement that has been declared
effective under the Securities Act, and which continues to be effective at the
time of such transfer, or such Common Stock has been issued upon conversion or
exchange of Securities that have been transferred pursuant to a registration
statement that has been declared effective under the Securities Act, or unless
otherwise agreed by the Company with written notice thereof to the Trustee and
any transfer agent for the Common Stock):
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER THE COMMON STOCK EVIDENCED HEREBY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL THE EXPIRATION OF TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE CONVERSION OR EXCHANGE OF WHICH
THE COMMON STOCK EVIDENCED HEREBY WAS ISSUED, (1) IT WILL NOT RESELL OR
OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY
20
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
COMPLIANCE WITH RULE 144A, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (D) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2)
PRIOR TO ANY SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(D)
ABOVE), IT WILL FURNISH TO AMERICAN STOCK TRANSFER AND TRUST COMPANY, AS
TRANSFER AGENT, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL DELIVER TO EACH
PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 1(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE 1(C) OR 1(D) ABOVE OR THE
EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE
CONVERSION OR EXCHANGE OF WHICH THE COMMON STOCK EVIDENCED HEREBY WAS ISSUED.
Any such Common Stock as to which such restrictions on transfer shall have
expired in accordance with their terms may, upon surrender of the certificates
representing such shares of Common Stock for exchange in accordance with the
procedures of the transfer agent for the Common Stock, be exchanged for a new
certificate or certificates for a like aggregate number of shares of Common
Stock, which shall not bear the restrictive legend required by this Section
3.04(c).
--------
(d) Any Security or Common Stock issued upon the conversion or
exchange of a Security that, prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), is purchased or owned by the Company or any Affiliate
thereof may not be resold by the Company or such Affiliate unless registered
under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction that results in
such Securities or Common Stock, as the case may be, no longer being "restricted
securities" (as defined under Rule 144).
(e) Notwithstanding any provision of Section 3.04 to the contrary, in
----
the event Rule 144(k) as promulgated under the Securities Act (or any successor
rule) is amended to change the two-year period under Rule 144(k) (or the
corresponding period under any successor rule), from and after receipt by the
Trustee of the Officers' Certificate and Opinion of Counsel provided for in this
Section 3.04(e), (i) each reference in Section 3.04(b) to "two years" and in the
------- -------
restrictive legend set forth in such paragraph to "TWO YEARS" shall be deemed
for all purposes hereof to be references to such changed period, (ii) each
reference in Section 3.04(c) to "two years" and in the restrictive legend set
-------
forth in such paragraph to "TWO YEARS" shall be deemed for all purposes
21
hereof to be references to such changed period and (iii) all corresponding
references in the Securities and the restrictive legends thereon shall be deemed
for all purposes hereof to be references to such changed period, provided that
such changes shall not become effective if they are otherwise prohibited by, or
would otherwise cause a violation of, the then-applicable federal securities
laws. As soon as practicable after the Company has knowledge of the
effectiveness of any such amendment to change the two-year period under Rule
144(k) (or the corresponding period under any successor rule), unless such
changes would otherwise be prohibited by, or would otherwise cause a violation
of, the then-applicable securities law, the Company shall provide to the Trustee
an Officers' Certificate and Opinion of Counsel informing the Trustee of the
effectiveness of such amendment and the effectiveness of the foregoing changes
to Sections 3.04(b) and 3.04(c) and the Securities. The provisions of this
------- -------
Section 3.04(e) shall not be effective until such time as the Opinion of Counsel
-------
and Officers' Certificate have been received by the Trustee hereunder. This
Section 3.04(e) shall apply to successive amendments to Rule 144(k) (or any
-------
successor rule) changing the holding period thereunder.
SECTION 3.05. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee or the Company, the Company
shall, at the relevant Holder's expense, execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company, at the relevant Holder's expense, shall execute, and
upon the Company's request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the same
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding, appertaining to such destroyed, lost or
stolen Security.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security, shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
22
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.06. Payment of Interest; Interest Rights Preserved.
(a) Subject to Section 3.06(c), interest on any Security that is
-------
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest payment at the office or agency of the Company
maintained for such purpose pursuant to Section 9.02; provided, however, that
----
each installment of interest on any Security may at the Company's option be paid
by (i) mailing a check for such interest, payable to or upon the written order
of the Person entitled thereto pursuant to Section 3.07, to the address of such
----
Person as it appears on the Security Register or (ii) transfer to an account
maintained by the payee located inside the United States; provided, however,
that payments to DTC shall be made by wire transfer of immediately available
funds to the account of DTC or its nominee. The term "Regular Record Date" with
respect to any Interest Payment Date shall mean the ___________ [__] or
__________ [__] preceding __________ [__] or __________ [__], respectively.
(b) Any interest on any Security that is required to be paid in cash,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause 3.06(b)(i) or 3.06(b)(ii)
---------- -----------
below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment (which shall not be less than 30 days after such notice
is received by the Trustee) and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities at his address as it appears in the Security Register not
less than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once
23
in an Authorized Newspaper in each Place of Payment, but such publications shall
not be a condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(ii).
----
(ii) The Company may make payment of any Defaulted Interest on
the Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
(c) Notwithstanding anything to the contrary contained in this
Indenture, the Company may at its option and in its sole discretion pay any or
all of the interest payable in respect of any Security on any Interest Payment
Date (other than the Interest Payment Date occurring upon Maturity of the
Securities) by means of the issuance of an additional Security (an "Additional
Security") containing identical terms and conditions as the Securities but dated
the date of such Interest Payment Date, each in an authorized denomination in an
aggregate principal amount equal to the amount of such interest. Absent a
written notice by the Company to the Trustee no later than 30 days prior to any
applicable Interest Payment Date by which the Company elects to make the
interest payment due on such Interest Payment Date in cash, the Company shall be
deemed to have elected to make the interest payment due on such Interest Payment
Date by means of the issuance of Additional Securities. An election to make an
interest payment in cash shall be irrevocable and, upon the making of any such
election, the applicable interest payment shall be required to be paid in cash.
Additional Securities shall be deemed to be Securities for all purposes of this
Indenture and Additional Securities and Securities shall be treated as one and
the same class. On or before each Interest Payment Date with respect to which
the Company shall not have elected to make the interest payment in cash, the
Company shall deliver to the Trustee a Company Order that (i) sets forth the
appropriate endorsement to be made to Securities held in global form to reflect
an increase in the amount of such Security to reflect the payment of interest
under this Section 3.06(c) and (ii) to the extent applicable,
-------
accompanies Additional Securities, executed by the Company, to be authenticated
and delivered to Holders of Securities not held in global form in accordance
with Section 3.03. The delivery of any such Company Order to the Trustee shall
----
constitute payment of such interest for all purposes under this Indenture
and otherwise.
(d) Each Additional Security is an additional obligation of the
Company and shall be governed by, and entitled to the benefits of, this
Indenture and shall be subject to the terms of this Indenture and shall rank
pari passu with and be subject to the same terms (including the rate of interest
from time to time payable thereon) as all other Securities (except, as the case
may be, with respect to the issuance date and aggregate principal amount) and
subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
24
SECTION 3.07. Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Sections 3.04 and 3.06)
---- ----
interest on, such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, 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 any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as a
Holder of such global Security.
SECTION 3.08. Cancellation. All Securities surrendered for payment,
redemption, repayment at the option of the Holder or registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder that the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. Canceled Securities held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company, unless by a Company Order the Company directs their
return to it.
SECTION 3.09. Computation of Interest. Interest on the Securities shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 3.10. CUSIP Numbers. The Company in issuing the Securities shall
use "CUSIP" numbers, and the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; provided however, that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers
25
printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company shall promptly notify the
Trustee of any change in the CUSIP numbers applicable to the Securities.
ARTICLE 4
Remedies
SECTION 4.01. Events of Default. "Event of Default," wherever used herein
with respect to the Securities, means any one of the following events (whatever
the reason for such Event of Default and whether or not it shall be occasioned
by the provisions of Article 13 or be voluntary or involuntary or be effected by
--
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security, when
such interest becomes due and payable, and continuance of such default for a
period of 30 days (whether or not such payment is prohibited by the provisions
of Article 13); or
--
(b) default in the payment of (i) the principal of (or premium, if
any, on) any Security when it becomes due and payable at its Maturity, or (ii)
the Redemption Price with respect to any Security when it becomes due and
payable (whether or not such payment is prohibited by the provisions of Article
13); or
--
(c) default in the payment of the Repurchase Price in respect of any
Security on the Repurchase Date therefor (whether or not such payment is
prohibited by the provisions of Article 13); or
--
(d) failure by the Company to give the Company Notice in accordance
with Section 11.03(a) to all Holders of Outstanding Securities and to --------
the Trustee, or failure by the Company to comply with its covenants set forth in
Section 11.03(b); or
--------
(e) failure by the Company to deliver shares of Common Stock (together
with cash in lieu of fractional shares) when such Common Stock (or cash in lieu
of fractional shares) is required to be delivered following conversion of a
Security and continuation of such default for a period of 10 days; or
(f) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Security (other than a
covenant or warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with) and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding Securities
a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
26
(g) a default under any bonds, debentures, notes or other evidences
of indebtedness for money borrowed (which term shall not include Capitalized
Lease Obligations and equipment leases existing as of the Closing Date) of the
Company or any Significant Subsidiary or under any mortgages, indentures or
instruments under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company or any Significant
Subsidiary, whether such indebtedness now exists or shall hereafter be created,
which indebtedness, individually or in the aggregate, has a principal amount
outstanding in excess of $10,000,000, which default shall have resulted in such
indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or annulled,
within a period of 60 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Securities then
Outstanding, a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
hereunder (unless such default has been cured or waived); provided, however,
-------- -------
that none of the Company's 7% Convertible Subordinated Notes Due 2005 which are
held by any Holder or any Affiliate of any Holder shall be counted in
determining whether the threshold of $10,000,000 principal amount of outstanding
indebtedness set forth above has been exceeded, or
(h) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors; or
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(ii) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of the property of any of them, or
(iii) orders the winding up or liquidation of the Company or any
Significant Subsidiary,
27
and the order or decree remains unstayed and in effect for 60 days.
As used in this Section 4.01 only, the term "Bankruptcy Law" means title
----
11, U.S. Code or any similar Federal or State law for the relief of debtors and
the term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 4.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities at the time Outstanding occurs and
is continuing, then and in every such case the Trustee, or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities, may
declare the principal of all the Securities, and accrued interest thereon to the
date of such declaration, to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal and interest shall become immediately due
and payable. If an Event of Default specified in Section 4.01(h) or Section
------------------
4.01(i) occurs, the principal of, and accrued interest on, all the Securities
-------
shall automatically, and without any declaration or other action on the part of
the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to the
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter provided in this
Article, the Holders of a majority in aggregate principal amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest on all Outstanding
Securities,
(ii) the principal of (and premium, if any, on) any Outstanding
Securities that have become due otherwise than by reason of such declaration of
acceleration and interest thereon at the rate or rates borne by or provided for
in such Securities,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates borne by or
provided for in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(b) all Events of Default with respect to the Securities, other than
the nonpayment of the principal of (or premium, if any) or interest on
Securities which have become due solely by reason of such declaration of
acceleration, have been cured or waived as provided in Section 4.13.
----
No such rescission shall affect any subsequent Default or Event of Default
or impair any right in respect thereof.
28
SECTION 4.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(a) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Security at its Maturity,
then the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, with
interest upon any overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installments of interest, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 4.04. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or the Company's, or any such other obligor's,
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by acceleration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities, of principal (and premium, if
any) and interest, owing and unpaid in respect of the Securities 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
29
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby directed by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall request or consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee and any
predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 5.07.
----
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security, any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security in any
such proceeding; provided however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors' or other similar committee.
SECTION 4.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or any of the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 4.06. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 5.07;
----
SECOND: To the holders of Senior Indebtedness to the extent required by the
provisions of Article 13.
--
THIRD: To the payment of the amounts then due and unpaid upon the
Securities for principal (and premium, if any) and interest payable, in respect
of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
30
aggregate amounts due and payable on such Securities for principal (and premium,
if any) and, interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company.
SECTION 4.07. Limitation on Suits. No Holder of any Security shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities;
(b) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of security or indemnity has failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 4.08. Unconditional Right of Holders to Receive Principal, Premium,
If Any, and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, and premium, if any,
including the Redemption Price upon redemption pursuant to Article 10, the
--
Repurchase Prices pursuant to Article 11 and (subject to Sections 3.04 and 3.06)
-- ---- ----
interest on such Security on the respective due dates expressed in such Security
(or, in the case of redemption or repurchase, on the Redemption Date or
Repurchase Date, as the case may be) and to convert such Security in accordance
with the provisions of this Indenture and to institute suit for the enforcement
of any such payment and right to convert, and such rights shall not be impaired
or adversely affected without the consent of such Holder.
31
SECTION 4.09. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, the Company, the Trustee and the
Holders of Securities shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 4.10. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.05, no right or remedy
----
herein conferred upon or reserved to the Trustee or to the Holders of Securities
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 4.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities, as the case may be.
SECTION 4.12. Control by Holders of Securities. The Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities, provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction, and
(c) the Trustee need not take any action that might involve it in
personal liability or be unduly prejudicial to the Holders of Securities not
joining therein.
SECTION 4.13. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past Default or Event of
Default hereunder with respect to such Securities and its consequences, except a
Default or Event of Default:
(a) in the payment of the principal of (or premium, if any) or
interest on any Security,
32
(b) in respect of the conversion by the Company of any Security into
Common Stock,
(c) in the payment of the Redemption Prices pursuant to Article 10,
--
(d) in the payment of the Repurchase Price pursuant to Article 11, or
--
(e) in respect of a covenant or provision hereof that under Article 8
-
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such Default or Event of Default shall cease to
exist, and any Event of Default arising from any such Default shall be deemed to
have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
SECTION 4.14. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 4.15. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by the Company, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any), including the Redemption Price upon redemption pursuant to
Article 10, the Repurchased Price pursuant to Article 11 and/or interest on any
--
Security on or after the respective Stated Maturities expressed in such Security
(or, in the case of redemption or repurchase, on or after the Redemption Date or
the Repurchase Date, respectively), or the right to convert any Security in
accordance with Article 12.
--
33
ARTICLE 5
The Trustee
SECTION 5.01. General. The Trustee, prior to the occurrence of an Event
of Default and after the curing of all Events of Default that may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived), the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct except that:
(i) this sentence shall not be construed to limit the effect of
this Section 5.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers or for any action it takes or omits to take in accordance with
the written direction of the Holders of a majority in aggregate principal amount
of the Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
SECTION 5.02. Certain Rights of Trustee. Subject to TIA Sections 315(a)
through (d):
(a) the Trustee may rely, and shall be protected in acting or
refraining from acting, upon any resolution, certificate, statement, instrument,
facsimile transmission, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, made or presented
by the proper person, and may accept and rely upon the same as conclusive
evidence of
34
the truth and accuracy of the statements and opinions contained therein. The
Trustee need not investigate any fact or matter stated in any such document;
(b) before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
Section 1.03. The Trustee shall not be liable for any action it takes or omits
----
to take in good faith in reliance on such certificate or opinion;
(c) the Trustee may consult with counsel, and the advice of such
counsel shall be full and complete authorization and protection with respect to
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon, and may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any attorney or agent appointed
with due care;
(d) 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, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in complying with such request or direction;
(e) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company personally or by agent or attorney;
(g) the Trustee shall not be required to take notice or be deemed to
have notice of any Default or Event of Default unless the Trustee be
specifically notified of such Default or Event of Default in writing by the
Company or any Holder, and in the absence of such notice the Trustee may
conclusively assume that there is no Default or Event of Default; provided that
if the Trustee is acting as Paying Agent, the Trustee shall be required to take
and be deemed to have notice of its failure to receive payments of interest or
principal hereunder;
(h) except for information provided by the Trustee concerning the
Trustee, the Trustee shall have no responsibility with respect to any
information in any offering memorandum or other disclosure material distributed
with respect to the Securities, and the Trustee shall have no responsibility for
compliance with securities laws in connection with the issuance and sale of the
Securities;
35
(i) in the event the Trustee shall receive inconsistent or conflicting
requests and security or indemnity from two or more groups of Holders, each
representing at least 25% (but less than 50%) of the aggregate principal amount
of the Securities then Outstanding, the Trustee shall act in accordance with
instructions received by the Holders of the greater percentage thereof;
(j) except as otherwise expressly provided by the provisions of this
Indenture, the Trustee shall not be obligated, and may not be required, to give
or furnish any notice, demand, report, request, reply, statement, advice or
opinion to any Holder or to the Company or any other Person, and the Trustee
shall not incur any liability for its failure or refusal to give or furnish the
same unless obligated or required to do so by the express provisions hereof;
(k) the Trustee shall not be required to give any bond or surety with
respect to the performance of its duties or the exercise of its powers under
this Indenture; and
(l) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution.
SECTION 5.03. Individual Rights of Trustee. The Trustee, any Paying Agent,
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company, its Subsidiaries or its Affiliates with the same rights
it would have if it were not the Trustee, Paying Agent, Security Registrar or
such other agent. Any registrar, co-registrar, paying agent, conversion agent or
authenticating agent may do the same with like rights. However, upon
qualification of this Indenture under the TIA, the Trustee shall be subject to
TIA Sections 310(b) and 311.
SECTION 5.04. Trustee's Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the
Securities, (ii) shall not be accountable for the Company's use or application
of the proceeds from the Securities and (iii) shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 5.05. Notice of Default. If any Event of Default occurs and is
continuing and if the Trustee has actual knowledge of such Event of Default, the
Trustee shall mail to each Holder in the manner and to the extent provided in
TIA Section 313(c) notice of the Event of Default within 90 days after it
occurs, unless such Event of Default has been cured or waived; provided,
however, that, except in the case of a Default in the payment of the principal
of (or premium, if any) or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities; and provided further that in the
case of any Default or breach referred to in Section 4.01(e) with respect to the
-------
Securities, no such notice to Holders shall be given until at least 90 days
after the occurrence thereof.
SECTION 5.06. Conflicting Interests of Trustee. If the Trustee has or shall
acquire a conflicting interest within the meaning of the TIA, the Trustee shall
either eliminate such interest or
36
resign, to the extent and in the manner provided by, and subject to the
provisions of, the TIA and this Indenture.
SECTION 5.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time such compensation as shall be agreed upon in writing
for its services. The compensation of the Trustee shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee in accordance with
this Indenture. Such expenses shall include the reasonable compensation,
expenses, disbursements and advances of the Trustee's agents and counsel.
The Company shall indemnify and hold harmless the Trustee and its
directors, agents and employees (collectively the "Indemnitees") against any and
all losses, liabilities, obligations, damages, penalties, fines, judgments,
actions, suits, proceedings, reasonable costs and expenses (including reasonable
fees and disbursements of counsel) of any kind whatsoever that may be incurred
by or imposed on the Indemnities or any of them arising out of or in connection
with the acceptance or administration of the Trustee's duties under this
Indenture, 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; provided, however, that the Company need not
reimburse any expense or indemnify against any loss, obligation, damage,
penalty, fine, judgment, action, suit, proceeding, reasonable cost or expense
(including reasonable fees and disbursements of counsel) of any kind whatsoever
that may be incurred by Indemnitees or any of them which results from the
negligence or willful misconduct of the Indemnitees or any of them. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder, unless the Company is materially prejudiced thereby.
The Company shall defend the claim, and the Trustee shall cooperate in the
defense. Unless otherwise set forth herein, the Indemnitees or any of them may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. The provisions of
this Section 5.07 shall survive the termination of this Indenture and the
----
resignation or removal of the Trustee for any reason.
To secure the Company's payment obligations in this Section 5.07, the
----
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of, premium, if any, and interest on
particular Securities.
If the Trustee incurs expenses or renders services after the occurrence of
an Event of Default specified in Section 4.01(h) or Section 4.01(i), such
------- -------
expenses, and the compensation due to the Trustee for such services, are
intended to constitute expenses of administration under Title 11 of the United
States Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
SECTION 5.08. Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
5.08.
----
37
The Trustee may resign at any time by so notifying the Company in writing
at least thirty days prior to the date of the proposed resignation. The Holders
of a majority in aggregate principal amount of the Outstanding Securities may at
any time, by written notice to the Trustee and the Company, remove the Trustee
and appoint a successor Trustee with the prior consent of the Company. The
Company may remove the Trustee if: (i) the Trustee is no longer eligible under
Section 5.10; (ii) the Trustee is adjudged a bankrupt or an insolvent; (iii) a
----
receiver or other public officer takes charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee is removed without the concurrent appointment by the Holders
of a successor Trustee, if the Trustee resigns, or if a vacancy exists in the
office of Trustee for any other reason, the Company shall promptly appoint a
successor Trustee. If no successor Trustee has delivered its written acceptance
required by the next succeeding paragraph of this Section 5.08 within thirty
----
days after the retiring Trustee delivers notice of its resignation or is
removed, or after the occurrence of a vacancy in the office of Trustee for any
other reason, the retiring Trustee, the Company or the Holders of a majority in
aggregate principal amount of the Outstanding Securities may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after the delivery of
such written acceptance, subject to the lien provided in Section 5.07, (i) the
----
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, (ii) the resignation or removal of the retiring Trustee shall
become effective and (iii) the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture.
If the Trustee is no longer eligible under Section 5.10, any Holder who
----
satisfies the requirements of TIA Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
The Company shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section 5.08,
----
the Company's obligations under Section 5.07 shall continue for the benefit of
----
the retiring Trustee.
SECTION 5.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business (including the administration of this
Indenture) to, another corporation or national banking association, the
resulting, surviving or transferee corporation or national banking association,
without any further act, shall be the successor Trustee with the same effect as
if the successor Trustee had been named as the Trustee herein.
SECTION 5.10. Eligibility. This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1). The Trustee (or the bank
holding company to which the
38
Trustee is a member) shall have a combined capital and surplus of at least $25
million as set forth in its most recent published annual report of condition.
SECTION 5.11. Money Held in Trust. Subject to the provisions of Section
9.03 and Sections 13.02, 13.03 and 13.09, all monies received by the Trustee
---- ----- ----- -----
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 5.12. Preferential Collection of Claims. If and when the Trustee
shall be or become a creditor of the Company (or any other obligor upon the
Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company (or any
such other obligor).
SECTION 5.13. Trustee's Application for Instructions from the Company;
Liquidated Damages. (a) Any application by the Trustee for written instructions
from the Company (other than with regard to any action proposed to be taken or
omitted to be taken by the Trustee that affects the rights of the Holders or
holders of Senior Indebtedness under this Indenture, including, without
limitation, under Article 13 hereof) may, at the option of the Trustee, set
--
forth in writing any action proposed to be taken or omitted by the Trustee under
this Indenture and the date on and/or after which such action shall be taken or
such omission shall be effective. The Trustee shall not be liable for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than ten Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such action
(or the effective date in the case of an omission), the Trustee shall have
received written instructions in response to such application specifying the
action to be taken or omitted.
(b) If liquidated damages are payable to Holders pursuant to the
terms of the Registration Rights Agreement, the Company shall deliver to the
Trustee a certificate to that effect stating (i) the amount of such liquidated
damages that is payable and (ii) the date on which such amount of liquidated
damages is payable. Unless and until a Responsible Officer of the Trustee
receives at the Corporate Trust Office such a certificate, the Trustee may
assume without inquiry that no such liquidated damages are payable. Upon receipt
of a Company Request together with a sum sufficient to pay such liquidated
damages so becoming due, the Trustee shall pay such liquidated damages to the
Holders in the same manner as interest on the Securities. If the Company has
paid liquidated damages directly to the Persons entitled to them, the Company
shall deliver to the Trustee a certificate setting forth the particulars of such
payment.
39
ARTICLE 6
Holders' Lists and Reports By Trustee and Company
SECTION 6.01. Disclosure of Names and Addresses of Holders. Every Holder
of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company or the Trustee, nor any Paying Agent or any
Security Registrar, shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 6.02. Reports by Trustee. Within 60 days after May 15 of each
year, commencing with the first May 15 to occur after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c), if required by TIA
Section 313(a), a brief report dated as of such May 15. A copy of each such
report shall at the time of such transmission to Holders be filed by the Trustee
with the Company.
SECTION 6.03. Reports by Company. The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file with the
Commission pursuant to Sections 13(a) or 13(b) or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to any of such Sections, then it
shall file with the Trustee, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(c) file with the Trustee and the Commission, if applicable, and
transmit by mail to the Holders, within thirty days after the filing thereof
with the Trustee, in the manner and to the extent provided in TIA Section
313(c), such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission and such other information as may be required pursuant to the TIA, at
the time and in the manner provided pursuant to such Act.
40
SECTION 6.04. Company to Furnish Trustee Names and Addresses of Holders.
(a) The Company shall furnish or cause to be furnished to the Trustee:
(i) semi-annually, not later than 10 days after the Regular
Record Date for the payment of interest on the Securities, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date; and
(ii) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
(b) The Company shall provide the Trustee with at least thirty days'
prior notice of any change in location of its principal executive offices or
other principal place of business.
ARTICLE 7
Consolidation, MERGER, Sale, Lease or Conveyance
SECTION 7.01. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions. The Company may consolidate
with, or sell, lease, transfer, convey or otherwise dispose of all or
substantially all of its assets to, or merge with or into any other Person,
provided however, that in any such case, (1) either the Company shall be the
continuing corporation, or the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person that acquires or
leases the Company's assets substantially as an entirety is a corporation
organized and existing under the laws of any United States jurisdiction and
expressly assumes the due and punctual payment of the principal of (and premium,
if any) and any interest payable pursuant to this Indenture on all of the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company and shall have provided for conversion rights, if
applicable, in accordance with the provisions of Article 12 hereof, by --
supplemental indenture, complying with Article 8 hereof, satisfactory to the -
Trustee, executed and delivered to the Trustee by such Person and (2)
immediately after giving effect to such transaction, no Default or Event of
Default, shall have occurred and be continuing. For purposes of the foregoing,
the transfer (by lease, assignment, sale or otherwise) of the properties and
assets of one or more Subsidiaries (other than to the Company or a wholly-owned
Subsidiary), which, if such assets were owned by the Company, would constitute
all or substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
SECTION 7.02. Rights and Duties of Successor Corporation. In case of any
such consolidation, merger, sale, lease, conveyance or other disposition and
upon any such assumption by the successor Person, such successor Person shall
succeed to and be substituted for the Company,
41
with the same effect as if it had been named herein as the party of the first
part, and the predecessor Person, except in the event of a lease, shall be
relieved of any further obligation under this Indenture and the Securities. Such
successor Person thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Securities issuable
hereunder that theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor Person, instead
of the Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities that previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities that such
successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease, conveyance or other
disposition, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 7.03. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease, transfer, conveyance or other disposition
permitted under Section 7.01 is also subject to the condition that the Trustee
----
receive an Officers' Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease, transfer, conveyance or other
disposition complies with the provisions of this Article.
ARTICLE 8
Supplemental Indentures
SECTION 8.01. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders of Securities, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
contained herein and the Securities issued hereunder;
(b) to add to the covenants of the Company for the equal and
ratable benefit of the Holders or to surrender any right, power or option herein
conferred upon the Company;
(c) to add any Events of Default for the benefit of the Holders;
provided, however, that in respect of any such additional Events of Default 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 Event
42
of Default, or may limit the remedies available to the Trustee upon such Event
of Default or limit the right of the Holders of a majority in aggregate
principal amount of those Securities to which such additional Events of Default
apply to waive such default;
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;
(e) to cure any ambiguity or to correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein;
provided such provisions shall not adversely affect the interests of the Holders
of Securities in any material respect;
(f) to make any change that does not adversely affect the rights of
any Holder of Securities;
(g) to make any change to comply with any requirement of the
Commission in connection with the qualification of this Indenture under TIA; or
(h) to provide for the issuance of uncertificated Securities in
addition to or in place of certificated Securities; provided, however that the
uncertificated Securities are issued in registered form for purposes of Section
163(f) of the Internal Revenue Code of 1986.
SECTION 8.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) reduce the principal amount, Repurchase Price or Redemption Price
with respect to any Security, or extend the Stated Maturity of any Security or
alter the manner of payment or rate of interest on any Security or make any
Security payable in money or securities other than that stated in the Security;
(b) reduce the percentage in principal amount of the Outstanding
Securities the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver with
respect to Securities (or for any waiver of compliance with certain provisions
of this Indenture or certain Defaults or Events of Default and their
consequences);
(c) make any change that adversely affects the right to convert any
Security;
43
(d) modify the provisions of this Indenture relating to the ranking of
the Securities in a manner adverse to the Holders of the Securities; or
(e) impair the right to institute suit for the enforcement of any
payment with respect to, or conversion of, the Securities.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 8.03. Execution of Supplemental Indenture. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Article 5)
- shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 8.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 8.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 8.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE 9
COVENANTS
SECTION 9.01. Payment of Principal, Premium, If Any, and Interest. The
Company covenants and agrees for the benefit of the Holders of Securities that
it shall duly and punctually pay the principal of (and premium, if any),
interest on, and the Repurchase Price, and the Redemption Price with respect to,
the Securities in accordance with the terms of the Securities and this
Indenture, including, without limitation, Section 3.06(c). At the option of the
-------
Company, all payments of
44
principal with respect to any Security may be paid by check to the registered
Holder of the Security or other Person entitled thereto against surrender of
such Security. The conversion of any Securities pursuant to Article 12 hereof
--
and payment of the Repurchase Price by delivery of shares of Common Stock in
accordance with Article 11, together with the making of any cash payments
required to be made in accordance with the terms of the Securities and this
Indenture, shall satisfy the Company's obligations under this Section 9.01 with
----
respect to such Securities.
SECTION 9.02. Maintenance of Office or Agency. The Company shall maintain a
Place of Payment for the Securities in the Borough of Manhattan, The City of New
York, which shall be an office or agency where the Securities may be presented
or surrendered for payment or conversion, exchange or redemption, where the
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office shall initially be such
office or agency of the Company, unless and until the Company shall designate
and maintain some other office or agency for one or more of such purposes. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices or
agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all of such purposes, and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 9.03. Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any
Securities, it shall, on or before each due date of the principal of (and
premium, if any), or interest required to be paid in cash on, the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest required
to be paid in cash so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and shall promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it shall, before each due date of the principal of (and premium, if
any), or interest required to be paid in cash on, the Securities, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest required to be paid in cash so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest required to be paid in cash and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of its action or failure
so to act.
45
The Company shall cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument pursuant to which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of principal of (and premium,
if any,) or interest required to be paid in cash on the Securities, in trust for
the benefit of the Persons entitled thereto, until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any such payment of principal (and
premium, if any) or interest required to be paid in cash; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest required to be paid in cash on any Security and remaining unclaimed
for two years after such principal (and premium, if any) or interest required to
be paid in cash has become due and payable shall be paid to the Company upon
Company Request or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such principal of (and
premium, if any) or interest required to be paid in cash on any Security,
without interest thereon, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining shall be repaid to the
Company.
SECTION 9.04. Existence. Subject to Article 7, the Company shall do or
-
cause to be done all things necessary to preserve and keep in full force and
effect the corporate existence of the Company and its Subsidiaries, and their
respective rights (charter and statutory) and franchises, except to the extent
that the Board of Directors shall determine that the failure to do so would not
have a material adverse effect on the business, assets, financial condition or
results of operation of the Company (a "Material Adverse Effect"); provided,
however, that the Company shall not be required to preserve any right or
franchise if the Board of Directors shall determine that the
46
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 9.05. Payment of Taxes and Other Claims. The Company shall pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary and have a Material Adverse Effect; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim, the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings.
SECTION 9.06. Statement as to Compliance; Notice of Default. The Company
shall deliver to the Trustee, within 120 days after the end of each fiscal year
of the Company, a certificate from the Company's Chief Executive Officer, Chief
Financial Officer or principal accounting officer as to his or her knowledge of
the Company's compliance with all terms, conditions and provisions under this
Indenture and, in the event of any noncompliance, specifying such noncompliance
and the nature and status thereof. For purposes of this Section 9.06, such
----
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture. The Company, within five Business
Days of becoming aware of the occurrence of any Default or Event of Default,
shall deliver written notice to the Trustee of the occurrence thereof.
SECTION 9.07. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 9.04 or 9.05 if, before the time for such compliance, the Holders of at
---- ----
least a majority in aggregate principal amount of the Outstanding Securities, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
SECTION 9.08. Rule 144A Information Requirement. Within the period prior to
the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), the Company
covenants and agrees that it shall, during any period in which it is not subject
to Section 13 or 15(d) under the Exchange Act, make available to any Holder or
beneficial owner of Securities that continue to be Restricted Securities, in
connection with any sale thereof, and to any prospective purchaser of Securities
from such Holder or beneficial owner, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any such Holder or
beneficial owner of the Securities, and the Company shall take such further
action as any Holder or beneficial owner of such Securities may reasonably
request, all to the extent required from time to time to enable such Holder or
beneficial owner to sell its Securities without registration under the
Securities Act within the limitation of the exemption provided by Rule 144A, as
such rule may be amended from time to time.
47
SECTION 9.09. Additional Indebtedness. The Company shall not, and shall not
permit its Subsidiaries, to create, incur or permit to exist any Indebtedness
other than:
(a) Indebtedness evidenced by Securities issued under this Indenture;
(b) Senior Indebtedness up to a maximum aggregate amount at any time of
$200,000,000;
(c) Indebtedness resulting from the restructuring of Existing Earnout
Obligations, which Indebtedness may be pari passu with, or subordinated to, the
Indebtedness evidenced by the Securities;
(d) Indebtedness resulting from the restructuring of Capitalized Lease
Obligations and equipment leases existing as of the Closing Date;
(e) Indebtedness that the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities shall agree may be pari passu
with the Indebtedness evidenced by the Securities; or
(f) Indebtedness that is subordinated to the Securities on substantially
similar terms and conditions as the Indebtedness evidenced by the Securities is
subordinated to Senior Indebtedness up to a maximum aggregate amount at any time
of $200,000,000.
ARTICLE 10
Redemption of Securities
SECTION 10.01. Redemption by the Company. The Securities may be redeemed at
the election of the Company, as a whole or from time to time in part, at any
time on or after each of __________ [__], 2002 or a Change in Control and prior
to maturity (a "Redemption"), upon notice as set forth in Section 10.04, for a
-----
redemption price (the "Redemption Price") equal to the aggregate principal
amount thereof, together with accrued and unpaid interest, if any, up to but not
including the date fixed for redemption.
SECTION 10.02. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of all or any part of the
Securities pursuant to Section 10.01, the Company shall, at least 45 days prior
-----
to the giving of the notice of redemption in Section 10.04 (unless a shorter
-----
notice shall be satisfactory to the Trustee), notify the Trustee of the
Redemption Date and of the principal amount of Securities to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
48
SECTION 10.03. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days and not less than 30 days prior
to the Redemption Date by the Trustee, from the Outstanding Securities not
previously called for redemption, by lot, pro rata or any other method that
complies with the requirements of any exchange on which the Securities are
listed or quoted and that the Trustee shall deem fair and appropriate.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed,
solely for purposes of determining the aggregate principal amount of the
Securities to be redeemed, to be the portion selected for redemption (provided,
however, that the Holder of such Security so converted and deemed redeemed shall
not be entitled to any interest payment as a result of such deemed redemption
except for such interest payment as such Holder would have otherwise been
entitled to receive upon conversion of such Security). Securities that have been
converted during a selection of Securities to be redeemed may be treated by the
Trustee as Outstanding for the purpose of such selection.
Securities in denominations of $1,000 or less may only be redeemed in
whole. The Trustee may select for redemption portions (equal to $1.00 or any
integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 10.04. Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 1.07, at least 30 days, but not more
----
than 60 days, prior to the Redemption Date; provided that failure to give such
notice in the manner herein provided to the Holder of any Security designated
for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other such Security or portion thereof.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
49
(c) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount) of
the particular Securities to be redeemed;
(d) if any Security is to be redeemed in part only, the portion of the
principal amount of such Security to be redeemed, and the notice that relates to
such Security shall state that on and after the Redemption Date, upon surrender
of such Security, the Holder shall receive, without a charge, a new Security or
Securities of authorized denominations for the principal amount thereof
remaining unredeemed;
(e) that on the Redemption Date, the Redemption Price shall become due
and payable upon each such Security, or the portion thereof, to be redeemed and,
if applicable, that interest thereon shall cease to accrue on and after said
date;
(f) the Place or Places of Payment where such Securities are to be
surrendered for payment of the Redemption Price;
(g) that Securities called for redemption must be presented and
surrendered to the Paying Agent to collect the Redemption Price;
(h) the then current Conversion Price;
(i) that the Securities called for redemption may be converted at any
time before the close of business on the last Business Day prior to the
Redemption Date;
(j) the CUSIP number of such Security, if any; and
(k) that a Holder of Securities who desires to convert Securities must
satisfy the requirements for conversion contained in such Securities.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 10.05. Deposit of Redemption Price. Not later than 11:00 a.m. New
York City time on the Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 9.03) an amount of
----
money sufficient to pay, on the Redemption Date, the Redemption Price of all the
Securities or portions thereof that are to be redeemed on that date, other than
Securities or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation or have been converted.
The Trustee or the Paying Agent, as the case may be, shall return to the Company
any money not required for that purpose.
SECTION 10.06. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the
50
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the Company at
the Redemption Price, provided, however, that if the Redemption Date is an
Interest Payment Date, the semi-annual payment of interest becoming due on such
date shall be payable to the Holders of such Securities registered as such on
the relevant Regular Record Date according to their terms and the provisions of
Section 3.06.
----
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price, shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security and such
Security shall remain convertible into Common Stock until the Redemption Price,
and any such accrued interest, shall have been paid or duly provided for.
SECTION 10.07. Securities Redeemed in Part. Any Security that is to be
redeemed only in part (pursuant to the provisions of this Article) shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or its attorney duly authorized in writing) and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE 11
Repurchase at Option of Holders Upon Change in Control
SECTION 11.01. Right to Require Repurchase. In the event that a Change
in Control shall occur, each Holder shall have the right, at the Holder's
option, to require the Company to repurchase (subject to the provisions of
Section 13.03) all of such Holder's Securities, or any portion of the principal
-----
amount thereof that is an integral multiple of $1,000 (provided that no single
Security may be repurchased in part unless the portion of the principal amount
of such Security to be outstanding after such repurchase is equal to $1,000 or
an integral multiple of $1,000), on the date (the "Repurchase Date") that is 45
Business Days after the date of the occurrence of a Change in Control at a
purchase price equal to 100% of the principal amount plus interest accrued and
unpaid to the Repurchase Date (the "Repurchase Price"). At the option of the
Company, the Repurchase Price may be paid in cash or, subject to the fulfillment
by the Company of the conditions set forth in Section 11.02, by delivery of that
-----
number of shares of Common Stock equal to the quotient of (i) the Repurchase
Price divided by (ii) 95% of the average of the Closing Prices of the Common
Stock for the five consecutive Trading Days ending on and including the third
Trading Day immediately preceding the date of the occurrence of the Change in
Control.
SECTION 11.02. Conditions to the Company's Election to Pay the
Repurchase Price in Common Stock. The Company may elect to pay the Repurchase
Price by delivery of shares of Common Stock pursuant to Section 11.01 if and
-----
only if the following conditions have been satisfied:
51
(a) The shares of Common Stock delivered in payment of the Repurchase
Price are listed for trading on a U.S. national securities exchange or approved
for trading in the Nasdaq National Market; and
(b) All shares of Common Stock delivered in payment of the Repurchase
Price are issued out of the Company's authorized but unissued Common Stock and
shall, upon issue, be duly and validly issued and fully paid and non-assessable
and free of any preemptive rights.
If all of the conditions set forth in this Section 11.02 are not
-----
satisfied in accordance with the terms hereof, the Repurchase Price shall be
paid by the Company only in cash.
SECTION 11.03. Notices; Method of Exercising Repurchase Right, Etc. (a)
Unless the Company shall have theretofore called for redemption all of the
Outstanding Securities, on or before the date that is 30 Business Days after the
occurrence of a Change in Control, the Company shall give notice to all Holders
of Outstanding Securities and to the Trustee (the "Company Notice") of the
occurrence of the Change in Control and of the repurchase right set forth herein
arising as a result thereof.
Each Company Notice shall state:
(i) the date of such Change in Control and, briefly, the events
causing such Change in Control;
(ii) the date by which the Change in Control Purchase Notice (as
defined below) must be delivered;
(iii) the Repurchase Date;
(iv) the Repurchase Price, and whether the Repurchase Price shall
be paid by the Company in cash or by delivery of shares of Common Stock;
(v) a description of the procedure that a Holder must follow to
exercise a repurchase right;
(vi) the procedures for withdrawing a Change in Control Purchase
Notice;
(vii) the place or places where such Securities are to be
surrendered for payment of the Repurchase Price or for conversion;
(viii) briefly, the conversion rights of Holders of Securities;
(ix) the Conversion Rate and any adjustments thereto; and
(x) that Holders who want to convert Securities must satisfy the
requirements set forth in the Securities.
52
Promptly after giving the Company Notice to the Holders of Outstanding
Securities and to the Trustee, the Company shall cause a copy of the Company
Notice to be published in The Wall Street Journal or another daily newspaper of
national circulation.
(b) If any Senior Indebtedness is outstanding at the time of the
occurrence of a Change in Control, and such Senior Indebtedness prohibits by its
terms the Company's repurchase of its Securities upon the occurrence of a Change
in Control, the Company shall prior to giving the Company Notice either:
(i) repay in full all obligations and terminate all commitments
under or in respect of all such Senior Indebtedness or offer to
repay in full all obligations and terminate all commitments under
or in respect of all such Senior Indebtedness and repay such Senior
Indebtedness owed to each holder thereof who has accepted such
offer; or
(ii) obtain the requisite consents under all such Senior
Indebtedness to permit the Company to repurchase the Securities in
accordance herewith.
(c) To exercise a repurchase right, a Holder must deliver to the
Trustee or a Paying Agent at an office or agency maintained by the Company for
such purpose in the Borough of Manhattan, The City of New York, prior to the
close of business on or before the Repurchase Date, (i) written notice of the
Holder's exercise of such right (the "Change in Control Purchase Notice"), which
notice shall set forth (A) the name of the Holder, (B) the certificate numbers
of the Securities with respect to which the repurchase right is being exercised,
(C) the principal amount of the Securities to be repurchased (and, if any
Security is to be repurchased in part, the portion of the principal amount
thereof to be repurchased, which shall be in integral multiples of $1,000) and
(D) a statement that an election to exercise the repurchase right is being made
thereby pursuant to the applicable provisions of the Securities and (ii)
surrender the Securities subject to the Change in Control Purchase Notice.
(d) Unless the Company has elected to pay the Repurchase Price by
delivery of shares of Common Stock, on or prior to the Repurchase Date the
Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 9.03) an amount of money sufficient to pay the Repurchase
----
Price of the Securities that are to be repaid on the Repurchase Date. On the
Repurchase Date, the Trustee or a Paying Agent (or, if the Company is acting as
its own Paying Agent, the Company) shall deliver, on behalf of the Company, the
Repurchase Price for all such Securities validly tendered prior to such date.
In the event that a Holder has previously delivered a Change in Control
Purchase Notice, but failed to surrender the Security with respect to which such
Change in Control Purchase Notice relates, then so long as either (i) the
Company has elected to pay the Repurchase Price by delivery of shares of Common
Stock or (ii) the Trustee or the Paying Agent holds (or, if the Company is
acting as its own Paying Agent, the Company segregates and holds in trust as
provided in Section 9.03) money sufficient to pay the Repurchase Price in
----
respect of such Security, then such Security shall
53
cease to be Outstanding for the purposes of this Indenture on the Repurchase
Date and all rights of the Holder thereof other than the right to receive the
Repurchase Price shall terminate.
(e) If any Security (or portion thereof) surrendered for repurchase
shall not have been repurchased on the Business Day following the Repurchase
Date, the Repurchase Price in respect of such Security shall, until paid, bear
interest from the Business Day following the Repurchase Date at the rate borne
by the Security and such Security shall remain convertible into Common Stock
until the Repurchase Price and any such accrued interest shall have been paid or
duly provided for.
(f) Any Security that is to be repurchased only in part shall be
surrendered to the Trustee or any such Paying Agent (or if the Company is acting
as its own Paying Agent, the Company) and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, containing identical terms and
conditions, each in an authorized denomination in aggregate principal amount
equal to and in exchange for the portion of the principal of the Security so
surrendered that was not repurchased.
(g) Any Holder that has delivered a Change in Control Purchase Notice
shall have the right to withdraw such notice by delivery of a written notice of
withdrawal to the Trustee or any such Paying Agent prior to the close of
business on the Business Day immediately preceding the Repurchase Date. The
notice of withdrawal shall state the principal amount and the certificate
numbers of the Securities as to which the withdrawal notice relates and the
principal amount, if any, that remains subject to the Change in Control Purchase
Notice. A Security in respect of which a Holder has exercised its right to
require repurchase upon a Change in Control may thereafter be converted into
Common Stock only if, and at such time as, such Holder withdraws its Change in
Control Purchase Notice in accordance with the preceding sentence.
(h) Any issuance of shares of Common Stock in respect of the
Repurchase Price shall be deemed to have been effected immediately prior to the
close of business on the Repurchase Date and the Person or Persons in whose name
or names any certificate or certificates for shares of Common Stock shall be
issuable upon such repurchase shall be deemed to have become on the Repurchase
Date the holder or holders of record of the shares represented thereby.
(i) No fractional shares of Common Stock or scrip representing
fractional shares shall be issued upon repurchase of Securities. If more than
one Security shall be repurchased from the same Holder and the Repurchase Price
shall be payable in shares of Common Stock, the number of full shares that shall
be issued upon repurchase shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent
permitted hereby) so repurchased from such Holder. If any fractional share of
stock otherwise would be issuable upon repurchase of any Security or Securities,
the Company shall make an adjustment therefor by paying to the Holder thereof an
amount of cash calculated at the price per share at which the Common Stock is
valued for purposes of Section 11.01.
-----
(j) The issue of stock certificates on repurchase of Securities shall
be made without charge to the Holder of Securities being repurchased for any tax
in respect of the issue
54
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 Security repurchased, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the Person or Persons requesting the issue 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.
(k) Notwithstanding anything to the contrary in this Section 11.03,
the Company shall not be required to give the Company Notice following the
occurrence of a Change in Control if another Person makes an offer to repurchase
the Outstanding Securities in the manner, at the time and otherwise in
compliance with the requirements set forth herein regarding the Company's
obligation to offer to repurchase the Outstanding Securities following the
occurrence of a Change in Control, and such Person repurchases all Outstanding
Securities validly tendered and not withdrawn.
SECTION 11.04. Certain Definitions. For purposes of Section 11.05:
-----
(a) the terms "beneficial owner" and "beneficial ownership" shall be
determined in accordance with Rules 13d-3 and 13d-5 promulgated by the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time; and
(b) the term "Person" shall include any syndicate or group that would
be deemed to be a "person" under Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act.
SECTION 11.05. Change in Control. A "Change in Control" shall be deemed to
have occurred at such time after the original issuance of the Securities as:
(a) any Person acquires the beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition transaction, of more
than 50% of the total voting power of the total outstanding voting stock of the
Company other than an acquisition by the Company, any of its Subsidiaries, any
of its employee benefit plans or one or more Permitted Holders;
(b) the Company shall consolidate with, or merge with or into,
another Person or convey, transfer, lease or otherwise dispose of all or
substantially all of its assets to any Person, or any Person consolidates with
or merges with or into the Company, in any such event pursuant to a transaction
in which the Company's outstanding voting stock is converted into or exchanged
for cash, securities or other property, other than any such transactions where:
(i) the Company's voting stock is not converted or exchanged at
all (except to the extent necessary to reflect a change in the Company's
jurisdiction of incorporation) or is converted into or exchanged for voting
stock (other than Redeemable Capital Stock) of the surviving or transferee
corporation, and
55
(ii) immediately after such transaction, no Person, other than
one or more Permitted Holders or one or more Persons who were the beneficial
owner, directly or indirectly, of more than 50% of the total voting power of all
of the Company's voting stock immediately before such transaction, is the
beneficial owner, directly or indirectly, of more than 50% of the total
outstanding voting stock of the surviving or transferee corporation;
(c) during any consecutive two-year period beginning after the date
of this Indenture, individuals who at the beginning of such period constituted
the Board of Directors (but not a committee thereof), together with (i) any new
directors whose election to such Board of Directors (but not a committee
thereof), or whose nomination for election by the Company's stockholders, was
approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved and (ii) any representative of a
Permitted Holder, cease for any reason to constitute a majority of the Board of
Directors (but not a committee thereof) then in office;
(d) a special resolution is passed by the Company's stockholders
approving a plan of liquidation or dissolution of the Company (other than in a
transaction that complies with the provisions described in Article 7), and no
-
additional approvals of the Company's stockholders are required under applicable
law to cause such a liquidation or dissolution.
"Redeemable Capital Stock" means any class or series of capital stock that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable or by contract or otherwise, is, or upon the happening of an
event or passage of time would be, required to be redeemed prior to the Stated
Maturity of the Securities or is redeemable at the option of the holder thereof
at any time prior to such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to such Stated Maturity;
provided, however, that Redeemable Capital Stock shall not include any Common
Stock which the holder may cause the Company to repurchase or redeem upon
termination of such holder's employment.
ARTICLE 12
CONVERSION
SECTION 12.01. Conversion Privilege, Conversion Rate and Conversion Price.
Subject to and upon compliance with the provisions of this Article 12, at the
--
option of the Holder thereof, any Security or any portion of the principal
amount thereof that is greater than $1.00 and in an integral multiple of $1.00
may be converted at any time after original issuance thereof through the close
of business on __________, 2006 into that number of fully paid and non-
assessable shares of Common Stock obtained by multiplying the Conversion Rate
then in effect by each $1.00 principal amount of Securities surrendered for
conversion. In case a Security or portion thereof has previously been called for
redemption at the election of the Company, such conversion right in respect of
the Security or portion so called shall expire at the close of business, New
York City time, on the last Business Day prior to the Redemption Date, unless
the Company defaults in making the payment due upon redemption. A Security in
respect of which a Holder has delivered a Change in Control Purchase Notice (as
defined in Article 11 hereof) exercising the option of such Holder to require
--
the
56
Company to purchase such Security may be converted only if such notice and the
Security is withdrawn by a written notice of withdrawal delivered by the Holder
to the Trustee or any Paying Agent prior to the close of business on the
Repurchase Date, in accordance with the terms of this Indenture.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") shall be initially $1.00 per
share of Common Stock, which is equal to a conversion rate of 1.00 share per
$1.00 principal amount of the Securities (the "Conversion Rate"). The Conversion
Rate shall be adjusted in certain instances as provided in Section 12.04 and, in
-----
every instance in which an adjustment is made to the Conversion Rate, a
corresponding adjustment shall be made to the Conversion Price.
SECTION 12.02. Exercise of Conversion Privilege. In order to exercise the
conversion privilege with respect to any Security in definitive form, the Holder
of any Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency maintained by the
Company pursuant to Section 9.02 of this Indenture, accompanied by (a) written
----
notice to the Company in substantially the form of conversion notice attached to
the form of Security attached as Exhibit A hereto at such office or agency that
the Holder elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted, (b) the
funds, if any, required by this Section 12.02, and (c) if shares or any portion
-----
of such Security not to be converted are to be issued in the name of a Person
other than the Holder thereof, the name of the Person in which to issue such
shares or portion of the Security not converted and the transfer taxes, if any,
required to be paid by the Holder pursuant to Section 12.08.
-----
In order to exercise the conversion privilege with respect to any interest
in a global Security, the beneficial owner must complete, or cause to be
completed, the appropriate instruction form for conversion pursuant to the
depositary's book-entry conversion program, deliver, or cause to be delivered,
by book-entry delivery an interest in such global Security, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee or
other agent, and pay the funds if any required by this Section 12.02 and any
-----
transfer taxes if required pursuant to Section 12.08.
-----
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, the Company shall issue and shall deliver to such
Holder a certificate or certificates for the number of full shares of Common
Stock issuable upon the conversion of such Security or portion thereof in
accordance with the provisions of this Article and a check or cash in respect of
any fractional interest in respect of a share of Common Stock arising upon such
conversion, as provided in Section 12.03. In case any Security of a denomination
-----
greater than $1.00 shall be surrendered for partial conversion, and subject to
Article 2, the Company shall execute and the Trustee shall authenticate and
-
deliver to the Holder of the Security so surrendered, without charge, a new
Security or Securities in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Security.
Each conversion shall be deemed to have been effected as to any such
Security (or portion thereof) on the date on which the requirements set forth
above in this Section 12.02 have been
-----
57
satisfied as to such Security (or portion thereof), and the Person in whose name
any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become on said date the holder of
record of the shares represented thereby; provided however that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the Person in whose name the certificates are to be
issued as the record holder thereof for all purposes on the next succeeding day
on which such stock transfer books are open, but such conversion shall be at the
Conversion Rate in effect on the date upon which such Security shall be
surrendered.
Any Security 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 close of business on the Business Day next preceding the following
Interest Payment Date that has not been called for redemption during such
period, shall be accompanied by payment, in immediately available funds or other
funds acceptable to the Company, of an amount equal to the interest that is
otherwise payable in cash on such Interest Payment Date on the principal amount
being converted; provided however that no such payment need be made to the
extent any overdue interest required to be paid in cash shall exist at the time
of conversion with respect to any such Security or portion thereof. Except as
provided above in this Section 12.02, no payment or other adjustment shall be
-----
made for interest accrued on any Security converted or for dividends on any
shares issued upon the conversion of such Security as provided in this Article.
Upon the conversion of an interest in a global Security, the Trustee (or
other conversion agent appointed by the Company), shall make a notation on such
global Security as to the reduction in the principal amount represented thereby.
The Company shall notify the Trustee in writing of any conversions of Securities
effected through any conversion agent other than the Trustee.
SECTION 12.03. Fractions of Shares. No fractional shares of Common Stock
shall be issued upon conversion of Securities. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of full
shares that shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock that
would otherwise be issuable upon conversion of any Security (or specified
portions thereof), the Company shall pay a cash adjustment in respect of such
fraction in an amount equal to the same fraction of the Closing Price per share
of the Common Stock at the close of business on the Trading Day immediately
preceding such day.
"Trading Day" shall mean each day on which the primary securities exchange
or quotation system that is used to determine the Closing Price is open for
trading or quotation.
"Closing Price" of a single share of Common Stock on any Trading Day shall
mean the closing sale price per share for the Common Stock (or if no closing
sale price is reported, the average of the bid and ask prices) on such Trading
Day on the principal United States national securities exchange on which the
Common Stock is traded or, if the Common Stock is not listed on a United States
national stock exchange, as reported by the National Association of Securities
Dealers Automated Quotation System.
58
SECTION 12.04. Adjustment of Conversion Rate. (a) In case the Company shall
pay or make a dividend or other distribution on its Common Stock exclusively in
Common Stock, the Conversion Rate in effect at the opening of business on the
earlier of the day next following such dividend or other distribution or the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be adjusted so that a Holder upon
conversion shall be entitled to receive that number of shares of Common Stock it
would have been entitled to after such dividend or other distribution if it had
converted its Security immediately prior to such dividend or other distribution.
(b) In case the Company shall pay or make a dividend or other
distribution on its Common Stock consisting exclusively of, or shall otherwise
issue to all holders of its Common Stock, rights, warrants or options entitling
the holders thereof, for a period not exceeding 45 days, to subscribe for or
purchase shares of Common Stock at a price per share less than the current
market price per share (determined as provided in Section 12.04(g)) of the
--------
Common Stock on the date fixed for the determination of stockholders entitled to
receive such rights, warrants or options, the Conversion Rate in effect at the
opening of business on the day following the date fixed for such determination
shall be increased by multiplying such Conversion Rate by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription or purchase and the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate price of the total number of shares
so offered would purchase at the current market price per share (determined as
provided in Section 12.04(g)), such increase to become effective immediately
--------
after the opening of business on the day following the date fixed for such
determination.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Rate in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately increased, and,
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the Conversion Rate in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness, shares of any
class of capital stock, securities, cash or assets (excluding any rights,
warrants or options referred to in Section 12.04(b), any dividend or
--------
distribution paid exclusively in cash and any dividend or distribution referred
to in Section 12.04(a)), the Conversion Rate shall be adjusted by multiplying
--------
the Conversion Rate in effect immediately prior to the earlier of such
distribution or the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the current market
price per share (determined as provided in Section 12.04(g)) and the denominator
--------
shall be such
59
current market price less the fair market value (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and described in
a Board Resolution), on the date of such effectiveness, of the portion of the
evidences of indebtedness, shares of capital stock, securities, cash and assets
so distributed applicable to one share of Common Stock, such adjustment to
become effective immediately prior to the opening of business on the day next
following the later of (i) the date fixed for the payment of such distribution
and (ii) the date 20 days after the notice relating to such distribution is
given pursuant to Section 12.06 (such later date of (i) and (ii) being referred
-----
to as the "Reference Date"). The provisions of this Section 12.04(d) shall not
--------
be applicable to an event covered by Section 12.04(j). For purposes of this
--------
Section 12.04(d) and Sections 12.04(a) and 12.04(b), any dividend or
------- ------- --------
distribution for which an adjustment is being made pursuant to this Section
12.04(d) that also includes shares of Common Stock or rights, warrants or
--------
options to subscribe for or purchase shares of Common Stock shall be deemed
instead to be (A) a dividend or distribution of the evidences of indebtedness,
cash, property, shares of capital stock or securities other than such shares of
Common Stock or such rights, warrants or options (making any Conversion Rate
adjustment required by this Section 12.04(d)) immediately followed by (B) a
--------
dividend or distribution of such shares of Common Stock or such rights (making
any further Conversion Rate adjustment required by Sections 12.04(a) or
--------
12.04(b)), except (1) the record date of such dividend or distribution as
--------
defined in this Section 12.04(d) shall be substituted as "the date fixed for the
-------
determination of stockholders entitled to receive such dividend or other
distributions", "the date fixed for the determination of stockholders entitled
to receive such rights, warrants or options" and "the date fixed for such
determination" within the meaning of Sections 12.04(a) and 12.04(b) and (2) 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 this 12.04(b).
--------
(e) In case the Company shall, by dividend or otherwise, make a
distribution to all holders of its Common Stock exclusively in cash in an
aggregate amount that, together with (i) the aggregate amount of any other
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 Conversion Rate adjustment pursuant to this Section 12.04(e) has
--------
been made and (ii) the aggregate of any cash plus the fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the expiration of the
tender or exchange offer referred to below, of consideration payable in respect
of any tender or exchange offer by the Company or a Subsidiary 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 Conversion Rate
adjustment pursuant to this Section 12.04(e) has been made, exceeds 10% of the
--------
product of the current market price per share (determined as provided in Section
12.04(g)) of the Common Stock as of the Trading Day immediately preceding the
--------
record date fixed for stockholders entitled to receive such distribution times
the number of shares of Common Stock outstanding on such record date, the
Conversion Rate shall be increased so that the same shall equal the price
determined by multiplying the Conversion Rate in effect immediately prior to the
close of business on the date fixed for the determination of the stockholders of
record entitled to such distribution by a fraction of which the denominator
shall be the current market price per share (determined as provided in Section
12.04(g)) on such date less an amount equal to the quotient of (x)
--------
60
the excess of such combined amount over such 10% and (y) the number of shares of
Common Stock outstanding on the record date and (iii) the numerator of which
shall be equal to the current market price on such date, such adjustment to
become effective immediately prior to the opening of business on the day
following the record date fixed for the payment of such distribution.
(f) In case a successful tender or exchange offer, other than an odd
lot offer, made by the Company or any Subsidiary for all or any portion of the
Common Stock shall involve an aggregate consideration having a fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) at the last time (the
"Expiration Time") tenders or exchanges may be made pursuant to such tender or
exchange offer (as it may be amended) that, together with (i) the aggregate of
the cash plus the fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the expiration of the other tender or exchange offer referred
to below, of consideration payable in respect of any other tender or exchange
offer by the Company or a Subsidiary for all or any portion of the Common Stock
concluded within the preceding 12 months and in respect of which no Conversion
Rate adjustment pursuant to this Section 12.04(f) has been made and (ii) the
--------
aggregate amount of any distributions to all holders of the Common Stock made
exclusively in cash within the preceding 12 months and in respect of which no
Conversion Rate adjustment pursuant to Section 12.04(d) has been made, exceeds
--------
10% of the product of the current market price per share (determined as provided
in Section 12.04(g)) of the Common Stock outstanding (including any tendered
---------
shares) on the Expiration Time, the Conversion Rate shall be adjusted by
multiplying the Conversion Rate in effect immediately prior to the Expiration
Time by a fraction of which the denominator shall be (i) the product of the
current market price per share (determined as provided in Section 12.04(g)) of
---------
the Common Stock on the Trading Day next succeeding the Expiration Time times
the number of shares of Common Stock outstanding (including any tendered or
exchanged shares) at the Expiration Time minus (ii) the fair market value
(determined as aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of the tender
or exchange offer) of all shares validly tendered or exchanged 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 the numerator shall be
the product of (i) such current market price per share (determined in accordance
with Section 12.04(g)) on the Trading Day next succeeding the Expiration Time
---------
times (ii) such number of outstanding shares at the Expiration Time less the
number of Purchased Shares, such increase to become effective immediately prior
to the opening of business on the day following the Expiration Time.
(g) For the purpose of any computation under Sections 12.04(b), (d)
-------- ---
(e) and (f), the current market price per share of Common Stock on any date in
---
question shall be deemed to be 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, however, that (i) if the "ex" date (as hereinafter
defined) for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Rate pursuant to
Section 12.04(a), (b), (c), (d), (e) or (f) ("Other Event") occurs on or after
-------- --- --- --- --- ---
the 20th Trading Day prior to the date in question and prior to the "ex" date
for the issuance or distribution requiring such computation (the
61
"Current Event"), 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
reciprocal of the fraction by which the Conversion Rate is so required to be
adjusted as a result of such Other Event, (ii) if the "ex" date for any Other
Event occurs after the "ex" date for the Current Event and on or prior to the
date 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 fraction by which the Conversion Rate is so required to be adjusted as a
result of such Other Event, (iii) if the "ex" date for any Other Event occurs on
the "ex" date for the Current Event, one of those events shall be deemed for
purposes of clauses (i) and (ii) of this proviso to have an "ex" date occurring
prior to the "ex" date for the Other Event, and (iv) if the "ex" date for the
Current Event is on or prior to the date in question, after taking into account
any adjustment required pursuant to clause (ii) of this proviso, the Closing
Price for each Trading Day on or after such "ex" date shall be adjusted by
adding thereto the amount of any cash and the fair market value on the date in
question (as determined in good faith by the Board of Directors in a manner
consistent with any determination of such value for purposes of Section 12.04(c)
--------
or (d), whose determination shall be conclusive and described in a Board
---
Resolution) of the portion of the rights, warrants, options, evidences of
indebtedness, shares of capital stock, securities, cash or property being
distributed applicable to one share of Common Stock. For the purpose of any
computation under Section 12.04(f), the current market price per share of Common
Stock on any date in question shall be deemed to be the average of the daily
Closing Prices for the five consecutive Trading Days selected by the Company
commencing on or after the latest (the "Commencement Date") of (i) the date 20
Trading Days before the date in question, (ii) the date of commencement of the
tender or exchange offer requiring such computation and (iii) the date of the
last amendment, if any, of such tender or exchange offer involving a change in
the maximum number of shares for which tenders are sought or a change in the
consideration offered, and ending not later than the Trading Day next succeeding
the Expiration Time of such tender or exchange offer (or, if such Expiration
Time occurs before the close of trading on a Trading Day, not later than the
Trading Day during which the Expiration Time occurs); provided, however, that if
the "ex" date for any Other Event (other than the tender or exchange offer
requiring such computation) occurs on or after the Commencement Date and on or
prior to the Trading Day next succeeding the Expiration Time for the tender or
exchange offer requiring such computation, 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 reciprocal of the same fraction by which the
Conversion Rate is so required to be adjusted as a result of such other event.
For purposes of this paragraph, the term "ex" date, (i) 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, (ii) 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 (iii) 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 Time
of such tender or exchange offer.
62
(h) The Company may make such increases in the Conversion Rate, in
addition to those required by paragraphs (a), (b), (c), (d), (e) and (f) of this
Section 12.04, as it considers to be advisable.
-----
(i) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Rate; provided, however, that any adjustments, which by reason of
this Section 12.04(i) are not required to be made, shall be carried forward and
--------
taken into account in any subsequent adjustment.
(j) In the event that the Company distributes assets, debt securities,
rights, warrants or options (other than those referred to in Section 12.04(b)
--------
above) pro rata to holders of Common Stock, and the fair market value of the
portion of assets, debt securities, rights, warrants or options applicable to
one share of Common Stock distributed to holders of Common Stock exceeds the
Average Sale Price (as defined below) per share of Common Stock, or such Average
Sale Price exceeds such fair market value by less than $1.00, then so long as
any such assets, debt securities, rights, options or warrants have not expired
or been redeemed by the Company, the Company shall make proper provision so that
the Holder of any Security upon conversion, rather than being entitled to an
adjustment in the Conversion Rate, will be entitled to receive upon such
conversion, in addition to the shares of Common Stock otherwise issuable upon
conversion, the kind and amount of assets, debt securities, rights, warrants and
options such Holder would have received had such Holder converted its Security
immediately prior to the date of determination of the holders entitled to such
distribution.
"Average Sale Price" means the average of the Closing Prices of the Common
Stock for the shorter of (i) 30 consecutive Trading Days ending on the last full
Trading Day prior to the Time of Determination (as defined below) with respect
to the rights, options, warrants or distribution in respect of which the Average
Sale Price is being calculated, or (ii) the period (x) commencing on the date
next succeeding the first public announcement of (a) the issuance of rights,
options or warrants or (b) the distribution, in each case, in respect of which
the Average Sale Price is being calculated and (y) proceeding through the last
full Trading Day prior to the Time of Determination with respect to the rights,
options, warrants or distribution in respect of which the Average Sale Price is
being calculated, or (iii) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time (as defined below) with respect to the next
preceding (a) issuance of rights, warrants or options or (b) distribution, in
each case, for which an adjustment is required by the provisions of Section
12.04(b) or Section 12.04(i) and (y) proceeding through the last full Trading
-------- --------
Day prior to the Time of Determination with respect to the rights, options,
warrants, or distribution in respect of which the Average Sale Price is being
calculated. If the Ex-Dividend Time (or in the case of a subdivision,
combination or reclassification, the effective date with respect thereto) with
respect to a dividend, subdivision, combination or reclassification to which
Section 12.04(a) or (b) applies occurs during the period applicable for
-------- ---
calculating "Average Sale Price" pursuant to the definition in the preceding
sentence, "Average Sale Price" shall be calculated for such period in a manner
determined in good faith by the Board of Directors to reflect the impact of such
dividend, subdivision, combination or reclassification on the Closing Price of
the Common Stock during such period.
63
"Time of Determination" means the time and date of the earlier of (i)
the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each case, to which this Section 12.04 applies and
-----
(ii) the time ("Ex-Dividend Time") immediately prior to the commencement of
"ex-dividend" trading for such rights, options, warrants or distribution on the
New York Stock Exchange or such other national or regional exchange or market on
which the shares of Common Stock are listed or quoted.
SECTION 12.05. Notice of Adjustments of Conversion Rate. Whenever the
Conversion Rate and Conversion Price are adjusted as herein provided, the
Company shall compute the adjusted Conversion Rate and Conversion Price in
accordance with Section 12.04 and shall prepare a certificate signed by the
-----
Chief Financial Officer of the Company setting forth the adjusted Conversion
Rate and Conversion Price and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall forthwith be filed (with a
copy to the Trustee) at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 9.02; and the Company shall
----
forthwith cause a notice setting forth the adjusted Conversion Rate and
Conversion Price to be mailed, first class postage prepaid, to each Holder of
Securities at its address appearing on the Security Register. Unless and until
the Trustee shall receive such notice, the Trustee may assume without inquiry
that the Conversion Rate and Conversion Price have not been, and are not
required to be, adjusted and that the last Conversion Rate and Conversion Price
of which it has written notice remain in effect.
SECTION 12.06. Notice of Certain Corporate Action. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock that would require a Conversion Rate
adjustment pursuant to Section 12.04(d); or
--------
(b) the Company shall authorize the granting to all holders of its
Common Stock of rights, warrants or options to subscribe for or purchase any
shares of capital stock of any class or of any other rights (excluding rights
distributed pursuant to any stockholder rights plan); or
(c) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of Common
Stock), or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company or any Subsidiary of the Company shall commence a
tender or exchange offer for all or a portion of the Company's outstanding
shares of Common Stock (or shall amend any such tender or exchange offer);
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 9.02, and shall
----
cause to be mailed to all Holders at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case
64
specified in clause 12.06(a) or 12.06(b) above) prior to the applicable record,
-------- --------
effective or expiration date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or granting of rights, warrants or options, 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, warrants or options are to be
determined, or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up,
or (z) the date on which such tender offer commenced, the date on which such
tender offer is scheduled to expire unless extended, the consideration offered
and the other material terms thereof (or the material terms of any amendment
thereto).
SECTION 12.07. Company's Obligation Regarding Common Stock. The
Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, solely for the purpose
of effecting the conversion of Securities, the whole number of shares of Common
Stock then issuable upon the conversion in full of all outstanding Securities.
Before taking any action which 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 Securities, 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 if any shares of Common Stock to be
provided for the purpose of conversion of Securities hereunder require
registration with or approval of any governmental authority under any federal or
state law before such shares may be validly issued upon conversion, the Company
shall in good faith and as expeditiously as practicable endeavor to secure such
registration or approval, as the case may be.
The Company further covenants that so long as the Common Stock
shall be listed or quoted on the New York Stock Exchange, the Nasdaq Stock
Market (National Market), or any other national securities exchange the Company
shall, if permitted by the rules of such exchange, list and keep listed so long
as the Common Stock shall be so listed on such market or exchange, all Common
Stock issuable upon conversion of the Securities.
SECTION 12.08. Taxes on Conversions. The Company shall pay any and
all taxes that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. 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 shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been paid.
65
SECTION 12.09. Covenant as to Common Stock. The Company covenants
that all shares of Common Stock that may be issued upon conversion of Securities
shall upon issue be newly issued (and not treasury shares) and be duly
authorized, validly issued, fully paid and nonassessable and, except as provided
in Section 12.08, the Company shall pay all taxes, liens and charges with
-----
respect to the issue thereof.
SECTION 12.10. Cancellation of Converted Securities. All
Securities delivered for conversion shall be delivered to the Trustee to be
cancelled by or at the direction of the Trustee, which shall dispose of the same
as provided in Section 3.08 of this Indenture.
----
SECTION 12.11. Provisions in Case of Reclassification,
Consolidation, Merger or Sale of Assets. In the event that the Company shall be
a party to any transaction (including any (i) recapitalization or
reclassification of the Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination of the Common Stock), (ii) any consolidation of the
Company with, or merger of the Company into, any other person, any merger of
another person into the Company (other than a merger that does not result in a
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), (iii) any sale or transfer of all or substantially
all of the assets of the Company or (iv) any compulsory share exchange) pursuant
to which the Common Stock is converted into the right to receive other
securities, cash or other property, then lawful provision shall be made as part
of the terms of such transaction whereby the Holder of each Security then
Outstanding shall have the right thereafter to convert such Security only into
(subject to funds being legally available for such purpose under applicable law
at the time of such conversion) the kind and amount of securities, cash and
other property receivable upon such transaction by a holder of the number of
shares of Common Stock into which such Security might have been converted
immediately prior to such transaction. The Company or the Person formed by such
consolidation or resulting from such merger or that acquired such assets or that
acquired the Company's shares of Common Stock, as the case may be, shall execute
and deliver to the Trustee a supplemental indenture establishing such rights.
Such supplemental indenture shall provide for adjustments that, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section 12.11 shall similarly apply to
-----
successive transactions of the foregoing type.
SECTION 12.12. Company's Obligation. All calculations,
adjustments, conversions and other determinations under this Article 12 shall be
--
the sole responsibility and obligation of the Company. The Trustee (a) shall
have no obligation to review, challenge or contest any such calculation,
adjustment, conversion or other determination and (b) shall not be liable for
any default or error by the Company under this Article 12.
--
SECTION 12.13. Responsibility of the Trustee for Conversion
Procedures. Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the conversion price, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method
66
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any conversion agent shall 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 or cash which may at any
time be issued or delivered upon the conversion of any Security; and neither the
Trustee nor any conversion agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to make any cash payment or to issue, transfer or deliver
any shares of Common Stock or stock certificates or other securities or property
upon the surrender of any Security for the purpose of conversion, or to comply
with any of the covenants of the Company contained in this Article 12.
ARTICLE 13
Subordination
SECTION 13.01. Securities Subordinate to Senior Indebtedness. The
Company covenants and agrees, and each Holder of Securities, by such Holder's
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article 13, the indebtedness
--
represented by the Securities and the payment of the principal of (and premium,
if any), and interest on and all other amounts payable under the Securities is
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness.
SECTION 13.02. Payment over of Proceeds upon Dissolution, Etc. In the
event of any payment by, or distribution of the assets of, the Company in
connection with (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or its assets, (b) any
liquidation, dissolution or other winding-up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c) any
assignment for the benefit of creditors or any other marshaling of assets and
liabilities of the Company, then and in any such event the holders of Senior
Indebtedness shall be entitled to receive payment in full of all amounts due in
respect of all Senior Indebtedness, or provision shall be made for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Indebtedness, before the Holders of the Securities are entitled to
receive any payment on account of principal of (or premium, if any), or interest
on or any other amount payable under the Securities, and to that end, the
holders of Senior Indebtedness shall be entitled to receive, for application to
the payment of such Senior Indebtedness, ratably according to the aggregate
amounts remaining unpaid on account of such Senior Indebtedness held by them,
any payment or distribution of any kind or character, whether in cash, property
or securities, that may be payable or deliverable in respect of the Securities
in any such case, proceeding, dissolution, liquidation or other winding-up or
event, after giving effect to any concurrent payment or distribution, or
provision therefor, to the holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 13.02, the Trustee or the Holder of Securities shall have received any
-----
payment or distribution of assets of the Company prohibited by the foregoing
paragraph of any kind or character, whether in cash, property or securities,
before all Senior Indebtedness is paid in full or payment thereof provided for,
and if, at or prior to the time of such payment or distribution, written notice
that such payment or distribution is
67
prohibited by the foregoing paragraph shall have been actually given to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event such payment or distribution shall be paid over or delivered
forthwith to holders of such Senior Indebtedness remaining unpaid or their
representatives, ratably according to the aggregate amounts remaining unpaid on
account of the Senior Indebtedness held by them, for application to the payment
thereof to the extent necessary to pay all Senior Indebtedness in full after
giving effect to any concurrent payment or distribution, or provision therefor,
to the holders of such Senior Indebtedness.
For purposes of this Article 13 only, the words "cash, property or
--
securities" shall not be deemed to include shares of capital stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment that in
either case are subordinated in right of payment to all Senior Indebtedness that
may at the time be outstanding to substantially the same extent as, or to a
greater extent than, the Securities are so subordinated as provided in this
Article 13. The consolidation of the Company with, or the merger of the Company
--
into, another Person or the liquidation or dissolution of the Company following
the sale, lease, conveyance, transfer or other disposition of its properties and
assets substantially as an entirety to another Person upon the terms and
conditions set forth in Article 7 shall not be deemed a dissolution, winding-up,
-
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Section 13.02 if the Person formed by such consolidation or into which the
-----
Company is merged or that acquires by sale, lease, conveyance, transfer or other
disposition such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, sale, lease, conveyance,
transfer or other disposition, comply with the conditions set forth in Article
7.
-
SECTION 13.03. No Payment When Senior Indebtedness in Default. (a) In the
event and during the continuation of any default in the payment of principal of
(or premium, if any) or interest on any Senior Indebtedness beyond any
applicable grace period with respect thereto (unless and until such payment
default shall have been cured or waived in writing by the holders of such Senior
Indebtedness), including any payment default arising from the acceleration of
any Senior Indebtedness, or (b) any default (other than a payment default) with
respect to Senior Indebtedness occurs and is continuing that permits the
acceleration of the maturity thereof and judicial proceedings shall be pending
with respect to any such default or the Company receives written notice of such
default (a "Senior Indebtedness Default Notice"), then no payment shall be made
by the Company on account of principal of (or premium, if any) or interest on
the Securities or on account of all other amounts payable under the Securities.
Notwithstanding the foregoing, payments with respect to the Securities may
resume, and the Company may acquire Securities for cash or property, when (x)
the default with respect to the Senior Indebtedness is cured or waived or ceases
to exist or (y) in the case of a default described in clause (b) of this Section
13.03, 179 or more days pass after the Senior Indebtedness Default Notice is
-----
received by the Company, provided that the terms hereof otherwise permit such
payment or acquisition of Securities at such time. If the Company receives a
Senior Indebtedness Default Notice, then a similar notice received within nine
months thereafter relating to the default that was the basis of such Senior
Indebtedness Default Notice, on the same issue of Senior Indebtedness, shall not
be effective to prevent the payment or acquisition of the Securities as
described in the first sentence of this Section 13.03(a). In addition, no
--------
68
payment may be made on the Securities, in respect of principal, premium,
interest or any other amount, and no acquisition of Securities for cash or
property may be effected, if any Securities are declared due and payable prior
to their Stated Maturity by reason of the occurrence of an Event of Default
until the earlier of (i) 75 days after the date of such acceleration of the
maturity of the Securities or (ii) the payment in full of all Senior
Indebtedness, provided that such payment or acquisition of Securities may be
made then only if the terms hereof otherwise permit such payment or acquisition
of Securities at such time.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of Securities prohibited by the
foregoing provisions of this Section 13.03 before all Senior Indebtedness is
-----
paid in full, or effective provisions made for its payment, and if, at or prior
to the time of such payment, written notice that such payment is prohibited by
the foregoing paragraph shall have been actually given to a Responsible Officer
of the Trustee or, as the case may be, such Holder, then and in such event (but
subject to the provisions of Section 13.09) such payment shall be paid over and
-----
delivered forthwith to the holders of such Senior Indebtedness remaining unpaid
or their representatives, ratably on account of the Senior Indebtedness held by
them, for application to the payment thereof to the extent necessary to pay all
Senior Indebtedness in full after giving effect to any concurrent payment or
distribution, or provision therefor, to the holders of such Senior Indebtedness.
The provisions of this Section 13.03 shall not apply to any payment with
-----
respect to which Section 13.02 would be applicable.
-----
SECTION 13.04. Payment Permitted If No Default. Nothing contained in this
Article 13 or elsewhere herein or in any of the Securities shall prevent (a) the
--
Company, at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding-up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Company referred
to in Section 13.02, except under the conditions described in Section 13.03,
----- -----
from making payments at any time of principal of (and premium, if any), or
interest on, or any other amount payable under the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any), or interest
on, or any other amount payable under the Securities, or the retention of such
payment by the Holders, if, by the close of business on the date that was two
Business Days prior to such application by the Trustee, the Trustee had not
received written notice that such payment would be prohibited by the provisions
of this Article 13.
--
SECTION 13.05. Subrogation to Rights of Holders of Senior Indebtedness.
Upon payment in full of all Senior Indebtedness, the Holders of the Securities
shall be subrogated (equally and ratably with the holders of all Indebtedness of
the Company that by its express terms is subordinated to Indebtedness of the
Company to substantially the same extent as the Securities are subordinated to
Senior Indebtedness) to the rights of the holders of such Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Senior Indebtedness to the extent that payments and distributions
otherwise payable to Holders of Securities have been applied to the payment of
Senior Indebtedness as provided by this Article 13. For
--
69
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled, except for the provisions of
this Article 13, and no payments over pursuant to the provisions of this Article
--
13 to the holders of Senior Indebtedness by Holders of the Securities or the
--
Trustee, shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 13.06. Provisions Solely to Define Relative Rights. The provisions
of this Article 13 are and are intended solely for the purpose of defining the
--
relative rights of the Holders of the Securities on the one hand and the holders
of Senior Indebtedness on the other hand. Nothing contained in this Article 13
--
or elsewhere herein or in the Securities is intended to or shall:
(a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article 13 of the holders of Senior Indebtedness, is intended to rank
--
equally with all other general obligations of the Company), to pay to the
Holders of the Securities the principal of (and premium, if any), and interest
on, and any other amount payable under the Securities, as and when the same
shall become due and payable in accordance with their terms;
(b) affect the relative rights against the Company of the Holders of
the Securities and other creditors of the Company, other than Holders' rights in
relation to the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Securities from
exercising all remedies available upon a Default or Event of Default under this
Indenture, subject to the rights, if any, under this Article 13 of the holders
--
of Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 13.07. Trustee to Effectuate Subordination. Each Holder of
Securities by its acceptance thereof authorizes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 13 and appoints the Trustee its
--
attorney-in-fact for any and all such purposes, including the immediate filing
of a claim for the unpaid balance of such Holder's Securities in any insolvency
or bankruptcy proceeding, or any receivership, liquidation, reorganization or
similar case or proceeding, in the form required in such proceeding, and the
taking of such actions as may be required to cause such claim to be approved. If
the Trustee does not file a proper claim in the form required in such proceeding
on or prior to thirty days before the expiration of the time to file such claim
or claims, then the holders of Senior Indebtedness or their representatives are
hereby authorized to file such claim for and on behalf of the Holders.
SECTION 13.08. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or
70
by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article 13 or the
--
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend
or supplement in any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding;
(b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(c) release any Person liable in any manner for the collection of
Senior Indebtedness; and
(d) exercise or refrain from exercising any rights against the
Company and any other Person.
SECTION 13.09. Notice to Trustee. The Company shall give prompt written
notice to the Trustee if, to the Company's knowledge, any payment to or by the
Trustee in respect of the Securities is prohibited by this Article 13.
--
Notwithstanding the provisions of this Article 13 or any other provision of this
--
Indenture, the Trustee shall not be charged with knowledge that any payment to
or by the Trustee in respect of the Securities is prohibited by this Article 13,
--
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee therefor or other representative thereof; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 1.05, shall be entitled in all respects to assume that no facts exist
----
that would prohibit any payment in respect of the Securities; provided, however,
that if a Responsible Officer of the Trustee shall not have received at the
Corporate Trust Office of the Trustee the notice provided for in this Section
13.09 by the close of business on the date that is two Business Days prior to
-----
the date upon which by the terms hereof any money may become payable for any
purpose (including the payment of the principal of (and premium, if any) or
interest on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
after the close of business on the date that is two Business Days prior to such
date.
71
Subject to the provisions of Article 5, the Trustee shall be entitled to
-
rely on the delivery to it of a written notice by a Person representing itself
to be a holder of Senior Indebtedness (or a representative thereof) to establish
that such notice has been given by a holder of Senior Indebtedness (or a
representative thereof). 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 Article 13, the Trustee may request such Person to furnish
--
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 13, 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 13.10. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Company referred to in
this Article 13, the Trustee, subject to the provisions of Article 5, and the
-- -
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
13.
--
SECTION 13.11. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article 13 or
--
otherwise.
SECTION 13.12. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article 13 with respect to any
--
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article 13 shall apply to claims of, or payments to, the
--
Trustee under or pursuant to Section 5.07.
----
SECTION 13.13. Article Applicable to Paying Agents. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article 13 shall in
--
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article 13
--
72
in addition to or in place of the Trustee; provided, however, that Section 13.13
-----
shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.
SECTION 13.14. Certain Conversions Deemed Payment. For the purposes of this
Article 13 only, (1) the issuance and delivery of junior securities upon
--
conversion of Securities in accordance with Article 12 or in respect to the
--
Repurchase Price in accordance with Article 11 shall not be deemed to constitute
a payment or distribution on account of the principal of, premium or interest
on, or other amount payable with respect to, Securities or on account of the
redemption, purchase or other acquisition of Securities, and (2) other than
payments pursuant to Section 12.03, the payment, issuance or delivery of cash,
-----
property or securities (other than junior securities) upon conversion of a
Security shall be deemed to constitute payment on account of the principal of,
premium or interest on, or other amount payable with respect to, such Security.
For the purposes of this Section 13.14, the term "junior securities" means (a)
-----
shares of any stock of any class of the Company and (b) securities of the
Company that are subordinated in right of payment to the prior payment in full
of all Senior Indebtedness that may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a greater
extent than, the Securities are so subordinated as provided in this Article 13.
--
Nothing contained in this Article 13 or elsewhere in this Indenture or in the
--
Securities is intended to or shall impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders of the Securities, the
right, which is absolute and unconditional, of the Holder of any Security to
convert such Security in accordance with Article 12.
--
73
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
INTERLIANT, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK
as Trustee
By:___________________________________
Name:
Title:
74
EXHIBIT A
Interliant, Inc.
10% CONVERTIBLE SENIOR NOTE DUE 2006
No. $ ___________
CUSIP [__________]
INTERLIANT, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company," which term includes
any successor entity under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______, or registered assigns, the principal
sum of $ at the office or agency of the Company referred to below, on
___________ [__], 2006 in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest on said principal sum semiannually on
_________ [__] and ________ [ ] of each year, commencing on the first _______ [
] or _________ [ ] to occur after the date of this Security (each an "Interest
Payment Date"), at said office or agency, at a rate equal to 10% per annum,
until the principal hereof is paid or made available for payment.
Accrued but unpaid interest on this Security shall be payable as
follows:
1. The Company may at its option and in its sole discretion pay any or all
of the interest payable in respect of this Security on any Interest Payment Date
(other than the Interest Payment Date occurring upon Maturity of this Security)
by means of the issuance of an additional Security containing identical terms
and conditions as this Security but dated the date of such Interest Payment
Date, in an authorized denomination in an aggregate principal amount equal to
the amount of such accrued but unpaid interest. Absent a written notice by the
Company to the Trustee no later than 30 days prior to any applicable Interest
Payment Date by which the Company elects to make the interest payment due on
such Interest Payment Date in cash, the Company shall be deemed to have elected
to make the interest payment due on such Interest Payment Date by means of the
issuance of such additional Securities; or
2. If the Company elects to make the interest payment due on any Interest
Payment Date in cash, the Company shall make the applicable interest payment in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date shall, as provided in such Indenture, be paid to the
Person in whose name this Security (or one
75
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the ____________ [__] or
__________ [__] (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest that is required to be
paid in cash not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest required to be
paid in cash on this Security shall be made at the office or agency of the
Company maintained for such purpose, which initially shall be the Corporate
Trust Office of the Trustee referred to on the reverse side hereof, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, provided that the Company may
make such payment either by (i) mailing a check in the amount of such payment,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 3.07 of the Indenture (as defined herein) or (ii) transfer to an account
----
maintained by the payee located inside the United States.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DATED: INTERLIANT, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
DATED: THE CHASE MANHATTAN BANK
as Trustee
By: _______________________________________
Authorized Signatory
3
[FORM OF REVERSE OF SECURITY]
Interliant, Inc.
10% CONVERTIBLE SENIOR NOTE DUE 2006
This Security is one of a duly authorized issue of securities of the
Company designated as its 10% Convertible Senior Notes due 2006 (herein called
the "Securities"), limited in aggregate principal amount to $_______________,
which may be issued under an Indenture, dated as of _______________ [__], 2001
(the "Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
for the Holders of Securities issued under said Indenture (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior
Indebtedness and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at its option, at any time on or before
maturity of the Securities, or in case this Security or a portion hereof is
called for redemption, then in respect of this Security or such portion hereof
until and including, but (unless the Company defaults in making the payment due
upon redemption or repurchase) not after, the close of business on the Business
Day immediately preceding the Redemption Date or Repurchase Date, as the case
may be, to convert this Security (or any portion of the principal amount hereof
which is greater than $1,000 and in an integral multiple of $1.00), at the
principal amount hereof, or of such portion, into fully paid and nonassessable
shares of Common Stock of the Company at a Conversion Rate of 1.00 share of
common stock per $1.00 principal amount of the Securities (or at the current
adjusted Conversion Rate if an adjustment has been made as provided in Article
12 of the Indenture) by surrender of this Security, duly endorsed or assigned to
--
the Company or in blank, to the Company at its office or agency maintained for
such purpose, accompanied by the conversion notice hereon executed by the Holder
hereof evidencing such Holder's election to convert this Security, or if less
than the entire principal amount hereof is to be converted, the portion hereof
to be converted, and, in case such surrender shall be made during the period
from the close of business on any Regular Record Date to the opening of business
on the corresponding Interest Payment Date (unless this Security or the portion
hereof being converted has been called for redemption on a Redemption Date
within such period between and including such Regular Record Date and such
Interest Payment Date), also accompanied by payment in funds acceptable to the
Company of an amount equal to the interest required to be paid in cash on such
Interest Payment Date on the principal amount of this Security then being
converted. Subject to the aforesaid requirement for payment of interest and, in
the case of a conversion after the close of business on any Regular Record Date
and on or before the corresponding Interest Payment Date, to the right of the
Holder of this Security (or any Predecessor Security) of record at such Regular
Record Date to receive an installment of interest (even if the Security has been
called for redemption on a Redemption Date within such period), no payment or
adjustment is to be made on conversion for interest accrued hereon or for
dividends on the Common Stock issued on conversion. No
4
fractions of shares or scrip representing fractions of shares will be issued on
conversion, but instead of any fractional interest the Company shall pay a cash
adjustment as provided in Article 12 of the Indenture. The Conversion Rate and
Conversion Price are subject to adjustment as provided in Article 12 of the
--
Indenture. In addition, the Indenture provides that in case of certain
reclassifications, consolidations, mergers, sales or transfers of assets or
other transactions pursuant to which the Common Stock is converted into the
right to receive other securities, cash or other property, the conversion
privilege shall be modified so that this Security, if then outstanding, will be
convertible thereafter, during the period this Security shall be convertible as
specified above, only into the kind and amount of securities, cash and other
property receivable upon the transaction by a holder of the number of shares of
Common Stock into which this Security might have been converted immediately
prior to such transaction.
The Securities (other than those Securities that have been converted in
accordance with the terms of the Indenture) are subject to redemption at the
option of the Company upon not less than 30 days' or more than 60 days' notice
by mail (unless a shorter notice is deemed satisfactory by the Trustee), as a
whole or from time to time in part, at any time on or after the earlier of
_____________ [__], 2002 or the occurrence of a Change of Control and prior to
maturity. The Redemption Price shall be the aggregate principal amount this
Security together, in the case of any such redemption, with accrued interest to
(but not including) the Redemption Date (subject to the right of Holders of
record on the Regular Record Date to receive interest on the related Interest
Payment Date). Securities in denominations of $1,000 or less may only be
redeemed in whole. The Trustee may select for redemption portions (equal to
$1.00 or any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000
If fewer than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed by lot, pro rata or by another method
the Trustee considers fair and appropriate. If a portion of a Holder's
Securities is selected for partial redemption and that Holder converts a portion
of those Securities prior to the redemption, the converted portion shall be
deemed, solely for purposes of determining the aggregate principal amount of the
Securities to be redeemed by the Company, to be of the portion selected for
redemption.
In certain circumstances involving a Change in Control, each Holder
shall have the right to require the Company to repurchase all or part of its
Securities at a Repurchase Price equal to 100% of the principal amount thereof,
together with accrued and unpaid interest through the Repurchase Date (subject
to the right of Holders of record on the Regular Record Date to receive interest
on the related Interest Payment Date). At the option of the Company, the
Repurchase Price may be paid in cash or, subject to the conditions provided in
the Indenture, by delivery of shares of Common Stock.
The Securities do not have the benefit of any sinking fund.
In the event of redemption, conversion or repurchase of this Security
in part only, a new Security or Securities for the unredeemed, unconverted or
unrepurchased portion hereof shall be issued in the name of the Holder hereof
upon the cancellation hereof.
5
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee its attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in Article 4 of the Indenture.
-
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security at the times, place and rate, and in the coin or
currency or other property, herein prescribed or to convert this Security as
provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
Company's office or agency maintained for such purpose duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable in denominations of $1.00 or integral
multiples thereof. The Company shall not issue any Securities (including
Additional Securities) in any denomination of less than $1.00 and the principal
amount of any such Security to be issued shall be rounded down to the nearest
$1.00. All amounts not included in any Security as a result of such Security
being rounded down to the nearest $1.00 shall be forever forfeited.
6
No service charge shall be made to a Holder for any such registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on the Securities is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay).
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES.
7
FORM OF CONVERSION NOTICE
CONVERSION NOTICE
To: INTERLIANT, INC.
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security, or the portion hereof (which is greater
than $1,000 and in integral multiple of $1.00) below designated, at any time
following the date of original issuance thereof, into shares of Common Stock in
accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon conversion, together with
any check in payment for a fractional share and any Security representing any
unconverted principal amount hereof, be issued and delivered to the registered
owner hereof unless a different name has been provided below. If shares or any
portion of this Security not converted are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto and is delivering herewith a certificate in proper form
certifying that the applicable restrictions on transfer have been complied with.
Any amount required to be paid by the undersigned on account of interest
accompanies this Security.
Dated: By:
---------------------------------------
Signature*
If shares or Securities are to be Principal amount to be Converted
registered in the name of a Person (if less than all):$______,000
other than the Holder, please print
such Person's name and address:
_________________________________________
Name
_________________________________________
Social Security or Taxpayer
Identification Number
_________________________________________
Street Address
_________________________________________
City, State and Zip Code
* Signature(s) must be guaranteed by an eligible guarantor institution
(banks, stock brokers, savings and loan associations and credit unions with
membership in an approved signature guarantee
medallion program) pursuant to Securities and Exchange Commission Rule 17Ad-15
if shares of Common Stock are to be delivered, or unconverted Securities are to
be issued, other than to and in the name of the registered owner.
2
