Exhibit (d)(1)
TRANS-LUX CORPORATION
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee
______________
INDENTURE
DATED AS OF MARCH 1, 2004
$15,000,000*
8.25% Limited Convertible Senior Subordinated Notes due 2012
________________________________________________________________________________
________________________________________________________________________________
* Subject to increase up to $30,177,000.
CROSS-REFERENCE TABLE
TRUST INDENTURE ACT SECTION SECTION OF INDENTURE
310(a)(1) and (2)................................... 8.10
310(a)(3) and (4)................................... Not applicable
310(b).............................................. 8.08 and 8.10, 15.03
310(c).............................................. Not applicable
311(a) and (b)...................................... 8.11
311(c).............................................. Not applicable
312(a).............................................. 2.06
312(b) and (c)...................................... 15.07
313(a).............................................. 8.06
313(b)(1)........................................... Not applicable
313(b)(2)........................................... 8.06
313(c).............................................. 8.06 and 15.03
313(d).............................................. 8.06
314(a).............................................. 6.10 and 15.03
314(b).............................................. Not applicable
314(c)(1) and (2)................................... 15.04
314(c)(3)........................................... Not applicable
314(d).............................................. Not applicable
314(e).............................................. 15.04
314(f).............................................. Not applicable
315(a), (c) and (d)................................. 8.01
315(b).............................................. 8.05; 15.03
315(e).............................................. 7.11
316(a)(1)........................................... 7.04 and 7.05
316(a)(2)........................................... Not applicable
316(a) last sentence................................ 9.03
316(b).............................................. 7.07
316(c).............................................. 10.02
317(a).............................................. 7.08 and 7.09
317(b).............................................. 2.05
318(a).............................................. 15.06
________________
This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
Page
----
PARTIES.................................................................... 1
RECITALS................................................................... 1
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions ................................................ 1
SECTION 1.02. Other Definitions........................................... 8
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........... 8
SECTION 1.04. Rules of Construction....................................... 9
ARTICLE TWO.
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
SECTION 2.01. Dating; Incorporation of Form in Indenture.................. 9
SECTION 2.02. Execution and Authentication ............................... 9
SECTION 2.03. Registrar and Agents........................................ 10
SECTION 2.04. Holders to be Treated as Owners; Payment of Interest........ 11
SECTION 2.05. Paying Agent to Hold Money in Trust......................... 11
SECTION 2.06. Securityholder Lists........................................ 11
SECTION 2.07. Transfer and Exchange....................................... 12
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities............. 12
SECTION 2.09. Temporary Securities........................................ 13
SECTION 2.10. Cancellation of Securities.................................. 13
SECTION 2.11. Benefits of Indenture Provisions............................ 13
SECTION 2.12. Defaulted Interest.......................................... 14
SECTION 2.13. CUSIP Number................................................ 14
SECTION 2.14. Deposit of Moneys........................................... 14
ARTICLE THREE.
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption Prices .......................................... 14
SECTION 3.02. Notice of Redemption; Selection of Securities............... 15
SECTION 3.03. Payment of Securities on Redemptions; Deposit of
Redemption Price............................................ 16
ARTICLE FOUR.
SUBORDINATION OF SECURITIES.
SECTION 4.01. Agreement that Securities to Be Subordinate................. 17
SECTION 4.02. Liquidation; Dissolution; Bankruptcy........................ 17
SECTION 4.03. Company Not to Make Payments with Respect to Securities
in Certain Circumstances.................................... 18
SECTION 4.04. Payment Over of Proceeds in Certain Events.................. 19
SECTION 4.05. No Waiver of Subordination Provisions....................... 19
SECTION 4.06. Notice to Trustee of Specified Events; Reliance on
Certificate of Liquidating Agent............................ 19
SECTION 4.07. Subrogation................................................. 20
SECTION 4.08. Obligation to Pay Not Impaired.............................. 20
SECTION 4.09. Reliance by Senior Indebtedness on Subordination Provisions. 20
SECTION 4.10. Subordination Not to Be Prejudiced by Certain Acts.......... 21
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SECTION 4.11. Trustee Authorized to Effectuate Subordination.............. 21
SECTION 4.12. Trustee's Relationship to Senior Indebtedness............... 21
SECTION 4.13. Trustee and Paying Agents Not Chargeable with Knowledge
Until Notice................................................ 21
SECTION 4.14. Article Applicable to Paying Agents......................... 22
SECTION 4.15. Trustee's Compensation Not Prejudiced....................... 22
ARTICLE FIVE.
LIMITED CONVERSION OF SECURITIES.
SECTION 5.01. Conversion Privilege; Conversion Price...................... 22
SECTION 5.02. Manner of Exercising Conversion Privilege................... 22
SECTION 5.03. Fractional Shares........................................... 24
SECTION 5.04. Adjustment of Conversion Price.............................. 24
SECTION 5.05. Certificate Concerning Adjusted Conversion Price............ 27
SECTION 5.06. Notice of Certain Corporate Action.......................... 27
SECTION 5.07. Company to Provide Stock.................................... 28
SECTION 5.08. Taxes on Conversions........................................ 28
SECTION 5.09. Covenant as to Stock........................................ 29
SECTION 5.10. Provision in Case of Consolidation or Merger................ 29
SECTION 5.11. Trustee's Disclaimer of Responsibility for Certain Matters.. 29
ARTICLE SIX.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 6.01. Payment of Principal, Premium and Interest.................. 30
SECTION 6.02. Offices for Notices, Payments and Conversions............... 30
SECTION 6.03. Paying Agents............................................... 31
SECTION 6.04. Annual Review Certificate................................... 31
SECTION 6.05. Appointment to Fill a Vacancy in Office of Trustee.......... 32
SECTION 6.06. Further Instruments and Acts................................ 32
SECTION 6.07. Payment of Taxes and Assessments............................ 32
SECTION 6.08. Maintenance of Corporate Existence.......................... 32
SECTION 6.09. Repurchase Event............................................ 32
SECTION 6.10. SEC Reports................................................. 34
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default........................................... 34
SECTION 7.02. Acceleration................................................ 35
SECTION 7.03. Other Remedies. ............................................ 36
SECTION 7.04. Waiver of Defaults and Events of Default.................... 36
SECTION 7.05. Control by Majority......................................... 36
SECTION 7.06. Limitation on Suits......................................... 37
SECTION 7.07. Rights of Holders to Receive Payment........................ 37
SECTION 7.08. Collection Suit by Trustee.................................. 37
SECTION 7.09. Trustee May File Proofs of Claim............................ 37
SECTION 7.10. Application of Money Collected by Trustee................... 38
SECTION 7.11. Undertaking to Pay Costs.................................... 38
SECTION 7.12. Restoration of Rights and Remedies.......................... 39
SECTION 7.13. Rights and Remedies Cumulative.............................. 39
SECTION 7.14. Delay or Omission Not Waiver................................ 39
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ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties of Trustee........................................... 39
SECTION 8.02. Rights of Trustee........................................... 40
SECTION 8.03. Individual Rights of Trustee................................ 41
SECTION 8.04. Trustee's Disclaimer........................................ 41
SECTION 8.05. Notice of Defaults.......................................... 41
SECTION 8.06. Reports by Trustee to Holders............................... 41
SECTION 8.07. Compensation and Indemnity.................................. 41
SECTION 8.08. Replacement of Trustee...................................... 42
SECTION 8.09. Successor Trustee by Xxxxxx, Etc............................ 43
SECTION 8.10. Eligibility; Disqualification............................... 43
SECTION 8.11. Preferential Collection of Claims Against Company........... 43
ARTICLE NINE.
CONCERNING THE SECURITYHOLDERS.
SECTION 9.01. Action by Securityholders................................... 43
SECTION 9.02. Proof of Execution by Securityholders, Evidence of Holdings. 44
SECTION 9.03. Company-owned Securities Disregarded........................ 44
SECTION 9.04. Revocation of Consents, Future Holders Bound................ 44
ARTICLE TEN.
SECURITYHOLDERS' MEETINGS.
SECTION 10.01. Purposes of Meetings....................................... 45
SECTION 10.02. Call of Meetings by Trustee................................ 45
SECTION 10.03. Call of Meetings by Company or Securityholders............. 45
SECTION 10.04. Qualifications for Voting.................................. 45
SECTION 10.05. Regulations................................................ 46
SECTION 10.06. Voting..................................................... 46
SECTION 10.07. No Delay of Rights by Meeting.............................. 47
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Supplemental Indenture Without Consent of Securityholders.. 47
SECTION 11.02. Supplemental Indentures with Consent of Securityholders.... 48
SECTION 11.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures................................... 49
SECTION 11.04. Notation on Securities.................................... 49
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.......................................... 49
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE BY THE COMPANY.
SECTION 12.01. When Company May Merge, Etc................................ 49
SECTION 12.02. Successor Corporation Substituted.......................... 50
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ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.
SECTION 13.01. Discharge of Indenture..................................... 50
SECTION 13.02. Deposited Moneys to Be Held in Trust by Trustee............ 51
SECTION 13.03. Paying Agent to Repay Moneys Held.......................... 51
SECTION 13.04. Unclaimed Moneys........................................... 51
SECTION 13.05. Reinstatement.............................................. 51
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 14.01. Indenture and Securities Solely Corporate Obligations...... 51
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Provisions Binding on Company's Successors................. 52
SECTION 15.02. Official Acts by Successor Corporation..................... 52
SECTION 15.03. Notices.................................................... 52
SECTION 15.04. Evidence of Compliance with Conditions Precedent........... 52
SECTION 15.05. Legal Holidays............................................. 53
SECTION 15.06. Trust Indenture Act to Control............................. 53
SECTION 15.07. Communications by Holders with Other Holders............... 53
SECTION 15.08. Governing Law.............................................. 53
SECTION 15.09. Table of Contents and Headings............................. 53
SECTION 15.10. No Security Interest Created............................... 54
SECTION 15.11. Execution in Counterparts.................................. 54
EXHIBIT A -- FORM OF SECURITY
v
THIS INDENTURE, dated as of March 1, 2004 between TRANS-LUX CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as trustee (the
"Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue of its 8.25% Limited Convertible Senior Subordinated Notes due 2012
(hereinafter sometimes referred to as the "Securities"), in the aggregate
principal amount of up to $15,000,000 and, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities, when executed
by the Company and authenticated and delivered by the Trustee or its authorized
signatory as in this Indenture provided, and issued, the valid, binding and
legal obligations of the Company, and to constitute these presents a valid
agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Securities have in
all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Securities
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises, of the purchases and acceptance of the Securities by the Holders
thereof and for other good and valuable consideration, the receipt whereof is
hereby acknowledged, the Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective Holders from time to time of
the Securities, as follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions.
The terms in this Section 1.01 (except as herein otherwise expressly
provided or unless the context otherwise requires)for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section 1.01. All other terms used in this Indenture
which are defined in the TIA, as amended, or which are by reference therein
defined in the Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in the TIA and in said Securities Act as in
force as of the date of this Indenture.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, the
term "control" when used with respect to any Person means the power, directly or
indirectly, alone or together with others, to direct or cause the direction of
the management and policies of such Person, directly or indirectly, whether
1
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any registrar, paying agent, conversion agent, co-registrar or
agent for service of notices and demands.
"Board of Directors" means the Board of Directors of the Company, the
executive committee, if any, of such Board of Directors or any committee of such
Board of Directors authorized to act on behalf of such Board of Directors with
respect to the Indenture.
"Business Day" or "Trading Day" means any day on which the banks in New
York, New York are not authorized or required to be closed and on which the
American Stock Exchange is open for trading and which is not a Saturday or
Sunday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means, with respect to any person, any and all shares,
interests, participations, warrants, options or other equivalents (however
designated) of corporate stock or any other equity interest of such person.
"Common Stock" includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
and which is not subject to redemption by the Company. However, subject to the
provisions of Section 5.10, shares issuable on conversion of Securities shall
include only shares of the class designated as Common Stock, par value $1.00 per
share, of the Company at the date of this Indenture or shares of any class or
classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which are not subject to redemption by the Company.
"Company" means Trans-Lux Corporation, a Delaware corporation, and, subject
to the terms of the Indenture, shall include its successors and assigns.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Subsidiaries as of such date plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Capital Stock).
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at Sixth and
Marquette, N9303-120, Minneapolis, Minnesota 55479.
"Corporation" means any corporation, voluntary association, joint stock
association, business trust, or similar organization.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
2
"Disqualified Capital Stock" means, with respect to any person, any Capital
Stock of such Person that, by its terms (or by the terms of any security into
which it is convertible or for which it is exercisable, redeemable or
exchangeable), matures, or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the maturity of the securities.
"Event of Default" means any event specified in Section 7.01, continued for
the period of time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession in the United States.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Indebtedness" means, with respect to the Company, any of the following
(without duplication): (i) (a) any liability or obligation of the Company for
borrowed money (including, without limitation, principal of and premium, if any,
interest, fees, penalties, expenses, collection expenses, and other obligations
in respect thereof, and, to the extent permitted by applicable law, interest
accruing after the filing of a petition initiating any proceeding under the
Bankruptcy Code whether or not allowed as a claim in such proceeding), whether
or not evidenced by bonds, debentures, notes or other written instruments, and
any other liability or obligation evidenced by notes, bonds, debentures or
similar instruments (other than the Securities) whether or not contingent and
whether outstanding on the date of execution of the Indenture or thereafter
created, incurred or assumed, (b) any deferred payment obligation of the Company
for the payment of the purchase price of property or assets evidenced by a note
or similar instrument (excluding any obligation for trade payables or
constituting the deferred purchase price of property or assets which is not
evidenced by a note or similar instrument and which is unsecured), (c) any
obligation of the Company for the payment of rent or other amounts under a lease
of property or assets which obligation is required to be classified and
accounted for as a capitalized lease on the balance sheet of the Company under
GAAP, (d) all obligations of the Company under interest rate and currency swaps,
floors, caps, or similar arrangements intended to fix interest rate obligations
or currency fluctuation risks, (e) all obligations of the Company evidenced by a
letter of credit or any reimbursement obligation of the Company in respect of a
letter of credit, (f) all obligations of others secured by a lien to which any
of the properties or assets of the Company are subject (including, without
limitation, leasehold interests and any intangible property rights), whether or
not the obligations secured thereby have been assumed by the Company or shall
otherwise be the Company's legal obligation and (g) all obligations of others of
the kinds described in the preceding clauses (a), (b), (c), (d) or (e) assumed
by or guaranteed by the Company and the obligations of the Company under
guarantees of any such obligations; and (ii) any amendments, renewals,
3
extensions, deferrals, modifications, refinancing and refunding of any of the
foregoing. "Indebtedness" shall not include: (i) any indebtedness of the
Company to any Subsidiary or to any Affiliate of the Company or any of the
Subsidiaries, (ii) any indebtedness incurred in connection with the purchase of
goods, assets, materials or services in the ordinary course of business or
representing amounts recorded as accounts payable, trade payables (which are
unsecured), other current liabilities (other than for borrowed money) or
deferred revenue and deposits of the Company on the books of the Company, (iii)
any indebtedness of or amount owed by the Company to employees for services
rendered to the Company, and (iv) any liability for federal, state, local or
other taxes owing or owed by the Company.
"Indenture" means this instrument as originally executed or, if amended or
supplemented as herein provided, as so amended or supplemented.
"Independent Public Accountants" means any firm of certified public
accountants of recognized national standing which is selected by the Board of
Directors and is in fact independent.
"Issuance Date" means the date of original issuance of the Securities.
"Officer" means the President, any Vice President, the Treasurer, the
Secretary or the Chief Financial Officer of the Company.
"Officers' Certificate" when used with respect to the Company, shall mean a
certificate signed by any two Officers or by an Officer and by any Assistant
Treasurer or any Assistant Secretary of the Company. Each such certificate
shall include the statements provided for in Section 15.04 if and to the extent
required by the provisions of such Section.
"Opinion of Counsel" means an opinion in writing, signed by legal counsel
who may be an employee of, or of counsel to, the Company or may be other
counsel, any such counsel to be reasonably satisfactory to the Trustee. Each
such opinion shall include the statements provided for in Section 15.04 if and
to the extent required by the provisions of such Section .
"Outstanding," when used with reference to Securities, shall, subject to the
provisions of Section 9.03, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities or the payment or redemption of which moneys in the necessary
amounts shall have been deposited in trust with the Trustee or with any Paying
Agent (other than the Company), provided that if such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as in Article Three provided or provision reasonably satisfactory to
the Trustee shall have been made for giving such notice; and
(c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered or Securities which have been paid
pursuant to the terms of Section 2.08;
4
provided that Holders of Securities which cease to be outstanding by reason
of clause (b) alone shall nevertheless be entitled to convert the same or any
portion thereof until and including but not after the close of business on the
last Business Day prior to the date fixed for redemption.
"Permitted Junior Securities" means any securities provided for by a plan of
reorganization or readjustment authorized by a court of competent jurisdiction
in a reorganization proceeding in which the rights of holders of Senior
Indebtedness are not altered without the consent of such holders, which consent
is deemed to have been given if such holders, individually or as a class,
approve such plan.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Securities to be redeemed,
means the price fixed for such redemption pursuant to this Indenture as set
forth in the form of Security annexed hereto as Exhibit A.
A "Repurchase Event" shall occur if, after initial issuance of the
Securities (i) any Person (including any syndicate or group deemed to be a
"Person" under Section 13(d)(3) of the Exchange Act), other than the Company,
any Subsidiary, any existing Person (including, directly or indirectly, the
immediate family (parents, spouse, children, brothers or sisters) of any such
Person) who currently beneficially owns shares of the Company's capital stock
with 50% or more of the voting power as described below, or any current or
future employee or director benefit plan of the Company or any Subsidiary or any
entity holding capital stock of the Company for or pursuant to the terms of such
plan, or an underwriter engaged in a firm commitment underwriting in connection
with a public offering of capital stock of the Company, is or becomes the
beneficial owner, directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions of shares of capital stock of
the Company entitling such Person to exercise 50% or more of the total voting
power of all shares of capital stock of the Company entitled to vote generally
in the election of directors; (ii) the Company sells or transfers all or
substantially all of the assets of the Company to another Person; (iii) there
occurs any consolidation of the Company with, or merger of the Company into, any
other Person, any merger of another Person into the Company (other than a merger
(a) which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock, (b) which is effected solely
to change the jurisdiction of incorporation of the Company and results in a
reclassification, conversion or exchange of outstanding shares of Common Stock
solely into shares of Common Stock) or (c) a transaction in which the
stockholders of the Company immediately prior to such transaction owned,
directly or indirectly, immediately following such transaction, a majority of
the combined voting power of the voting capital stock of the corporation
resulting from the transaction, such stock to be owned by such stockholders in
substantially the same proportion as their ownership of the voting stock of the
Company immediately prior to such transaction); (iv) a change in the Board of
Directors in which the individuals who constituted the Board of Directors at the
beginning of the 24-month period immediately preceding such change (together
with any other director whose election by the Board of Directors or whose
5
nomination for election by the stockholders of the Company was approved by a
vote of at least a majority of the directors then in office either who were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the directors then in office; or (v) the Common Stock is the subject
of a "Rule 13e-3 transaction" as defined under the Exchange Act.
"Responsible Officer," when used with respect to the Trustee, means an
officer of the Trustee within the corporate trust department, including any vice
president or trust officer of the Trustee and also means, with respect to a
particular corporate trust matter, any other officer to whom such corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities" means the securities that are authenticated and delivered under
this Indenture.
"Securityholder" or "Holder" or other similar terms, means any person in
whose name a particular Security shall be registered on the books of the Company
kept for that purpose in accordance with the terms hereof.
"Senior Indebtedness" means, with respect to the Company, any of the
following (without duplication): (i) (a) any liability or obligation of the
Company for borrowed money (including, without limitation, principal of and
premium, if any, interest, fees, penalties, expenses, collection expenses, and
other obligations in respect thereof, and, to the extent permitted by applicable
law, interest accruing after the filing of a petition initiating any proceeding
under the Bankruptcy Code whether or not allowed as a claim in such proceeding),
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any other liability or obligation evidenced by notes, bonds,
debentures or similar instruments (other than the Securities) whether or not
contingent and whether outstanding on the date of execution of the Indenture or
thereafter created, incurred or assumed, (b) any deferred payment obligation of
the Company for the payment of the purchase price of property or assets
evidenced by a note or similar instrument (excluding any obligation for trade
payables or constituting the deferred purchase price of property or assets which
is not evidenced by a note or similar instrument and which is unsecured), (c)
any obligation of the Company for the payment of rent or other amounts under a
lease of property or assets which obligation is required to be classified and
accounted for as a capitalized lease on the balance sheet of the Company under
generally accepted accounting principles, (d) all obligations of the Company
under interest rate and currency swaps, floors, caps, or similar arrangements
intended to fix interest rate obligations or currency fluctuation risks, (e) all
obligations of the Company evidenced by a letter of credit or any reimbursement
obligation of the Company in respect of a letter of credit, (f) all obligations
of others secured by a lien to which any of the properties or assets of the
Company are subject (including, without limitation, leasehold interests and any
intangible property rights), whether or not the obligations secured thereby have
been assumed by the Company or shall otherwise be the Company's legal obligation
and (g) all obligations of others of the kinds described in the preceding
clauses (a), (b), (c), (d) or (e) assumed by or guaranteed by the Company and
the obligations of the Company under guarantees of any such obligations; and
(ii) any amendments, renewals, extensions, deferrals, modifications, refinancing
and refunding of any of the foregoing. "Senior Indebtedness" shall not include:
(i) indebtedness that by the terms of the instrument or instruments by which
6
such indebtedness was created or incurred expressly provides that it (a) is
junior in right of payment to the Securities or (b) ranks pari passu, in right
of payment with the Securities, (ii) any repurchase, redemption or other
obligation in respect of Disqualified Capital Stock, (iii) any indebtedness of
the Company to any Subsidiary or to any Affiliate of the Company or any of the
Subsidiaries, (iv) any indebtedness incurred in connection with the purchase of
goods, assets, materials or services in the ordinary course of business or
representing amounts recorded as accounts payable, trade payables (which are
unsecured) other current liabilities (other than for borrowed money) or deferred
revenues and deposits of the Company on the books of the Company (other than the
current portion of any long-term indebtedness of the Company that but for this
clause (iv) would constitute Senior Indebtedness), (v) any indebtedness of or
amount owed by the Company to employees for services rendered to the Company,
(vi) any liability for federal, state, local or other taxes owing or owed by the
Company and (vii) the Company's 9.5% subordinated debentures due 2012 and 7.5%
convertible subordinated Notes due 2006 it being understood that since the
Securities are notes, the Securities shall be deemed "Senior Indebtedness"
insofar as such outstanding Subordinated Securities are concerned, and which are
deemed junior in right of payment to the Securities.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" of the Company within the meaning of Rule 1-02(w)(3) under
Regulation S-X promulgated by the SEC as in effect on the Issuance Date.
"Stock" shall mean all shares, options, warrants, general or limited
partnership interests, participation or other equivalents (regardless of how
designated) of or in a corporation, partnership or equivalent entity whether
voting or nonvoting, including, without limitation, common stock, preferred
stock, or any other "equity security" (as such term is defined in Rule 3a11-1 of
the General Rules and Regulations promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended).
"Stock Option Plans" shall mean the 1989 Non-Employee Director Stock Option
Plan, the 1992 Stock Option Plan and the 1995 Stock Option Plan.
"Subordinated Securities" means the Company's 9.5% Subordinated Debentures
due 2012 and the Company's 7.5% Convertible Subordinated Notes due 2006.
"Subsidiary" means a corporation of which more than 50% of the issued and
outstanding stock entitled to vote for the election of directors (otherwise than
by reason of default in dividends) is at the time owned or controlled, directly
or indirectly, by the Company.
"TIA" means the Trust Indenture Act of 1939, as amended, as it was in force
as of the date of this Indenture, and with respect to each supplemental
indenture hereto, as it was in force as of the date of such supplemental
indenture.
"Trustee" means Xxxxx Fargo Bank, National Association and, subject to the
provisions of Article Eight hereof, shall also include its successors and
assigns as Trustee hereunder.
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SECTION 1.02. Other Definitions.
Term Defined in Section
"Bankruptcy Law" 7.01
"Conversion Agent" 2.03
"Company Notice" 6.09
"Current Market Price" 5.04
"Custodian" 7.01
"Event of Default" 7.01
"Interest Payment Date" 2.04
"Non-payment Default" 4.03
"Paying Agent" 2.03
"Payment Blockage Period" 4.03
"Payment Default" 4.03
"Registrar" 2.03
"Regular Record Date" 2.04
"Repurchase Date" 6.09
"Repurchase Price" 6.09
"Senior Representative" 4.03
"Transaction" 12.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
The following terms used in the TIA to the extent applicable to this
Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other obligor
on the indenture securities.
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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 have the meanings
assigned to them by such definitions.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with generally accepted accounting principles in effect on the
date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the
singular;
(5) provisions apply to successive events and transactions; and
(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.
ARTICLE TWO.
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
SECTION 2.01. Dating; Incorporation of Form in Indenture.
The Securities and the Trustee's certificate of authentication, with respect
thereto, shall be substantially in the form of Exhibit A, which is annexed
hereto and which is incorporated in and expressly made a part of this Indenture.
The Securities may have notations, legends or endorsements required by law,
stock exchange rules, agreements to which the Company is subject, or usage. The
Company shall approve the form of the Securities and any notation, legend or
endorsement on them. Each Security shall be dated the date of its
authentication. The terms and provisions contained in the Securities shall
constitute, and are expressly made, a part of this Indenture.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. Such signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
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The Trustee shall authenticate Securities for original issue up to the
aggregate principal amount of $15,000,000, and such additional principal amount,
if any, as shall be determined pursuant to the next sentence of this Section
2.02, upon the execution of the Indenture and receipt of a written order or
orders of the Company signed by two Officers or by an Officer and an Assistant
Treasurer of the Company. Upon receipt by the Trustee of an Officers'
Certificate stating that the Company has elected to accept for exchange existing
securities in excess of $15,000,000 and issue securities in exchange therefor, a
specified aggregate principal amount of additional Securities, not to exceed
$15,177,000 the Trustee shall authenticate and deliver such specified aggregate
principal amount of additional Securities to or upon the written order of the
Company signed as provided in the immediately preceding sentence. Such
Officers' Certificate may be received by the Trustee at least two full Business
Days prior to the proposed date for delivery of such additional Securities. The
aggregate principal amount of Securities outstanding at any time may not exceed
$30,177,000 except as provided in Section 2.08.
The Trustee may appoint an authenticating agent to authenticate Securities.
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 or an Affiliate.
The Securities shall be issuable only in registered form without coupons and
only in denominations of $1,000 principal amount and any integral multiple
thereof.
SECTION 2.03. Registrar and Agents.
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency 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"), an office or agency where Securities
may be presented for conversion ("Conversion Agent"), and an office or agency
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have one or more
co-registrars, one or more additional Paying Agents and one or more additional
Conversion Agents. The Company or any Subsidiary may act as Registrar, co-
Registrar, Paying Agent and/or Conversion Agent. The term "Paying Agent"
includes any additional Paying Agent and the term "Conversion Agent" includes
any additional Conversion Agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar not a party to this
Indenture. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 8.07.
The Company initially appoints the Trustee as a Registrar, a Paying Agent, a
Conversion Agent and agent for service of notices and demands.
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SECTION 2.04. Holders to be Treated as Owners; Payment of Interest.
(a) The Company, the Paying Agent, the Registrar, the Trustee and any agent
of the Company, the Paying Agent, the Registrar or the Trustee may deem and
treat the person in whose name any Security is registered as the absolute owner
of such Security for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on such
Security and for all other purposes; and neither the Company, the Paying Agent,
the Registrar nor the Trustee nor any agent of the Company, the Paying Agent,
the Registrar or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such Person, or upon his order, shall be valid,
satisfy and discharge the liability for moneys payable upon any Security.
(b) The Person in whose name any Security is registered at the close of
business on any record date with respect to any interest payment date shall be
entitled to receive the interest, if any, payable on such date (an "Interest
Payment Date") notwithstanding any transfer or exchange of such Security
subsequent to the record date and prior to such Interest Payment Date, except if
and to the extent the Company shall default in the payment of the interest due
on such Interest Payment Date, in which case such defaulted interest shall be
paid in accordance with Section 2.12. The term "Regular Record Date" as used
with respect to any Interest Payment Date for the Securities shall mean the date
specified as such in the terms of the Securities.
SECTION 2.05. Paying Agent to Hold Money in Trust.
On or prior to each Interest Payment Date or date on which payment of
principal of the Securities is required, the Company shall provide immediately
available funds to the Trustee acting as Paying Agent or with other Paying
Agents upon notice to the Trustee a sum sufficient to pay such principal and
interest so becoming due. The Company shall require each Paying Agent other
than the Trustee to agree in writing that it will hold in trust for the benefit
of Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities and to notify the Trustee
of any default by the Company (or any other obligor on the Securities) in making
any such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
on or before each due date of the principal of or interest on any Securities
segregate the money and hold it as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee 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 forthwith pay to
the Trustee all sums so held in trust by such Paying Agent. Upon doing so, the
Paying Agent (other than the Company) shall have no further liability for the
money.
SECTION 2.06. 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 the Holders
of Securities (the "Note Register"). If the Trustee is not the Registrar, the
Company or other obligor, if any, shall furnish to the Trustee at least two
Business Days prior to each Regular Record Date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Securities.
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SECTION 2.07. Transfer and Exchange.
When Securities are presented to the Registrar or a co-registrar with a
request from the Holder of such Securities to register a transfer, the Registrar
shall register the transfer as requested. Every Security presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or his attorneys
duly authorized in writing.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at the office
or agency maintained for such purpose pursuant to Section 2.03.
To permit registrations of transfers and exchanges, the Company shall issue
and execute and the Trustee shall authenticate new Securities evidencing such
transfer or exchange at the Registrar's request. No service charge shall be
made to the Securityholder for any registration of transfer or exchange. The
Company may require from the Securityholder payment of a sum sufficient to cover
any transfer taxes or other governmental charge that may be imposed in relation
to a transfer or exchange, but this provision shall not apply to any exchange
pursuant to Section 2.09, 3.03, 5.02, 6.09 or 11.04 (in which events the Company
will be responsible for the payment of such taxes). The Registrar shall not be
required to exchange or register a transfer of any Security for a period of 15
days immediately preceding the first mailing of notice of redemption of
Securities to be redeemed or of any Security selected, called or being called
for redemption except, in the case of any Security where public notice has been
given that such Security is to be redeemed in part, the portion thereof not to
be redeemed.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
receipt of an Officers' Certificate (in accordance with Section 2.02) the
Trustee shall authenticate and deliver, a new Security, bearing a serial number
not contemporaneously outstanding, in exchange and substitution for the
mutilated Security or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case, the applicant for a substituted
Security shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them harmless, and in every
case of destruction, loss or theft, the applicant shall also furnish to the
Company and to the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
The Trustee shall authenticate any such substituted Security and deliver the
same upon receipt of an Officers' Certificate. Upon the issuance of any
substituted Security, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith. In case any Security which
has matured or is about to mature shall have become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Security, pay
or authorize the payment of same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish the
Company, the Trustee and any Paying Agent with such security or indemnity as
they may require to save each of them harmless and, in case of destruction, loss
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or theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security issued pursuant to the provisions of this Section
2.08 by virtue of the fact that any Security is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be found at any time, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder. All Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
SECTION 2.09. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute
and the Trustee shall authenticate and deliver temporary Securities (printed or
lithographed). Temporary Securities shall be issuable in any authorized
denomination, and substantially in the form of the definitive Securities but
with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company. Every such
temporary Security shall be authenticated upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Company will execute and deliver to
the Trustee definitive Securities and thereupon any or all temporary Securities
may be surrendered in exchange therefor, at the office or agency to be
maintained by the Company pursuant to Section 2.03, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities. Such exchange shall be
made by the Company at its own expense and without any charge therefor. Until
so exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities authenticated and
delivered hereunder.
SECTION 2.10. Cancellation of Securities.
All Securities surrendered for the purpose of payment, redemption,
conversion, exchange or transfer shall, if surrendered to the Company or any
Paying or Conversion Agent, be delivered to the Trustee for cancellation, or if
surrendered to the Trustee, shall be canceled by it, and no Securities shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee shall destroy canceled Securities and deliver its
certificate of destruction to the Company. If the Company shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11. Benefits of Indenture Provisions.
Nothing in this Indenture or in the Securities expressed or implied, shall
give or be construed to give any person, firm or corporation, other than the
parties hereto, any Paying Agent, any Conversion Agent and the Holders of
Securities and, to the extent provided in Article Four, the holders of Senior
13
Indebtedness, any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein
contained; all the covenants, conditions or provisions contained in this
Indenture or in the Securities being for the sole benefit of the parties hereto,
any Paying Agent, any Conversion Agent and the Holders of the Securities and, to
the extent provided in Article Four, the holders of Senior Indebtedness.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it shall
pay the defaulted interest (to the extent lawful) to the Persons who are
Securityholders on a subsequent special record date. After the deposit by the
Company with the Trustee of money sufficient to pay such defaulted interest, the
Trustee shall fix a special record date and payment date. Each such special
record date shall be not less than 10 days prior to such payment date. At least
15 days before the special record date, the Company shall mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest, and interest payable on such defaulted
interest, if any, to be paid. The Company may pay defaulted interest in any
other lawful manner if, after prior notice to the Trustee, such payment shall be
deemed practicable by the Trustee.
SECTION 2.13. CUSIP Number.
The Company may use a "CUSIP" number when issuing the Securities and, if so,
the Trustee may use the CUSIP number in notices of redemption or exchange as a
convenience to Securityholders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities.
SECTION 2.14. Deposit of Moneys.
Prior to 11:00 a.m.(New York, New York time) on each date on which the
principal of, and interest on the Notes are due, the Company
shall deposit with the Trustee or Paying Agent in immediately available funds
money sufficient to make cash payments, if any, due on such date in a timely
manner which permits the Trustee or such Paying Agent to remit payment to the
Holders on such date.
ARTICLE THREE.
REDEMPTION OF SECURITIES.
SECTION 3.01. Redemption Prices.
The Company may, at its option, redeem all or from time to time any part of
the Securities, on any date on or after March 1, 2006 and prior to maturity,
upon notice as set forth in Section 3.02 and at the redemption prices (expressed
in percentages of the principal amount) set forth in the form of Security
herein, together with accrued interest to the date fixed for redemption (but
installments of interest whose stated maturity is on or prior to the date fixed
for redemption shall continue to be payable to the Holders of record on the
Regular Record Date). Portions of such redemption prices in excess of 100% of
the principal amount are sometimes herein referred to as the "premium" payable
upon such redemption.
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SECTION 3.02. Notice of Redemption; Selection of Securities.
Whenever the Company redeems Securities pursuant to this Article Three, it
shall notify the Trustee of the date fixed for redemption and the principal
amount of Securities to be redeemed. The notice shall be accompanied by an
Officers' Certificate stating that the redemption complies with the provisions
of this Indenture. The Company shall give each such notice at least 30 but not
more than 60 days before the date fixed for redemption or such other period as
the Company and the Trustee may agree.
In case the Company shall desire to exercise its right to redeem all or, as
the case may be, any part of the Securities in accordance with the right
reserved so to do, notice of such redemption shall be given to the Holders of
the Securities to be redeemed as hereinafter provided in this Section 3.02, such
notice to be given by the Company or, at the Company's direction, by the Trustee
in the name and at the expense of the Company. If the notice is to be given by
the Trustee, the Company shall provide the Trustee with the information required
in this Section 3.02.
Notice of redemption shall be given by mailing to Holders of Securities to
be redeemed in whole or in part a notice of such redemption by first class mail,
postage prepaid, not less than 20 nor more than 65 days prior to the date fixed
for redemption, to their last addresses as they shall appear upon the registry
book. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. In any case, failure to duly give notice by mail, or any
defect in the notice, to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of such Security or any other Security.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the then current Conversion Price;
(4) the name and address of the Paying Agent and the Conversion Agent;
(5) that Securities called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(6) that, unless the Company defaults in paying the Redemption Price,
interest on Securities called for redemption ceases to accrue on and after the
Redemption Date;
(7) that the right to convert the Securities as provided in Article Five
shall terminate at the close of business on the last Trading Day prior to the
Redemption Date which is on or before March 1, 2007 (except that a Security
which the Company is required to purchase pursuant to Section 6.09 hereof shall
be convertible until the close of business on the last Trading Day prior to the
Repurchase Date which is on or before March 1, 2007);
(8) if any Security is being redeemed in part, the portion of the principal
amount of such Security to be redeemed and the bond number of such
15
Security and that, after the Redemption Date, upon surrender of such Security, a
new Security or Securities in principal amount equal to the unredeemed portion
thereof will be issued;
(9) that Holders who want to convert Securities must satisfy the
requirements in paragraph 8 of the Securities;
(10) the CUSIP number, if any, of the Securities; and
(11) the consequences to a Holder, if any, of converting a Security (or
portion of a Security) prior to the next Interest Payment Date if the Redemption
Date with respect to such Security occurs on or after such Interest Payment
Date. At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense. If a CUSIP number is listed
in such notice or printed on the Security, the notice may state that no
representation is made as to the correctness or accuracy of such CUSIP number.
If less than all of the Securities are to be redeemed, the Company shall
give the Trustee written notice, at least 45 days (or such shorter period as may
be acceptable to the Trustee) prior to the date fixed for redemption, as to the
aggregate principal amount of the Securities to be redeemed, and thereupon the
Trustee shall select, in such manner as it shall deem appropriate and fair (so
long as such method is not prohibited by the rules of any securities exchange or
market in which the Securities are then listed or quoted) from outstanding
Securities, a principal amount of Securities equal to such aggregate principal
amount of Securities to be redeemed and shall thereafter promptly notify the
Company in writing of the Securities so to be redeemed and, if any such
Securities are to be redeemed in part, the portions thereof to be redeemed.
SECTION 3.03. Payment of Securities on Redemptions;
Deposit of Redemption Price. If notice of redemption shall have been given
as provided in Section 3.02, such Securities or portions of Securities shall,
unless theretofore converted into Common Stock pursuant to the terms hereof,
become due and payable on the date fixed for redemption and at the place stated
in such notice at the applicable Redemption Price and premium, if any, together
with accrued and unpaid interest to the date fixed for redemption, and on and
after such date fixed for redemption, unless the Company shall default in the
payment of the Redemption Price, interest on the Securities so called for
redemption shall cease to accrue. Moneys in the amount necessary for each
redemption referred to in Section 3.01 shall be deposited with the Paying Agent
by the Company on or prior to the date fixed for redemption. On presentation
and surrender of such Securities at the place of payment specified in such
notice, such Securities or the specified portions thereof shall (subject to the
provisions of Article Four) be paid and redeemed at the applicable Redemption
Price, together with accrued and unpaid interest thereon to the date fixed for
redemption. Installments of interest whose stated maturity is on or prior to
the date fixed for redemption shall continue to be payable to the Holders of
such Securities on the relevant regular or special record dates according to
their terms and the provisions of Section 2.03 of this Indenture.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee upon receipt of an Officers' Certificate (Section 2.02)
shall authenticate and deliver, at the expense of the Company, a new Security or
16
Securities of authorized denominations in aggregate principal amount equal to
the unredeemed portion of the Security so presented.
The Company's obligation to deposit with the Paying Agent moneys in the
amount necessary for the redemption of particular Securities or portions thereof
called for redemption shall be reduced automatically by the amount of such
moneys attributable to any of such called Securities or portions thereof which
shall have been converted prior to the date such moneys are required to be
deposited with the Paying Agent. Any moneys which shall have been deposited
with the Paying Agent for redemption of Securities and which are not required
for that purpose by reason of conversion of such Securities shall be repaid to
the Company. The Paying Agent may in each case require evidence reasonably
satisfactory to it of such conversion.
ARTICLE FOUR.
SUBORDINATION OF SECURITIES.
SECTION 4.01. Agreement that Securities to Be Subordinate.
The Trustee acknowledges, the Company covenants and agrees, and each Holder
of Securities issued hereunder by his acceptance thereof likewise covenants and
agrees, that all payments of principal of, premium, if any, and interest on the
Securities and all other monetary claims, including such monetary claims as may
result from rights of repurchase or rescission, under or in respect of the
Securities shall be subordinated in accordance with the provisions of this
Article Four to the prior payment in full in cash of all amounts payable under
all Senior Indebtedness of the Company.
SECTION 4.02. Liquidation; Dissolution; Bankruptcy.
Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshaling of assets or any bankruptcy, insolvency or similar
proceedings of the Company:
(a) holders of all Senior Indebtedness then outstanding shall be entitled to
receive payment in full in cash of all amounts owing with respect to all Senior
Indebtedness before Securityholders shall be entitled to receive any payment on
or with respect to the Securities; and
(b) until all Senior Indebtedness is paid in full in cash, any distribution
to which Securityholders would be entitled but for this Article Four shall be
made to holders of Senior Indebtedness as their interests may appear, except
that the Securityholders may receive Permitted Junior Securities.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of the properties and assets of the Company substantially
as an entirety to another Person upon the terms and conditions set forth in
Article Twelve shall not be deemed a liquidation, dissolution, winding up,
reorganization, insolvency, receivership or similar proceeding of the Company
for the purposes of this Section.
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SECTION 4.03. Company Not to Make Payments with Respect to Securities in
Certain Circumstances.
(1) Unless Section 4.02 shall be applicable, upon the occurrence of any
default in the payment of any obligation on or with respect to any Senior
Indebtedness, whether with respect to scheduled payments or amounts due upon
acceleration (a "Payment Default"), then no payment or distribution of any
assets of the Company of any kind or character shall be made by the Company on
account of principal of or premium, if any, or interest on the Securities or on
account of the purchase, redemption or other acquisition of Securities or any of
the obligations of the Company under the Securities unless and until such
Payment Default shall have been cured or waived or shall have ceased to exist or
such Senior Indebtedness shall have been discharged or paid in full, immediately
after which the Company shall resume making any and all required payments,
including missed payments, in respect of its obligations under the Securities.
(2) Unless Section 4.02 shall be applicable, upon (1) the occurrence of any
default (other than a Payment Default) relating to Senior Indebtedness which
default, pursuant to the instrument governing such Senior Indebtedness, entitles
the holders (or a specified portion of holders) of such Senior Indebtedness to
accelerate the maturity of such Senior Indebtedness (a "Non-payment Default")
and (2) receipt by the Trustee and the Company from a holder of such Senior
Indebtedness or from the trustee, agent or other representative designated in
writing to the Trustee of any class or issue of Senior Indebtedness (the "Senior
Representative") of written notice of such occurrence, no payment or
distribution of any assets of the Company of any kind or character shall be made
by the Company on account of principal of or premium if any, of interest on the
Securities or on account of the purchase, redemption or other acquisition of
Securities or on account of any of the other obligations of the Company under
the Securities for a period (a "Payment Blockage Period") commencing on the date
of receipt by the Trustee of such notice unless and until the earlier to occur
of the following events (subject to any blockage of payments that may then be in
effect under subsection (1) of this Section 4.03) (w) 179 days shall have
elapsed since receipt of such written notice by the Trustee (provided such
Senior Indebtedness shall theretofore not have been accelerated), (x) such Non-
payment Default shall have been cured or waived in the manner required by the
instrument relating to such Senior Indebtedness or shall have ceased to exist,
(y) such Senior Indebtedness shall have been discharged or paid in full or (z)
such Payment Blockage Period shall have been terminated by written notice to the
Company or the Trustee from either the Senior Representative initiating such
Payment Blockage Period or the holders of the requisite amount of such issue of
such Senior Indebtedness, immediately after which, in the case of clause (w),
(x), (y) or (z), the Company shall resume making any and all required payments,
including missed payments, in respect of its obligations under the Securities.
Only one Payment Blockage Period pursuant to such notice may be commenced with
respect to the Securities during any period of 365 consecutive days. Successive
Payment Blockage Periods based on successive Non-payment Defaults may be
commenced; provided that no Nonpayment Default with respect to Senior
Indebtedness which existed or was continuing on the date of the commencement of
any Payment Blockage Period shall be, or be made, the basis for the commencement
of any other Payment Blockage Period with respect to such Senior Indebtedness
unless such event of default shall have been cured or waived for a period of not
less than 180 consecutive days.
Regardless of anything to the contrary herein, nothing shall prevent (a) any
payment by the Trustee to the Securityholders of amounts deposited with it
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pursuant to Article Thirteen or (b) any payment by the Trustee or Paying Agent
as permitted by Section 4.13.
SECTION 4.04. Payment Over of Proceeds in Certain Events.
In the event that any payment or distribution of assets of the Company of
any kind or character not permitted by Sections 4.02 or 4.03, whether in cash,
property or securities, shall be received by the Trustee or Paying Agent, if
any, or the Holders of the Securities before all Senior Indebtedness is paid in
full in cash, such payment or distribution shall be received and held in trust
for the benefit of the holders of Senior Indebtedness and shall forthwith be
paid over or delivered by the Trustee, such Paying Agent or such Holders of the
Securities, as the case may be, directly to the holders of Senior Indebtedness
(pro rata to each such holder on the basis of the respective amounts of Senior
Indebtedness held by such holder) or the Senior Representative or the trustee
under the indenture or other agreement (if any) pursuant to which Senior
Indebtedness may have been issued, for application to the payment of, all Senior
Indebtedness remaining unpaid to the extent necessary to pay all obligations in
respect of such Senior Indebtedness in full in cash in accordance with its
terms, after giving effect to any other concurrent payment or distribution to
the holders of such Senior Indebtedness. Both the Trustee and the Paying Agent
shall be entitled to presume that any payment or distribution of assets of the
Company is not prohibited by Section 4.02 or 4.03 unless a Responsible Officer
of the Trustee or the Paying Agent receives notice of a default relating to
Senior Indebtedness at least two Business Days before making a payment or
distribution of such assets to the Holders.
SECTION 4.05. No Waiver of Subordination Provisions.
Without notice to or the consent of the Securityholders or the Trustee, the
holders of Senior Indebtedness may at any time and from time to time, without
impairing or releasing the subordination herein made, change the manner, place
or terms of payments, or change or extend the time of payment of or renew or
alter the Senior Indebtedness, or amend or supplement in any manner any
instrument evidencing the Senior Indebtedness, any agreement pursuant to which
the Senior Indebtedness was issued or incurred or any instrument securing or
relating to the Senior Indebtedness; release any person liable in any manner for
the payment or collection of the Senior Indebtedness; exercise or refrain from
exercising any rights in respect of the Senior Indebtedness against the Company
or any other person; apply any moneys or other property paid by any person or
released in any manner to the Senior Indebtedness; or accept or release any
security for the Senior Indebtedness.
SECTION 4.06. Notice to Trustee of Specified Events; Reliance on
Certificate of Liquidating Agent.
The Company shall give prompt written notice to the Trustee and any Paying
Agent of any fact known to the Company that would prohibit the making of any
payment to or by the Trustee or any Paying Agent in respect of the Securities
pursuant to the provisions of this Article.
Upon any distribution of assets of the Company or payment by or on behalf of
the Company referred to in this Article Four, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 4.02 are pending, and the Trustee and the holders of the Securities
shall be entitled to rely upon a certificate of the liquidating trustee or agent
19
or other person making any such distribution to the Trustee or to the holders of
the Securities for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of 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 Four.
SECTION 4.07. Subrogation.
After all Senior Indebtedness is paid in full and until the Securities are
paid in full, Securityholders shall be subrogated to the rights of holders of
Senior Indebtedness to receive distributions applicable to Senior Indebtedness
to the extent that distributions otherwise payable to the Securityholders have
been applied to the payment of Senior Indebtedness. A distribution made or
payment over made under this Article to holders of Senior Indebtedness which
otherwise would have been made to Securityholders is not, as between the
Company, its creditors other than the holders of Senior Indebtedness and
Securityholders, a payment or distribution by the Company on or on account of
Senior Indebtedness, it being understood that the provisions of this Article
Four are, and are intended, solely for the purpose of defining the relative
rights of the Securityholders, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
SECTION 4.08. Obligation to Pay Not Impaired.
Nothing contained in this Article Four or elsewhere in this Indenture, or in
the Securities, is intended to or shall alter or impair, as between the Company,
its creditors other than the holders of Senior Indebtedness, and the Holders of
the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities at the time and place and at the
rate and in the currency therein prescribed, or to affect the relative rights of
the Holders of the Securities and creditors of the Company other than the
Holders of Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
right, if any, under this Article Four of the holders of the Senior Indebtedness
in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
SECTION 4.09. Reliance by Senior Indebtedness on Subordination Provisions.
Each Holder of a Security by his acceptance thereof acknowledges and agrees
that the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Indebtedness (by its
original terms or amendment thereof), whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities, to acquire
and hold, or to continue to hold, such Senior Indebtedness, and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in holding,
such Senior Indebtedness. The subordination provisions in this Article Four may
be enforced directly by the holders of Senior Indebtedness.
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SECTION 4.10. Subordination Not to Be Prejudiced by Certain Acts.
No present or future holder of Senior Indebtedness shall be prejudiced in
his right to enforce subordination of the indebtedness evidenced by the
Securities by any act or failure to act in good faith by any such holder or by
noncompliance by the Company with the terms and provisions and covenants herein
regardless of any knowledge thereof any such holder may have or otherwise be
charged with.
SECTION 4.11. Trustee Authorized to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination as provided in this Article Four
and appoints the Trustee his attorney-in-fact for any and all such purposes
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
or similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the
Company, to file a claim for the unpaid balance of its Securities in the form
required in said proceedings and to 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 proof, then the Holders of the Senior Indebtedness shall have the right
to file and are hereby authorized to file an appropriate claim or proof for and
on behalf of the Holders of said Securities.
SECTION 4.12. Trustee's Relationship to Senior Indebtedness.
Except for the Trustee's duty to hold cash, properties or securities in
trust for the benefit of holders of Senior Indebtedness pursuant to Section 4.04
hereof, subject, however, to the final sentence thereof, the Trustee shall owe
no fiduciary duty to the holders of Senior Indebtedness. The Trustee shall be
entitled to all rights set forth in this Article Four 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 deprive the Trustee of
any of its rights as such holder.
SECTION 4.13. Trustee and Paying Agents Not Chargeable with Knowledge Until
Notice.
Notwithstanding any of the provisions of this Article Four or any other
provisions of this Indenture, the Trustee and any Paying Agent shall not at any
time be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee or any Paying
Agent, unless and until a Responsible Officer of the Trustee or such Paying
Agent, as the case may be, shall have received written notice thereof from the
Company or a holder of a Senior Indebtedness, or any trustee thereof, and, prior
to the receipt of any such written notice, the Trustee and any other Paying
Agent shall be entitled to assume that no such facts exist. If at least two
Business Days prior to the date upon which the terms of any such moneys may
become payable for any purpose (including, without limitation, the payment of
either the principal of or the interest on any Security) a Responsible Officer
of the Trustee or Paying Agent, as the case may be, shall not have received with
respect to such moneys the notice provided for in this Section 4.13, then,
anything contained herein to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such moneys and to apply the same to
21
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after the commencement
to such two Business Day period. Nothing contained in this Section 4.13 shall
limit the right of the holders of Senior Indebtedness to recover payments as
contemplated by Section 4.04.
SECTION 4.14. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee, provided however,
that Sections 4.12 and 4.13 shall not apply to the Company if it acts as a
Paying Agent.
SECTION 4.15. Trustee's Compensation Not Prejudiced.
Nothing contained in this Article Four shall affect or subordinate the
rights of the Trustee with respect to any fees, expenses or indemnities owing by
the Company to the Trustee under this Indenture.
ARTICLE FIVE.
LIMITED CONVERSION OF SECURITIES.
SECTION 5.01. Conversion Privilege; Conversion Price.
A Holder of a Security may convert it into Common Stock at any time during
the period stated in paragraph 8 of the Securities. The number of shares
issuable upon conversion of a Security is determined as follows: (1) divide the
principal amount to be converted by the conversion price (the "Conversion
Price") in effect on the conversion date and (2) round the result to the nearest
1/100th of a share. The Company shall deliver to such Holder a check in lieu of
any fractional share.
The initial Conversion Price is stated in paragraph 8 of the Securities.
The Conversion Price is subject to adjustment in accordance with Section 5.04.
SECTION 5.02. Manner of Exercising Conversion Privilege.
To convert a Security a Holder must satisfy the requirements in paragraph 8
of the Securities. The date on which the Holder satisfies all those
requirements is the conversion date. As soon as practicable, the Company shall
deliver to the Holder through the Conversion Agent a certificate for the number
of full shares of Common Stock issuable upon the conversion and a check in lieu
of any fractional share. The person in whose name the certificate is registered
shall be treated as a stockholder of record on and after the conversion date.
Except as provided below, no adjustment will be made on conversion of a
Security for interest accrued thereon or for dividends on shares of Common Stock
issued on conversion. If a Security is surrendered for conversion during the
period after the close of business on any Regular Record Date for the payment of
interest and before the opening of business on the corresponding Interest
Payment Date, then (a) notwithstanding such conversion, the interest payable on
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such Interest Payment Date will be paid by check to the Person in whose name the
Security is registered at the close of business on such Regular Record Date, and
(b) (excluding Securities or portions thereof called for redemption on a
Redemption Date occurring after such Regular Record Date and on or prior to the
fifth Business Day following such Interest Payment Date), when so surrendered
for conversion, the Security shall also be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Company of an amount equal
to the interest payable on such Interest Payment Date on the principal amount of
such Security then being converted; provided however, that if the Company shall
default in the payment of said interest, said funds, if any shall be returned to
the payor thereof. Securities (or portion of a Security) surrendered for
conversion during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date (except Securities called for redemption on a Redemption
Date within such period) must be accompanied by payment of an amount equal to
the interest thereon which the registered Holder is to receive. In the case of
any Securities that have been converted after any Regular Record Date but on or
before the next Interest Payment Date, interest whose stated maturity is on such
Interest Payment Date will be payable on such Interest Payment Date
notwithstanding such conversion, and such interest will be paid to the Holder of
such Securities on such Regular Record Date. Except as described above, no
interest on converted Securities will be payable by the Company on any Interest
Payment Date subsequent to the date of conversion. No other payment or
adjustment for interest or dividends will be made upon conversion.
As promptly as practicable after the receipt of such notice and of such
payment, if required, and the surrender of such Security as aforesaid, the
Company shall issue and deliver, at the office or agency at which such Security
is surrendered, to such Holder or on his written order, as specified therein, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Security (or specified portion thereof) in
accordance with the provisions of this Article Five, and cash as provided in
Section 5.03 in respect of any fractional 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 on which notice,
payment, if required, and proper endorsement or transfer, if required, shall
have been received by the Company and such Security shall have been surrendered
as aforesaid (unless such Holder shall have so surrendered such Security and
shall have instructed the Company to effect the conversion on a particular date
following such surrender and such Holder shall be entitled to convert such
Security on such date in which case such conversion shall be deemed to be
effected immediately prior to the close of business on such date) and at such
time the rights of the Holder of such Security as such Securityholder shall
cease 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 the holder or holders of record of the shares
represented thereby.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee upon receipt of an
Officers' Certificate (Section 2.02) shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in principal amount equal to the
unconverted portion of such Security.
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SECTION 5.03. Fractional Shares.
The Company will not issue a fractional share of Common Stock upon
conversion of a Security. Instead the Company will deliver its check for the
current market value of the fractional share. The current market value of a
fraction of a share is determined as follows: (1) multiply the current market
price (as defined in Section 5.04) on the Business Day next preceding the date
of conversion of a full share by the fraction and (2) round the result to the
nearest cent.
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 shall be computed on the basis of the aggregate principal amount of
Securities (or specified portions thereof to the extent permitted hereby) so
surrendered.
SECTION 5.04. Adjustment of Conversion Price.
The Conversion Price shall be adjusted from time to time during the period
stated in paragraph 8 of the Securities as follows:
(a) In case the Company shall hereafter (i) pay a dividend or make a
distribution on its Common Stock in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares,
or (iv) issue by reclassification of its Common Stock any shares of capital
stock of the Company, the Conversion Price in effect immediately prior to such
action shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Common Stock or other capital stock of the Company which he would have owned
immediately following such action had such Security been converted immediately
prior thereto. An adjustment made pursuant to this subsection shall become
effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification. If, as a result of
an adjustment made pursuant to this subsection (a) the Holder of any Security
thereafter surrendered for conversion shall become entitled to receive shares of
two or more classes of capital stock or shares of Common Stock and other capital
stock of the Company, the Board of Directors (whose determination shall be
conclusive and shall be described in an Officers' Certificate filed with the
Trustee and with any Conversion Agent) shall determine in good faith the
allocation of the adjusted Conversion Price between or among shares of such
classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall hereafter issue rights, warrants or options to
holders of its outstanding shares of Common Stock generally entitling them to
subscribe for or purchase shares of Common Stock (or securities convertible into
or exchangeable for Common Stock) at a price per share (or having a conversion
or exchange price per share) less than the current market price per share (as
determined pursuant to subsection (e) of this Section 5.04) of the Common Stock
on the record date mentioned below, the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to such record date by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding on such
record date plus the number of shares of Common Stock which the aggregate
offering price of the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such current market price, and of
24
which the denominator shall be the number of shares of Common Stock outstanding
on such record date plus the number of additional shares of Common Stock offered
for subscription or purchase. Such adjustment shall be made successively
whenever any such rights or warrants are distributed, and shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such rights, warrants or options. If at the end of the period during
which such rights or warrants are exercisable not all rights or warrants shall
have been exercised, the adjusted Conversion Price shall be immediately
readjusted to what it would have been based upon the number of additional shares
of Common Stock actually issued (or the number of shares of Common Stock
issuable upon conversion of convertible securities or the exchange of
exchangeable securities actually issued).
(c) In case the Company shall hereafter distribute to holders of its
outstanding Common Stock generally evidences of indebtedness, cash or other
assets (including securities, but excluding those dividends, rights, warrants,
options and distributions referred to above and excluding dividends and
distributions paid exclusively in cash), then in each such case the Conversion
Price of the shares of Common Stock shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction the numerator
of which shall be the current market price per share (determined as provided in
subsection (e) of this Section 5.04) of the Common Stock on the record date
mentioned below less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and shall be described in an
Officers' Certificate filed with the Trustee and with any Conversion Agent) of
the portion of such evidences of indebtedness or assets (but not cash) so
distributed to the holder of one share of Common Stock or of such subscription
rights or warrants applicable to one share of Common Stock, and of which the
denominator shall be such current market price per share of Common Stock. Such
adjustment shall become effective immediately after the record date for the
determination of stockholders entitled to receive such distribution.
In any case in which this subsection (c) is applicable, subsection (b) shall
not be applicable.
(d) In case the Company shall, (i) by dividend or otherwise, at any time
distribute to all holders of its Common Stock cash (excluding any cash portions
of distributions referred to in (c) above or cash distribution upon a merger or
consolidation to which Section 5.10 applies) in an aggregate amount that,
combined together with (a) all other such all-cash distributions made within the
preceding 12 months in respect to which no adjustment has been made and (b) any
cash and their fair market of other consideration paid or payable in respect of
any tender offers by the Company for Common Stock concluding within the
preceding 12 months in respect of which no adjustment has been made, exceeds
12.5% of the Company's market capitalization (defined as being the product of
the current market price of the Common Stock times the number of shares of
Common Stock then outstanding) on the record date for such distribution (as
determined by the Board of Directors, whose determination shall be described in
an Officers' Certificate filed with the Trustee and any Conversion Agent), and
or (ii) purchase Common Stock pursuant to a tender offer made by the Company or
any of its subsidiaries which involves an aggregate consideration that together
with (a) any cash and the fair market value of any other consideration paid or
payable in any other tender offer by the Company or any of its subsidiaries of
Common Stock expiring within the 12 months preceding the expiration of such
tender offer in respect of which no adjustment has been made (as determined by
the Board of Directors, whose determination shall be described in an Officers'
25
Certificate filed with the Trustee and any Conversion Agent) and (b) the
aggregate amount of any such all-cash distributions referred to in (i) above to
all holders of Common Stock within the 12 months preceding the expiration of
such tender offer in respect of which no adjustments have been made, exceeds
12.5% of the Company's market capitalization on the expiration of such tender
offer, the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to the effectiveness of the Conversion Price reduction contemplated by this
subsection (d) by a fraction of which the numerator shall be the current market
price per share (determined as provided in subsection (e) of this Section 5.04)
of the Common Stock on the date of such effectiveness less the amount of cash so
distributed applicable to one share of Common Stock and the denominator shall be
such current market price per share of the Common Stock (determined as
aforesaid), such reduction to become effective immediately prior to the opening
of business on the day following the date fixed for the payment of such
distribution.
(e) For the purpose of any computation under subsections (b), (c) and (d) of
this Section 5.04 or under Section 5.03, the "current market price" per share of
Common Stock on any record date shall be deemed to be the average of the daily
closing prices for the five consecutive trading days immediately preceding the
date in question. The closing price for each day shall be the last sale price
regular way or, in case no such sale takes place on such day, the average of the
closing bid and asked prices regular way, in either case on the American Stock
Exchange, or, if the shares of Common Stock are not listed or admitted to
trading on such Exchange, on the principal national securities exchange on which
the shares are listed or admitted to trading, or if they are not listed or
admitted to trading on any national securities exchange, on the Nasdaq National
Market System (the NMS") or any comparable system, or if the Common Stock is not
quoted on the NMS or a comparable system, the closing bid and asked prices as
furnished by any member of the National Association of Securities Dealers, Inc.
selected from time to time by the Company for that purpose.
(f) In any case in which this Section 5.04 shall require that an adjustment
be made immediately following a record date, the Company may elect to defer (but
only until five Business Days following the filing by the Company with the
Trustee and any Conversion Agent of the certificate of Independent Public
Accountants described in Section 5.05) issuing to the Holder of any Security
converted after such record date the shares of Common Stock issuable upon such
conversion over and above the shares of Common Stock issuable upon such
conversion on the basis of the Conversion Price prior to adjustment.
(g) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% of such price;
provided however, that any adjustments which by reason of this subsection (g)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 5.04 shall be
made to the nearest cent or the nearest 1/100th of a share, as the case may be.
Anything in this Section 5.04 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the Conversion Price, in addition to
those required by this Section 5.04, as it in its discretion shall determine to
be advisable in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities, or distribution of
securities convertible into or exchangeable for stock hereafter made by the
Company to its stockholders shall not be taxable; provided that in no event
shall such Conversion Price be less than the par value of the Common Stock at
the time such reduction is made. No adjustment to the Conversion Price pursuant
26
to this Indenture shall reduce the Conversion Price below the then existing par
value per share of Common Stock. The Company hereby covenants not to take any
action to increase the par value per share of the Common Stock. No adjustment
in the Conversion Price need be made for rights to purchase shares of Common
Stock or issuances of Common Stock pursuant to a Company plan for reinvestment
of dividends or interest.
(h) In the event that at any time as a result of an adjustment made pursuant
to subsection (a) of this Section 5.04, the Holder of any Securities thereafter
surrendered for conversion shall become entitled to receive any shares of the
Company other than shares of Common Stock, thereafter the Conversion Price of
such other shares so receivable upon conversion of any Security shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to Common Stock contained in this
Article Five.
(i) In addition to the foregoing adjustments, the Company will be permitted
to make such reduction in the Conversion Price as it considers to be advisable
in order that any event treated for federal income tax purposes as a dividend or
distribution of stock or stock rights will not be taxable to the holders of the
Common Stock. Any such reduction shall be described in an Officers' Certificate
filed with the Trustee and any Conversion Agent.
SECTION 5.05. Certificate Concerning Adjusted Conversion Price.
Whenever the Conversion Price is adjusted as herein provided, (i) the
Company shall promptly file with the Trustee and any Conversion Agent a
certificate of a firm of Independent Public Accountants (who may be the regular
accountants employed by the Company) setting forth the Conversion Price after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment and the manner of computing the same, which certificate shall be
conclusive evidence of the correctness of such adjustment and (ii) a notice
stating that the Conversion Price has been adjusted and setting forth the
adjusted Conversion Price shall forthwith be given by the Company to the
Securityholders in the same manner provided in Section 15.03. The Trustee and
any Conversion Agent shall be under no duty or responsibility with respect to
any such certificate or the certificate provided for in Section 5.10 except to
exhibit the same from time to time to any Holder of a Security desiring an
inspection of such certificate.
SECTION 5.06. Notice of Certain Corporate Action.
In case:
(a) the Company shall take any action which would require an adjustment in
the Conversion Price pursuant to Sections 5.04(b), 5.04(c) or 5.04(d); or
(b) the Company shall authorize the granting to the holders of its Common
Stock of rights or warrants to subscribe for or purchase any shares of stock of
any class or of any other rights; or
(c) there shall be any capital reorganization or reclassification of the
Common Stock (other than a subdivision or combination of the outstanding Common
Stock and other than a change in the par value of the Common Stock), or any
consolidation or merger to which the Company is a party or any statutory
exchange of securities with another corporation and for which approval of any
27
stockholders of the Company is required, or any sale or transfer of all or
substantially all of the assets of the Company; or
(d) there shall be a voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then the Company shall cause to be filed with the Trustee and any conversion
Agent, and shall cause to be given to the Securityholders, in the manner
provided in Section 15.03, at least fifteen (15) days prior to the applicable
date hereinafter specified, a notice stating (i) the date on which a record is
to be taken for the purpose of such distribution or rights, 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 distribution or rights is to be determined, or (ii) the date
on which such reorganization, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up. Failure to give such notice or any defect therein
shall not affect the legality or validity of the proceedings described in
subsection (a), (b), (c) or (d) of this Section 5.06.
SECTION 5.07. Company to Provide Stock.
The Company will at all times during the period stated in paragraph 8 of the
Securities reserve and keep available out of its authorized but unissued Common
Stock, for the purpose of effecting conversions of Securities, the full number
of shares of Common Stock deliverable upon the conversion of all outstanding
Securities. For purposes of this Section 5.07, the number of shares of Common
Stock which shall be deliverable upon the conversion of all outstanding
Securities shall be computed as if at the time of computation all outstanding
Securities were held by a single Holder.
The Company will endeavor to list the shares of Common Stock required to be
delivered upon conversion of Securities prior to such delivery upon each
national securities exchange, if any, upon which the outstanding Common Stock is
listed at the time of such delivery.
Prior to the delivery of any securities or other property, including cash,
which the Company shall be obligated to deliver upon conversion of the
Securities, the Company will endeavor to comply with all Federal and State laws
and regulations thereunder governing the registration or qualification of such
securities with, or any approval of or consent to the delivery thereof by, any
governmental authority.
SECTION 5.08. Taxes on Conversions.
The Company will pay any and all taxes that may be payable in respect of the
issue or delivery of shares of Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and delivery of shares
of Common Stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Company the amount of
any such tax, or has established, to the satisfaction of the Company, that such
tax has been paid.
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SECTION 5.09. Covenant as to Stock.
The Company covenants that all shares of Common Stock which may be delivered
upon conversion of Securities will upon delivery be duly and validly authorized
and issued and fully paid and non-assessable, free of all liens and charges
imposed by the Company and not subject to any preemptive rights.
SECTION 5.10. Provision in Case of Consolidation or Merger.
Notwithstanding any other provision herein to the contrary, in case of any
consolidation or merger to which the Company is a party (other than a
transaction in which the Company is the continuing corporation and which does
not result in any reclassification or change of 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)), or in case of any sale or conveyance to another
entity of the property of the Company as an entirety or substantially as an
entirety, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a
third corporation into the Company), there shall be no adjustments under Section
5.04 but each Security then outstanding would, without the consent of any
Holders of Securities, become convertible only into the kind and amount of
securities, cash and other property which he would have owned or have been
entitled to receive upon such consolidation, merger, statutory exchange, sale or
conveyance had such Security been converted immediately prior to the effective
date of such consolidation, merger, statutory exchange, sale or conveyance
(assuming that as a holder of Common Stock, such Holder failed to exercise any
rights of election and received per share the kind and amount received per share
by a plurality of non-electing shares) and in any such case, if necessary,
appropriate adjustment shall be made in the application of the provisions set
forth in this Article Five with respect to the rights and interests thereafter
of the Holders of the Securities, to the end that the provisions set forth in
this Article Five shall thereafter correspondingly be made applicable, as nearly
as may reasonably be, in relation to any shares of stock or other securities or
property thereafter deliverable on the conversion of the Securities. Any such
adjustments shall be made by and set forth in a supplemental indenture executed
by the Company and the Trustee and evidenced by a certificate of a firm of
Independent Public Accountants (who may be the regular accountants employed by
the Company), to that effect furnished to the Trustee; and any adjustment so
approved shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment.
The above provisions of this Section 5.10 shall similarly apply to
successive consolidations, mergers, statutory exchanges, sales or conveyances.
The Company shall give notice of the execution of such a supplemental
indenture to the Holders of Securities in the manner provided in Section 15.03
within 30 days after the execution thereof.
SECTION 5.11. Trustee's Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any Conversion Agent 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 nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
proved to be employed, in making the same. Neither the Trustee nor any
29
Conversion Agent shall be accountable with respect to the validity or value (or
the kind or amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Security; and neither the Trustee nor any Conversion Agent makes any
representation with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property upon the surrender of any Security for the purpose of conversion, or to
comply with any of the covenants of the Company, or to fulfill any of the
conditions, contained in this Article Five.
ARTICLE SIX.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 6.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually pay or
cause to be paid the principal of (premium, if any) and interest on each of the
Securities at the time and place and in the manner provided in the Securities.
Principal of (and premium, if any) and interest on each of the Securities shall
be considered paid on the date due if the Paying Agent (other than the Company,
a Subsidiary thereof or any affiliate of any thereof) holds on that date, not
later than 11:00 a.m. New York City time, immediately available funds
designated for and sufficient to pay the installment. The Company shall pay
interest on overdue principal at the rate borne by the Securities; it shall pay
interest on overdue installments of interest at the same rate to the extent
lawful.
SECTION 6.02. Offices for Notices, Payments and Conversions.
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or 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 Corporate Trust Office of the
Trustee.
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 the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as
an agency of the Company in accordance with Section 2.03.
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SECTION 6.03. Paying Agents.
(a) Any Paying Agent appointed by the Company other than the Trustee shall
be a bank or trust company of the character and with the qualifications set
forth in Section 8.10 and the Company covenants and agrees to enter into an
appropriate agency agreement with any Registrar or Paying Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture
that relate to such Registrar or Paying Agent. In addition, the Company
covenants and agrees to cause such Paying Agent to execute and deliver to the
Trustee an instrument in which it shall agree with the Trustee, subject to the
provisions of this Section, (1) that such Paying Agent shall hold in trust for
the benefit of the Securityholders all sums held by such Paying Agent for the
payment of the principal of (or premium, if any) or interest on any of the
Securities, (2) that such Paying Agent shall give to the Trustee notice of any
failure by the Company (or any other obligor on the Securities) to make any
payment of the principal of (or premium, if any) or interest on the Securities
when the same shall be due and payable, and (3) at any time during the
continuance of such default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying Agent.
(b) If the Company shall at any time act as its own Paying Agent, then on or
before each due date of the principal of (and premium, if any) or interest on
any of the Securities, it will set aside and segregate and hold in trust for the
benefit of the Holders of the Securities, a sum sufficient to pay such principal
(and premium, if any) or interest so becoming due, and will notify the Trustee
of any failure to take such action.
(c) Anything in this Section 6.03 to the contrary notwithstanding, the
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay or cause to be paid to
the Trustee all sums held in trust by it or any Paying Agent as required by this
Section, such sums to be held by the Trustee upon the terms herein contained.
(d) Anything in this Section 6.03 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 13.03 and 13.04 hereof.
SECTION 6.04. Annual Review Certificate.
The Company covenants and agrees to deliver to the Trustee, on or before a
date not more than 95 days after the end of each fiscal year of the Company
ending after the date hereof, a certificate from its principal executive
officer, principal financial officer or principal accounting officer stating
that he or she is familiar with the affairs of the Company stating that a review
of the activities of the Company and of its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such officer signing such certificate, that to the best of his knowledge the
Company has kept, observed, performed and fulfilled each and every covenant in
this Indenture contained and is not in default in the performance and observance
of any of the terms, provisions and conditions hereof (or, if the Company shall
be in default, specifying all such defaults and the nature thereof of which he
may have knowledge) and that to the best of his knowledge no event has occurred
and remains in existence by reason of which payments on account of the principal
of (or premium, if any) or interest on the Securities is prohibited.
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SECTION 6.05. Appointment to Fill a Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, shall appoint, in the manner provided in Section 8.08, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 6.06. Further Instruments and Acts.
The Company shall, upon request of the Trustee, execute and deliver such
further instruments and do such further acts as may reasonably be necessary or
proper to carry out more effectually the purposes of this Indenture.
SECTION 6.07. Payment of Taxes and Assessments.
The Company shall, and shall cause each Significant Subsidiary to, pay all
taxes, assessments and governmental charges lawfully levied or assessed upon it,
its property, or upon any part thereof or upon its income or profits, or any
part thereof, before the same shall become delinquent; provided that nothing in
this Section 6.07 or elsewhere in this Indenture contained shall require the
Company to pay any such tax assessment or governmental charge so long as the
applicability or validity thereof shall be contested in good faith; and provided
further, that neither the Company nor any Significant Subsidiary shall be
required to pay any such taxes, assessments or charges, if in the judgment of
the Board of Directors of the Company or such Significant Subsidiary, such
payment shall no longer be advantageous to the Company or such Significant
Subsidiary in the conduct of its business.
SECTION 6.08. Maintenance of Corporate Existence.
Except as otherwise provided or permitted pursuant to the other provisions
of this Indenture, the Company shall maintain its corporate existence and right
to carry on business and duly procure all necessary renewals and extensions
thereof.
SECTION 6.09. Repurchase Event.
(a) In the event that a Repurchase Event occurs after initial issuance of
the Securities, each Holder of Securities shall have the right (which right may
not be waived by the Board of Directors or the Trustee) at the Holder's option,
to require the Company to repurchase all of such Holder's Securities or any
authorized denomination thereof, on the date (the "Repurchase Date") that is 45
calendar days after the date of the Company Notice (as defined below), at a
price equal to 100% of the principal amount of such Securities to be repurchased
(the "Repurchase Price"), together with accrued interest to the Repurchase Date
in accordance with paragraph (b) of this Section 6.09; provided however, that a
Repurchase Event shall not be deemed to have occurred so long as the Securities
are convertible into Common Stock if the closing price per share of the Common
Stock for any five Trading Days within the period of ten consecutive Trading
Days ending immediately before the Repurchase Event shall equal or exceed 110%
of the conversion price of such Securities in effect on each such Trading Day.
A "beneficial owner" shall be determined in accordance with Rule 13d-3
promulgated by the SEC under the Exchange Act, as in effect on the date of
execution of the Indenture.
(b) Within 15 calendar days after a Repurchase Event, the Company shall mail
a notice (the "Company Notice") to the Trustee and each Securityholder of record
as of the date of the Repurchase Event stating:
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(1) that a Repurchase Event has occurred and that such Securityholder has
the right to require the Company to repurchase all or any authorized
denomination of such Securityholder's Securities at the Repurchase Price;
(2) if the date of the Repurchase Event is on or prior to March 1, 2007, the
current Conversion Price, the date on which the right to convert such Holder's
Securities into Common Stock will expire and the place or places where such
Securities may be surrendered for conversion;
(3) the Repurchase Date;
(4) that Holders electing to have Securities or any authorized denomination
thereof purchased will be required (a) to surrender their Securities to the
Paying Agent at the address specified in the Company Notice on or before the
fifth Business Day preceding the Repurchase Date with the "Option of Holder to
Elect Purchase" on the reverse thereof completed and (b) to complete any form of
letter of transmittal proposed by the Company and acceptable to the Trustee and
the Paying Agent;
(5) that Securities which have been surrendered to the Paying Agent may be
converted into Common Stock only to the extent that the Holder of such
Securities withdraws his election to have such Securities purchased in
accordance with the terms of this Section 6.09;
(6) that any Security not tendered or not accepted for payment will continue
to accrue interest;
(7) that, unless the Company defaults in paying the Repurchase Price, any
Security accepted for payment shall cease to accrue interest after the
Repurchase Date; and
(8) a description of any other procedure which a Holder must follow to
exercise his right to have Securities repurchased.
At the Company's request, the Trustee shall give the Company Notice in the
Company's name and at the Company's expense, provided however, that the Company
shall deliver to the Trustee, at least five days prior to the date upon which
the Company Notice must be mailed to Securityholders (unless a shorter time
shall be acceptable to the Trustee), an Officers' Certificate setting forth the
information to be stated in such notice as provided in this Section 6.09. No
failure of the Company to give the Company Notice shall limit any
Securityholder's right to exercise the repurchase right herein described.
The Trustee shall be under no obligation to ascertain or verify the
occurrence of a Repurchase Event or to give notice with respect thereto other
than as provided above upon receipt of the written notice of a Repurchase Event
from the Company. The Trustee may conclusively presume, in the absence of
written notice from the Company to the contrary, that no Repurchase Event has
occurred.
(c) In the event a repurchase right shall be exercised in accordance with
the terms hereof, the Company shall pay or cause to be paid the price payable
with respect to the Securities as to which the repurchase right had been
exercised in cash to the Securityholder. In the event that a repurchase right
is exercised with respect to less than the entire principal amount of a
surrendered
33
Security, the Company shall execute and the Trustee shall authenticate for
issuance in the name of the Securityholder a Security or Securities in the
aggregate principal amount of the unpurchased portion of such surrendered
Security.
(d) In connection with any repurchase of Securities under this Section 6.09,
the Company shall (i) comply with Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act, if applicable,
(ii) file the related Schedule TO (or any successor schedule, form or report)
under the Exchange Act, if applicable, and (iii) otherwise comply with all
federal and state securities laws so as to permit the rights and obligations
under this Section 6.09 to be exercised in the time and in the manner specified
in this Section 6.09.
SECTION 6.10. SEC Reports.
The Company shall file all reports and other information and documents which
it is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, and within 15 days after it files all such reports, information
and other documents with the SEC, the Company shall file copies of all such
reports, information and other documents with the Trustee. The Company shall
cause any quarterly and annual reports which it mails to its stockholders to be
mailed to the Holders of the Securities.
In the event the Company is at any time no longer subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall
prepare, for the first three quarters of each fiscal year, quarterly financial
statements substantially equivalent to the financial statements required to be
included in a report on Form 10-Q under the Exchange Act. The Company shall
also prepare, on an annual basis, complete audited consolidated financial
statements, including, but not limited to, a balance sheet, a statement of
operations, a statement of cash flows and all appropriate notes. All such
financial statements shall be prepared in accordance with generally accepted
accounting principles consistently applied, except for changes with which the
Company's Independent Public Accountants concur, and except that quarterly
statements may be subject to year-end adjustments. The Company shall cause a
copy of such financial statements to be filed with the Trustee and mailed to the
Holders of the Securities within 60 days after the end of each of the first
three quarters of each fiscal year and within 120 days after the close of each
fiscal year. The Company shall also comply with the other provisions of TIA
Section 314(a).
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults in the payment of the principal of or premium, if
any, of any of the Securities as and when the same shall become due and payable
either at maturity, upon redemption (including redemption and purchase pursuant
to Section 6.09), by declaration or otherwise, and in each case whether or not
such payment is prohibited by the provisions of Article Four; or
34
(b) the Company defaults in the payment of any installment of interest upon
any of the Securities as and when the same shall become due and payable and the
default continues for a period of 30 days, whether or not such payment is
prohibited by the provisions of Article Four; or
(c) the Company defaults in the payment of the Repurchase Price in respect
of any Security on the Repurchase Date therefor, whether or not such payment is
prohibited by the subordination provisions of Article Four; or
(d) the Company fails to perform or breaches any other covenant or agreement
in the Securities or in this Indenture and the default continues for the period
and after the notice specified in the last paragraph of this Section 7.01; or
(e) there shall have been entered a decree or order under any Bankruptcy Law
by a court of competent jurisdiction that (A) is for relief in respect of the
Company or any Significant Subsidiary under any Bankruptcy Law, or (B) appoints
a Custodian of the Company or such Significant Subsidiary or of any substantial
part of the property of the Company or such Significant Subsidiary, as the case
may be, or (C) orders the winding-up or liquidation of the affairs of the
Company or such Subsidiary, as the case may be, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(f) the Company or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law (A) commences a voluntary case or proceeding with
respect to itself, (B) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding, (C) applies for,
consents to or acquiesces in the appointment of or taking possession by a
Custodian of the Company or such Significant Subsidiary or for a substantial
part of its properties or (D) makes a general assignment for the benefit of its
creditors.
The term "Bankruptcy Law" means Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable Federal, state or
foreign bankruptcy, insolvency or other similar law. The term "Custodian" means
any receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official under any Bankruptcy Law.
A Default under clause (c) is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in principal amount of the
Securities then outstanding notify the Company and the Trustee, of the Default
and the Company does not cure the Default within 60 days after receipt of such
notice. The notice must specify the Default, demand that it be remedied and
state the notice is a "Notice of Default." When a Default is cured, it ceases.
SECTION 7.02. Acceleration.
If any Event of Default (other than an Event of Default with respect to the
Company specified in Sections 7.01(e) or (f) above) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in
principal amount of the Securities then outstanding by notice to the Company and
the Trustee, may declare to be due and payable immediately the principal amount
of the Securities plus accrued interest to the date of acceleration. Upon any
such declaration, such amount shall be due and payable immediately. If an Event
of Default with respect to the Company specified in Sections 7.01(e) or (f)
above occurs, all unpaid principal and accrued interest on the Securities
35
then outstanding shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholder. The Holders of a majority in principal amount of the
outstanding Securities by notice to the Trustee may rescind an acceleration and
its consequences if (x) all existing Events of Default, other than the
non-payment of the principal of the Securities which shall have become due
solely by such declaration of acceleration, shall have been cured or waived, (y)
to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal which has become due otherwise
than by such declaration of acceleration has been paid, and (z) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction.
SECTION 7.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 7.04. Waiver of Defaults and Events of Default.
Subject only to the provisions of Sections 7.07 and 11.02 hereof, the
Holders of a majority in principal amount of the outstanding Securities by
written notice to the Trustee may waive an existing Default or Event of Default
and its consequences except (a) a Default in payment of principal or interest on
any Security as specified in clauses (a) and (b) of Section 7.01, (b) the right
of Securityholders to redeem or convert their Securities or (c) in respect of a
covenant or provision hereof which under Article Eleven cannot be modified or
amended without the consent of the Holder of each outstanding Security affected.
When a Default or Event of Default is waived, it is cured and ceases; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto.
SECTION 7.05. Control by Majority.
The Holders of a majority in principal amount of the outstanding Securities
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
it, including, without limitation, any remedies provided for in Section 7.03.
The Trustee may refuse, however, to follow any direction that conflicts with
law, the Securities or this Indenture, or that the Trustee determines may be
unduly prejudicial to the rights of another Securityholder, that may involve the
Trustee in personal liability or if the Trustee determines that it does not have
adequate indemnification against any loss or expense; provided that the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
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SECTION 7.06. Limitation on Suits.
Except as provided in Section 7.07, a Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice of a continuing Event of
Default;
(b) the Holders of at least 25% in principal amount of the Securities then
outstanding make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer to the Trustee reasonable indemnity
satisfactory to the Trustee against any loss, liability or expenses;
(d) the Trustee does not comply with the request within 60 days after
receipt of the notice, request and offer of indemnity; 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 the Securities then outstanding.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 7.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of the principal of, premium, if any,
and interest on the Security, on or after the respective due dates expressed in
the Security (including the maturity date, the Redemption Date and the
Repurchase Date), or to bring suit for the enforcement of any such payment on or
after such respective dates, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to convert the Security or to bring suit for the
enforcement of such right shall not be impaired or affected without the consent
of the Holder.
SECTION 7.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in
Section 7.01(a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities for the whole amount of unpaid principal
and accrued interest remaining unpaid, together with interest on overdue
principal and, to the extent that payment of such interest is lawful, interest
on overdue installments of interest, in each case at the rate borne by the
Securities, and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 7.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
37
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Securityholders
allowed in any judicial proceedings relative to the Company (or any other
obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same. Any
Custodian in any such judicial proceeding is hereby authorized by each
Securityholder 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
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee 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 to
vote in respect of the claim of any Securityholder in any such proceedings.
SECTION 7.10. Application of Money Collected by Trustee.
Subject to the provisions of Article Four, any moneys collected by the
Trustee or any Paying Agent pursuant to this Article Seven shall be applied in
the order following, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the several Securities, and
stamping thereon the payment, if only partially paid, and upon surrender thereof
if fully paid:
First: To the payment of all amounts due the Trustee under Section 8.07
hereof;
Second: To holders of Senior Indebtedness of the Company to the extent
required by Article Four hereof;
Third: To the Securityholders for amounts owing and unpaid upon the
Securities for principal (and premium, if any) and interest, with interest on
the overdue principal and premium, if any, and (to the extent that such interest
has been collected by the Trustee or Paying Agent) on overdue installments of
interest at the rate borne by the Securities, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Securities
for principal (and premium, if any) and interest, respectively; and
Fourth: To the Company or as a court of competent jurisdiction may direct.
SECTION 7.11. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonably attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
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provisions of this Section 7.11 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in aggregate principal
amount of the Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security against the Company on or after the
due date expressed in such Security.
SECTION 7.12. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture or any Security and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every 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.
SECTION 7.13. Rights and Remedies Cumulative.
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
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 7.14. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Seven 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.
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee shall
exercise its 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 his own affairs.
(2) Except during the continuance of an Event of Default:
(a) The Trustee need perform only those duties that are specifically set
forth in this Indenture and no others.
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(b) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. The Trustee, however, shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 8.01.
(2) The Trustee shall not be liable for any error in judgment made in good
faith by a Responsible Officer of the Trustee, 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 direction received by it
pursuant to Section 7.05.
(d) Every provision of this Indenture that in any way relates to the Trustee
is subject to paragraphs (a), (b) and (c) of this Section 8.01.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity reasonably satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required by
law.
SECTION 8.02. Rights of Trustee. Subject to Section 8.01:
(1) The Trustee may rely on any document believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to Section
15.04. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Certificate or Opinion.
(3) The Trustee may act through Agents and shall not be responsible for the
misconduct or negligence of any Agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to take
in good faith which it believes to be authorized or within its rights or powers.
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SECTION 8.03. 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 or its Affiliates
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. The Trustee, however, is subject to Sections 8.10 and
8.11.
SECTION 8.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, and it shall not be responsible for any statement
in the Securities, other than its certificate of authentication, or in any
document used in connection with the original issuance of the Securities other
than any statement in writing provided by the Trustee for use in such document.
SECTION 8.05. Notice of Defaults.
If a Default occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Securityholder notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment of principal of or
interest on any Security, the Trustee may withhold the notice if and so long as
it in good faith determines that withholding the notice is in the interests of
Securityholders.
SECTION 8.06. Reports by Trustee to Holders.
If such report is required by TIA Section 313, within 60 days after each May
15 beginning with May 15, 1997, the Trustee shall mail to each Securityholder a
brief report dated as of such May 15 that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b) and Section 313(c).
A copy of each report at the time of its mailing to Securityholders shall be
filed with the SEC and each national securities exchange on which the Securities
are listed. The Company agrees to notify the Trustee whenever the Securities
become listed on any national securities exchange.
SECTION 8.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in administering its
duties hereunder. Such expenses may include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
Subject to the provisions of the following paragraph, the Company shall
indemnify the Trustee and any predecessor Trustee and their agents for, and hold
them harmless against, any loss or liability incurred by them in connection with
their duties under this Indenture. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity and the Company may elect by written notice to the Trustee, and with
the consent of the Trustee, to assume the defense of any such claim at the
Company's expense with counsel reasonably satisfactory to the Trustee. If the
Trustee shall not consent to the Company's assumption of the defense, the
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Company agrees to pay the reasonable costs and expenses of counsel retained to
represent the Trustee.
The Company need not reimburse the Trustee for any expense or indemnify it
against any loss or liability incurred by it through its negligence or bad
faith. The Company shall not be liable for any settlement of any claim or
action effected without the Company's consent, which consent shall not be
unreasonably withheld or delayed.
To secure the Company's payment obligations in this Section 8.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Sections 7.01(e) or (f) hereof occurs, the expenses and the
compensation for the services (including the reasonable fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law. This Section shall survive any termination, satisfaction or
discharge of this Indenture or resignation or removal of the Trustee.
SECTION 8.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 8.08.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee with the
Company's written consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 8.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the Securities may appoint a successor Trustee
to replace the successor Trustee appointed by the Company, and if a successor
Trustee is not appointed within such period, the Holders shall no longer be
permitted to appoint a successor Trustee to replace such successor Trustee
appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the Securities then outstanding
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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If the Trustee fails to comply with Section 8.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall, upon payment of its charges, transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section
8.07, 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 Securityholder.
SECTION 8.09. Successor Trustee by Xxxxxx, Etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
SECTION 8.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements of
TIA Section 310(a)(1). The Trustee shall have a combined capital and surplus of
at least $1,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b).
SECTION 8.11. Preferential Collection of Claims Against Company.
The Trustee is subject to and 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 therein.
ARTICLE NINE.
CONCERNING THE SECURITYHOLDERS.
SECTION 9.01. Action by Securityholders.
Whenever in this Indenture it is provided that the Holders of a specified
percentage in aggregate principal amount of the Securities may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of the Holders of Securities voting
in favor thereof at any meeting of Securityholders duly called and held in
accordance with the provisions of Article Ten, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of
Securityholders.
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SECTION 9.02. Proof of Execution by Securityholders, Evidence of Holdings.
Subject to the provisions of Sections 8.01 and 10.05, proof of the execution
of any instrument by a Securityholder or his agent or proxy and proof of the
holding by any person of any of the Securities shall be sufficient for any
purpose of this Indenture if made in the following manner:
(a) The fact and date of the execution by any such person of any instrument
may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the register of such
Securities or by a certificate of the Security Registrar.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 10.06.
The Trustee may require such additional proof of any matter referred to in
this Section 9.02 as it shall deem necessary.
SECTION 9.03. Company-owned Securities Disregarded.
In determining whether the Holders of the requisite aggregate principal
amount of Securities have concurred in any direction or consent under this
Indenture, Securities which are owned by the Company or any other obligor on the
Securities or by any Affiliate of the Company or such obligor shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction or consent only Securities
which the Trustee knows are so owned shall be so disregarded.
SECTION 9.04. Revocation of Consents, Future Holders Bound.
At any time prior to but not after the evidencing to the Trustee, as
provided in Section 9.01, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any Holder of a Security which is
included in the Securities the Holders of which have consented to such action
may, by filing written notice with the Trustee at its office and upon proof of
holding as provided in Section 9.02, revoke such action as far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security, irrespective of whether or not any notation
in regard thereto is made upon such Security or any Security issued in exchange
or substitution therefor. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the Holders of all the Securities.
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ARTICLE TEN.
SECURITYHOLDERS' MEETINGS.
SECTION 10.01. Purposes of Meetings.
A meeting of Securityholders may be called at any time and from time to time
pursuant to the provisions of this Article Ten for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article Seven;
(2) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on behalf of the
Holders of any specified aggregate principal amount of the Securities under any
other provision of this Indenture or under applicable law.
SECTION 10.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to take any
action specified in Section 10.01, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, New York, as the Trustee shall
determine. Notice of every meeting of the Securityholders, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given to the Holders of Securities in the
manner provided in Section 15.03. Such notice shall be mailed not less than 20
nor more than 90 days prior to the date fixed for the meeting.
SECTION 10.03. Call of Meetings by Company or Securityholders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the Holders of at least 10% in aggregate principal amount of the
Securities then outstanding, shall have requested the Trustee to call a meeting
of Securityholders, 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 request,
then the Company or such Securityholders may determine the time and the place in
The Borough of Manhattan, The City of New York, New York for such meeting and
may call such meeting to take any action authorized in Section 10.01, by mailing
notice thereof as provided in Section 10.02.
SECTION 10.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a person shall (a)
be a Holder of one or more Securities; or (b) be a person appointed by an
instrument in writing as proxy by a Holder of one or more 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
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counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 10.05. Regulations.
Notwithstanding any provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for 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, the submission and examination of proxies and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall think fit.
The Trustee 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 10.03, 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 a majority vote of the meeting.
Subject to the provisions of Section 9.03, at any meeting of
Securityholders, each Securityholder or proxy shall be entitled to one vote for
each $1,000 principal amount of Securities held or represented by him, provided
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not outstanding and ruled by the chairman of the meeting
to be not 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 person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called pursuant to the
provisions of Section 10.02 or 10.03 may be adjourned from time to time by a
majority of those present, whether or not constituting a quorum, and the meeting
may be held as so adjourned without further notice. At any meeting of
Securityholders duly called pursuant to the provisions of Section 10.02 or
10.03, the presence of persons holding or representing Securities in an
aggregate principal amount sufficient to take action on any business for the
transaction of which such meeting was called shall constitute a quorum.
SECTION 10.06. Voting.
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 held or represented by them. 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 said 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 said notice was mailed as provided in Section 10.02. The
record shall be signed and verified by the affidavits of the permanent chairman
and 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.
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Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. No Delay of Rights by Meeting.
Nothing in this Article Ten contained 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 ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Supplemental Indenture Without Consent of Securityholders.
The Company, when authorized by the resolutions of its Board of Directors,
and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to make provision with respect to the conversion rights of Holders of
Securities pursuant to the requirements of Section 5.10;
(b) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article Twelve
hereof;
(c) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of the Securities
as the Board of Directors of the Company and the Trustee shall consider to be
for the protection of the Holders of Securities, and to make the occurrence, or
the occurrence and continuance, of a default in any of such additional
covenants, restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided however, that in respect of any
such additional covenant, restriction or condition such supplemental indenture
may provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(d) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture which shall not adversely affect the interests of
the Holders of the Securities; and
47
(f) to modify, eliminate or add to the provisions of this Indenture to such
extent as shall be necessary to effect the qualification of this Indenture under
the TIA, or under any similar federal statute hereafter enacted.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 11.02.
SECTION 11.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 9.01) of the Holders of
not less than two-thirds in aggregate principal amount of the Securities at the
time outstanding, the Company, when authorized by the resolutions of its Board
of Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities; provided however, that no such
supplemental indenture shall (i) change the stated maturity of the principal of,
or any installment of interest on, any Security; (ii) reduce the principal
amount of, or the premium or interest on, any Security; (iii) change the place
of payment where, or currency in which, any Security or any premium or interest
thereof is payable; (iv) impair the right to institute suit for the enforcement
of any payment on or with respect to any Security; (v) adversely affect the
right to convert the Securities; (vi) adversely affect the right to cause the
Company to repurchase the Securities; (vii) modify the subordination provisions
in a manner adverse to the Holders of the Securities; (viii) reduce the above-
stated percentage of Outstanding Securities necessary to modify or amend the
Indenture; or (ix) reduce the percentage of aggregate principal amount of
Outstanding Securities necessary for waiver of compliance with certain
provisions of this Indenture or for waiver of certain Defaults.
Upon the request of the Company, accompanied by a copy of the resolutions of
its Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture and upon the filing
with the Trustee of evidence of the consent of Securityholders as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
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SECTION 11.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article Eleven shall comply with the TIA as in effect on the date of execution
thereof. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture of
the Trustee, the Company and the Holders of Securities shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 11.04. Notation on Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Eleven may
bear a notation in form approved by the Trustees as to any matter provided for
in such supplemental indenture. If the Company or the Trustee shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and execution by
the Company, authenticated by the Trustee and delivered in exchange for the
Securities then outstanding.
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to Be
Furnished Trustee.
The Trustee, subject to the provisions of Section 8.01, may receive an
Officers' Certificate and an Opinion of Counsel both conforming to Section 15.04
as conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Indenture.
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE BY THE COMPANY.
SECTION 12.01. When Company May Merge, Etc.
Notwithstanding anything contained herein to the contrary, the Company may
consolidate with or merge with, or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets to (each a
"transaction"), another person; provided (i)(a) the Company is the surviving
entity, or (b) the successor person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which such assets are
sold, assigned, transferred, leased, conveyed or otherwise disposed is a
corporation organized and existing under the laws of the United States or a
state thereof or the District of Columbia and such corporation expressly assumes
by supplemental indenture all the obligations of the Company under the
Securities and the Indenture; (ii) at the time of and immediately after giving
effect to such transaction, no Default or Event of Default has occurred and is
continuing; (iii) the Company or the surviving person (if other than the
Company) will have Consolidated Net Worth (immediately after the transaction but
prior to any purchase according to adjustments resulting from the transaction)
49
greater than or equal to the Consolidated Net Worth of the Company immediately
preceding the transaction and (iv) the Company has delivered to the Trustee an
Officers' Certificate and Opinion of Counsel that all conditions precedent
herein relating to such transaction have been complied with, and thereafter all
obligations of the Company (if the Company is not the resulting, surviving or
transferee person) shall terminate.
SECTION 12.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of all or substantially
all of the assets of the Company in accordance with Section 12.01, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein.
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.
SECTION 13.01. Discharge of Indenture.
If (a) there shall have been delivered to the Trustee for cancellation all
Securities theretofore authenticated (other than any Securities which shall have
been destroyed, lost or stolen and in lieu of or in substitution for which other
Securities shall have been authenticated and delivered), or (b)(1) all such
Securities not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or will become due and payable at their stated maturity
within one year, or have been called for redemption, and the Company shall have
irrevocably deposited with the Paying Agent, in trust, funds (except funds paid
to the Company pursuant to Section 13.04) sufficient to pay at maturity or upon
redemption all of such Securities (other than any Securities which shall have
been destroyed, lost or stolen and in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest, and such deposit shall be upon terms making such funds
payable forthwith upon due presentation, whether before or after such date of
maturity or redemption of such Securities, (2) the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that such trust funds will
not be subject to any rights of holders of Senior Indebtedness, including
without limitation, those arising under Article Four hereof, and (3) the Company
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for herein relating
to the satisfaction and discharge of this Indenture have been complied with, and
if in any such case the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, then (except as provided below) this
Indenture shall cease to be of further effect, and the Trustee, on demand of the
Company accompanied by an Officers' Certificate and an Opinion of Counsel as
required by Section 15.04 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture; provided however, that the Company's obligations under Sections 2.03,
2.04, 2.05, 2.06, 2.07, 2.08, 6.01, 6.02, 6.03, 8.07, 8.08, 13.04, 13.05 and
Article Five shall survive until the Securities are no longer outstanding.
50
SECTION 13.02. Deposited Moneys to Be Held in Trust by Trustee.
All moneys deposited with the Paying Agent pursuant to Section 13.01 shall
be held in trust and, subject to the provisions of Section 13.04, applied by it
to the payment, either directly or through any Paying Agent, to the Holders of
the particular Securities for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due thereon for principal and
interest (and premium, if any).
SECTION 13.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then held
by any Paying Agent of the Securities (other than the Trustee) shall, upon
demand of the Company, be repaid to it and thereupon the Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 13.04. Unclaimed Moneys.
Any moneys deposited with the Trustee or any Paying Agent (including moneys
held in trust by the Company if it shall act as its own Paying Agent) not
applied but remaining unclaimed by the Holders of Securities for two years after
the date upon which the principal of (and premium, if any) or interest on such
Securities shall have become due and payable shall be repaid to the Company by
the Trustee or such Paying Agent on demand, or if held in trust by the Company
may at the Company's option be released from such trust; and the Holder of any
of the Securities entitled to receive such payment shall thereafter look only to
the Company, as the holder of a general claim, for the payment thereof, provided
however, that the Trustee or such Paying Agent before being required to make any
such repayment, may at the expense of the Company cause to be mailed to each
such holder a notice that said moneys have not been so applied and that after a
date named therein any unclaimed balance of said moneys then remaining will be
returned to the Company.
SECTION 13.05. Reinstatement.
If the Trustee or a Paying Agent is unable to apply any moneys in accordance
with Section 13.01 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 13.01 until such time as the Trustee or
such Paying Agent is permitted to apply all such moneys in accordance with
Section 13.01; provided however, that if the Company has made any payment of
principal or interest on any of the Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
the Securities to receive such payment from moneys held by the Trustee or such
Paying Agent.
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal or premium or interest on any
Security, or for any claim based thereon or otherwise in respect thereof, and no
51
recourse under or upon any obligation, covenant or agreement of the Company in
this Indenture, or in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or an successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of the Securities.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Provisions Binding on Company's Successors.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 15.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 15.03. Notices.
Any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Securities
on the Company may be given or served by being deposited, first class postage
prepaid, in a United States post office letter box addressed (until another
address is filed by the Company with the Trustee) to Trans-Lux Corporation, 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, Attn: Chief Executive Officer.
Any notice, direction, request, or demand by any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the principal office of the Trustee,
addressed to the attention of its Corporate Trust Department.
Any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or the Company to or on the
Holders of Securities shall be given or served by first-class mail, postage
prepaid, addressed to the Holders of such Securities at their last address as
the same appears on the registry books referred to in Section 2.03, and any such
notice shall be deemed to be given or served by being deposited in a post office
letter box in the form and manner provided in this Section 15.03.
SECTION 15.04. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that in the opinion of the
52
signers all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include: (1) a statement that the person making 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 opinion contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he had 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 such
person, such condition or covenant has been complied with.
SECTION 15.05. Legal Holidays.
In any case where the date of maturity of interest on or principal of the
Securities or the date fixed for redemption of any Security or the last day on
which a Securityholder has the right to convert his Security at a particular
Conversion Price shall not be a Business Day, then payment of interest or
principal (and premium, if any) or conversion of the Securities need not be made
on such date but may be made on the next succeeding Business Day, with the same
force and effect as if made on the date of such maturity or the date fixed for
redemption or such last day for conversion, and, in the case of payment, no
interest shall accrue for the period from and after such date.
SECTION 15.06. Trust Indenture Act to Control.
The provisions of Section 310 to and including Section 317 of the TIA that
imposes duties on any person (including any such provisions automatically deemed
included in an indenture by the TIA) are a part of and govern this Indenture.
If any provision hereof limits, qualifies or conflicts with any of such duties
imposed by operation of such provisions of the TIA, the applicable provisions of
the TIA and duties imposed thereby shall control.
SECTION 15.07. Communications by Holders with Other Holders.
A Securityholder 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 anyone else shall have
the protection of TIA Section 312(c).
SECTION 15.08. Governing Law.
This Indenture and each Security shall be deemed to be a contract made under
the laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of said State, without giving effect to such State's
conflicts of law principles.
SECTION 15.09. Table of Contents and Headings.
The table of contents, titles and headings of the articles and sections of
this Indenture have been inserted for convenience of reference only, are not to
53
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 15.10. No Security Interest Created.
Nothing in this Indenture or in the Securities, express or implied, shall be
construed to constitute a security interest under the Uniform Commercial Code or
similar legislation, as now or hereafter enacted and in effect in any
jurisdiction where property of the Company or its Subsidiaries is or may be
located.
SECTION 15.11. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
The Trustee hereby accepts the trusts in this Indenture declared and
provided, upon terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, Trans-Lux Corporation has caused this Indenture to be
signed and acknowledged by its President, or one of its Vice Presidents,
and Xxxxx Fargo National Association has caused this Indenture to be signed and
acknowledged by an authorized Officer.
TRANS-LUX CORPORATION
By
-------------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
As Trustee
By
--------------------------------------
Name:
Title:
54
EXHIBIT A
TRANS-LUX CORPORATION
8.25% Limited Convertible Senior Subordinated Note due 2012
TRANS-LUX CORPORATION, a Delaware corporation, promises to pay to
or registered assigns,
the principal sum of _____________________________ Dollars, on March 1,
2012.
Interest Payment Dates: March 1 and September 1
Regular Record Dates: February 15 and August 15
Additional provisions of this Security are set forth on other side
of this Security.
IN WITNESS WHEREOF, TRANS-LUX CORPORATION has caused this instrument to be
duly signed.
TRANS-LUX CORPORATION
By:____________________
President
CERTIFICATE OF AUTHENTICATION By:____________________
Secretary
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Trustee, certifies that
this is one of the Securities
referred to in the within
mentioned Indenture.
Xxxxx Fargo Bank, National Association, as Trustee
By: __________________________
Authorized Signatory
Dated:
A-1
1. Interest. TRANS-LUX CORPORATION, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
8.25% per annum from and including the date of issuance of this Security to
maturity or earlier redemption. The Company will pay interest semi-annually on
March 1 and September 1 of each year commencing September 1, 2003. Interest on
the Securities will accrue from the most recent date to which interest has been
paid. If an Interest Payment Date falls on a day that is not a Business Day,
the interest payment to be made on such Interest Payment Date will be made on
the next succeeding Business Day with the same force and effect as if made on
such Interest Payment Date, and no additional interest will accrue as a result
of such delayed payment. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. The Company shall pay interest on overdue
principal at the rate borne by this Security, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
2. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest) to the persons who are the registered Holders of the
Securities at the close of business on the February 15 or August 15 next
preceding the Interest Payment Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal and interest by its check payable in such money. It may mail an
interest check to a Holder's registered address.
3. Registrar and Agents. Initially, Xxxxx Fargo Bank, National Association
will act as the Registrar, the Paying Agent, the Conversion Agent and agent for
service of notices and demands. The Company may change any Registrar, co-
registrar, Paying Agent, Conversion Agent and agent for service of notices and
demands without the prior consent of the Holders but upon notice to the Holders.
The Company or any of its Subsidiaries may act as Registrar, co-registrar,
Paying Agent or Conversion Agent.
4. Indenture; Limitations. The Company issued the Securities under an
Indenture dated as of March 1, 2004 (the "Indenture") between the Company and
Xxxxx Fargo Bank, National Association (the "Trustee"). Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb) as in effect on the date of the Indenture. The Securities are
subject to all such terms, and the Holders of the Securities are referred to the
Indenture and said Act for a statement of such terms. The Securities are
general unsecured obligations of the Company limited to $30,177,000 principal
amount.
5. Optional Redemption. by the Company. The Company may, at its option,
redeem the Securities, in whole or from time to time in part, on any date after
March 1, 2006, at the following redemption prices, expressed as percentages of
the principal amount, if redeemed during the periods beginning March 1, of the
years indicated below:
A-2
Year Percentage
---- ----------
2006.......................... 102.000%
2007.......................... 101.000
2008.......................... 100.000
and thereafter and at maturity at 100% of principal, together in the case of any
such redemption with accrued interest to the Redemption Date (subject to the
right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date).
6. Notice of Redemption. Notice of redemption will be mailed at least 20
days but not more than 65 days before the Redemption Date to each Holder to be
redeemed at such Xxxxxx's address appearing in the Note Register. Securities in
denominations larger than $1,000 principal amount may be redeemed in part, but
only in an amount of $1,000 principal amount or integral multiples thereof. In
the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof. On and after the Redemption Date,
interest ceases to accrue on Securities or portions of them called for
redemption.
7. Repurchase Event. In the event of a Repurchase Event (as hereinafter
defined) on or before March 1, 2007 each Holder of Securities shall have the
right (which right may not be waived by the Board of Directors or the Trustee)
at the Holder's option, to require the Company to repurchase all of such
Holder's Securities, or any portion thereof that is an integral multiple of
$1,000, on the date (the "Repurchase Date") that is 45 calendar days after the
date of the Company Notice (as defined below), at a price equal to 100% of the
principal amount of such Securities to be repurchased (the "Repurchase Price"),
together with accrued interest to the Repurchase Date; provided however, that a
Repurchase Event shall not be deemed to have occurred if on or before March 1,
2007 the closing price per share of the Common Stock for any five Trading Days
within the period of ten consecutive Trading Days ending immediately before the
Repurchase Event shall equal or exceed 110% of the Conversion Price of such
Securities in effect on each such Trading Day. A "beneficial owner" shall be
determined in accordance with Rule 13d-3 promulgated by the Commission under the
Exchange Act, as in effect on the date of execution of the Indenture. A
Repurchase Event shall be deemed to have occurred at such time after initial
issuance of the Securities if: (i) any Person (including any syndicate or group
deemed to be a "Person" under Section 13(d)(3) of the Exchange Act), other than
the Company, any Subsidiary, any existing Person (including, directly or
indirectly, the immediate family (parents, spouse, children, brothers or
sisters) of any such Person) who currently beneficially owns shares of the
Company's capital stock with 50% or more of the voting power as described below,
or any current or future employee or director benefit plan of the Company or any
A-3
Subsidiary or any entity holding capital stock of the Company for or pursuant to
the terms of such plan, or an underwriter engaged in a firm commitment
underwriting in connection with a public offering of capital stock of the
Company, is or becomes the beneficial owner, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of transactions of
shares of capital stock of the Company entitling such Person to exercise 50% or
more of the total voting power of all shares of capital stock of the Company
entitled to vote generally in the election of directors; (ii) the Company sells
or transfers all or substantially all of the assets of the Company to another
Person; (iii) there occurs any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into the
Company (other than a merger (a) which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock, (b)
which is effected solely to change the jurisdiction of incorporation of the
Company and results in a reclassification, conversion or exchange of outstanding
shares of Common Stock solely into shares of Common Stock) or (c) a transaction
in which the stockholders of the Company immediately prior to such transaction
owned, directly or indirectly, immediately following such transaction, a
majority of the combined voting power of the voting capital stock of the
corporation resulting from the transaction, such stock to be owned by such
stockholders in substantially the same proportion as their ownership of the
voting stock of the Company immediately prior to such transaction); (iv) a
change in the Board of Directors in which the individuals who constituted the
Board of Directors at the beginning of the 24-month period immediately preceding
such change (together with any other director whose election by the Board of
Directors or whose nomination for election by the stockholders of the Company
was approved by a vote of at least a majority of the directors then in office
either who were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the directors then in office; or (v) the Common Stock
is the subject of a "Rule 13e-3 transaction" as defined under the Exchange Act.
8. Limited Conversion. At any time following the date of initial issuance
of the Securities, a Holder of a Security may convert such Security into Common
Stock of the Company at any time before the close of business on March 1, 2007.
If the Security is called for redemption or delivered for repurchase on or
before March 1, 2007, the Holder may convert it at any time before the close of
business on the last Business Day prior to the Redemption Date or the Repurchase
Date, as the case may be, unless the Company defaults in making the payment due
upon redemption or repurchase. The initial Conversion Price is $9.00 per share,
subject to adjustment in certain events as set forth in the Indenture. To
determine the number of shares issuable upon conversion of a Security, divide
the principal amount to be converted by the Conversion Price in effect on the
conversion date and then round to the nearest 1/100th share. The Company will
deliver a check for any fractional share.
To convert a Security, a Holder must before the close of business on March
1, 2007 (1) complete and sign the conversion notice on the back of the Security,
(2) surrender the Security to the Conversion Agent or Registrar, (3) furnish
appropriate endorsements and transfer documents if required by the Registrar or
Conversion Agent and (4) pay any transfer or similar tax if required.
Securities (or portion of a Security) surrendered for conversion during the
period from the
A-4
close of business on any Regular Record Date next preceding any Interest Payment
Date to the opening of business on such Interest Payment Date (except Securities
called for redemption on a Redemption Date within such period) must be
accompanied by payment of an amount equal to the interest thereon which the
registered Holder is to receive. In the case of any Securities that have been
converted after any Regular Record Date but on or before the next Interest
Payment Date, interest whose stated maturity is on such Interest Payment Date
will be payable on such Interest Payment Date notwithstanding such conversion,
and such interest will be paid to the Holder of such Note on such Regular Record
Date. Except as described above, no interest on converted Securities will be
payable by the Company on any Interest Payment Date subsequent to the date of
conversion. No other payment or adjustment for interest or dividends will be
made upon conversion.
If the Company is a party to a consolidation or merger or a transfer or
lease of all or substantially all of its assets, the right to convert a Security
into Common Stock may be changed into a right to convert it into securities,
cash or other assets of the Company or another Person.
9. Subordination; Subordinated Securities. This Security is subordinated
to all existing and future Senior Indebtedness of the Company as defined in the
Indenture. To the extent and in the manner provided in the Indenture, Senior
Indebtedness must be paid in cash before any payment may be made to any Holders
of Securities. Any Securityholder by accepting this Security agrees to the
subordination and authorizes the Trustee to give it effect.
In addition to all other rights of Senior Indebtedness described in the
Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness and
entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of any instrument relating to the
Senior Indebtedness or extension or renewal of the Senior Indebtedness.
This Security is not subordinate to the outstanding Subordinated Securities
as defined in the Indenture which are deemed junior in right of payment to the
Securities.
10. Denominations, Transfer, Exchange. The Securities are in registered
form without coupons in denominations of $1,000 principal amount and integral
multiples thereof. A Holder may register the transfer of or exchange Securities
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 Securities selected
for redemption in whole or in part or register the transfer of or exchange any
Securities for a period of 15 days before the first mailing of a Redemption
Notice of Securities to be redeemed.
11. Persons Deemed Owners. The registered Holder of a Security shall be
treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or interest on
any Securities remains unclaimed for two years, the Trustee and the Paying Agent
will pay the money back to the Company at its request. After that, Holders may
look only to the Company for payment.
A-5
13. Merger or Consolidation. The Company may not consolidate with, or
merge into, or transfer or lease all or substantially all of its assets to,
another person unless: the person is a corporation; such corporation assumes by
supplemental indenture all the obligations of the Company under the Securities
and the Indenture; at the time thereof and after giving effect to the
transaction no Default or Event of Default shall exist; and certain other
conditions set forth in the Indenture are satisfied.
14. Discharge Prior to Redemption or Maturity. The Indenture will be
discharged and canceled except for certain sections thereof upon payment of
funds sufficient to pay principal and interest due on such payment or redemption
of all Outstanding Securities.
15. Amendment and Waiver. Subject to certain exceptions, the Indenture or
the Securities may be amended with the consent of the Holders of at least two-
thirds in principal amount of the Securities then outstanding and any existing
Event of Default may be waived with the consent of the Holders of a majority in
principal amount of the Securities then outstanding. Without the consent of or
notice to any Securityholder, the Company may amend the Indenture or the
Securities to, among other things, provide for uncertificated Securities, to
cure any ambiguity, defect or inconsistency or make any other change that does
not adversely affect the rights of any Securityholder.
16. Successors. When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
17. Defaults and Remedies. If an Event of Default, as defined in the
Indenture, occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of Securities may declare all the Securities to be due and
payable in the manner and with the effect provided in the Indenture, and upon
any such declaration such principal and accrued interest shall become due and
payable immediately. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities then outstanding may direct the Trustee in its exercise of any trust
or power. The Company is required to file periodic reports with the Trustee as
to the absence of Default. An Event of Default is: the Company defaults in the
payment of the principal of or premium, if any, of any of the Securities as and
when the same shall become due and payable either at maturity, upon redemption;
the Company defaults in the payment of any installment of interest upon any of
the Securities as and when the same shall become due and payable and the default
continues for a period of 30 days; the Company defaults in the payment of the
Repurchase Price in respect of any Security on the Repurchase Date therefor,
whether or not such payment is prohibited by the subordination provisions of the
Indenture; or the Company fails to perform or breaches any other covenant or
agreement in the Securities or in the Indenture and the default continues for 60
days after receipt by the Company of notice in accordance with the Indenture.
18. Trustee Dealings with the Company. The Trustee, 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 Trustee.
A-6
19. No Recourse Against Others. No stockholder, director, officer or
incorporator, as such, past, present or future, of the Company or any successor
corporation shall have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication. This Security shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Security.
21. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture. It also will furnish the text of this
Security in larger type. Requests may be made to: Trans-Lux Corporation, 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000.
A-7
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Security to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
___________________________________
___________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably
appoint_________________________________________________________________
______________________________________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Date:___________________________________________________________________________
Your
signature:______________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature guaranteed
by:________________________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND
LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
A-8
CONVERSION NOTICE
To convert this Security into Common Stock of the Company on or before March
1, 2007, check the box:
---- / / ----
To convert only part of this Security, state the principal amount to be
converted (which must be a minimum of $1,000 or any multiple thereof):
_________________________
$
_________________________
If you want the stock certificate made out in another person's name, fill in
the form below:
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
___________________________________
___________________________________
____________________________________________________________________________
____________________________________________________________________________
(Print or type assignee's name, address and zip code)
____________________________________________________________________________
Date:_______________________________________________________________________
Your
signature:__________________________________________________________________
(Sign exactly as your name appears on the other side of this
Security)
Signature guaranteed
by:____________________________________________________________________
If you want the stock certificate made out in another
person's name, please have your signature guaranteed by
an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with
membership in an approved signature guarantee medallion
program), pursuant to S.E.C. Rule 17Ad-15.
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant
to Section 6.09 of the Indenture, check the box:
----
/ /
----
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 6.09 of the Indenture, state the amount:
___________________________________
(in an integral multiple of $1,000)
Date: Signature(s):
_______________ _______________________________________
Sign exactly as your name(s) appear(s) on the
other side of this Security)
Signature(s) guaranteed by:
---------------------------------------------------
THE SIGNATURES SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-
15.
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