EXECUTION COPY
EXHIBIT 4.3
ARRIS GROUP, INC.,
ISSUER,
AND
THE BANK OF NEW YORK,
TRUSTEE
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INDENTURE
Dated as of March 18 , 2003
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$125,000,000 Principal Amount
4 1/2% Convertible Subordinated Notes due 2008
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.....................................................................................1
Section 1.2 Incorporation by Reference of TIA..............................................................10
Section 1.3 Rules of Construction..........................................................................11
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating................................................................................11
Section 2.2 Execution and Authentication...................................................................12
Section 2.3 Registrar and Paying Agent.....................................................................13
Section 2.4 Paying Agent to Hold Assets in Trust...........................................................13
Section 2.5 Securityholder Lists...........................................................................14
Section 2.6 Transfer and Exchange..........................................................................14
Section 2.7 Replacement Securities.........................................................................20
Section 2.8 Outstanding Securities.........................................................................21
Section 2.9 Treasury Securities............................................................................21
Section 2.10 Temporary Securities...........................................................................21
Section 2.11 Cancellation...................................................................................22
Section 2.12 Defaulted Interest.............................................................................22
Section 2.13 CUSIP Numbers..................................................................................23
ARTICLE III
REDEMPTION
Section 3.1 Right of Redemption............................................................................24
Section 3.2 Notices to Trustee.............................................................................25
Section 3.3 Selection of Securities to Be Redeemed.........................................................25
Section 3.4 Notice of Redemption...........................................................................26
Section 3.5 Effect of Notice of Redemption.................................................................27
Section 3.6 Deposit of Redemption Price....................................................................27
Section 3.7 Securities Redeemed in Part....................................................................28
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ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities..........................................................................28
Section 4.2 Maintenance of Office or Agency................................................................28
Section 4.3 Corporate Existence............................................................................28
Section 4.4 Payment of Taxes and Other Claims..............................................................29
Section 4.5 Maintenance of Properties and Insurance........................................................29
Section 4.6 Compliance Certificate; Notice of Default......................................................30
Section 4.7 Reports........................................................................................30
Section 4.8 Limitation on Status as Investment Company.....................................................31
Section 4.9 Waiver of Stay, Extension or Usury Laws........................................................31
Section 4.10 Rule 144A Information Requirement..............................................................31
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 Limitation on Merger, Sale or Consolidation....................................................31
Section 5.2 Successor Corporation Substituted..............................................................32
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default..............................................................................32
Section 6.2 Acceleration of Maturity Rescission and Xxxxxxxxx..............................................34
Section 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee................................35
Section 6.4 Trustee May File Proofs of Claim...............................................................36
Section 6.5 Trustee May Enforce Claims Without Possession of Securities....................................37
Section 6.6 Priorities.....................................................................................37
Section 6.7 Limitation on Suits............................................................................38
Section 6.8 Unconditional Right of Holders to Receive Principal, Premium, Interest Make-Whole
Payment and Interest.........................................................................38
Section 6.9 Rights and Remedies Cumulative.................................................................39
Section 6.10 Delay or Omission Not Waiver...................................................................39
Section 6.11 Control by Holders.............................................................................39
Section 6.12 Waiver of Past Default.........................................................................40
Section 6.13 Undertaking for Costs..........................................................................40
Section 6.14 Restoration of Rights and Remedies.............................................................40
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ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee..............................................................................41
Section 7.2 Rights of Trustee..............................................................................42
Section 7.3 Individual Rights of Trustee...................................................................44
Section 7.4 Trustee's Disclaimer...........................................................................44
Section 7.5 Notice of Default..............................................................................44
Section 7.6 Reports by Trustee to Holders..................................................................44
Section 7.7 Compensation and Indemnity.....................................................................45
Section 7.8 Replacement of Trustee.........................................................................46
Section 7.9 Successor Trustee by Merger, Etc...............................................................47
Section 7.10 Eligibility; Disqualification..................................................................47
Section 7.11 Preferential Collection of Claims Against Company..............................................47
Section 7.12 Other Capacities...............................................................................47
ARTICLE VIII
SATISFACTION AND DISCHARGE
Section 8.1 Satisfaction and Discharge of Indenture........................................................48
Section 8.2 Repayment to the Company.......................................................................48
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Supplemental Indentures Without Consent of Holders.............................................48
Section 9.2 Amendments, Supplemental Indentures and Waivers with Consent of Holders........................49
Section 9.3 Compliance with TIA............................................................................50
Section 9.4 Revocation and Effect of Consents..............................................................50
Section 9.5 Notation on or Exchange of Securities..........................................................51
Section 9.6 Trustee to Sign Amendments, Etc................................................................51
ARTICLE X
MEETINGS OF SECURITYHOLDERS
Section 10.1 Purposes for Which Meetings May Be Called......................................................51
Section 10.2 Manner of Calling Meetings.....................................................................52
Section 10.3 Calling of Meetings by the Company or Holders..................................................52
Section 10.4 Who May Attend and Vote at Meetings............................................................53
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Section 10.5 Regulations May Be Made by Company; Conduct of the Meeting: Voting Rights; Adjournment.........53
Section 10.6 Voting at the Meeting and Record to Be Kept....................................................54
Section 10.7 Exercise of Rights of Trustee or Holders May Not Be Hindered or Delayed by Call of Meeting.....54
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE UPON A CHANGE OF CONTROL
Section 11.1 Repurchase of Securities at Option of the Holder Upon a Change of Control......................54
Section 11.2 Rescission of Change of Control Determination..................................................57
ARTICLE XII
SUBORDINATION
Section 12.1 Securities Subordinated to Senior Indebtedness.................................................58
Section 12.2 No Payment on Securities in Certain Circumstances..............................................58
Section 12.3 Securities Subordinated to Prior Payment of All Senior Indebtedness on Dissolution
Liquidation or Reorganization.................................................................60
Section 12.4 Securityholders to Be Subrogated to Rights of Holders of Senior Indebtedness...................61
Section 12.5 Obligations of the Company Unconditional.......................................................61
Section 12.6 Trustee and Other Agents Entitled to Assume Payments Not Prohibited in Absence of Notice.......62
Section 12.7 Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior
Indebtedness.................................................................................62
Section 12.8 Securityholders Authorize Trustee to Effectuate Subordination of Securities....................62
Section 12.9 Right of Trustee to Hold Senior Indebtedness...................................................63
Section 12.10 Article XII Not to Prevent Events of Default...................................................63
Section 12.11 No Duty of Trustee and Other Agents to Holders of Senior Indebtedness..........................63
Section 12.12 Amendments.....................................................................................64
ARTICLE XIII
CONVERSION OF SECURITIES
Section 13.1 Conversion Privilege...........................................................................64
Section 13.2 Exercise of Conversion Privilege...............................................................65
Section 13.3 Fractional Interests...........................................................................66
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Section 13.4 Conversion Price...............................................................................66
Section 13.5 Adjustment of Conversion Price.................................................................66
Section 13.6 Continuation of Conversion Privilege in Case of Reclassification, Change, Merger,
Consolidation or Sale of Assets..............................................................72
Section 13.7 Notice of Certain Events.......................................................................73
Section 13.8 Taxes on Conversion............................................................................74
Section 13.9 Company to Provide Stock.......................................................................74
Section 13.10 Disclaimer of Responsibility for Certain Matters...............................................75
Section 13.11 Return of Funds Deposited for Redemption of Converted Securities...............................75
ARTICLE XIV
MISCELLANEOUS
Section 14.1 TIA Controls...................................................................................75
Section 14.2 Notices........................................................................................76
Section 14.3 Communications by Holders with Other Holders...................................................77
Section 14.4 Certificate and Opinion as to Conditions Precedent.............................................77
Section 14.5 Statements Required in Certificate or Opinion..................................................77
Section 14.6 Rules by Trustee, Paying Agent, Registrar......................................................77
Section 14.7 Legal Holidays.................................................................................78
Section 14.8 Governing Law..................................................................................78
Section 14.9 No Adverse Interpretation of Other Agreements..................................................78
Section 14.10 No Recourse Against Others.....................................................................78
Section 14.11 Successors.....................................................................................79
Section 14.12 Duplicate Originals............................................................................79
Section 14.13 Severability...................................................................................79
Section 14.14 Table of Contents, Headings, Etc...............................................................79
Section 14.15 Qualification of Indenture.....................................................................79
Section 14.16 Registration Rights............................................................................79
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INDENTURE, dated as of March 18, 2003, between Arris Group,
Inc., a Delaware corporation (the "Company"), and The Bank of New York, a New
York banking corporation, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the
Company's 4 1/2% Convertible Subordinated Notes due 2008:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Affiliate" means any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company. For purposes of this definition, the terms "control," "controlling" and
"controlled" mean the power to direct the management and policies of a Person,
directly or through one or more intermediaries, whether through the ownership of
voting securities, by contract, or otherwise.
"Agent" means the Trustee and any Registrar, Paying Agent,
co-Registrar, authenticating agent or Securities Custodian.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal, state or foreign law for the relief of debtors.
"Beneficial Owner" for purposes of the definition of Change of
Control has the meaning attributed to it in Rules 13d-3 and 13d-5 under the
Exchange Act, whether or not applicable.
"Board of Directors" means, with respect to any Person, the
Board of Directors of such person or any committee of the Board of Directors of
such Person authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options,
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participations or other equivalents of or interests (however designated) in
stock issued by that Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as a
capital lease obligation under GAAP.
"Cash" means 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.
"Change of Control" means (i) an event or series of events as
a result of which any "person" or "group" (as such terms are used in Sections
13(d)(3) and 14(d) of the Exchange Act) (excluding the Company or any wholly
owned Subsidiary thereof or any employee benefit plan of the Company or those of
any such Subsidiary) is or becomes, directly or indirectly, the Beneficial Owner
of more than 50% of the Voting Stock, (ii) the completion of any consolidation
or merger of the Company with or into any other Person, or sale, conveyance,
transfer or lease by the Company of all or substantially all of its assets to
any Person, or any merger of any other Person into the Company in a single
transaction or series of related transactions, and, in the case of any such
transaction or series of related transactions, the outstanding Common Stock of
the Company is changed or exchanged as a result, unless the shareholders of the
Company immediately before such transaction own, directly or indirectly,
immediately following such transaction, at least a majority of the combined
voting power of the outstanding voting securities of the Person resulting from
such transaction in substantially the same proportion as their ownership of the
Voting Stock immediately before such transaction, or (iii) such time as the
Continuing Directors do not constitute a majority of the Board of Directors of
the Company (or, if applicable, a successor corporation to the Company).
"Common Stock" means the Company's common stock, $0.01 par
value per share, or as such stock may be reconstituted from time to time.
"Company" means the party named as such in the introductory
paragraph to this Indenture until a successor replaces it pursuant to this
Indenture, and thereafter means such successor.
"Continuing Director" means at any date a member of the
Company's Board of Directors (i) who was a member of such board on the Issue
Date or (ii) who was nominated or elected by at least a majority of the
directors who were Continuing Directors (as described in clause (i) hereto) at
the time of such nomination or election or whose election to the Company's Board
of Directors was recommended or endorsed by at least a majority of the directors
who were Continuing Directors (as described in clause (i) hereto) at the time of
such nomination or election.
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"Conversion Agent" means any Person authorized by the Company
to convert Securities in accordance with Article XIII. The Company has initially
appointed the Trustee as its Conversion Agent.
"Conversion Price" shall have the meaning specified in Section
13.4.
"Conversion Shares" shall have the meaning specified in
Section 13.5(l).
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the dated hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administration, or such
other address as the Trustee may designate from time to time by notice to the
Holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as such successor Trustee may designate
from time to time by notice to the Holders and the Company).
"Credit Facility" shall mean that certain Credit Agreement,
dated as of August 3, 2001, among Arris International, Inc., Arris Interactive
L.L.C., and certain subsidiaries of Arris International, Inc., as borrowers; the
various lenders party thereto; the CIT Group/Business Credit, Inc., as
administrative agent and collateral agent; and Credit Suisse First Boston, as
syndication agent, lead arranger and book running manager, as such agreement may
be amended, restated, modified, renewed, refunded, replaced or refinanced from
time to time thereafter, including any notes, guaranties, security or pledge
agreements, letters of credit and other documents or instruments executed
pursuant thereto and any exhibits or schedules to any of the foregoing, as the
same may be in effect from time to time, in each case, as such agreements may be
amended, modified, supplemented, renewed, refunded, replaced, refinanced
(including increasing the amount of available borrowings thereunder or adding
additional Subsidiaries of the Company as additional and/or replacement
borrowers or guarantors), extended or restated from time to time (whether with
the original agents and lenders or other agents and lenders or otherwise, and
whether provided under the original credit agreement or other credit agreements
or otherwise), including any appendices, exhibits or schedules to any of the
foregoing.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Date of Conversion" shall have the meaning specified in
Section 13.2.
"Default" means any event or condition that is, or after
notice or passage of time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in
Section 2.12.
"Definitive Securities" means Securities that are in the form
of Security attached hereto as Exhibit A that do not include the information
called for by footnotes 1 and 3 thereof.
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"Depositary" shall mean, with respect to the Securities
issuable or issued in whole or in part in global form, The Depository Trust
Company, until a successor, registered under the Exchange Act or other
applicable statute or regulation, shall have been appointed and become such
pursuant to the applicable provision of this Indenture, and, thereafter,
"Depositary" shall mean or include such successor.
"Designated Senior Indebtedness" means (i) any Indebtedness
outstanding under the Credit Facility and (ii) any other Senior Indebtedness,
the principal amount of which is $10 million or more and that has been
designated by the Company as "Designated Senior Indebtedness" (it being
expressly understood, however, that on the Issue Date, the Credit Facility
prohibits the Company from designating any Indebtedness other than Indebtedness
evidenced by the Credit Facility as "Designated Senior Indebtedness").
"Disqualified Capital Stock" means, with respect to the
Company, Capital Stock of the Company that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event or the passage of time would be, required to be
redeemed or repurchased (including at the option of the holder thereof) by the
Company, in whole or in part, on or prior to the Stated Maturity of the Notes,
provided that only the portion of such Capital Stock which is so convertible,
exercisable, exchangeable or redeemable or subject to repurchase prior to such
Stated Maturity shall be deemed to be Disqualified Capital Stock.
"Distribution Date" shall have the meaning specified in
Section 13.5(1).
"Event of Default" shall have the meaning specified in Section
6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Expiration Time" shall have the meaning specified in Section
13.5(f).
"GAAP" means United States generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession which are in effect in the United States; provided,
however, that for purposes of determining compliance with covenants in the
Indenture, "GAAP" means such generally accepted accounting principles which are
in effect as of the Issue Date.
"Global Security" means a Security that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 3
to the form of Security attached hereto as Exhibit A.
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"Holder" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" of any person means, without duplication, (a)
all liabilities and Obligations, contingent or otherwise, of any such Person,
(i) in respect of borrowed money including, without limitation, Senior
Indebtedness (whether or not the lender has recourse to all or any portion of
the assets of such Person), (ii) evidenced by credit or loan agreements, bonds,
notes, debentures or similar instruments (including, without limitation, notes
or similar instruments given in connection with the acquisition of any business,
properties or assets of any kind), (iii) evidenced by bankers' acceptances or
similar instruments issued or accepted by banks, (iv) for the payment of money
relating to a Capitalized Lease Obligation, or (v) evidenced by a letter of
credit, bank guarantee or a reimbursement obligation of such Person with respect
to any letter of credit; (b) all obligations of such Person issued or assumed as
the deferred purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of
business); (c) all net obligations of such person under Interest Swap and
Hedging Obligations; (d) all liabilities of others of the kind described in the
preceding clauses (a), (b) or (c) that such Person has guaranteed or that is
otherwise its legal liability, or which is secured by a lien on property of such
Person, and all obligations to purchase, redeem or acquire any Capital Stock;
and (e) any and all deferrals, renewals, extensions, modifications,
replacements, restatements, refinancings and refundings (whether direct or
indirect) of, or any indebtedness or obligation issued in exchange for, any
liability of the kind described in any of the preceding clauses (a), (b), (c) or
(d), or this clause (e), whether or not between or among the same parties.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Initial Purchaser" means CIBC World Markets Corp.
"Interest Make-Whole Payment" means, with respect to any
Security on any applicable Redemption Date, the present value (which the Company
shall cause to be calculated and provided to the Trustee) at such Redemption
Date of the aggregate amount all required interest payments due on the Security
through the third anniversary of the Issue Date, computed using a discount rate
equal to the Treasury Rate as of the applicable Redemption Notice Date.
"Interest Payment Date" means the stated due date of an
installment of interest on the Securities.
"Interest Swap and Hedging Obligation" means the obligations
of any Person under any interest rate or currency protection agreement, future
agreement, option agreement, swap agreement, cap agreement or other interest
rate or currency hedge agreement, collar agreement or other similar agreement or
arrangement to which such Person is a party or beneficiary.
"Issue Date" means March 18, 2003.
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"Junior Securities" means any Qualified Capital Stock of the
Company and any Indebtedness of the Company, in each case that is fully
subordinated to all Senior Indebtedness (and any equity and debt securities
issued in exchange for Senior Indebtedness) to substantially the same extent as,
or to a greater extent than, the Notes are subordinated to Senior Indebtedness
pursuant to the Indenture.
"Last Sale Price" shall have the meaning specified in Section
13.3.
"Legal Holiday" shall have the meaning specified in Section
14.7.
"Lien" means any mortgage, lien, pledge, charge, security
interest or other encumbrance of any kind, whether or not filed, recorded or
otherwise perfected under applicable law (including any conditional sale or
other title retention agreement and any lease deemed to constitute a security
interest and any option or other agreement to give any security interest).
"Liquidated Damages" shall have the meaning specified in the
Registration Rights Agreement. The aggregate amount of all Liquidated Damages
shall not exceed 200 basis points per annum at any time.
"Non-electing Share" shall have the meaning specified in
Section 13.6.
"Non-Payment Default" shall have the meaning specified in
Section 12.2(b).
"Notice of Default" shall have the meaning specified in
Section 6.1(3), (4) or (5).
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offer" shall have the meaning specified in Section 13.5(f).
"Offering Circular" means the final Offering Circular, dated
as of March 12, 2003, in connection with which the Securities were offered and
sold by the Company.
"Officer" means, with respect to the Company, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Controller, or the Secretary or the Assistant
Secretary of the Company.
"Officers' Certificate" means, with respect to the Company, a
certificate signed by two Officers of the Company and otherwise complying with
the requirements of Section 2.2, if applicable, and Sections 14.4 and 14.5.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee and which complies with the
requirements of Sections 14.4 and 14.5.
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"Paying Agent" shall have the meaning specified in Section
2.3.
"Payment Blockage Period" shall have the meaning specified in
Section 12.2(b).
"Payment Default" shall have the meaning specified in Section
12.2(a).
"Payment Notice" shall have the meaning specified in Section
12.2(b).
"Person" or "person" means any corporation, individual,
limited liability company, joint stock company, joint venture, partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other entity.
"Principal" of any Indebtedness means the principal of such
Indebtedness plus, without duplication, any applicable premium, if any, on such
Indebtedness.
"property" means any right or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible.
"Purchase Agreement" means that certain Purchase Agreement,
dated March 12, 2003, by and among the Company and the Initial Purchaser, as
such agreement may be amended from time to time.
"Purchased Shares" shall have the meaning specified in Section
13.5(f).
"Qualified Capital Stock" means any Capital Stock of the
Company that is not Disqualified Capital Stock.
"Record Date" means a record date specified in the Securities
whether or not such record date is a Business Day.
"Redemption" shall have the meaning specified in Section 3.1.
"Redemption Date," shall have the meaning specified in Section
3.1.
"Redemption Notice Date" shall have the meaning specified in
Section 3.1.
"Redemption Price," shall have the meaning specified in
Section 3.1.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated the date hereof, by and among the Initial Purchaser and the
Company, as such agreement may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
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"Representative" means the trustee, agent or representative in
respect of any Designated Senior Indebtedness; provided that if, and for so long
as, any Designated Senior Indebtedness lacks such a representative, then the
Representative for such Designated Senior Indebtedness shall at all times
constitute the holders of a majority in outstanding principal amount of such
Designated Senior Indebtedness.
"Repurchase Date" shall have the meaning specified in Section
11.1(a).
"Repurchase Offer" shall have the meaning specified in Section
11.1(b).
"Repurchase Price" shall have the meaning specified in Section
11.1(a).
"Repurchase Put Date" shall have the meaning specified in
Section 11.1(b).
"Restricted Security" means a Security, unless or until it has
been (i) disposed of in a transaction effectively registered under the
Securities Act or (ii) distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means, collectively, the 4 1/2% Convertible
Subordinated Notes due 2008, as supplemented from time to time in accordance
with the terms hereof, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Securities Custodian" means the Trustee, as Custodian with
respect to the Securities in global form, or any successor entity thereto.
"Senior Indebtedness" means all Obligations of the Company to
pay the principal of, premium, if any, interest (including all interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding at the
rate provided for in the documentation with respect thereto, whether or not a
claim for post-petition interest is allowed as a claim in any such proceeding)
and rent payable on or in connection with, and all letters of credit,
reimbursement obligations and fees, costs, expenses and other amounts and
liabilities accrued or due on or in connection with the Credit Facility and any
other Indebtedness of the Company, whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed, guaranteed or in effect
guaranteed by the Company, unless the instrument creating or evidencing such
Indebtedness expressly provides that such Indebtedness is not senior or superior
in right of payment to the Securities or is pari passu with, or subordinated to,
the Securities; provided that in no event shall Senior Indebtedness include (a)
Indebtedness of the Company owed or owing to any Subsidiary of the Company, (b)
Indebtedness of the Company representing or with respect to any account payable
or other accrued current liability or obligation incurred in the ordinary course
of business in
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connection with the obtaining of materials or services, (c) any liability for
taxes owed or owing by the Company or any Subsidiary of the Company, or (d) the
Securities.
"Shareholder Rights Plan" shall have the meaning specified in
Section 13.5(l).
"Shelf Registration Statement" shall have the meaning
specified in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" of the Company within the meaning of Rule 1-02(w) of
Regulation S-X promulgated by the Commission as in effect as of the date of the
Indenture.
"Special Record Date" for payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity," when used with respect to any Security,
means March 15, 2008.
"Subordinated Obligations" shall have the meaning set
specified in Section 12.2(a).
"Subsidiary" with respect to any Person, means (i) a
corporation a majority of whose Capital Stock with voting power normally
entitled to vote in the election of directors is at the time, directly or
indirectly, owned by such Person, by such Person and one or more Subsidiaries of
such Person or by one or more Subsidiaries of such Person, (ii) a partnership in
which such Person or a Subsidiary of such Person is, at the time, a general
partner and owns alone or together with one or more Subsidiaries of such Person
a majority of the partnership interests, or (iii) any other Person (other than a
corporation) in which such Person, one or more Subsidiaries of such Person, or
such Person and one or more Subsidiaries of such Person, directly or indirectly,
at the date of determination thereof has at least majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section 77aaa-77bbbb) as in effect on the date of the execution of this
Indenture, except as provided by Section 9.3 hereof pursuant to which the term
"TIA" will mean such Trust Indenture Act as amended through and including the
date specified by such Section 9.3 for purposes thereof.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not traded on the Nasdaq
National Market (or, if the Common Stock is not listed thereon, on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading).
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in Section 2.6 hereof.
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"Treasury Rate" means, as of the applicable Redemption Notice
Date, the yield to maturity as of such Redemption Notice Date of United States
Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available prior to such Redemption Notice Date (or, if such Statistical
Release is no longer published, any publicly available source of similar market
data)) most nearly equal to the period from the Redemption Date to the third
anniversary of the Issue Date; provided, however, that if the period from such
redemption date to the third anniversary of the Issue Date is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.
"Trustee" means the party named as such in the introductory
paragraph to this Indenture until a successor replaces it in accordance with the
provisions of this Indenture and thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee customarily performing functions similar to those
performed by the Persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer of
the Trustee to whom such trust matter is referred because of his knowledge of
and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
"U.S. Government Obligations" means direct noncallable
obligations of, or noncallable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"Voting Stock" means the combined voting power of the then
outstanding securities entitled to vote generally in elections of directors,
managers or trustees, as applicable, of the Company or any successor entity.
Section 1.2 Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture securities" means the Securities.
"Indenture securityholder" means a Holder or a Securityholder.
"Indenture to be qualified" means this Indenture.
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"Indenture trustee" or "institutional trustee" means the
Trustee.
"Obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings so assigned to them thereby.
Section 1.3 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words
in the plural include the singular;
(5) provisions apply to successive events and
transactions;
(6) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(7) references to Sections or Articles means reference to
such Section or Article in this Indenture, unless stated otherwise.
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating.
The Securities and the Trustee's certificate of authentication
in respect thereof shall be substantially in the form set forth in Exhibit A
hereto, which is incorporated in and forms a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company shall approve the form of Security and any
notation, legend or endorsement on them. Any such notations, legends or
endorsements not contained in the form of Security attached as Exhibit A hereto
shall be delivered in writing to the Trustee. Each Security shall be dated the
date of its authentication.
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The terms and provisions contained in the form of Security
shall constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby. If any term or provision of a Security limits, qualifies, or
conflicts with the terms of this Indenture, the terms of this Indenture shall
control.
Securities offered and sold in reliance on Rule 144A and
Securities offered and sold in reliance on Regulation S shall be issued
initially in the form of one or more Global Securities. The aggregate principal
amount of the Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as Custodian for the
Depositary, as hereinafter provided.
Section 2.2 Execution and Authentication.
Two Officers shall sign the Security for the Company by manual
or facsimile signature. The Company's seal may be, but is not required to be,
impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
If an Officer whose signature is on a Security was an Officer
at the time of such execution but no longer holds that or any office at the time
the Trustee authenticates the Security, the Security shall be valid nevertheless
and the Company shall nevertheless be bound by the terms of the Securities and
this Indenture.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
Such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
Upon a written order of the Company signed by two Officers,
the Trustee shall authenticate the Securities for original issue in the
aggregate principal amount of up to $125,000,000. The aggregate principal amount
of Securities outstanding at any time may not exceed $125,000,000 except as
provided in Section 2.7. Upon the written order of the Company in the form of an
Officers' Certificate, the Trustee shall authenticate Securities in substitution
of Securities originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company, any Affiliate of the Company,
or any of their respective Subsidiaries, and has the same protections under the
Indenture.
Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. The
Securities shall bear interest at the rate, calculated and paid, as provided in
the form of Security set forth in Exhibit A.
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Section 2.3 Registrar and Paying Agent.
The Company shall maintain an office or agency in New York,
New York, where Securities may be presented for registration of transfer or for
exchange ("Registrar") an office or agency where Securities may be presented for
payment ("Paying Agent") and an office or agency where Securities may be
presented for conversion ("Conversion Agent") and where notices and demands to
or upon the Company in respect of the Securities may be served. The Company may
act as Registrar or Paying Agent, except that, for the purposes of Articles III,
VIII and XI and as otherwise specified in the Indenture, neither the Company nor
any Affiliate of the Company shall act as Paying Agent. The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company may
have one or more co-Registrars and one or more additional Paying Agents. The
term "Paying Agent" includes any additional Paying Agent. The Company hereby
initially appoints the Trustee as Registrar and Paying Agent, and the Trustee
hereby initially agrees so to act.
The Company shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall promptly notify the Trustee in writing of the name and address of
any such Agent. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
The Company initially appoints the Trustee to act as
Securities Custodian with respect to the Global Securities.
Section 2.4 Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, premium, if any, interest on or Liquidated Damages with
respect to, the Securities (whether such assets have been distributed to it by
the Company or any other obligor on the Securities), and shall notify the
Trustee in writing of any Default in making any such payment. If either of the
Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate
such assets and hold them as a separate trust fund for the benefit of the
Holders or the Trustee. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any Payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent (if other than
the Company or an Affiliate of the Company) shall have no further liability for
such assets.
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Section 2.5 Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee on or before the third Business Day preceding each
Interest Payment Date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee reasonably may
require of the names and addresses of Holders.
Section 2.6 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When
Definitive Securities are presented to the Registrar or a co-Registrar with a
request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations;
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company
and the Registrar or co-Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
(ii) in the case of a Definitive Security that is a
Transfer Restricted Security, shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Definitive Security is being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from
such Holder to that effect (in substantially the form set
forth on the reverse of the Security); or
(B) if such Definitive Security is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act, a certification to that effect
(in substantially the form set forth on the reverse of the
Security); or
(C) if such Definitive Security is being
transferred to an institutional investor that is an
"accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act, a certification to
that effect (in substantially
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the form set forth on the Security) accompanied by a
certificate in the form of Exhibit B hereto to the Trustee and
if either the Trustee or the Company so requests, an Opinion
of Counsel satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act;
(D) if such Definitive Security is being
transferred in accordance with Regulation S under the
Securities Act, a certification to that effect (in
substantially the form set forth on the Security) and if
either the Trustee or the Company so requests, an Opinion of
Counsel satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act; or
(E) if such Definitive Security is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act, a
certification to that effect (in substantially the form set
forth on the Security) and if either the Trustee or the
Company so requests, an Opinion of Counsel satisfactory to the
Company to the effect that such transfer is in compliance with
the Securities Act.
(b) Restrictions on Transfer of a Definitive Security for
a Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security, except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by appropriate instruments
of transfer in form reasonably satisfactory to the Company and the Registrar or
Co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing, together with:
(i) if such Definitive Security is a Transfer Restricted
Security, certification, substantially in the form set forth on the
Security, that such Definitive Security is being transferred (x) to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act
or (y) in accordance with Regulation S under the Securities Act; and
(ii) whether or not such Definitive Security is a Transfer
Restricted Security, written instructions directing the Trustee to
make, or to direct the Securities Custodian to make, an endorsement on
the Global Security to reflect an increase in the aggregate principal
amount of the Securities represented by the applicable Global Security;
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Securities Custodian, the
aggregate principal amount of Securities represented by the appropriate Global
Security to be increased accordingly. If no Global Securities are then
outstanding, the Company shall issue and the Trustee, upon receipt of the
authentication order of the Company in the form of an Officers' Certificate,
shall authenticate an appropriate new Global Security in the appropriate
principal amount.
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(c) Transfer and Exchange of Global Securities. The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depositary, in accordance with this Indenture (including
the restrictions on transfer set forth herein) and the procedures of the
Depositary therefor.
(d) Transfer of a Beneficial Interest in a Global
Security for a Definitive Security. (i) Upon receipt by the Trustee:
(A) of written instructions or such other form
of instructions as is customary for the Depositary from the
Depositary or its nominee on behalf of any Person having a
beneficial interest in a Global Security and
(B) of a written order or such other form of
instructions as is customary for the Depositary or the Person
designated by the Depositary as having such a beneficial
interest in a Transfer Restricted Security only, accompanied
by the following additional information and documents (all of
which may be submitted by facsimile):
(1) if such beneficial interest is being
transferred to the Person designated by the
Depositary as being the beneficial owner, a
certification from such person to that effect (in
substantially the form set forth on the reverse of
the Security); or
(2) if such beneficial interest is being
transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act, a
certification to that effect from the transferor (in
substantially the form set forth on the reverse of
the Security); or
(3) if such beneficial interest is being
transferred to an institutional investor that is an
"accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act,
a certification to that effect (in substantially the
form set forth on the reverse of the Security)
accompanied by a certificate in the form of Exhibit B
to the Indenture to the Trustee and if either the
Trustee or the Company so requests, an Opinion of
Counsel satisfactory to the Company to the effect
that such transfer is in compliance with the
Securities Act; or
(4) if such beneficial interest is being
transferred in accordance with Regulation S under the
Securities Act, a certification to that effect (in
substantially the form set forth on the reverse of
the Security) and if either the Trustee or the
Company so requests, an Opinion of Counsel
satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act; or
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(5) if such beneficial interest is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act, a
certification to that effect from the transferee or
transferor (in substantially the form set forth on
the reverse of the Security) and if either the
Trustee or the Company so requests, an Opinion of
Counsel satisfactory to the Company to the effect
that such transfer is in compliance with the
Securities Act;
the Trustee or the Securities Custodian, at the direction of the Trustee, will
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Securities Custodian, the aggregate principal
amount of the applicable Global Security to be reduced and, following such
reduction, the Company will execute and, upon receipt of an authentication order
in the form of an Officers' Certificate, the Trustee will authenticate and
deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this Section
2.6(d) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall make such Definitive Securities available
for delivery to the persons in whose names such Securities are so
registered.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in subsection (f) of this Section 2.6), a Global
Security may not be transferred as a whole except (i) by the Depositary to a
nominee of the Depositary, (ii) by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or (iii) by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Definitive Securities in Absence
of Depositary. If at any time:
(i) the Depositary for the Securities notifies the
Company and the Company notifies the Trustee in writing that the
Depositary is no longer willing or able to continue as Depositary for
the Global Securities and a successor Depositary for the Global
Securities is not appointed by the Company within 90 days after
delivery of such notice;
(ii) the Company, in its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of Definitive
Securities under this Indenture; or
(iii) a Default entitling Holders to accelerate the Stated
Maturity has occurred and is continuing;
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then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Securities,
will authenticate and make available for delivery Definitive Securities, in an
aggregate principal amount equal to the principal amount of the Global
Securities, in exchange for such Global Securities.
(g) Legends. (i) Except as permitted by the following
paragraph (ii), each Security certificate evidencing the Global
Securities and the Definitive Securities (and all Securities issued in
exchange therefor or substitution thereof) shall bear a legend in
substantially the following form:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) (A "QIB") OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT) (AN "IAI")), (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR
ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, (C) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH
CAN BE OBTAINED FROM THE TRUSTEE) AND, IF THE COMPANY SO REQUESTS, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, IT IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS
OF RULE 903 OR 904 UNDER THE SECURITIES ACT, (E) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
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SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY
RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Definitive Security or that is represented
by a Global Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a
Definitive Security that does not bear the legend set forth
above and rescind any restriction on the transfer of such
Transfer Restricted Security (1) in the case of a sale or
transfer pursuant to Rule 144 under the Securities Act, after
delivery of a customary Opinion of Counsel satisfactory to the
Company to the effect that such transfer is in compliance with
the Securities Act or (2) in the case of a sale or transfer
pursuant to an effective registration statement under the
Securities Act; and
(B) any such Transfer Restricted Security
represented by a Global Security shall not be subject to the
provisions set forth in (i) above (such sales or transfers
being subject only to the provisions of Section 2.6(c)
hereof).
(h) Cancellation and/or Adjustment of Global Security. At
such time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or canceled, such
Global Security shall be returned to or retained and canceled by the Trustee. At
any time prior to such cancellation, if any beneficial interest in a Global
Security is exchanged for Definitive Securities, redeemed, repurchased or
canceled, the principal amount of Securities represented by such Global Security
shall be reduced and an endorsement shall be made on such Global Security, by
the Trustee or the Securities Custodian, at the written direction of the
Trustee, to reflect such reduction.
(i) Obligations with respect to Transfers and Exchanges
of Definitive Securities. (1) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee, upon receipt of the
authentication order of the Company in the form of an Officers' Certificate,
shall authenticate Definitive Securities and Global Securities at the
Registrar's or co-Registrar's written request.
(2) No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax, assessments, or similar governmental charge payable
in connection therewith (other than any such
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transfer taxes, assessments, or similar governmental charge payable upon
exchanges or transfers pursuant to Section 2.2 (fourth paragraph), 2.10, 3.7,
9.5, or 11.1 (final paragraph)).
(3) The Registrar or co-Registrar shall not be required
to register the transfer of or exchange of (a) any Definitive Security selected
for redemption in whole or in part pursuant to Article III, except the
unredeemed portion of any Definitive Security being redeemed in part, or (b) any
Security for a period beginning 15 days before the mailing of a notice of an
offer to repurchase pursuant to Article XI or the mailing of a notice of
redemption of Securities pursuant to Article III and ending at the close of
business on the day of such mailing.
(j) General. The Trustee shall have no obligation or duty
to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers between or
among Depositary participants or beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
Section 2.7 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Trustee, to the effect that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee, upon
receipt of the authentication order of the Company in the form of an Officers'
Certificate, shall authenticate a replacement Security if the Trustee's
requirements are met. If required by the Trustee or the Company, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment of
both the Company and the Trustee, to protect the Company, the Trustee or any
Agent from any loss which any of them may suffer if a Security is replaced. The
Company may charge such Holder for its reasonable, out-of-pocket expenses in
replacing a Security.
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,
but subject to any conversion rights, may, instead of issuing a new Security,
pay such Security, upon satisfaction of the conditions set forth in the
preceding paragraph.
Every new Security issued pursuant to this Section 2.7 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 such new Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
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The provisions of this Section 2.7 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
Section 2.8 Outstanding Securities.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee (including any Security represented by a
Global Security) except those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee hereunder and those described in this Section 2.8 as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security, except as provided in Section
2.9.
If a Security is replaced or paid pursuant to Section 2.7
(other than a mutilated Security surrendered for replacement), the replaced or
paid Security ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced or paid Security is held by a bona fide
purchaser. A mutilated Security ceases to be outstanding upon surrender of such
Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date the Paying Agent (other than the
Company or an Affiliate of the Company) holds Cash or U.S. Government
Obligations sufficient to pay all of the principal and interest due on the
Securities payable on that date in accordance with Section 3.6 hereof and
payment of the Securities called for redemption is not otherwise prohibited
pursuant to Article XII or otherwise, then on and after that date, such
Securities cease to be outstanding and interest on them ceases to accrue.
Section 2.9 Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, Securities owned by the Company or an Affiliate of the
Company (including any Person that would become an Affiliate of the Company (or
its successor) as a consequence of the event or series of events that otherwise
would be treated as a Change of Control for purposes of the Indenture) shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, amendment, supplement,
waiver or consent, only Securities that a Trust Officer of the Trustee actually
knows are so owned shall be disregarded.
Section 2.10 Temporary Securities.
Until Definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of Definitive Securities
but may have variations that the Company reasonably and in good faith considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Securities in
exchange for
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temporary Securities. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as permanent
Securities authenticated and delivered hereunder.
Section 2.11 Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent (other than the Company or an Affiliate of the Company), and no one else,
shall cancel and return all Securities surrendered for transfer, exchange,
payment or cancellation to the Company. Subject to Section 2.7, the Company may
not issue new Securities to replace Securities that have been paid or delivered
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 2.11,
except as expressly permitted in the form of Securities and as permitted by this
Indenture.
Section 2.12 Defaulted Interest.
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 Record Date for such interest.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to the
extent lawful, any interest payable on the defaulted interest (collectively,
herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered holder on the relevant Record Date, and such Defaulted Interest shall
be paid by the Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the persons in whose names the 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, and at the same time the Company shall deposit with the
Trustee an amount of Cash equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such Xxxx when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as provided
in this clause (1). Thereupon the Trustee shall fix a special record
date for the payment of such Defaulted Interest which shall be not more
than 15 Business Days and not less than 10 Business Days prior to the
date of the proposed payment and not less than 10 Business Days after
the receipt by the Trustee of the notice of the proposed
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payment ("Special Record Date"). The Trustee shall promptly notify the
Company in writing 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 at his address as
it appears in the Security register not less than 10 Business Days
prior to 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 on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if,
after written notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each
Security delivered under this Indenture upon 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.
Notwithstanding the foregoing, any interest which is paid
prior to the expiration of the grace period provided in Section 6.1 shall be
paid to the Holders of the Securities as of the regular Record Date for such
Interest Payment Date for which interest has not been paid.
Section 2.13 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided 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 printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
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ARTICLE III
REDEMPTION
Section 3.1 Right of Redemption.
Redemption of Securities, as permitted by any provision of
this Indenture, shall be made in accordance with Paragraph 5 of the Securities
and this Article III.
The Securities may be redeemed in whole or in part at any time
at the option of the Company (the "Redemption") for a price (the "Redemption
Price") equal to 100% of the principal amount of the Securities to be redeemed,
plus accrued and unpaid interest (and Liquidated Damages, if any) to, but
excluding the date fixed for such redemption (the "Redemption Date") if (1) the
closing price of the Common Stock has exceeded 150% of the Conversion Price then
in effect for at least 20 Trading Days within a period of 30 consecutive Trading
Days ending on the Trading Day immediately before the date of mailing of the
Redemption notice (the "Redemption Notice Date") and (2) the registration
statement covering the resale of the Securities and the shares of Common Stock
issuable upon conversion of the Securities is effective and available for use
and is expected to remain effective and available for use for 30 days following
the Redemption Notice Date, unless registration is not required. If a Redemption
occurs on or before the third anniversary of the Issue Date, the Company will
pay to the Holders the Redemption Price, plus an Interest Make-Whole Payment (as
defined below) with respect to the Securities called for redemption to Holders
on the Redemption Notice Date. The Company shall make the Interest Make-Whole
Payment on all Securities converted into Common Stock between the Redemption
Notice Date and the Redemption Date. If a Redemption occurs after the third
anniversary of Issue Date, the Company will pay to the Holders the Redemption
Price with respect to the Securities called for redemption to Holders on the
Redemption Notice Date.
At the Company's option, instead of paying the Interest
Make-Whole Payment solely in Cash, it may pay the Interest Make-Whole Payment
solely in shares of Common Stock, valued at 95% of the average of the closing
prices for the five Trading Days immediately preceding and including the third
Trading Day preceding the Redemption Date. The Interest Make-Whole Payment may
be paid in shares of Common Stock only if the following conditions are
satisfied:
(1) such shares have been registered under the Securities
Act or are freely transferable without such registration;
(2) the issuance of Common Stock does not require
registration or qualification with or approval of any governmental
authority under any state law or any other federal law, which
registration or qualification or approval has not been made or
obtained;
(3) such shares have been approved for quotation on The
Nasdaq National Market or listing on a national securities exchange;
and
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(4) such shares will be issued out of the Company's
authorized but unissued common stock and upon issuance, will be duly
and validly issued and fully paid and non-assessable and free of any
preemptive rights.
Section 3.2 Notices to Trustee.
If the Company elects to redeem Securities pursuant to
Paragraph 5 of the Securities, it shall notify the Trustee in writing of the
Redemption Date, the principal amount of Securities to be redeemed, the
Redemption Price and whether it wants the Trustee, on behalf of the Company, to
give notice of redemption to the Holders.
If the Company elects to reduce the principal amount of
Securities to be redeemed pursuant to Paragraph 5 of the Securities by crediting
against any such redemption Securities it has not previously delivered to the
Trustee for cancellation, it shall so notify the Trustee in writing of the
amount of the reduction and deliver such Securities with such notice.
The Company shall give each notice to the Trustee provided for
in this Section 3.2 at least 30 days but not more than 60 days before the
Redemption Date (unless a shorter notice period shall be satisfactory to the
Trustee). Any such notice to the Trustee may be canceled at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void
and of no effect.
Section 3.3 Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed pursuant
to Paragraph 5 thereof, the Trustee shall select the Securities to be redeemed
on a pro rata basis, by lot or by such other method as the Trustee shall
determine to be fair and appropriate and in such manner as complies with any
applicable depositary, legal and stock exchange or automated quotation system
requirements.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions (equal to $1,000
or any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
Section 3.4 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first-class mail, postage
prepaid, to the Trustee and each Holder whose Securities are to be redeemed at
such Xxxxxx's address as it appears on the
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security register maintained by the Registrar. At the Company's request, the
Trustee shall give the notice of redemption in the Company's name and at the
Company's expense. Each notice of redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date, and that the Securities called
for redemption may not be converted after the Business Day immediately
prior to the Redemption Date;
(2) the Redemption Price, including the amount of accrued
and unpaid interest and Liquidated Damages, if any, and Interest
Make-Whole Payment, if any, to be paid upon such redemption;
(3) if an Interest Make-Whole Payment is required to be
made, whether such payment will be made in Cash or Common Stock;
(4) the name, address and telephone number of the Paying
Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent at the address specified in such notice
to collect the Redemption Price;
(6) that, unless (a) the Company defaults in making
payment of the Redemption Price or (b) such redemption payment is
prohibited pursuant to Article XII or otherwise, interest on, and
Liquidated Damages with respect to, Securities called for redemption
ceases to accrue on and after the Redemption Date and the only
remaining right of the Holders of such Securities is to receive payment
of the Redemption Price, including accrued and unpaid interest and
Liquidated Damages, if any, to, but excluding the Redemption Date, upon
surrender to the Paying Agent of the Securities called for redemption
and to be redeemed;
(7) if any Security is being redeemed in part, the
portion of the principal amount, equal to $1,000 or any integral
multiple thereof, of such Security to be redeemed and that, on or after
the Redemption Date, upon surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed
portion thereof will be issued;
(8) if less than all the Securities are to be redeemed,
the identification of the particular Securities (or portion thereof) to
be redeemed, as well as the aggregate principal amount of such
Securities to be redeemed and the aggregate principal amount of
Securities to be outstanding after such partial redemption;
(9) the CUSIP number of the Securities to be redeemed;
and
(10) that the notice is being sent pursuant to this
Section 3.4 and pursuant to the redemption provisions of Paragraph 5 of
the Securities.
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Section 3.5 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.4, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price, including accrued and unpaid interest,
Liquidated Damages and Interest Make-Whole Payment, if any, to, but excluding,
the Redemption Date. Upon surrender to the Trustee or Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price,
including accrued and unpaid interest and Liquidated Damages, if any, to, but
excluding, the Redemption Date; provided that if the Redemption Date is after a
regular Record Date and on or prior to the corresponding Interest Payment Date,
the accrued interest, Liquidated Damages and Interest Make-Whole Payment, if
any, shall be payable to the Holder of the redeemed Securities registered on the
relevant Record Date; and provided, further, that if a Redemption Date is a
Legal Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
Section 3.6 Deposit of Redemption Price.
Prior to 10:00 a.m. New York time on the Redemption Date, the
Company shall deposit with the Paying Agent (other than the Company or an
Affiliate of the Company) Cash sufficient to pay the Redemption Price of,
including accrued and unpaid interest on, and Liquidated Damages, if any, with
respect to, all Securities to be redeemed on such Redemption 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). The Paying Agent
shall promptly return to the Company any Cash so deposited which is not required
for that purpose upon the written request of the Company.
If the Company complies with the preceding paragraph and the
other provisions of this Article III and payment of the Securities called for
redemption is not prohibited under Article XII or otherwise, interest on the
Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment.
Notwithstanding anything herein to the contrary, if any Security surrendered for
redemption in the manner provided in the Securities shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall continue to accrue and be paid from the
Redemption Date until such payment is made on the unpaid principal, and, to the
extent lawful, on any interest not paid on such unpaid principal, in each case
at the rate and in the manner provided in Section 4.1 hereof and the Security.
Section 3.7 Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part,
the Company shall execute and the Trustee, upon receipt of a written order of
the Company in the form of an Officers' Certificate, shall thereafter
authenticate and make available for delivery to the Holder, without service
charge to the Holder, a new Security or Securities equal in principal amount to
the unredeemed portion of the Security surrendered.
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ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities.
The Company shall pay the principal of, interest on, and
Liquidated Damages with respect to, the Securities on the dates and in the
manner provided in this Indenture and the Securities, as applicable. An
installment of principal of, interest on, or Liquidated Damages with respect to,
the Securities shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the Company) holds for
the benefit of the Holders, on or before 10:00 a.m. New York time on that date,
Cash deposited and designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and on
overdue installments of interest at the rate specified in the Securities
compounded semi-annually, to the extent lawful.
Section 4.2 Maintenance of Office or Agency.
The Company shall maintain in New York, New York, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and for
conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of 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 address of the Trustee set forth in Section 14.2.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in New York, New York, for such purposes. The Company shall give prior 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. The Company hereby initially
designates the Corporate Trust Office of the Trustee in New York, New York, as
such office.
Section 4.3 Corporate Existence.
Subject to Article V, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence in accordance with its organizational documents and the rights
(charter and statutory) and corporate franchises of the Company; provided,
however, that the Company shall not be required to preserve, with respect
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to itself, any right or franchise, if (a) the Company shall, in good faith,
reasonably determine that the preservation thereof is no longer desirable in the
conduct of the business of such entity and (b) the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 4.4 Payment of Taxes and Other Claims.
Except with respect to immaterial items, the Company shall,
and shall cause each of its Subsidiaries to, pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon the Company
or any of its Subsidiaries or any of their respective properties and assets and
(ii) all lawful claims, whether for labor, materials, supplies, services or
anything else, which have become due and payable and which by law have or may
become a Lien upon the property and assets of the Company or any of its
Subsidiaries; provided, however, that neither the Company nor any Subsidiary
shall be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which disputed
amounts adequate reserves have been established in accordance with GAAP.
Section 4.5 Maintenance of Properties and Insurance.
The Company shall cause all material properties used or useful
to the conduct of its business and the business of each of its Subsidiaries to
be maintained and kept in good condition, repair and working order (reasonable
wear and tear excepted) and supplied with all necessary equipment and shall
cause to be made all necessary repairs, renewals and replacements thereof, all
as in its reasonable judgment may be necessary, so that the business carried on
in connection therewith may be properly conducted at all times; provided,
however, that nothing in this Section 4.5 shall prevent the Company or any
Subsidiary from discontinuing any operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is
(a), in the judgment of the Company, desirable in the conduct of the business of
such entity and (b) would not have a material adverse effect on the financial
condition of the Company or on the Company's ability to perform its obligations
hereunder or under the Securities.
The Company shall provide, or cause to be provided, for itself
and each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company is adequate and appropriate for the conduct of the business of
the Company and such Subsidiaries in a prudent manner, with (except for
self-insurance) reputable insurers or with the government of the United States
of America or an agency or instrumentality thereof, in such amounts, with such
deductibles, and by such methods as shall be customary, in the reasonable, good
faith opinion of the Company and adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries in a prudent manner for entities
similarly situated in the industry, unless failure to provide such insurance
(together with all other such failures) would not have a material adverse effect
on the financial condition or results of operations of the Company or such
Subsidiary.
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Section 4.6 Compliance Certificate; Notice of Default.
(a) The Company shall deliver to a Trust Officer of the
Trustee within 120 days after the end of its fiscal year an Officers'
Certificate complying with Section 314(a)(4) of the TIA and stating that a
review of its activities and the activities of its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining, without regard to notice periods or periods
of grace, whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, whether or not the signer knows of any failure by the
Company or any Subsidiary of the Company to comply with any conditions or
covenants in this Indenture and, if such xxxxxx does know of such a failure to
comply, the certificate shall describe such failure with reasonable
particularity. The Officers' Certificate shall also notify the Trustee should
the relevant fiscal year end on any date other than the current fiscal year end
date.
(b) The Company shall, so long as any of the Securities
are outstanding, deliver to a Trust Officer of the Trustee, promptly upon
becoming aware of any Default, Event of Default or fact which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, an
Officers' Certificate specifying such Default, Event of Default or fact and what
action the Company is taking or proposes to take with respect thereto. The
Trustee shall not be deemed to have knowledge of any Default, any Event of
Default or any such fact unless one of its Trust Officers receives written
notice thereof from the Company or any of the Holders.
Section 4.7 Reports.
Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall
deliver to the Trustee and to each Holder, as their names and addresses appear
on the security register maintained by the Registrar, within 15 days after it is
or would have been required to file such with the SEC, annual and quarterly
consolidated financial statements substantially equivalent to financial
statements that would have been included in reports filed with the SEC if the
Company were subject to the requirements of Section 13 or 15(d) of the Exchange
Act, including, with respect to annual information only, a report thereon by the
Company's certified independent public accountants as such would be required in
such reports to the SEC and, in each case, together with a management's
discussion and analysis of financial condition and results of operations which
would be so required.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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Section 4.8 Limitation on Status as Investment Company.
Neither the Company nor any of its Subsidiaries shall become
an "investment company" (as that term is defined in the Investment Company Act
of 1940, as amended), or otherwise become subject to regulation under the
Investment Company Act.
Section 4.9 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law which would prohibit or forgive the Company from paying
all or any portion of the principal of, premium of, interest on, or Liquidated
Damages with respect to, the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
Section 4.10 Rule 144A Information Requirement.
If at any time there are Transfer Restricted Securities
outstanding and the Company shall cease to have a class of equity securities
registered under Section 12(g) of the Exchange Act or shall cease to be subject
to Section 15(d) of the Exchange Act, the Company shall furnish, within a
reasonable period of time, to the Holders or beneficial holders of the
Securities or the underlying Common Stock and prospective purchasers of
Securities or the underlying Common Stock designated by the Holders of Transfer
Restricted Securities, upon their written request, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act until such
time as the Shelf Registration Statement has become effective under the
Securities Act. The Company shall also furnish such information during the
pendency of any suspension of effectiveness of the Shelf Registration Statement.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 Limitation on Merger, Sale or Consolidation.
(a) The Company shall not, directly or indirectly,
consolidate with or merge with or into another Person or sell, lease, convey or
transfer all or substantially all of its assets (computed on a consolidated
basis), whether in a single transaction or a series of related transactions, to
another Person or group of affiliated Persons (other than to its wholly owned
Subsidiaries), unless (i) either (a) in the case of a merger or consolidation,
the Company is the surviving entity or (b) the resulting, surviving or
transferee entity is a corporation organized under the laws
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of the United States, any state thereof or the District of Columbia and
expressly assumes by supplemental indenture all of the obligations of the
Company in connection with the Securities and the Indenture; (ii) no Default or
Event of Default shall exist or shall occur immediately before or after giving
effect to such transaction; and (iii) except in the case of clause (i)(a), the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and, if a
supplemental indenture is required, such supplemental indenture comply with the
Indenture and that all conditions precedent relating to such transactions have
been satisfied.
(b) For purposes of clause (a) of this Section 5.1 and
Section 13.6, the sale, lease, conveyance, assignment, transfer, or other
disposition of all or substantially all of the properties and assets of one or
more Subsidiaries of the Company, which properties and assets, if held by the
Company instead of such Subsidiaries, would constitute all or substantially all
of the properties and assets of the Company on a consolidated basis, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company, unless such disposition is to the Company.
Section 5.2 Successor Corporation Substituted.
Upon any permitted consolidation or merger or any permitted
sale, lease, conveyance or transfer of all or substantially all of the assets of
the Company in accordance with the foregoing, the successor corporation formed
by such consolidation or into which the Company is merged or to which such sale,
lease, conveyance or transfer is made, shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under the Indenture with
the same effect as if such successor corporation had been named therein as the
Company, and when a successor corporation duly assumes all of the obligations of
the Company pursuant hereto and pursuant to the Securities, the predecessor
shall be released from such obligations (except with respect to any obligations
that arise from or as a result of such transaction).
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) failure to pay any installment of interest on or
Liquidated Damages, if any, with respect to the Securities as and when
the same becomes due and payable, or to perform any conversion of the
Securities required under this Indenture, and the continuance
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of such failure for a period of 30 days, whether or not such payment is
prohibited by Article XII;
(2) failure to pay all or any part of the principal of,
or premium, if any, on the Securities when and as the same become due
and payable at maturity, redemption, by acceleration or otherwise,
including, without limitation, failure to pay all or any part of the
Repurchase Price on the Repurchase Date in accordance with Article XI,
whether or not such payment is prohibited by Article XII;
(3) failure by the Company to observe or perform any
covenant or agreement contained in the Securities or this Indenture
(other than a default in the performance of any covenant or agreement
which is specifically dealt with elsewhere in this Section 6.1), and
continuance of such failure 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 Holders of at least 25%
in aggregate principal amount of the then outstanding Securities, a
written notice;
(4) failure by the Company or any Significant Subsidiary
to pay principal, premium or interest when due (after giving effect to
any applicable period of grace) at maturity of any Indebtedness (other
than non-recourse obligations), in an amount in excess of $20,000,000
and the continuance of such failure for 30 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
aggregate principal amount of the then outstanding Securities, a
written notice;
(5) default by the Company or any Significant Subsidiary
with respect to any Indebtedness (other than non-recourse obligations),
which default results in the acceleration of Indebtedness having a
principal amount in excess of $20,000,000 without such Indebtedness
having been discharged or such acceleration having been rescinded or
annulled for 30 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 aggregate principal amount of
the then outstanding Securities, a written notice;
(6) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of
its Significant Subsidiaries as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company or any
of its Significant Subsidiaries under any bankruptcy or similar law,
and such decree or order shall have continued undischarged and unstayed
for a period of 60 days; or a decree or order of a court of competent
jurisdiction over the appointment of a receiver, liquidator, trustee,
or assignee in bankruptcy or insolvency of the Company, any of its
Significant Subsidiaries, or of the property of any such Person, or for
the winding up or liquidation of the affairs of any such Person, shall
have been entered, and such decree, judgment, or order shall have
remained in force undischarged and unstayed for a period of 60 days; or
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(7) the Company or any of its Significant Subsidiaries
shall institute proceedings to be adjudicated a voluntary bankrupt, or
shall consent to the filing of a bankruptcy proceeding against it, or
shall file a petition or answer or consent seeking reorganization under
any bankruptcy or similar law or similar statute, or shall consent to
the filing of any such petition, or shall consent to the appointment of
a Custodian, receiver, liquidator, trustee, or assignee in bankruptcy
or insolvency of it or any of its assets or property, or shall make a
general assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due, or
shall, within the meaning of any Bankruptcy Law, become insolvent, fail
generally to pay its debts as they become due, or take any corporate
action in furtherance of or to facilitate, conditionally or otherwise,
any of the foregoing.
Notwithstanding the 60-day period and notice requirement
contained in Section 6.1(3) above, with respect to a default under Article XI
the 60-day period referred to in Section 6.1(3) shall be deemed to have begun as
of the date the Change of Control notice is required to be sent in the event
that the Company has not complied with the provisions of Section 11.1 and the
Trustee or Holders of at least 25% in principal amount of the outstanding
Securities thereafter give the Notice of Default referred to in Section 6.1(3)
to the Company and, if applicable, the Trustee; provided, however, that if the
breach or default is a result of a default in the payment when due of the
Repurchase Price on the Repurchase Date, such Event of Default shall be deemed,
for purposes of this Section 6.1, to arise no later than on the final Repurchase
Date.
Notwithstanding anything to the contrary contained herein,
nothing contained herein shall limit the ability of any one or more holders of
Senior Indebtedness to perform any of the obligations of the Company or any of
its Subsidiaries hereunder in order to prevent an Event of Default; it being
agreed that no holder of Senior Indebtedness shall be under any obligation to
perform any covenant on behalf of the Company or any of its Subsidiaries
hereunder.
Section 6.2 Acceleration of Maturity Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 6.1(6) or (7) relating to the Company) occurs and is
continuing, then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of at least 25% in aggregate principal amount of then outstanding
Securities, by notices in writing to the Company and the Representative (and to
the Trustee if given by Holders), may declare all principal, premium, if any,
accrued interest and Liquidated Damages, if any, of the Securities (or the
Repurchase Price if the Event of Default includes failure to pay the Repurchase
Price, determined as set forth below), with respect thereto, to be due and
payable on the earlier of (x) five Business Days following delivery of
Acceleration Notices to the Company and the Representative and (y) the date of
acceleration of the Designated Senior Indebtedness. If an Event of Default
specified in Section 6.1(6) or (7) relating to the Company occurs, all
principal, premium, if any, accrued interest and Liquidated Damages on or with
respect thereto will be
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immediately due and payable on all outstanding Securities without any
declaration or other act on the part of Trustee or the Holders.
At any time after such a declaration of acceleration 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 VI, the Holders
of no less than a majority in aggregate principal amount of then outstanding
Securities, by written notice to the Company and the Trustee, may rescind, on
behalf of all Holders, any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee
Cash sufficient to pay
(A) all overdue interest on, and overdue
Liquidated Damages with respect to, all Securities,
(B) the principal of (and premium, if any,
applicable to) any Securities which would then be due
otherwise than by such declaration of acceleration, and
interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest and Liquidated
Damages at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and
(2) all Events of Default, other than the non-payment of
the principal of, premium, if any, interest on and Liquidated Damages
with respect to Securities that have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 6.12, including, if applicable, any Event of Default relating
to the covenants contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Security affected thereby, unless all such
affected Holders agree, in writing, to waive such Event of Default or other
event. No such waiver shall cure or waive any subsequent Default or Event of
Default or impair any right consequent thereon.
Section 6.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if an Event of Default in payment
of principal, premium, interest or Liquidated Damages specified in clause (1) or
(2) of Section 6.1 occurs and is continuing, the Company shall, upon demand of
the Trustee, pay to it, for the benefit of the
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Holders of such Securities, the whole amount then due and payable on such
Securities for principal, premium (if any), interest, Liquidated Damages and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal (and premium, if any), Liquidated Damages and on any
overdue interest, at the rate borne by the Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs, fees and expenses
of collection, including compensation to, and 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 in favor
of the Holders, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon
the 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 the 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 by such appropriate judicial proceedings as the Trustee shall
deem most effective 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 6.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or any other obligor upon the
Securities or their creditors, the Trustee (which term as used in this Section
shall include any predecessor Trustee) (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, interest or
Liquidated Damages) shall be entitled and empowered, by intervention in such
proceeding or otherwise to take any and all actions under the TIA, including
(1) to file and prove a claim for the whole amount of
principal (and premium, if any), interest and Liquidated Damages 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 under Section 7.7 for the
compensation, fees, expenses, disbursements and advances of the
Trustee, its agent and counsel) and of the Holders allowed in such
judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same in
accordance with Section 6.6;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the compensation, expenses, fees,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7. To the extent that the payment of
such compensation, expenses, fees, disbursements and advances of Trustee, its
agents and counsel and any other amounts due to the Trustee under Section 7.7
hereof out of the estate in any such judicial proceeding shall be denied for any
reason, payment of the same shall be secured by a perfected first priority
security interest in and lien on, and shall be paid out of, any and all
distributions, dividends, money securities and other properties that the Holders
may be entitled to receive in such proceeding whether in liquidation or under
any plan of reorganization or arrangement or otherwise, and any such security
interest and lien in favor of any predecessor Trustee shall be senior to the
security interest and lien in favor of the current Trustee.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment, or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 6.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or 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 in favor of the Holders, and any
recovery of judgment shall, after provision for the payment of compensation to,
and expenses, fees, 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 6.6 Priorities.
Any money collected by the Trustee pursuant to this Article VI
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,
premium (if any), interest or Liquidated Damages, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the Trustee (including any predecessor Trustee) in
payment of all amounts due pursuant to Section 7.7;
SECOND: To the holders of Senior Indebtedness of the Company
to the extent provided in Article XII;
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THIRD: To the Holders in payment of the amounts then due and
unpaid for principal of, premium (if any), interest on and Liquidated
Damages with respect to, the Securities in respect or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium (if any), interest and Liquidated
Damages, respectively; and
FOURTH: To whomsoever may be lawfully entitled thereto, the
remainder, if any.
Section 6.7 Limitation on Suits.
No Holder of any Security shall have any right to order or
direct the Trustee 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;
(B) the Holders of not less than 25% in principal amount
of then 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
reasonable security or indemnity against the costs, expenses and
liabilities to be incurred or reasonably probable to be incurred in
compliance with such request;
(D) the Trustee for 60 days after its receipt of such
notice, request and offer of 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 principal amount of then outstanding Securities; it
being understood and intended that no one or more 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 Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
Section 6.8 Unconditional Right of Holders to Receive Principal, Premium,
Interest Make-Whole Payment and Interest.
Notwithstanding any other provision of this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of,
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premium, Interest Make-Whole Payment, if any, and interest on, such Security
when due (including, in the case of redemption, the Redemption Price on the
applicable Redemption Date, and in the case of the Repurchase Price, on the
applicable Repurchase Date), to convert such Security in accordance with Article
XIII, and to institute suit for the enforcement of any such payment and right to
convert after such respective dates, and such rights shall not be impaired
without the consent of such Holder.
Section 6.9 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders 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 6.10 Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any
Security to exercise any right or remedy arising upon any Event of Default shall
impair the exercise of any such right or remedy or constitute a waiver of any
such Event of Default. Every right and remedy given by this Article VI 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, as the case
may be.
Section 6.11 Control by Holders.
The Holder or Holders of no less than a majority in aggregate
principal amount of then 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 upon the Trustee,
provided that
(1) such direction shall be made in writing to the
Trustee and shall not be in conflict with any rule of law or with this
Indenture,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction, and
(3) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
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Section 6.12 Waiver of Past Default.
The Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Securities may, on behalf of all Holders,
prior to the declaration of acceleration of the maturity of the Securities,
waive any past default hereunder and its consequences, except a default (A) in
the payment of the principal of, premium, if any, or interest on any Security
not yet cured as specified in clauses (1) and (2) of Section 6.1, or (B) in
respect of a covenant or provision hereof which, under Article IX, cannot be
modified or amended without the consent of the Holder of each outstanding
Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair the exercise of any right arising
therefrom.
Section 6.13 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, suffered or omitted to be taken 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 and expenses, 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 6.13 shall not
apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of then outstanding
Securities, or to any suit instituted by any Holder for enforcement of the
payment of principal of, premium (if any), interest on or Liquidated Damages
with respect to, any Security on or after the respective Stated Maturity of such
Security (including, in the case of redemption, on or after the Redemption
Date).
Section 6.14 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
Section 7.1 Duties of Trustee.
(a) If a Default or an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent Person would exercise or use under
the circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of a Default or an
Event of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no
covenants or obligations shall be implied in or read into this
Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture.
However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts
purported to be stated therein).
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
written direction received by it pursuant to Section 6.11.
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(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any liability. The
Trustee shall be under no obligation to perform any of its rights or duties
hereunder or to take or omit to take any action under this Indenture or at the
request, order or direction of the Holders or in the exercise of any of its
rights or powers unless such Holders shall have offered to the Trustee security
and indemnity satisfactory to it against any loss, liability or expense.
(e) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c), (d) and (f) of this Section 7.1.
(f) The Trustee shall not be liable for interest on any
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
Section 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document, 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 at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on any such Officers' Certificate or Opinion of Counsel.
(c) The Trustee 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 not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its discretion, rights or powers conferred upon it by this Indenture.
(e) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent, order,
bond, debenture, 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
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entitled to examine the books, records and premises of the Company, personally
or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby.
(g) Unless otherwise specifically provided for in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants in Article IV hereof. In addition, the
Trustee shall not be deemed to have knowledge of any Default or Event of
Default, except (i) any Event of Default occurring pursuant to Sections 6.1(1)
or 6.1(2), or (ii) any Default or Event of Default of which a Trust Officer of
the Trustee shall have received written notification or obtained actual
knowledge.
(i) No permissive right of the Trustee to act hereunder
shall be construed as a duty.
(j) If in the administration of this Indenture the
Trustee deems it desirable that a matter be proved or established prior to
taking, suffering or omitting to take any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officers' Certificate, an Opinion
of Counsel, or both.
(k) The Trustee shall not be deemed to have notice or
knowledge (including actual knowledge) of any matter unless a Trust Officer has
actual knowledge thereof or unless written notice thereof is received by the
Trustee at the office specified in Section 14.2 and such notice references the
Securities generally, the Company or this Indenture.
(l) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution.
(m) The Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
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(n) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(o) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
Section 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, any
of its Subsidiaries, or their respective Affiliates with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture, the Registration Rights Agreement, the Offering
Circular or the Securities and it shall not be accountable for the Company's use
of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities, other than the Trustee's certificate of
authentication, or the use or application of any funds received by a Paying
Agent other than the Trustee.
Section 7.5 Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is actually known to the Trustee, the Trustee shall mail to each
Holder notice of the uncured Default or Event of Default within 90 days after
the later to occur of (i) the occurrence of such Default or Event of Default or
(ii) the date the Trustee becomes aware of such Default or Event of Default.
Except in the case of a Default or an Event of Default in payment of principal
(or premium, if any) of, interest on or Liquidated Damages with respect to, any
Security (including the payment of the Repurchase Price on the Repurchase Date
and the payment of the Redemption Price on the Redemption Date), the Trustee may
withhold the notice if and so long as a Trust Officer in good faith determines
that withholding the notice is in the interest of the Holders.
Section 7.6 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall, if required by law,
mail to each Holder a brief report dated as of such May 15 that complies with
TIA Section 313(a). The Trustee also shall comply with TIA Sections 313(b) and
313(c).
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A copy of each report at the time of its mailing to Holders
shall be mailed to the Company and, if required, filed with the SEC and each
stock exchange, if any, on which the Securities are listed.
The Company shall promptly notify the Trustee in writing if
the Securities become listed on any stock exchange or automatic quotation system
or of any delisting thereof.
Section 7.7 Compensation and Indemnity.
The Company agrees to pay to the Trustee from time to time
such compensation for its services as the parties shall agree from time to time
in writing and, in the absence of such agreement, reasonable compensation for
its acceptance of this Indenture and services hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable disbursements, expenses, fees and advances incurred or made by it.
Such expenses shall include the reasonable compensation, disbursements, fees and
expenses of the Trustee's agents, accountants, experts and counsel.
The Company agrees to indemnify the Trustee (in its capacity
as Trustee) and each of its officers, directors, employees, attorneys-in-fact
and agents for, and hold them harmless against, any and all claims, demands,
expenses (including but not limited to reasonable compensation, fees,
disbursements and expenses of the Trustee's agents and counsel), losses, damages
or liabilities incurred by it without negligence, bad faith or willful
misconduct on its part, arising out of, related to, or in connection with the
acceptance or administration of this trust and its rights or duties hereunder
including the reasonable costs and expenses, the costs and expenses of enforcing
this Indenture against the Company and of defending itself against any claim
(whether asserted by the Company, or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall provide reasonable cooperation at the
Company's expense in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel; provided
that the Company will not be required to pay such fees and expenses if it
assumes the Trustee's defense and, in the reasonable judgment of the Trustee,
there is no conflict of interest between the Company and the Trustee in
connection with such defense. The Company need not pay for any settlement made
without its written consent. The Company need not reimburse any expense or
indemnify against any loss or liability to the extent attributable to the
negligence, bad faith or willful misconduct of the Trustee.
To secure the Company's payment obligations in this Section
7.7, the Trustee and each predecessor Trustee shall have a perfected lien prior
to the Securities on all assets held or collected by the Trustee, in its
capacity as Trustee, except assets held in trust to pay principal and premium,
if any, of or interest on particular Securities. Any lien in favor of a
predecessor Trustee shall be senior to any lien in favor of the current Trustee.
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When the Trustee incurs expenses or fees or renders services
after an Event of Default specified in Section 6.1(6) or (7) occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien
arising hereunder shall survive indefinitely, including upon the resignation or
removal of the Trustee, the discharge of the Company's obligations pursuant to
Article VIII of this Indenture and any rejection or termination of this
Indenture under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
The Trustee may resign by so notifying the Company in
writing. The Holder or Holders of a majority in principal amount of then
outstanding Securities may remove the Trustee by so notifying the Company and
the Trustee in writing. The Company, by Board of Directors resolution, may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes
charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of this Section 7.8.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holder or Holders of a majority in principal amount of then outstanding
Securities may, with the Company's consent, appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately upon
delivery of such notice and provided that all sums owing to the retiring
Trustee provided for in Section 7.7 have been paid, the retiring Trustee shall
transfer all property held by it as trustee to the successor Trustee, subject
to the lien provided in Section 7.7, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder.
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If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holder or Holders of at least 10% in principal amount of then
outstanding Securities may, at the expense of the Company, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any bona
fide Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue
indefinitely for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Xxxxxx, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of
TIA Sections 310(a)(1), (2) and (5). The Trustee and its direct parent or, in
the case of a corporation included in a bank holding company system, the
related bank holding company, shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
Section 7.12 Other Capacities.
All references in this Indenture to the Trustee shall be
deemed to refer to the Trustee in its capacity as Trustee and in its capacities
as any Agent, to the extent acting in such capacities, and every provision of
this Indenture relating to the conduct or affecting the liability or offering
protection, immunity or indemnity to the Trustee shall be deemed to apply with
the same force and effect to the Trustee acting in its capacity as any Agent.
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ARTICLE VIII
SATISFACTION AND DISCHARGE
Section 8.1 Satisfaction and Discharge of Indenture.
The Company may terminate its obligations under this
Indenture (subject to the provisions of this Article VIII and Section 7.7)
while the Securities remain outstanding if the Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel in the United
States, each stating that all conditions precedent have been complied with as
contemplated by this Section 8.1 and (1) all of the outstanding Securities have
or will become due and payable at their Stated Maturity within one year or (2)
all of the outstanding Securities are scheduled for redemption within one year,
and in either case, the Company has deposited with the Trustee an amount
sufficient to pay and discharge all of the outstanding Securities on the date
of their Stated Maturity or the Redemption Date.
Section 8.2 Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, for the payment of the principal of, premium, if any,
interest on or Liquidated Damages with respect to any Security and remaining
unclaimed for two years after such principal, premium, if any, interest or
Liquidated Damages has become due and payable shall be paid to the Company on
its written request; and the Holder of such Security shall thereafter look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder, the Company, when
authorized by Board Resolutions, 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:
(1) to cure any ambiguity, defect, or inconsistency, or
to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided that such action pursuant to
this clause (1) does not adversely affect the interests of any Holder
in any respect;
(2) to create additional covenants of the Company for
the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or to make
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any other change that does not adversely affect the rights of any
Holder, provided that the Company has delivered to the Trustee an
Opinion of Counsel stating that such change pursuant to this clause
(2) does not adversely affect the rights of any Holder;
(3) to provide for collateral for or guarantors of the
Securities;
(4) to evidence the succession of another Person to the
Company and the assumption by any such successor of the obligations of
the Company herein and in the Securities in accordance with Article V;
or
(5) to comply with the TIA.
Section 9.2 Amendments, Supplemental Indentures and Waivers with Consent
of Holders.
Subject to the last sentence of this paragraph, with the
consent of the Holders of not less than a majority in aggregate principal
amount of the Securities at the time outstanding, by written act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by Board Resolutions, and the Trustee may amend or supplement this Indenture or
the Securities or 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 the Securities or of
modifying in any manner the rights of the Holders under this Indenture or the
Securities. Subject to the last sentence of this paragraph, the Holder or
Holders of not less than a majority in aggregate principal amount of then
outstanding Securities may, in writing, waive compliance by the Company with
any provision of this Indenture or the Securities. Notwithstanding any of the
above, however, no such amendment, supplemental indenture or waiver shall,
without the consent of the Holder of each outstanding Security affected
thereby:
(1) change the Stated Maturity of any Security or reduce
the principal amount thereof or the rate (or extend the time for
payment) of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment where, or the coin
or currency in which, any Security or any premium or the interest
thereon with respect thereto is payable, or impair the right to
institute suit for the conversion of any Security or the enforcement
of any such payment on or after the due date thereof (including, in
the case of redemption, on or after the Redemption Date), or reduce
the Repurchase Price, or alter the Repurchase Offer or redemption
provisions in a manner adverse to the Holders;
(2) reduce the percentage in principal amount of the
outstanding Securities, the consent of whose Holders is required for
any such amendment, supplemental indenture or waiver provided for in
the Indenture;
(3) adversely affect the right of such Holder to convert
Securities or the rights of any holder conferred by Article XIII; or
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(4) modify any of the waiver provisions, except to
increase any required percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby.
It shall not be necessary for the consent of the Holders
under this Section 9.2 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
After an amendment, supplement or waiver under this Section
9.2 or Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under
this Article IX, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or (at the option
of the Company) to all Holders, consideration for consent to such amendment,
supplement or waiver.
Section 9.3 Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or
the Securities shall comply with the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of his Security by written
notice to the Company, the Trustee or the Person designated by the Company as
the Person to whom consents should be sent if such revocation is received by
the Company or such Person before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be the date so fixed
by the Company notwithstanding the provisions of the TIA. If a record date is
fixed, then notwithstanding the last sentence of the immediately preceding
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paragraph, those Persons who were Holders at such record date, and only those
Persons (or their duly designated proxies), shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
Notwithstanding the preceding paragraph, after an amendment,
supplement or waiver becomes effective, it shall bind every Holder, unless it
makes a change described in any of clauses (1) through (4) of Section 9.2, in
which case, the amendment, supplement or waiver shall bind only each Holder of
a Security who has consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security unless consent of all Holders has been obtained pursuant to clauses
(1) through (4) of Section 9.2.
Section 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms. Any failure to make the appropriate notation or to issue a new Security
shall not affect the validity of such amendment, supplement or waiver.
Section 9.6 Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article IX is
authorized or permitted by this Indenture.
ARTICLE X
MEETINGS OF SECURITYHOLDERS
Section 10.1 Purposes for Which Meetings May Be Called.
A meeting of Securityholders may be called at any time and
from time to time pursuant to the provisions of this Article X for any of the
following purposes:
(a) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to waive or to consent to the
waiving of any Default or Event of Default
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hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article VI;
(b) to remove the Trustee or appoint a successor Trustee
pursuant to the provisions of Article VII;
(c) to consent to an amendment, supplement or waiver
pursuant to provisions of Section 9.2; or
(d) to take any other action (i) authorized to be taken
by or on behalf of the Holder or Holders of any specified aggregate principal
amount of the Securities under any other provision of this Indenture, or
authorized or permitted by law or (ii) which the Trustee deems necessary or
appropriate in connection with the administration of this Indenture.
Section 10.2 Manner of Calling Meetings.
The Trustee may at any time call a meeting of Securityholders
to take any action specified in Section 10.1, to be held at such time and at
such place in New York, New York or elsewhere as the Trustee shall determine.
Notice of every meeting of Securityholders, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed at the Company's expense by the Trustee, first-class
postage prepaid, to the Company and to the Holders at their last addresses as
they shall appear on the registration books of the Registrar, not less than 10
nor more than 60 days prior to the date fixed for a meeting.
Any meeting of Securityholders shall be valid without notice
if the Holders of all Securities then outstanding are present in Person or by
proxy, or if notice is waived before or after the meeting by the Holders of all
Securities outstanding, and if the Company and the Trustee are either present
by duly authorized representatives or have, before or after the meeting, waived
notice.
Section 10.3 Calling of Meetings by the Company or Holders.
In case at any time the Company or the Holders of not less
than 10% in aggregate principal amount of the Securities then outstanding,
shall have requested the Trustee to call a meeting of Securityholders to take
any action specified in Section 10.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such written request, then the Company or the Holders of Securities
in the amount above specified may determine the time and place in New York, New
York or elsewhere for such meeting and may call such meeting for the purpose of
taking such action, by mailing or causing to be mailed notice thereof as
provided in Section 10.2, or by causing notice thereof to be published at least
once in each of two successive calendar weeks (on any Business Day during such
week) in a newspaper or newspapers printed in the English language, customarily
published at least five days a week of a general circulation in the City of New
York, State of New York, the first such publication to be not less
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than 10 nor more than 60 days prior to the date fixed for the meeting.
Section 10.4 Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Securityholders, a
Person shall be (a) a registered Holder of one or more Securities, or (b) a
Person appointed by an instrument in writing as proxy for the registered Holder
or Holders of Securities. The only Persons who shall be entitled to be present
or to speak at any meeting of Securityholders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company, and its counsel.
Section 10.5 Regulations May Be Made by Company; Conduct of the Meeting:
Voting Rights; Adjournment.
Notwithstanding any other provision of this Indenture, the
Company may make such reasonable regulations as it may deem advisable for any
action by or any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, and submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall think
appropriate. Such regulations may fix a record date and time for determining
the Holders of record of Securities entitled to vote at such meeting, in which
case those and only those Persons who are Holders of Securities at the record
date and time so fixed, or their proxies, shall be entitled to vote at such
meeting whether or not they shall be such Holders at the time of the meeting.
The Holders shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 10.3, in which case
the Company or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Holders of a
majority in principal amount of the Securities represented at the meeting and
entitled to vote.
At any meeting each Securityholder or proxy shall be entitled
to one vote for each $1,000 principal amount of Securities held or represented
by him, in whole vote increments; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Securities challenged as not
outstanding and ruled by the chairman of the meeting to be not then
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities held by him or instruments in writing as aforesaid duly
designating him as the proxy to vote on behalf of other Securityholders. Any
meeting of Securityholders duly called pursuant to the provisions of Section
10.2 or Section 10.3 may be adjourned from time to time by vote of the Holder
or Holders of a majority in aggregate principal amount of the Securities
represented at the meeting and entitled to vote, and the meeting may be held as
so adjourned without further notice.
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Section 10.6 Voting at the Meeting and Record to Be Kept.
The vote upon any resolution submitted to any meeting of
Securityholders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy
and the principal amount of the Securities voted by the ballot. The permanent
chairman of the meeting shall appoint two inspectors of votes, who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to such record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more Persons having knowledge of the facts, setting
forth a copy of the notice of the meeting and showing that such notice was
mailed as provided in Section 10.2 or published as provided in Section 10.3.
The record shall be signed and verified by the affidavits of the permanent
chairman and the secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
Section 10.7 Exercise of Rights of Trustee or Holders May Not Be Hindered
or Delayed by Call of Meeting.
Nothing contained in this Article X shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
Securityholders or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Securityholders under any
of the provisions of this Indenture or of the Securities.
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE UPON A CHANGE OF CONTROL
Section 11.1 Repurchase of Securities at Option of the Holder Upon a
Change of Control.
(a) Subject to Section 11.2, in the event that a Change
of Control occurs, the Company shall first, offer to repay in full and
terminate all commitments under all Indebtedness under the Credit Facility and
all such other Senior Indebtedness and to repay the Indebtedness owed to such
lender which has accepted such offer and second, offer, subject to the terms
and conditions of this Indenture, to purchase all or any part of each Holder's
Securities (provided that the principal amount of such Securities must be
$1,000 or an integral multiple thereof) on the date (the "Repurchase Date")
that is no later than 45 Business Days (except as hereinafter provided) after
the occurrence of such Change of Control, at a price (the "Repurchase Price")
equal
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to 100% of the principal amount thereof, together with accrued and unpaid
interest and Liquidated Damages, if any, to (but excluding) the Repurchase
Date.
At the Company's option, instead of paying the Repurchase
Price solely in Cash, it may pay the Repurchase Price (to the extent not paid
in Cash) in shares of Common Stock, valued at 95% of the average of the closing
prices for the five Trading Days immediately preceding and including the third
Trading Day preceding the Repurchase Date. The Repurchase Price may be paid in
shares of Common Stock only if the following conditions are satisfied:
(1) such shares have been registered under the
Securities Act or are freely transferable without such registration;
(2) the issuance of Common Stock does not require
registration or qualification with or approval of any governmental
authority under any state law or any other federal law, which
registration or qualification or approval has not been made or
obtained;
(3) such shares have been approved for quotation on the
Nasdaq National Market or listing on a national securities exchange;
and
(4) such shares will be issued out of the Company's
authorized but unissued common stock and upon issuance, will be duly
and validly issued and fully paid and non-assessable and free of any
preemptive rights.
(b) In the event that, pursuant to this Section 11.1,
the Company shall be required to commence an offer to purchase Securities (a
"Repurchase Offer"), the Company shall follow the procedures set forth in this
Section 11.1 as follows:
(1) the Repurchase Offer shall commence within 25
Business Days following a Change of Control;
(2) the Repurchase Offer shall remain open for 20
Business Days following its commencement, except to the extent that a
longer period is required by applicable law;
(3) upon the expiration of a Repurchase Offer, the
Company shall purchase all Securities tendered in response to the
Repurchase Offer;
(4) if the Repurchase Date is on or after an interest
payment Record Date and on or before the related Interest Payment
Date, any accrued interest and Liquidated Damages will be paid to the
Person in whose name a Security is registered at the close of business
on such Record Date, and no additional interest or Liquidated Damages
will be payable to Securityholders who tender Securities pursuant to
the Repurchase Offer;
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(5) the Company shall provide the Trustee with written
notice of the Repurchase Offer at least 5 Business Days before the
commencement of any Repurchase Offer (or such shorter period that is
satisfactory to the Trustee); and
(6) on or before the commencement of any Repurchase
Offer, the Company or the Trustee (upon the request and at the expense
of the Company) shall send, by first-class mail, a notice to each of
the Securityholders, which (to the extent consistent with this
Indenture) shall govern the terms of the Repurchase Offer and shall
state:
(i) that the Repurchase Offer is being made
pursuant to such notice and this Section 11.1 and that all
Securities, or portions thereof, tendered will be accepted
for payment;
(ii) the Repurchase Price (including the amount
of accrued and unpaid interest and Liquidated Damages, if
any), the Repurchase Date and the Repurchase Put Date;
(iii) the portion of the Repurchase Price, if
any, that will be paid in Cash;
(iv) that any Security, or portion thereof, not
tendered and accepted for payment will continue to accrue
interest and Liquidated Damages, if any;
(v) that, unless the Company defaults in
depositing Cash with the Paying Agent in accordance with the
last paragraph of this clause (b) or such payment is
prevented pursuant to Article XII, any Security, or portion
thereof, accepted for payment pursuant to the Repurchase
Offer shall cease to accrue interest after the Repurchase
Date;
(vi) that Holders electing to have a Security,
or portion thereof, purchased pursuant to a Repurchase Offer
will be required to surrender the Security, with the form
entitled "Option of Holder to Elect Purchase" on the reverse
of the Security completed, to the Paying Agent (which may not
for purposes of this Section 11.1, notwithstanding anything
in this Indenture to the contrary, be the Company or any
Affiliate of the Company) at the address specified in the
notice prior to the close of business on the earlier of (a)
the third Business Day prior to the Repurchase Date and (b)
the third Business Day following the expiration of the
Repurchase Offer (such earlier date being the "Repurchase Put
Date");
(vii) that Holders will be entitled to withdraw
their election, in whole or in part, if the Paying Agent
(which may not for purposes of this Section 11.1,
notwithstanding anything in this Indenture to the contrary,
be the Company or any Affiliate of the Company) receives, up
to the close of business on the Repurchase Put Date,
facsimile transmission or letter setting forth the name of
the Holder, the
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principal amount of the Securities the Holder is withdrawing
and a statement that such Xxxxxx is withdrawing his election
to have such principal amount of Securities purchased; and
(viii) a brief description of the events resulting
in such Change of Control.
Any such Repurchase Offer shall comply with all applicable
provisions of federal and state laws, including those regulating tender offers,
if applicable, and any provisions of this Indenture which conflict with such
laws shall be deemed to be superseded by the provisions of such laws.
On or before the Repurchase Date, the Company will (i) accept
for payment Securities or portions thereof properly tendered pursuant to the
Repurchase Offer on or before the Repurchase Put Date, (ii) deposit with the
Paying Agent Cash and, if the Company has so opted pursuant to clause (a)
hereof, shares of Common Stock, sufficient to pay the Repurchase Price
(together with accrued and unpaid interest and Liquidated Damages, if any) of
all Securities or portions thereof so tendered and (iii) deliver to the Trustee
the Securities so accepted together with an Officers' Certificate listing the
Securities or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to Holders of Securities so accepted payment in an amount
equal to the Repurchase Price (together with accrued and unpaid interest and
Liquidated Damages, if any), and the Trustee will promptly authenticate and
mail or deliver to such Holders a new Security or Securities equal in principal
amount to any unpurchased portion of the Securities surrendered. Any Securities
not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the
Repurchase Offer on or as soon as practicable after the Repurchase Date.
Section 11.2 Rescission of Change of Control Determination.
At any time prior to the close of business on the Business
day immediately preceding the Repurchase Date, the Holders of more than 66-2/3%
in aggregate principal amount of the then outstanding Securities, by written
act of said Holders delivered to the Company and the Trustee, may determine
that the event giving rise to the Change of Control shall not be treated as a
Change of Control for purposes of Section 11.1, in which event:
(1) the provisions of Section 11.1(a) shall not apply;
(2) if a Repurchase Offer has been made by the Company
pursuant to Section 11.1(b), such Repurchase Offer shall be deemed
revoked; and
(3) if any Securities have been tendered in response to
the revoked Repurchase Offer, such tenders shall be deemed rescinded
and the Securities promptly returned to the Holders thereof.
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Following a determination by the Holders pursuant to this
Section 11.2, the Company shall mail to all Holders a notice briefly describing
such determination. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such determination. An effective determination under this Section 11.2
shall be binding on all holders.
ARTICLE XII
SUBORDINATION
Section 12.1 Securities Subordinated to Senior Indebtedness.
Notwithstanding anything to the contrary contained herein,
the Company and each Holder, by its acceptance of Securities, agree that (a)
the payment of the principal of, premium, if any, and interest on and
Liquidated Damages with respect to, the Securities and (b) any other payment in
respect of the Securities, including on account of the acquisition or
redemption of the Securities by the Company (but specifically excluding
payments to the Trustee for its own benefit), is subordinated, to the extent
and in the manner provided in this Article XII, to the prior payment in full in
cash of all Obligations on Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter created, incurred,
assumed or guaranteed, and that these subordination provisions are for the
benefit of the holders of Senior Indebtedness.
This Article XII shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue
to hold, Senior Indebtedness, and such provisions are made for the benefit of
the holders of Senior Indebtedness, and such holders are made obligees
hereunder and any one or more of them may enforce such provisions. In addition,
the payment of cash, property or securities (other than Junior Securities) upon
conversion of a Security pursuant to Article XIII will constitute payment on a
Security and therefore will be subject to the subordination provisions
contained in this Indenture.
Section 12.2 No Payment on Securities in Certain Circumstances.
(a) No payment or distribution of any kind or character
(by set-off or otherwise) may be made by or on behalf of the Company directly
or through any Subsidiary on account of the principal of, premium, if any,
interest on, or Liquidated Damages or any other Obligations under or with
respect to, the Securities, or to acquire any of the Securities (including
repurchases of Securities at the option of the Holder) for cash or property
(other than Junior Securities), or on account of the redemption provisions of
the Securities (collectively, the "Subordinated Obligations"), (i) upon the
maturity of any Senior Indebtedness by lapse of time, acceleration (unless
waived) or otherwise, unless and until all principal of, premium, if any, and
interest on, and fees, charges, expenses, indemnifications and all other
Obligations payable in respect of Designated Senior Indebtedness are first paid
in full in cash, or (ii) in the event of default in the payment of any
principal of, premium, if any, or interest in respect of Designated Senior
Indebtedness when it becomes due and payable, whether at maturity or at a date
fixed for prepayment
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or by declaration or otherwise (collectively, a "Payment Default"), unless and
until such Payment Default has been cured or waived or otherwise has ceased to
exist.
(b) Upon (i) the happening of an event of default (other
than a Payment Default) that permits, or would permit, with (w) the passage of
time, (x) the giving of notice, (y) the making of any payment of the Securities
then required to be made, or (z) any combination thereof (collectively, a
"Non-Payment Default"), the holders of Designated Senior Indebtedness or their
representative immediately to accelerate the maturity of such Designated Senior
Indebtedness and (ii) written notice of such Non-Payment Default given to the
Company and the Trustee by the Representative (a "Payment Notice"), then,
unless and until such Non-Payment Default has been cured or waived or otherwise
has ceased to exist, no payment or distribution of any kind or character in
cash or property (by set-off or otherwise) may be made by or on behalf of the
Company directly or through any Subsidiary on account of the Subordinated
Obligations, in any such case other than payments made with Junior Securities.
Notwithstanding the foregoing, unless (i) the Designated Senior Indebtedness in
respect of which such Non-Payment Default exists has been declared due and
payable in its entirety within 179 days after the Payment Notice is delivered
as set forth above (the "Payment Blockage Period"), and (ii) such declaration
has not been rescinded or waived, at the end of the Payment Blockage Period,
the Company shall be required to pay to the Holders of the Securities all sums
not paid to the Holders of the Securities during the Payment Blockage Period
due to the foregoing prohibitions (and upon the making of such payments any
acceleration of the Securities made during the Payment Blockage Period shall be
of no further force or effect) and to resume all other payments as and when due
on the Securities. Not more than one Payment Notice may be given in any
consecutive 365-day period, irrespective of the number of defaults with respect
to Senior Indebtedness during such period. In no event, however, may the total
number of days during which any Payment Blockage Period is or Payment Blockage
Periods are in effect exceed 179 days in the aggregate during any consecutive
365 day period.
(c) In furtherance of the provisions of Section 12.1, in
the event that, notwithstanding the foregoing provisions of this Section 12.2,
any payment or distribution of assets of the Company (other than Junior
Securities) shall be received by the Trustee on behalf of the Holders or any
Paying Agent for the benefit of the Holders at a time when such payment or
distribution is prohibited by the provisions of this Section 12.2, such payment
or distribution (subject to the provisions of Sections 12.6 and 12.9) shall be
held in trust for the benefit of the holders of Senior Indebtedness, and shall
be paid or delivered by such Holders or the Trustee or such Paying Agent, as
the case may be, to the holders of Senior Indebtedness of the Company remaining
unpaid or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
of such Senior Indebtedness of the Company may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness of the Company held or represented by each, for application to the
payment of all Senior Indebtedness of the Company in full after giving effect
to any concurrent payment and distribution to the holders of such Senior
Indebtedness.
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Section 12.3 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution Liquidation or Reorganization.
Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, upon any
dissolution, winding up, total or partial liquidation or reorganization of the
Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or a similar proceeding or upon assignment for the benefit of
creditors or any marshaling of assets or liabilities:
(a) the holders of all Senior Indebtedness of the
Company shall first be entitled to receive payments on all Obligations due on
the Senior Indebtedness in full in cash before the Holders are entitled to
receive any payment or distribution of any kind or character on account of the
Subordinated Obligations (other than Junior Securities);
(b) any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities (other than
Junior Securities) to which the Holders or the Trustee on behalf of the Holders
would be entitled (by setoff or otherwise), except for the provisions of this
Article XII, shall be paid by the liquidating trustee or agent or other Person
making such a payment or distribution directly to the holders of Senior
Indebtedness or their representative to the extent necessary to make payment in
full in cash of all such Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness (but this Section 12.3(b) shall not apply to payments or
distributions to the Trustee for its own benefit); and
(c) in the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than Junior Securities), shall
be received by the Trustee for the benefit of the Holders or the Holders or any
Paying Agent for the benefit of the Holders (or, if the Company or any
Affiliate of the Company is acting as its own Paying Agent, money for any such
payment or distribution shall be segregated or held in trust) on account of
Subordinated Obligations before all Senior Indebtedness is paid in full in
cash, such payment or distribution (subject to the provisions of Sections 12.6
and 12.9) shall be received and held in trust by the Trustee or such Holder or
Paying Agent for the benefit of the holders of such Senior Indebtedness, or
their respective representative, and shall be paid over to or delivered to the
holders of the Senior Indebtedness, ratably according to the respective amounts
of such Senior Indebtedness held or represented by each, to the extent
necessary to make payment as provided herein of all such Senior Indebtedness
remaining unpaid after giving effect to all concurrent payments and
distributions to or for the holders of such Senior Indebtedness, but only to
the extent that as to any holder of such Senior Indebtedness, as promptly as
practical following notice from the Trustee to the holders of such Senior
Indebtedness that such prohibited payment has been received by the Trustee,
Holder(s) or Paying Agent (or has been segregated as provided above), such
holder (or a representative therefor) notifies the Trustee of the amounts then
due and owing on such Senior Indebtedness, if any, held by
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such holder and only the amounts specified in such notices to the Trustee shall
be paid to the holders of such Senior Indebtedness.
Section 12.4 Securityholders to Be Subrogated to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full in cash of all Senior
Indebtedness of the Company as provided herein, the Holders of Securities shall
be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of assets of the Company applicable to the
Senior Indebtedness until all amounts owing on the Securities shall be paid in
full, and for the purpose of such subrogation no such payments or distributions
to the holders of such Senior Indebtedness by the Company, or by or on behalf
of the Holders by virtue of this Article XII, which otherwise would have been
made to the Holders shall, as between the Company and the Holders, be deemed to
be payment by the Company or on account of such Senior Indebtedness, it being
understood that the provisions of this Article XII are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one
hand, and the holders of such Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article XlI shall
have been applied, pursuant to the provisions of this Article XII, to the
payment of amounts payable under Senior Indebtedness of the Company, then the
Holders shall be entitled to receive from the holders of such Senior
Indebtedness any payments or distributions received by such holders of Senior
Indebtedness in excess of the amount sufficient to pay all amounts payable
under or in respect of such Senior Indebtedness in full.
Section 12.5 Obligations of the Company Unconditional.
Nothing contained in this Article XII or elsewhere in this
Indenture or in the Securities is intended to or shall impair as between the
Company and the Holders, the obligation of each such Person, which is absolute
and unconditional, to pay to the Holders the principal of, premium, if any, and
interest on, the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the holders of
the Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article XII, of the holders of Senior Indebtedness in respect
of cash, property or securities of the Company received upon the exercise of
any such remedy. Notwithstanding anything to the contrary in this Article XII
or elsewhere in this Indenture or in the Securities, upon any distribution of
assets of the Company referred to in this Article XII, the Trustee, subject to
the provisions of Sections 7.1 and 7.2, and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
Person making any distribution to the Trustee or to the Holders for the purpose
of ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior In-
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debtedness 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 XII so long as such court has been
apprised of the provisions of, or the order, decree or certificate makes
reference to, the provisions of this Article XII. Nothing in this Section 12.5
shall apply to the claims of, or payments to, the Trustee under or pursuant to
Section 7.7 or otherwise for its own benefit.
Section 12.6 Trustee and Other Agents Entitled to Assume Payments Not
Prohibited in Absence of Notice.
The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any payment
to or by the Trustee in respect of the Securities. The Trustee and all other
Agents shall not at any time be charged with knowledge of the existence of any
facts which would prohibit the making of any payment to or by the Trustee
unless and until a Trust Officer of the Trustee or any Paying Agent shall have
actually received, no later than one Business Day prior to such payment,
written notice thereof in compliance with Section 14.2 from the Company or from
one or more holders of Senior Indebtedness or from any representative therefor
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Sections 7.1 and 7.2, shall be entitled in all respects
conclusively to assume that no such fact exists.
Section 12.7 Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination provisions contained in this Article XII
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with. Without the consent of or notice to the
Trustee or the Holders, the holders of Senior Indebtedness may (i) 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; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the
payment or collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 12.8 Securityholders Authorize Trustee to Effectuate Subordination
of Securities.
Each Holder of the Securities by his acceptance thereof
authorizes the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provisions contained in this
Article XII pursuant to this Indenture, and appoints the Trustee his
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquida-
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tion or reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors of
the Company), the immediate filing of a claim for the unpaid balance of his
Securities in the form required in said proceedings and cause said claim to be
approved. If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Indebtedness
or their representative are or is hereby authorized to have the right to file
and are or is hereby authorized to file an appropriate claim for and on behalf
of the Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to vote in respect of the claim of any Securityholder in any
such proceeding.
Section 12.9 Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth
in this Article XII in respect of any Senior Indebtedness at any time held by
it to the same extent as any other holder of Senior Indebtedness, and nothing
in this Indenture shall be construed to deprive the Trustee of any of its
rights as such holder.
Nothing in this Article XII shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.7.
Section 12.10 Article XII Not to Prevent Events of Default.
The failure to make a payment on account of principal of,
premium, if any, interest on, or Liquidated Damages with respect to, the
Securities by reason of any provision of this Article XII shall not be
construed as preventing the occurrence of a Default or an Event of Default
under Section 6.1 or in any way prevent the Holders from exercising any right
hereunder other than the right to receive payment on the Securities.
Section 12.11 No Duty of Trustee and Other Agents to Holders of Senior
Indebtedness.
The Trustee and the other Agents shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders (other than for its willful misconduct or
negligence) if it shall in good faith mistakenly pay over or distribute to the
Holders of Securities or the Company or any other Person, cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article XII or otherwise. Nothing in this Section 12.12 shall
affect the obligation of any other such Person receiving such payment or
distribution from the Trustee or any other Agent to hold such payment for the
benefit of, and to pay such payment over to, the holders of Senior Indebtedness
or their representative.
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With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article XII and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall
be read into this Indenture as against the Trustee.
Section 12.12 Amendments.
The provisions of this Article XII may not be amended or
modified without the written consent of the holders of Designated Senior
Indebtedness or their representatives in accordance with the instruments
governing the terms of such Designated Senior Indebtedness.
Section 12.13 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
7.1, and the Holders of the Securities shall be entitled to conclusively 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, liquidating trustee, Custodian,
receiver, 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 Designated 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 XII.
ARTICLE XIII
CONVERSION OF SECURITIES
Section 13.1 Conversion Privilege.
Subject to and upon compliance with the provisions of this
Article XIII, at the option of the Holder thereof, any Security may at any
time, be converted, in whole, or in part in multiples of $1,000 principal
amount, into fully paid and non-assessable shares of Common Stock issuable upon
conversion of the Securities, at the conversion price in effect at the Date of
Conversion, until and including, but not after the close of business on the
Stated Maturity, unless such Security or some portion thereof shall have been
called for redemption or delivered for repurchase prior to such date and no
default is made in making due provision for the payment of the Redemption Price
in accordance with the terms of this Indenture, in which case, with respect to
such Security or portion thereof as has been so called for redemption or
delivered for repurchase, such Security or portion thereof may be so converted
until and including, but not after, the close of business on the Business Day
immediately prior to the Redemption Date or Repurchase
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Date, as applicable, for such Security, unless the Company subsequently fails
to pay the applicable Redemption Price or Repurchase Price, as the case may be.
Section 13.2 Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of
any Security to be converted shall surrender such Security to the Company at
any time during usual business hours at its office or agency maintained for the
purpose as provided in this Indenture, accompanied by a fully executed written
notice, in substantially the form set forth on the reverse of the Security a
copy of which may be obtained from the Trustee, that the Holder elects to
convert such Security or a stated portion thereof constituting a multiple of
$1,000 principal amount, and, if such Security is surrendered for conversion
during the period between the close of business on any Record Date and the
opening of business on the next following Interest Payment Date and has not
been called for redemption on a Redemption Date or repurchase on a Repurchase
Date which occurs within such period, accompanied also by payment of an amount
equal to the interest payable on such Interest Payment Date on the principal
amount of the Security being surrendered for conversion, notwithstanding such
conversion. Such notice of conversion shall also state the name or names (with
address) in which the certificate or certificates for shares of Common Stock
shall be issued. Securities surrendered for conversion shall (if reasonably
required by the Company or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company duly executed by, the Holder or his attorney duly authorized in
writing. As promptly as practicable after the receipt of such notice and the
surrender of such Security as aforesaid, the Company shall, subject to the
provisions of Section 13.8 hereof, issue and deliver at such office or agency
to such Holder, or on his written order, a certificate or certificates for the
number of full shares of Common Stock issuable on such conversion of Securities
in accordance with the provisions of this Article XIII and Cash, as provided in
Section 13.3 hereof, in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion. Such conversion shall be deemed to
have been effected immediately prior to the close of business on the date
(herein called the "Date of Conversion") on which such Security shall have been
surrendered as aforesaid, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become on the Date of Conversion the
holder or holders 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 cause the person or persons in whose name or
names the certificate or certificates for such shares are to be issued to be
deemed to have become the record holder or holders thereof for all purposes at
the opening of business on the next succeeding day on which such stock transfer
books are open but such conversion shall nevertheless be at the conversion
price in effect at the close of business on the date when such Security shall
have been so surrendered with the conversion notice. In the case of conversion
of a portion, but less than all, of a Security, the Company shall as promptly
as practicable execute, and the Trustee shall thereafter authenticate and
deliver to the Holder thereof, at the expense of the Company, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise expressly provided in this Indenture,
no payment or ad-
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justment shall be made for interest accrued on any Security (or portion
thereof) converted or for dividends or distributions on any Common Stock issued
upon conversion of any Security.
Section 13.3 Fractional Interests.
No fractions of shares or scrip representing fractions of
shares 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 which shall be issuable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Securities so
surrendered. If any fraction of a share of Common Stock would, except for the
foregoing provisions of this Section 13.3, be issuable on the conversion of any
Security or Securities, the Company shall make payment in lieu thereof in an
amount of Cash equal to the value of such fraction computed on the basis of the
last sale price of the Common Stock as reported on the Nasdaq National Market
(or if not listed for trading thereon, then on the principal national
securities exchange or on the principal automated quotation system on which the
Common Stock is listed or admitted to trading) at the close of business on the
Date of Conversion or if no such sale takes place on such day, the last sale
price for such day shall be the average of the closing bid and asked prices
regular way on the Nasdaq National Market (or if not listed for trading
thereon, on the principal national securities exchange or on the principal
automated quotation system on which the Common Stock is listed or admitted to
trading) for such day (any such last sale price being hereinafter referred to
as the "Last Sale Price"). If on such Trading Day the Common Stock is not
quoted by any such organization, the fair value of such Common Stock on such
day, as reasonably determined in good faith by the Board of Directors of the
Company, shall be used.
Section 13.4 Conversion Price.
The conversion price per share of Common Stock issuable upon
conversion of the Securities (as such price may be adjusted, herein called the
"Conversion Price") shall initially be $5.00 (which reflects a conversion rate
of 200 shares of Common Stock per $1,000 in principal amount of Securities).
Section 13.5 Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustment from time
to time as follows:
(a) In case the Company shall make or pay a dividend or
make a distribution in shares of Common Stock on any class of Capital
Stock of the Company, the Conversion Price in effect immediately
following the record date fixed for the determination of shareholders
entitled to receive such dividend or other distribution shall be
reduced by multiplying such Conversion Price by a fraction of which
the numerator shall be the number of shares of Common Stock
outstanding at the close of business on such date and the denominator
shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution. An adjustment
made pursuant to this
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subsection (a) shall become effective immediately, except as provided
in subsections (i) and (j) below, after such record date.
(b) In case the Company shall (1) subdivide its
outstanding shares of Common Stock into a greater number of shares or
(2) combine or reclassify its outstanding shares of Common Stock into
a smaller number of shares, the Conversion Price in effect immediately
following the effectiveness of such action shall be adjusted by
multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding immediately
prior to such subdivision or combination and the denominator shall be
the number of shares outstanding immediately after giving effect to
such subdivision or combination. An adjustment made pursuant to this
subsection (b) shall become effective immediately, except as provided
in subsection (i) and (j) below, after the effective date of a
subdivision or combination.
(c) In case the Company shall issue rights, options or
warrants to all or substantially all holders of Common Stock entitling
them to subscribe for or purchase shares of Common Stock at a price
per share less than the then current market price per share of the
Common Stock (as determined pursuant to subsection (g) below) on the
record date fixed for determination of the shareholders entitled to
receive such rights, option or warrants, the Conversion Price in
effect immediately following such record date shall be adjusted to a
price, computed to the nearest cent, so that the same shall equal the
price determined by multiplying:
(i) such Conversion Price by a fraction, of
which
(ii) the numerator shall be (A) the number of
shares of Common Stock outstanding on such record date plus
(B) the number of shares which the aggregate offering price
of the total number of shares so offered for subscription or
purchase would purchase at such current market price
(determined by multiplying such total number of shares by the
exercise price of such rights, options or warrants and
dividing the product so obtained by such current market
price), and of which
(iii) the denominator shall be (A) the number of
shares of Common Stock outstanding on such record date plus
(B) the number of additional shares of Common Stock which are
so offered for subscription or purchase.
Such adjustment shall become effective immediately, except as
provided in subsections (i) and (j) below, after the record date for the
determination of holders entitled to receive such rights, options or warrants;
provided, however, that if any such rights, options or warrants issued by the
Company as described in this subsection (c) are only exercisable upon the
occurrence of certain triggering events, then the Conversion Price will not be
adjusted as provided in this subsection (c) until such triggering events occur.
Upon the expiration or termination of any rights, options or warrants without
the exercise of such rights, options or warrants, the Conver-
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sion Price then in effect shall be adjusted immediately to the Conversion Price
which would have been in effect at the time of such expiration or termination
had such rights, options or warrants, to the extent outstanding immediately
prior to such expiration or termination, never been issued.
(d) In case the Company or any Subsidiary of the Company
shall distribute to all or substantially all holders of Common Stock,
any of its assets, evidences of indebtedness, cash or securities
(other than (x) dividends or distributions exclusively in cash, (y)
any dividend or distribution for which an adjustment is required to be
made in accordance with subsection (a) or (c) above and in mergers and
consolidations to which Section 13.6 applies, or (z) any distribution
of rights or warrants subject to subsection (l) below or any
distribution in connection with a liquidation, dissolution or winding
up of the Company or any Subsidiary) then in each such case the
Conversion Price in effect immediately following the record date fixed
for the determination of the shareholders entitled to such
distribution shall be adjusted so that the same shall equal the price
determined by multiplying such Conversion Price by a fraction of which
the numerator shall be the then current market price per share of the
Common Stock (determined as provided in subsection (g) below) on such
record date less the then fair market value (as reasonably determined
in good faith by the Board of Directors of the Company) of the portion
of the assets so distributed applicable to one share of Common Stock,
and of which the denominator shall be such current market price per
share of the Common Stock. Such adjustment shall become effective
immediately, except as provided in subsections (i) and (j) below,
after the record date for the determination of shareholders entitled
to receive such distribution.
(e) In case the Company or any Subsidiary of the Company
shall make any distribution consisting exclusively of cash (excluding
any cash portion of distributions for which an adjustment is required
to be made in accordance with subsection (d) above, or cash
distributed upon a merger or consolidation to which Section 13.6
applies) to all or substantially all holders of Common Stock in an
aggregate amount that, combined together with (i) all other such
all-cash distributions made within the then preceding 12 months in
respect of which no adjustment pursuant to this subsection (e) has
been made and (ii) any cash and the fair market value of other
consideration paid or payable in respect of any tender offer by the
Company or any of its Subsidiaries for Common Stock concluded within
the preceding 12 months in respect of which no adjustment has been
made, exceeds 10% of the Company's market capitalization (defined as
being the product of the then current market price of the Common Stock
(determined as provided in subsection (g) below) times the number of
shares of Common Stock then outstanding) on the record date fixed for
the determination of the shareholders entitled to such distribution,
in each such case the Conversion Price immediately following such
record date shall be adjusted so that the same shall equal the price
determined by multiplying such Conversion Price by a fraction of which
the numerator shall be the then current market price per share of the
Common Stock on such record date less the amount of the cash and/or
fair market value (as reasonably determined in good faith by the Board
of Directors of the Company) of other consideration so distributed
applicable to one share of Common Stock, and of
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which the denominator shall be such current market price per share of
the Common Stock. Such adjustment shall become effective immediately,
except as provided in subsections (i) and (j) below, after the record
date for the determination of shareholders entitled to receive such
distribution.
(f) In case the Company or any Subsidiary of the Company
shall complete a tender offer for all or any portion of the Common
Stock (any such tender offer being referred to as an "Offer") that
involves an aggregate consideration having a fair market value as of
the expiration of such Offer (the "Expiration Time") that, together
with (i) any cash and the fair market value of any other consideration
payable in respect of any other tender offer, as of the expiration of
such other tender offer, expiring within the 12 months preceding the
expiration of such Offer and in respect of which no Conversion Price
adjustment pursuant to this subsection (f) has been made and (ii) the
aggregate amount of any all-cash distributions referred to in
subsection (e) of this Section 13.5 to all holders of Common Stock
within the 12 months preceding the expiration of such Offer for which
no conversion price adjustment pursuant to such subsection (e) has
been made, exceeds 10% of the product of the then current market price
per share (determined as provided in subsection (g) below) of the
Common Stock on the Expiration Time times the number of shares of
Common Stock outstanding (including any tendered shares) on the
Expiration Time, the Conversion Price in effect immediately following
such Expiration Time shall be reduced by multiplying such Conversion
Price by a fraction of which the numerator shall be (i) the product of
the then current market price per share (determined as provided in
subsection (g) below) of the Common Stock on the Expiration Time times
the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time minus (ii) the fair market
value of the aggregate consideration payable to shareholders based on
the acceptance (up to any maximum specified in the terms of the Offer)
of all shares validly tendered and not withdrawn as of the Expiration
Time (the shares deemed so accepted being referred to as the
"Purchased Shares") and the denominator shall be the product of (i)
such current market price per share on the Expiration Time times (ii)
such number of outstanding shares on the Expiration Time less the
number of Purchased Shares, such reduction to become effective
immediately prior to the opening of business on the day following the
Expiration Time.
For purposes of this subsection (f), the fair market value of
any consideration with respect to an Offer shall be reasonably determined in
good faith by the Board of Directors of the Company and described in a Board
Resolution.
(g) For the purpose of any computation under subsections
(c), (d), (e) and (f) above, the current market price per share of
Common Stock on any date shall be deemed to be the average of the Last
Sale Prices of a share of Common Stock for the five consecutive
Trading Days selected by the Company commencing not more than 20
Trading Days before, and ending not later than, the earlier of the
date in question and the date before the "'ex' date," with respect to
the issuance, distribution or Offer requiring such
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computation. If on any such Trading Day the Common Stock is not quoted
by any organization referred to in the definition of Last Sale Price
in Section 13.3 hereof, the fair value of the Common Stock on such
day, as reasonably determined in good faith by the Board of Directors
of the Company, shall be used. For purposes of this paragraph, the
term "'ex' date," when used with respect to any issuance, distribution
or payments with respect to an Offer, means the first date on which
the Common Stock trades regular way on the Nasdaq National Market (or
if not listed or admitted to trading thereon, then on the principal
national securities exchange or the Nasdaq Stock Market's National
Market if the Common Stock is listed or admitted to trading thereon)
without the right to receive such issuance, distribution or Offer.
(h) In addition to the foregoing adjustments in
subsections (a), (b), (c), (d), (e) and (f) above, the Company, from
time to time and to the extent permitted by law, may reduce the
Conversion Price by any amount for at least 20 Business Days, if the
Board of Directors has made a determination, which determination shall
be conclusive, that such reduction would be in the best interests of
the Company. The Company shall cause notice of such reduction to be
mailed to each Holder of Securities, in the manner specified in
Section 13.7, at least 15 days prior to the date on which such
reduction commences. The Company may, at its option, also make such
reductions in the Conversion Price in addition to those set forth
above, as the Board of Directors deems advisable to avoid or diminish
any income tax to holders of shares of Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from
any event treated as such for United States federal income tax
purposes.
(i) In any case in which this Section 13.5 shall require
that an adjustment be made immediately following a record date, the
Company may elect to defer the effectiveness of such adjustment (but
in no event until a date later than the effective time of the event
giving rise to such adjustment), in which case the Company shall, with
respect to any Security converted after such record date and on and
before such adjustment shall have become effective (i) defer paying
any Cash payment pursuant to Section 13.3 hereof or issuing to the
Holder of such Security the number of shares of Common Stock and other
capital stock of the Company (or other assets or securities) issuable
upon such conversion in excess of the number of shares of Common Stock
and other Capital Stock of the Company issuable thereupon only on the
basis of the Conversion Price prior to adjustment, and (ii) not later
than five Business Days after such adjustment shall have become
effective, pay to such Holder the appropriate Cash payment pursuant to
Section 13.3 hereof and issue to such Holder the additional shares of
Common Stock and other Capital Stock of the Company issuable on such
conversion. Notwithstanding the foregoing, no adjustment of the
Conversion price shall be made if the event giving rise to such
adjustment does not occur.
(j) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease
of at least 1.0% of the Conversion Price;
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provided that any adjustments which by reason of this subsection (i)
are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Article XIII shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be. In no event shall the
Conversion Price be less than the par value of a share of the
Company's Common Stock.
(k) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly (i) file with the Trustee and
each Conversion Agent an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which certificate
shall be conclusive evidence of the correctness of such adjustment,
and (ii) mail or cause to be mailed a notice of such adjustment to
each holder of Securities at his address as the same appears on the
registry books of the Company. Unless and until a Trust Officer has
received an Officers' Certificate setting forth an adjustment of the
Conversion Price, the Trustee may assume that no such adjustment has
been made and that the last Conversion Price for which the Trustee has
received an Officers' Certificate is the current Conversion Price.
(l) In the event that the Company distributes rights or
warrants (other than those referred to in subsection (c) above, and
including any rights issued or issuable pursuant to the Rights
Agreement, dated as of October 3, 2002, between the Company and The
Bank of New York, as Rights Agent, as such agreement may be amended,
restated, modified, supplemented or replaced from time to time (the
"Shareholder Rights Plan") pro rata to holders of Common Stock, so
long as any such rights or warrants have not expired or been redeemed
by the Company, instead of making an adjustment in the Conversion
Price, the Company shall make proper provision so that the Holder of
any Note surrendered for conversion will be entitled to receive upon
such conversion, in addition to the shares of Common Stock issuable
upon such conversion (the "Conversion Shares"), a number of rights or
warrants to be determined as follows: (i) if such conversion occurs on
or prior to the date for the distribution to the holders of rights or
warrants of separate certificates evidencing such rights or warrants
(the "Distribution Date"), the same number of rights or warrants to
which a holder of a number of shares of Common Stock equal to the
number of Conversion Shares is entitled at the time of such conversion
in accordance with the terms and provisions of and applicable to the
rights or warrants, and (ii) if such conversion occurs after such
Distribution Date, the same number of rights or warrants to which a
holder of the number of shares of Common Stock into which the
principal amount of such Note so converted was convertible immediately
prior to such Distribution Date would have been entitled on such
Distribution Date in accordance with the terms and provisions of and
applicable to the rights or warrants; provided, however, any Holder
who is a holder of shares of Common Stock (or direct or indirect
interests therein) at the time of conversion of any Note, but who is
not entitled as a holder of Common Stock to hold or receive rights
pursuant to the terms of the Shareholder Rights Plan, shall not be
eligible to receive any such rights thereunder. Any distribution of
rights pursuant to the Shareholder Rights plan complying with the
requirements set forth in this subsec-
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tion (l) shall not constitute a distribution of rights for the
purposes of the other provisions of this Article XIII.
Section 13.6 Continuation of Conversion Privilege in Case of
Reclassification, Change, Merger, Consolidation or Sale of
Assets.
If any of the following shall occur, namely: (a) any
reclassification or change of outstanding shares of Common Stock issuable upon
conversion of the Securities (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), (b) any consolidation or merger of the Company
with or into any other Person, or the consolidation or merger of any other
Person with or into the Company (other than a merger which does not result in
any reclassification, change, conversion, exchange or cancellation of
outstanding shares of Common Stock) or (c) any sale, transfer or conveyance of
all or substantially all of the assets of the Company (computed on a
consolidated basis), then the Company, or such successor or purchasing entity,
as the case may be, shall, as a condition precedent to such reclassification,
change, consolidation, merger, sale or conveyance, execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security
then outstanding shall have the right to convert such Security only into the
kind and amount of shares of stock and other securities and property (including
cash) receivable upon such reclassification, change, consolidation, merger,
sale, transfer or conveyance by a holder of the number of shares of Common
Stock issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, sale, transfer or conveyance
assuming such holder of Common Stock of the Company failed to exercise his
rights of an election, if any, as to the kind or amount of securities, cash and
other property receivable upon such reclassification, change, consolidation,
merger, sale, transfer or conveyance (provided that if the kind or amount of
securities, cash, and other property receivable upon such reclassification,
change, consolidation, merger, sale, transfer or conveyance is not the same for
each share of Common Stock of the Company held immediately prior to such
reclassification, change, consolidation, merger, sale, transfer or conveyance
in respect of which such rights of election shall not have been exercised
("Non-electing Share"), then for the purpose of this Section 13.6 the kind and
amount of securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, sale, transfer or conveyance
by each Non-electing Share shall be deemed to be the kind and amount so
receivable per share by a plurality of the Non-electing Shares). Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article XIII. If, in the case of any such consolidation, merger, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of shares of Common Stock includes shares of
stock or other securities and property (including cash) of a corporation other
than the successor or purchasing corporation, as the case may be, in such
consolidation, merger, sale or conveyance, then such supplemental indenture
shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Securities
as the Board of Directors of the Company shall reasonably consider necessary by
reason of the foregoing. The provisions of this Section 13.6 shall similarly
apply to successive consolidations, mergers, sales
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or conveyances.
Notice of the execution of each such supplemental indenture
shall be mailed to each Holder of Securities at his address as the same appears
on the registry books of the Company.
Neither the Trustee nor any Conversion Agent shall be under
any responsibility to determine the correctness of any provisions contained in
any such supplemental indenture relating either to the kind or amount of shares
of stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, sale or conveyance or to any
adjustment to be made with respect thereto, but, subject to the provisions of
Article VIII hereof, may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon, the Officers'
Certificate (which the Company shall be obligated to file with the Trustee
prior to the execution of any such supplemental indenture) with respect
thereto.
Section 13.7 Notice of Certain Events.
In case:
(a) the Company shall declare a dividend (or any other
distribution) payable to the holders of Common Stock (other than cash
dividends);
(b) the Company shall authorize the granting to all or
substantially all the holders of Common Stock of rights, warrants or options to
subscribe for or purchase any shares of stock of any class or of any other
rights;
(c) the Company shall authorize any reclassification or
change of the Common Stock (including a subdivision or combination of its
outstanding shares of Common Stock), or any consolidation or merger to which
the Company is a party and for which approval of any shareholders of the
Company is required, or the sale or conveyance of all or substantially all the
property or business of the Company;
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the Company; or
(e) the Company or any of its Subsidiaries shall
complete an Offer, as defined in Section 13.5;
then, the Company shall cause to be filed at the office or agency maintained
for the purpose of conversion of the Securities as provided in Section 13.2
hereof, and shall cause to be mailed to each Holder of Securities, at his
address as it shall appear on the registry books of the Company, at least 20
days before the date hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one date is specified), a
notice stating the date on which (1) a
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record is expected to be taken for the purpose of such dividend, distribution,
rights, warrants or options or Offer, 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 or to participate in such
Offer are to be determined, or (2) such reclassification, change,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding-up
is expected to become effective and the date, if any is to be fixed, 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 or other property
deliverable upon such reclassification, change, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding-up.
Section 13.8 Taxes on Conversion.
The Company will pay any and all documentary, stamp or
similar taxes payable to the United States of America or any political
subdivision or taxing authority thereof or therein in respect of the issue or
delivery of shares of Common Stock on conversion of Securities pursuant
thereto; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the Holder of
the Securities to be converted and no such issue or delivery shall be made
unless and until the person requesting such issue or delivery 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. The Company extends no protection
with respect to any other taxes imposed in connection with conversion of
Securities.
Section 13.9 Company to Provide Stock.
The Company shall reserve, free from pre-emptive rights, out
of its authorized but unissued shares, sufficient shares to provide for the
conversion of the Securities from time to time as such Securities are presented
for conversion, provided that nothing contained in this Section 13.9 shall be
construed to preclude the Company from satisfying its obligations in respect of
the conversion of Securities by delivery of repurchased shares of Common Stock
which are held in the treasury of the Company.
If any shares of Common Stock to be reserved 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 or delivered upon conversion, then the Company covenants
that it will in good faith and as expeditiously as possible use its reasonable
efforts to secure such registration or approval, as the case may be; provided,
however, that nothing in this Section 13.9 shall be deemed to limit in any way
the obligations of the Company provided in this Article XIII.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the Common
Stock, the Company will take all corporate action which may, in the Opinion of
Counsel, be necessary in order that the Company
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may validly and legally issue fully paid and non-assessable shares of Common
Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
Section 13.10 Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any agent of the Trustee shall at any
time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officers' Certificate referred to in
Section 13.5 hereof, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any agent of the Trustee 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 (including 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 agent of the Trustee shall be responsible for any failure of
the Company to issue, register the transfer of or deliver any shares of Common
Stock or stock certificates or other securities or property (including cash)
upon the surrender of any Security for the purpose of conversion or, subject to
Article VIII hereof, to comply with any of the covenants of the Company
contained in this Article XIII.
Section 13.11 Return of Funds Deposited for Redemption of Converted
Securities.
Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any other Paying Agent for the
purpose of paying the principal of and interest on any of the Securities and
which shall not be required for such purposes because of the conversion of such
Securities, as provided in this Article XIII, shall after such conversion be
repaid to the Company by the Trustee or such other Paying Agent.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of the TIA, the imposed duties,
whether or not this Indenture has been qualified under the TIA, shall control.
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Section 14.2 Notices.
Any notices or other communications to the Company or the
Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telecopier,
nationally-recognized courier service (freight prepaid) or registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company:
Arris Group, Inc.
00000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 10286
Attention: Corporate Trust Administration
(000) 000-0000
Any party by notice to each other party may designate
additional or different addresses as shall be furnished in writing by such
party. Any notice or communication to any party shall be deemed to have been
given or made as of the date so delivered, if personally delivered; when
receipt is acknowledged, if telecopied or sent by nationally-recognized courier
service; and five Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address
shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to him by first class mail or other equivalent means at his address
as it appears on the registration books of the Registrar and shall be
sufficiently given to him if so mailed within the time prescribed. In lieu of
mailing any notice, financial statement, report, supplemental indenture, or
other communication required hereby to a Security Holder, at its option, the
Company may instead file such notice, financial statement, report, supplemental
indenture, or other communication with the SEC in a manner that makes it
publicly available, including through the filing thereof utilizing the XXXXX
system.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee re-
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ceives it except for notices and communications to the Trustee which shall be
effective only upon actual receipt thereof.
Section 14.3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section
312(b) with other Securityholders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the Registrar and any
other Person shall have the protection of TIA Section 312(c).
Section 14.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action (other than the original issuance of the Securities pursuant
to this Indenture) under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate (in form and substance
reasonably satisfactory to the Trustee) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
(2) upon the Trustee's request, an Opinion of Counsel
(in form and substance reasonably satisfactory to the Trustee) stating
that, in the opinion of such counsel, all such conditions precedent
and covenants have been complied with.
Section 14.5 Statements Required in Certificate or Opinion.
Each certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include: (1) a statement that the Person1making such certificate or opinion has
read such covenant or condition; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in
the opinion of such Person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of each such Person, such condition or covenant
has been complied with; provided, however, that with respect to matters of fact
an Opinion of Counsel may rely on an Officers' Certificate or certificates of
public officials.
Section 14.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
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Section 14.7 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or any day that is
not a Business Day. If a payment date is a Legal Holiday at such place, payment
may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 14.8 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY
OTHER JURISDICTION.
Section 14.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its Subsidiaries.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 14.10 No Recourse Against Others.
No direct or indirect partner, employee, shareholder,
director or officer, as such, past, present or future of the Company or any
successor corporation, shall have any personal liability in respect of the
obligations of the Company under the Securities or this Indenture by reason of
his, her or its status as such partner, shareholder, employee, director or
officer. Each Securityholder by accepting a Security waives and releases all
such liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
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Section 14.11 Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 14.12 Duplicate Originals.
All parties may sign any number of copies or counterparts of
this Indenture. Each signed copy or counterpart shall be an original, but all
of them together shall represent the same agreement.
Section 14.13 Severability.
In case any one or more of the provisions in this Indenture
or in the Securities shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
Section 14.14 Table of Contents, Headings, Etc.
The Table of Contents and headings of the Articles and the
Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 14.15 Qualification of Indenture.
The Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all costs, fees and expenses (including attorneys' fees and
expenses for the Company and the Trustee) incurred in connection therewith,
including, but not limited to, costs, fees and expenses of qualification of the
Indenture and the Securities and printing this Indenture and the Securities.
The Trustee shall be entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.
Section 14.16 Registration Rights.
Certain Holders of the Securities are entitled to certain
registration rights with respect to such Securities pursuant to, and subject to
the terms of, the Registration Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
ARRIS GROUP, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: SVP Finance
S-1
The Bank of New York, as Trustee
By: /s/ Xxxx XxXxxxxx
-------------------------------------------------
Name: Xxxx XxXxxxxx
Title: Vice President
S-2
EXHIBIT A
[FORM OF SECURITY]
ARRIS GROUP, INC.
4-1/2% CONVERTIBLE SUBORDINATED NOTES DUE 2008
No. CUSIP No.
$_________
Arris Group, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
____________________________, or registered assigns, the principal sum of
_________ Dollars, on March 15, 2008.
Interest Payment Dates: March 15 and September 15, commencing
September 15, 2003.
Record Dates: March 1 and September 1.
Reference is made to the further provisions of this Note hereinafter
set forth, which will, for all purposes, have the same effect as if set forth
at this place.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
A-1
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
ARRIS GROUP, INC., a Delaware corporation
By:
-------------------------------------------------
Name:
Title:
By:
-------------------------------------------------
Name:
Title:
A-2
CERTIFICATE OF AUTHENTICATION:
This is one of the 4-1/2% Convertible Subordinated Notes due 2008 described in
the within-mentioned Indenture.
Dated:
---------------------
The Bank of New York, as Trustee
By:
----------------------------------------
Authorized Signatory
A-3
ARRIS GROUP, INC.
4-1/2% Convertible Subordinated Notes due 2008
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by The
Depository Trust Company, a New York corporation ("Depositary"), to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Unless this
certificate is presented by an authorized representative of the Depository to
the Company or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of the Depositary (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.(1)
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U S. PERSONS, EXCEPT
AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN "IAI")), OR (2) AGREES THAT
IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT,
(C) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE)
AND, IF THE COMPANY SO REQUESTS, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, IT IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT,
(E) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (F) IN ACCORDANCE WITH
---------
1 This paragraph should only be added if the Security is issued in
global form.
A-4
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, THE TRUSTEE AND THE
REGISTRAR) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS
GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING.(2)
1. Interest.
Arris Group, Inc., a Delaware corporation (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), promises to pay interest on the principal amount of this Note at
the rate of 4-1/2% per annum. To the extent it is lawful, the Company promises
to pay interest on any interest payment due but unpaid on such principal amount
at a rate of 4-1/2% per annum compounded semi-annually.
The Company will pay interest semi-annually in cash in arrears on
March 15 and September 15 of each year (each, an "Interest Payment Date"),
commencing September 15, 2003. Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid on
the Notes, from March 18, 2003. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date.
Holders must surrender Notes to a Paying Agent to collect principal payments.
Any such interest not so punctually paid, and defaulted interest relating
thereto, may be paid to the Persons who are registered Holders at the close of
business on a Special Record Date for the payment of such defaulted interest,
as more fully provided in the Indenture referred to below. Except as provided
below, the Company shall pay principal and interest in such coin or currency of
the United States of America as at the time of payment shall be legal tender
for payment of public and private debts. The Notes will be payable as to
principal, premium, interest and Liquidated Damages at the office or agency of
the Company maintained for such purpose within or without New York, New York,
or at the option of the Company, payment of principal, premium, interest and
Liquidated Damages may be made by check mailed to the Holders at their
addresses set forth in the registry of Holders, and provided that, upon the
request of The Depository Trust Company, a New York corporation (the
"Depositary"), payment by
---------
2 This paragraph should be included only for the Transfer Restricted
Securities.
A-5
wire transfer to an account within the United States of immediately available
funds will be required with respect to principal of, premium and interest on
and Liquidated Damages with respect to Global Notes and all other Notes held of
record by the Depositary, or its nominee, if the Depositary shall have provided
wire transfer instructions to the Company or the Paying Agent.
3. Paying Agent and Registrar.
The Bank of New York (the "Trustee") will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders. The Company or any of its Subsidiaries may,
subject to certain exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture, dated as of March 18,
2003 (as amended or supplemented from time to time the "Indenture"), between
the Company and the Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act, as in effect on the date of the Indenture. The
Notes are subject to all such terms, and Holders of Notes are referred to the
Indenture and said Act for a statement of them. The Notes are general unsecured
obligations of the Company limited in aggregate principal amount to
$125,000,000.
No sinking fund is provided for the Notes.
5. Redemption.
The Notes may be redeemed in whole or in part at any time, upon notice
by the Company at least 30 days and no more than 60 days prior to the date
fixed for such redemption (the "Redemption Date"), at the option of the Company
(the "Redemption") for a price (the "Redemption Price") equal to 100% of the
principal amount of the Notes to be redeemed, plus accrued and unpaid interest
(and Liquidated Damages (as defined in the Indenture), if any) to, but
excluding the Redemption Date if (1) the closing price of the Company's common
stock (the "Common Stock") has exceeded 150% of the conversion price then in
effect for at least 20 trading days within a period of 30 consecutive trading
days ending on the trading day immediately before the date of mailing of the
Redemption notice (the "Redemption Notice Date") and (2) the registration
statement covering the resale of the Notes and the shares of common stock
issuable upon conversion of the Notes is effective and available for use and is
expected to remain effective and available for use for 30 days following the
Redemption Notice Date, unless registration is no longer required. If a
Redemption occurs on or before the third anniversary of the date of the Notes'
issuance (the "Issue Date"), the Company will pay to the holders of the Notes
(the "Holders") the Redemption Price, plus an Interest Make Whole-Payment (as
defined below) with respect to the Notes called for redemption to Holders on
the Redemption Notice Date, regardless of whether those Notes are converted
prior to the date of the provisional redemption. If the Redemption occurs after
the third anniversary of Issue Date, the Company will pay to the Holders the
Redemption Price with respect to the Notes called for redemption to holders on
the Redemption Notice Date. Any Redemption Price may be paid in cash or,
subject to the restrictions in
A-6
Section 3.1 of the Indenture, in Common Stock. Any payment in Common Stock will
be made by valuing the Common Stock at 95% of the average of the closing bid
and asked prices of the Common Stock on The Nasdaq National Market for each of
the five trading days ending with the third trading day prior to the date of
the provisional redemption.
For purposes of the preceding paragraph, the following terms will have the
following definitions:
"Interest Make-Whole Payment" means, with respect to any Note on any applicable
Redemption Date, the present value at such Redemption Date of the aggregate
amount all required interest payments due on the Note through the third
anniversary of the Issue Date, computed using a discount rate equal to the
Treasury Rate as of the applicable Redemption Notice Date.
"Treasury Rate" means, as of the applicable Redemption Notice Date, the yield
to maturity as of such Redemption Notice Date of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15 (519) that has become publicly
available prior to such Redemption Notice Date (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the period from the Redemption Date to the third
anniversary of the Issue Date; provided, however, that if the period from such
redemption date to the third anniversary of the Issue Date is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.
Any such redemption will comply with Article III of the Indenture.
6. Notice of Redemption.
Notice of redemption will be sent by first class mail, at least 30
days and not more than 60 days prior to the Redemption Date to the Holder of
each Note to be redeemed at such Holder's last address as then shown upon the
registry books of the Registrar. Notes may be redeemed in part in integral
multiples of $1,000 only.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Notes called for redemption shall
have been deposited with the Paying Agent on such Redemption Date and payment
of the Notes called for redemption is not prohibited under Article XII of the
Indenture, the Notes called for redemption will cease to bear interest and the
only right of the Holders of such Notes will be to receive payment of the
Redemption Price, plus any accrued and unpaid interest and Liquidated Damages,
if any, to the Redemption Date.
7. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder may register the transfer of
or exchange Notes in accordance with, the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Notes selected for redemption.
A-7
8. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of it for
all purposes, subject to the provisions of the Indenture and the Notes with
respect to record dates.
9. Unclaimed Money.
If money for the payment of principal, interest or Liquidated Damages
remains unclaimed for two years, the Trustee and the Paying Agent(s) will pay
the money back to the Company at its written request. After that, all liability
of the Trustee and such Paying Agent(s) with respect to such money shall cease.
10. Amendment; Supplement; Waiver.
Subject to specified exceptions, the Indenture or the Notes may be
amended or supplemented, and any existing Default or Event of Default or
compliance with any provision may be waived, with the written consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes to, among other things, cure
any ambiguity, defect or inconsistency, or make any other change that does not
adversely affect the rights of any Holder of a Note.
11. Conversion Rights.
Subject to the provisions of the Indenture, the Holders have the right
to convert the principal amount of the Notes into fully paid and nonassessable
shares of Common Stock of the Company at the initial conversion price per share
of Common Stock of $5.00 (which reflects a conversion rate of approximately 200
shares of Common Stock per $1,000 in principal amount of Notes), or at the
adjusted conversion price then in effect, if adjustment has been made as
provided in the Indenture, upon surrender of the Note to the Company, together
with a fully executed notice in substantially the form attached hereto and, if
required by the Indenture, an amount equal to accrued interest payable on such
Note.
12. Ranking.
Payment of principal, premium, if any, interest on and Liquidated
Damages and other amounts with respect to the Notes is subordinated, in the
manner and to the extent set forth in the Indenture, to the prior payment in
full of all Senior Indebtedness.
13. Repurchase at Option of Holder Upon a Change of Control.
If there is a Change of Control, the Company shall be required,
subject to the provisions of the Indenture, to offer to purchase on the
Repurchase Date all outstanding Notes at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to, but excluding, the Repurchase Date. If certain conditions
are met, the Company may, at its option, pay the repurchase price in shares of
the Company's Common Stock valued at 95% of the Last Sale Price of the Common
Stock on The Nasdaq National Market for each of the five trading days ending
with the third trading day prior to the date
A-8
of the redemption. Holders of Notes will receive a Repurchase Offer from the
Company prior to any related Repurchase Date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
appearing below.
14. Successors.
When a successor assumes all the obligations of its predecessor under
the Notes and the Indenture, the predecessor will be released from those
obligations.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than an Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Notes shall have already become due and payable, either the Trustee or the
Holders of 25% in aggregate principal amount of Notes then outstanding may
declare all the Notes to be due and payable immediately in the manner and with
the effect provided in the Indenture. Holders of Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Notes then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal, interest or Liquidated Damages), if it determines that
withholding notice is in their interest.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No shareholder, director, officer or employee, as such, past, present
or future, of the Company or any successor corporation shall have any personal
liability in respect of the obligations of the Company under the Notes or the
Indenture by reason of his, her or its status as such shareholder, director,
officer or employee. Each Holder of a Note by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
18. Authentication.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Note.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT
A-9
TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
20. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING
IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE
COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
22. Additional Rights of Holders of Transfer Restricted Notes.
In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Notes shall have all the rights set forth in the
Registration Rights Agreement.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights
Agreement. Request may be made to:
Arris Group, Inc.
00000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Secretary
A-10
23. Subordination
All Obligations on, or relating to, the Securities are subordinated in
right of payment, in the manner and to the extent set forth in the Indenture,
to the prior payment in full in cash of all Obligations on Senior Indebtedness
of the Company, whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed (including the Obligations with
respect to the Credit Facility). Each Holder by his acceptance hereof agrees to
be bound by such provisions and authorizes and expressly directs the Trustee,
on his behalf, to take such action as may be necessary or appropriate to
effectuate the subordination provided for in the Indenture and appoints the
Trustee his attorney-in-fact for such purposes.
A-11
EXHIBIT B
FORM OF ASSIGNMENT
I or we assign this Note to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
________________ and irrevocably appoint ___________________ agent to transfer
this Note on the books of the Company. The agent may substitute another to act
for him.
Dated: Signed:
------------------------- ------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
Signature Guaranty:
------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guaranty program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
B-1
EXHIBIT C
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Article XI of the Indenture, check the box: [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Article XI of the Indenture, state the amount you want to
be purchased:
$_______________
Dated: Signed:
------------------------- ------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
Signature Guaranty:
------------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guaranty program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
C-1
EXHIBIT D
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES(3)
The following exchanges of a part of this Global Note for Definitive
Notes have been made:
Amount of decrease in Amount of increase in Principal Amount of this Signature of authorized
Principal Amount of this Principal Amount of this Global Note following signatory of Trustee or
Date of Exchange Global Note Global Note such decrease (or income) Notes Custodial
---------------- ------------------------ ------------------------ ------------------------- -----------------------
---------
(3) This schedule should only be added if the Security is issued in global
form.
D-1
EXHIBIT E
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: 4-1/2% CONVERTIBLE SUBORDINATED NOTES DUE 2008 OF ARRIS GROUP, INC.
This Certificate relates to $__________ principal amount of Notes held
in *__________ book-entry or * ____________ definitive form by
_______________________ (the "Transferor").
1. The Transferor:*
[ ] (a) has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Global Note held by the Depositary
a Note or Notes in definitive, registered form of authorized denominations and
an aggregate principal amount equal to its beneficial interest in such Global
Note (or the portion thereof indicated above); or
[ ] (b) has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
2. In connection with any such request and in respect of each such Note,
the Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above-captioned Notes and as provided in Section 2.6
of such Indenture, the transfer of this Note does not require registration
under the Securities Act because:*
[ ] (a) Such Note is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.6(a)(ii)(A) or Section
2.6(d)(i)(A) of the Indenture).
[ ] (b) Such Note is being transferred to a person who the Transferor
reasonably believes is a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) purchasing for its own account or for the
account of a qualified institutional buyer over which it exercises sole
investment discretion that is aware that the transfer is being made in reliance
on Rule 144A (in satisfaction of Section 2.6(a)(ii)(B), Section 2.6(b)(i)(x) or
Section 2.6(d)(i)(B) of the Indenture).
---------
* Check applicable box.
E-1
[ ] (c) Such Note is being transferred in accordance with Regulation
S under the Securities Act (in satisfaction of Section 2.6(a)(ii)(D), Section
2.6(b)(i)(y) or Section 2.6(d)(i)(D) of the Indenture). If requested by either
the Company or the Trustee, an Opinion of Counsel to the effect that such
transfer does not require registration under the Securities Act accompanies
this Certificate (in satisfaction of Section 2.6(a)(ii)(D) or Section
2.6(d)(i)(D) of the Indenture).
[ ] (d) Such Note is being transferred to an institutional investor
that is an "accredited investor" within the meaning of Rule 501(a)(1),(2),(3)
or (7) under the Securities Act which delivers a certificate in the form of
Exhibit B to the Indenture to the Trustee (in satisfaction of Section
2.6(a)(ii)(C) or Section 2.6(d)(i)(C) of the Indenture), and delivers an
opinion of counsel, if the Company or the Trustee so requests.
[ ] (e) Such Note is being transferred in reliance on and in
compliance with another exemption from the registration requirements of the
Securities Act. If requested by either the Company, an Opinion of Counsel to
the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate (in satisfaction of Section
2.6(a)(ii)(E) or Section 2.6(d)(i)(E) of the Indenture).
-------------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
----------------------------------------
Date:
------------------------
3. Affiliation with the Company [check if applicable]:
[ ] (a) The undersigned represents and warrants that it is, or at
some time during which it held this Note was, an Affiliate of the Company.
[ ] (b) If 3(a) above is checked and if the undersigned was not an
Affiliate of the Company at all times during which it held this Note, indicate
the periods during which the undersigned was an Affiliate of the Company:
-------------------------------------------
[ ] (c) If 3(a) above is checked and if the Transferee will not pay
the full purchase price for the transfer of this Note on or prior to the date
of transfer indicate when such purchase price will be paid:
-------------------------------------------
TO BE COMPLETED BY TRANSFEREE IF 2(b) ABOVE IS CHECKED AND THE TRANSFEROR IS
NOT A QUALIFIED INSTITUTIONAL BUYER:
E-2
The undersigned represents and warrants that it is a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act of 1933,
as amended, and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information.
Dated:
------------------------------ -------------------------------------
NOTICE: To be executed by an officer.
TO BE COMPLETED BY TRANSFEREE IF 2(c) ABOVE IS CHECKED:
The undersigned represents and warrants that it is not a "U.S. Person"
(as defined in Regulation S under the Securities Act of 1933, as amended).
Dated:
------------------------------ -------------------------------------
NOTICE: To be executed by an officer.
If none of the boxes under Section 2 of this certificate is checked or if any
of the above representations required to be made by the Transferee is not made,
the Registrar shall not be obligated to register this Note in the name of any
person other than the Holder hereof.
THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM 3(a) IS
CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS NOT NOR
HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS SECURITY AN AFFILIATE, AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE
COMPANY.
Dated:
------------------------------ -------------------------------------
NOTICE: The signature of the Holder
to this assignment must correspond
with the name as written upon the
face of this Note particular, without
alteration or enlargement or any
change whatsoever.
E-3
EXHIBIT F
FORM OF CONVERSION NOTICE
TO: Arris Group, Inc.
The undersigned owner of this Security hereby: (i) irrevocably
exercises the option to convert this Security, or the portion hereof below
designated, for shares of Common Stock of Arris Group, Inc. in accordance with
the terms of this Indenture referred to in this Security and (ii) directs that
such shares of Common Stock deliverable upon the conversion, together with any
check in payment for fractional shares and any Security(ies) representing any
unconverted principal amount hereof, be issued and delivered to the registered
holder hereof unless a different name has been indicated below. If shares are
to be delivered registered in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto and
deliver the Certificate to be delivered upon Exchange or Registration of
Transfer of Notes. Any amount required to be paid by the undersigned on account
of interest accompanies this Security.
Dated:
------------------------------ -------------------------------------
Signature
Fill in for registration of shares if to be delivered, and of
Securities if to be issued, otherwise than to and in the name of the registered
holder.
-------------------------------------
Social Security or other Taxpayer
Identifying Number
----------------------------------
(Name)
----------------------------------
(Street Address)
----------------------------------
(City, State and Zip Code)
(Please print name and address)
Principal amount to be converted (if
less than all)
$
------------------------------------
F-1
