EXHIBIT 4.6
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ANGEION CORPORATION
TO
U.S. BANK NATIONAL ASSOCIATION
as Trustee
-------------
Indenture
DATED AS OF APRIL 14, 1998
7 1/2% Senior Convertible Notes due 2003
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Cross-reference sheet showing the location in the Indenture of the
provisions inserted pursuant to Sections 310 through 318(a), inclusive, of the
Trust Indenture Act of 1939, as amended.
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 3(a)(1) 8.10
(a)(2) 11.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 8.10
(b) 8.08, 8.08(a), 8.10
(c) Not Applicable
Section 311 (a) 8.11
(b) 8.11
(c) Not Applicable
Section 312 (a) 2.05
(b) 11.03
(c) 11.03
Section 313 (a) 8.06
(b) 8.06
(c) 8.06
(d) 8.06
Section 314 (a)(1) 4.02
(a)(2) 4.02
(a)(3) 8.06
(a)(4) 4.03
(b)(1) Not Applicable
(b)(2) Not Applicable
(c)(1) 4.03
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) 4.03
(f) Not Applicable
Section 315 (a) 8.01(b)
(b) 8.05
(c) 8.01(a)
(d)(1) 8.01(c)
(d)(2) 8.01(c)
(d)(3) 8.01(c)
(e) 7.11
Section 316 (a)(1)(A) 7.05
(a)(1)(B) 7.04
(a)(2) 10.02
(b) 7.07
(c) Not Applicable
Section 317 (a)(1) 7.08
(a)(2) 7.09
(b) 2.04
Section 318(a) 11.01
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...............................................1
SECTION 1.02. Other Definitions.........................................5
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.........5
SECTION 1.04. Rules of Construction.....................................6
ARTICLE II THE SECURITIES
SECTION 2.01. Form and Dating...........................................6
SECTION 2.03. Registrar, Transfer Agent, Paying Agent and
Conversion Agent........................................7
SECTION 2.04. Paying Agent to Hold Money in Trust.......................7
SECTION 2.05. Securityholder Lists......................................7
SECTION 2.06. Transfer and Exchange.....................................7
SECTION 2.07. Replacement Securities....................................8
SECTION 2.08. Outstanding Securities....................................8
SECTION 2.09. Treasury Securities.......................................8
SECTION 2.10. Temporary Securities......................................8
SECTION 2.11. Cancellation..............................................8
SECTION 2.12. Defaulted Interest or Liquidated Damages..................9
ARTICLE III REDEMPTION
SECTION 3.01. Notices to Trustee........................................9
SECTION 3.02. Selection of Securities to be Redeemed....................9
SECTION 3.03. Notice of Redemption......................................9
SECTION 3.04. Effect of Notice of Redemption...........................10
SECTION 3.05. Deposit of Redemption Price..............................10
SECTION 3.06. Securities Redeemed in Part..............................10
SECTION 3.07. Optional Redemption......................................10
SECTION 3.08. Designated Event Offer...................................10
ARTICLE IV COVENANTS
SECTION 4.01. Payment of Securities....................................12
SECTION 4.02. SEC Reports..............................................12
SECTION 4.03. Compliance Certificate...................................12
SECTION 4.04. Stay, Extension and Usury Law............................12
SECTION 4.05. Corporate Existence......................................13
SECTION 4.06. Taxes. 13
SECTION 4.07. Designated Event.........................................13
SECTION 4.08. Limitation on Secured Funded Indebtedness................13
ARTICLE V CONVERSION
SECTION 5.01. Conversion Privilege.....................................13
SECTION 5.02. Conversion Procedure.....................................14
SECTION 5.03. Fractional Shares........................................14
SECTION 5.04. Taxes on Conversion......................................14
SECTION 5.05. Company to Provide Stock.................................15
SECTION 5.06. Adjustment of Conversion Price...........................15
SECTION 5.07. No Adjustment............................................17
SECTION 5.08. Other Adjustments........................................17
SECTION 5.09. Adjustments for Tax Purposes.............................17
SECTION 5.10. Adjustments by the Company...............................17
SECTION 5.11. Notice of Adjustment.....................................17
SECTION 5.12. Notice of Certain Transactions...........................17
SECTION 5.13. Effect of Reclassifications, Consolidations, Mergers
or Sales on Conversion Privilege.......................18
SECTION 5.14. Trustee's Disclaimer.....................................18
ARTICLE VI SUCCESSORS
SECTION 6.01. Merger, Consolidation or Sale of Assets..................19
SECTION 6.02. Successor Corporation Substituted........................19
ARTICLE VII DEFAULTS AND REMEDIES
SECTION 7.01. Events of Default........................................19
SECTION 7.02. Acceleration.............................................20
SECTION 7.03. Other Remedies...........................................20
SECTION 7.04. Waiver of Past Defaults..................................21
SECTION 7.05. Control by Majority......................................21
SECTION 7.06. Limitation on Suits......................................21
SECTION 7.07. Rights of Securityholders to Receive Payment.............21
SECTION 7.08. Collection Suit by Trustee...............................21
SECTION 7.09. Trustee May File Proofs of Claim.........................21
SECTION 7.10. Priorities...............................................22
SECTION 7.11. Undertaking for Costs....................................22
ARTICLE VIII TRUSTEE
SECTION 8.01. Duties of Trustee........................................22
SECTION 8.02. Rights of Trustee........................................23
SECTION 8.03. Individual Rights of Trustee.............................23
SECTION 8.04. Trustee's Disclaimer.....................................23
SECTION 8.05. Notice of Defaults.......................................23
SECTION 8.06. Reports by Trustee to Securityholders....................23
SECTION 8.07. Compensation and Indemnity...............................23
SECTION 8.08. Replacement of Trustee...................................24
SECTION 8.09. Successor Trustee by Merger, Etc.........................25
SECTION 8.10. Eligibility; Disqualification............................25
SECTION 8.11. Preferential Collection of Claims Against Company........25
ARTICLE IX DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations.....................25
SECTION 9.02. Repayment to Company.....................................25
ARTICLE X AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Securityholders......................25
SECTION 10.02. With Consent of Securityholders.........................26
SECTION 10.03. Compliance with Trust Indenture Act.....................26
SECTION 10.04. Revocation and Effect of Consents.......................26
SECTION 10.05. Notation on or Exchange of Securities...................27
SECTION 10.06. Trustee Protected.......................................27
ARTICLE XI MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls............................27
SECTION 11.02. Notices.................................................27
SECTION 11.03. Communication by Securityholders with Other
Securityholders.......................................28
SECTION 11.04. Certificate and Opinion as to Conditions Precedent......28
SECTION 11.05. Statements Required in Certificate or Opinion...........28
SECTION 11.06. Rules by Trustee and Agents.............................28
SECTION 11.07. Legal Holidays..........................................28
SECTION 11.08. No Recourse Against Others..............................28
SECTION 11.09. Counterparts............................................29
SECTION 11.10. Variable Provisions.....................................29
SECTION 11.11. Governing Law...........................................29
SECTION 11.12. No Adverse Interpretation of Other Agreements...........29
SECTION 11.13. Successors..............................................29
SECTION 11.14. Severability............................................29
SECTION 11.15. Table of Contents, Headings, Etc........................30
EXHIBIT A FORM OF CONVERTIBLE NOTE.......................................A-1
EXHIBIT B FORM OF REGISTRATION RIGHTS AGREEMENT..........................B-1
INDENTURE dated as of April 14, 1998 between ANGEION CORPORATION, a
Minnesota corporation (the "Company"), and U.S. Bank National -------
Association, a national banking organization, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Securityholders of the Company's 7 1/2%
Senior Convertible Notes due 2003 (the "Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" of any specified person means any other person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such person,
whether through the ownership of voting securities or by agreement or otherwise;
provided, however, that beneficial ownership of 10% or more of the voting
securities of a person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
Transfer Agent.
"Applicable Amount" means the sum of (i) the product of the number
of shares that would have been issued upon conversion of the Note or Notes but
for the occurrence of the Nasdaq Cap multiplied by a positive difference, if
any, between (a) the average of the Daily Market Prices for the five consecutive
Business Days ending on the last full Trading Day on the exchange or market
referred to in determining such Daily Market Prices immediately prior to the
Conversion Notice Date and (b) the Conversion Price on the Conversion Notice
Date; plus (ii) any cash adjustment that would have been made for any fractional
interest upon conversion; plus (iii) an amount equal to 5% of the aggregate
principal amount of the Note or Notes to be converted.
"Bank Credit Agreement" means, with respect to the Company or any
Subsidiary, one or more debt facilities or commercial paper facilities with
banks or other institutional lenders providing for revolving credit loans, other
borrowings (including term loans), receivables financing (including through the
sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in such
case, as amended, restated, modified, renewed, refunded, replaced or refinanced
in whole or in part from time to time.
"Board of Directors" means the Board of Directors of the Company or
any authorized committee of the Board.
"Board Resolution" means a copy of a resolution of the Board of
Directors certified by the Secretary or an Assistant Secretary of the Company to
be in full force and effect on the date of such certification and delivery to
the Trustee.
"Business Day" means any day that is not a Legal Holiday.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of equity interests in any
entity, including, without limitation, corporate stock and partnership
interests.
"Change of Control" means any event where: (i) any "person" or
"group" (as such terms are used in Section 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act) of shares representing more than 50% of the combined voting
power of the
then-outstanding securities entitled to vote generally in elections of directors
of the Company ("Voting Stock"), (ii) the Company consolidates with or merges
into any other corporation, or any other person merges into the Company, and, in
the case of any such transaction, the outstanding Common Stock of the Company is
reclassified into or exchanged for any other property or security, unless the
stockholders of the Company immediately before such transaction own, directly or
indirectly immediately following such transaction, more than 50% of the combined
voting power of the outstanding voting securities of the corporation resulting
from such transaction in substantially the same proportion as their ownership of
the Voting Stock immediately before such transaction, (iii) the Company conveys,
transfers or leases all or substantially all of its assets to any person (other
than to one or more wholly-owned Subsidiaries of the Company) unless the
stockholders of the Company immediately before such transaction own, directly or
indirectly, immediately following such transaction, more than 50% of the
combined voting power of the outstanding securities of the acquiring entity in
substantially the same proportion as their ownership of the Voting Stock
immediately before such transaction, or (iv) any time the Continuing Directors
do not constitute a majority of the Board of Directors of the Company (or, if
applicable, a successor corporation to the Company).
"Common Stock" means the common stock, par value $0.01 per share, of
the Company as the same exists at the date of the execution of this Indenture or
as such stock may be constituted from time to time.
"Company" means the party named as such above until a successor
replaces it in accordance with Article VI and thereafter means the successor.
"Continuing Directors" means as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of this Indenture or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such board at the time of such
nomination or election.
"Conversion Agent" means any person authorized by the Company to
convert any Security in accordance with Article 5.01. The Company has initially
appointed the Trustee as its Conversion Agent in the Borough of Manhattan, The
City of New York.
"Daily Market Price" means the price of a share of Common Stock on
the relevant date, determined (a) on the basis of the last reported sale price
regular way of the Common Stock as reported on the Nasdaq Stock Market's Small
Cap Market (the "Nasdaq Small Cap"), or if the Common Stock is not then listed
on the Nasdaq Small Cap, as reported on such national securities exchange upon
which the Common Stock is listed, or (b) if there is no such reported sale on
the day in question, on the basis of the average of the closing bid and asked
quotations regular way as so reported, or (c) if the Common Stock is not listed
on the Nasdaq Small Cap or on any national securities exchange, on the basis of
the average of the high bid and low asked quotations regular way on the day in
question in the over-the-counter market as reported by the National Association
of Securities Dealers Automated Quotation System, or if not so quoted, as
reported by National Quotation Bureau, Incorporated, or a similar organization.
"Default" means any event that is, or with the passage of time or
the giving of notice or both, would be an Event of Default.
"Designated Event" means the occurrence of a Change of Control or a
Termination of Trading.
"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 may be approved by a significant segment of
the accounting profession in the United States, which are in effect from time to
time.
"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 any person, all obligations,
whether or not contingent, of such person (i)(a) for borrowed money (including,
but not limited to, any indebtedness secured by a security interest,
mortgage or other lien on the assets of such person which is (1) given to secure
all or part of the purchase price of property subject thereto, whether given to
the vendor of such property or to another, or (2) existing on property at the
time of acquisition thereof), (b) evidenced by a note, debenture, bond or
written instrument, (c) under a lease required to be capitalized on the balance
sheet of the lessee under GAAP or under any lease or related document (including
a purchase agreement) which provides that such person is contractually obligated
to purchase or to cause a third party to purchase such leased property, (d) in
respect of letters of credit, bank guarantees or bankers' acceptances (including
reimbursement obligations with respect to any of the foregoing), (e) with
respect to Indebtedness secured by a mortgage, pledge, lien, encumbrance, charge
or adverse claim affecting title or resulting in an encumbrance to which the
property or assets of such person are subject, whether or not the obligation
secured thereby shall have been assumed or Guaranteed by or shall otherwise be
such person's legal liability, (f) in respect of the balance of the deferred and
unpaid purchase price of any property or assets, and (g) under interest rate or
currency swap agreements, cap, floor and collar agreements, spot and forward
contracts and similar agreements and arrangements; (ii) with respect to any
obligation of others of the type described in the preceding clause (i) or under
clause (iii) below assumed by or guaranteed in any manner by such person or in
effect guaranteed by such person through an agreement to purchase (including,
without limitation, "take or pay" and similar arrangements), contingent or
otherwise (and the obligations of such person under any such assumptions,
guarantees or other such arrangements); and (iii) any and all deferrals,
renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any of the foregoing.
"Indenture" means this Indenture as amended from time to time.
"Issuance Date" means the date on which the Securities are first
authenticated and issued.
"Liquidated Damages" means any liquidated damages payable pursuant
to the Registration Rights Agreement.
"Lien" means, with respect to any Person, any mortgage, lien,
pledge, charge, security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or of such Person under
any conditional sale or other title retention agreement or capital lease, upon
or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Market Price" per share of Common Share on any date shall be deemed
to be the average of the Daily Market Prices for the five consecutive Business
Days ending on the last full Trading Day on the exchange or market referred to
in determining such Daily Market Prices prior to the time of determination.
"Material Subsidiary" means any Subsidiary of the Company which at
the date of determination is a "significant subsidiary" as defined in Rule
1-02(w) of Regulation S-X under the Securities Act and the Exchange Act (as such
Regulation is in effect on the date hereof).
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Chairman of the Board, the President, the Chief
Financial Officer, the Treasurer or a Vice-President of the Company. See
Sections 11.04 and 11.05 hereof.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company or the Trustee. See Sections 11.04 and 11.05 hereof.
"Paying Agent" means any person authorized by the Company to pay the
principal of or interest on and any other amounts due in respect of any
Securities on behalf of the Company and, except as otherwise specifically set
forth herein, such term shall include the Company if it shall act as its own
Paying Agent. The Company has initially appointed the Trustee as its Paying
Agent in the Borough of Manhattan, The City of New York.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal" of a debt security means the principal of the security
plus the premium, if any, on the security.
"Private Placement Memorandum" means the Confidential Private
Placement Memorandum relating to the Securities dated March 12, 1998.
"Registrar" means any person authorized by the Company (i) to
maintain the register, subject to such reasonable regulations as the Company may
prescribe, in which the Company shall provide for the registration, exchange and
registration of transfer of any Security, and (ii) to effectuate the exchange or
registration of transfer of any Security on behalf of the Company. The Company
has initially appointed the Trustee as Registrar.
"Registration Rights Agreement" means the Registration Rights
Agreement relating to the Securities, between the Company and the initial
purchasers of the Securities, a form of which is attached as Exhibit B hereto.
"SEC" means the Securities and Exchange Commission.
"Secured Funded Indebtedness" means, with respect to any Person, all
Secured Indebtedness of such Person; PROVIDED, HOWEVER, that Secured Funded
Indebtedness shall not include Secured Indebtedness incurred pursuant to one or
more Bank Credit Agreements.
"Secured Indebtedness" means, with respect to any Person, any
Indebtedness of such Person (other than pursuant to clause (c) of the definition
of Indebtedness) that is secured in any manner by any Lien or any property.
"Securities" means the Securities described in the preamble above
that are issued, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder" or "Holder" means a person in whose name a Security
is registered.
"Shelf Registration Statement" shall have the meaning set forth in
the Registration Rights Agreement.
"Subsidiary" means in relation to any person, other than an
individual, any corporation, partnership, limited liability company, joint
venture, association, joint stock company, or other business entity of which
more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such person and any one or more of the other
Subsidiaries of that person.
"Termination of Trading" means an event where the Common Stock (or
other securities into which the Securities are then convertible) is neither
listed for trading on a United States national securities exchange nor approved
for trading on an established automated over-the-counter trading market in the
United States.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb), as amended.
"Trading Day" shall mean (a) if the applicable security is listed or
admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or such other
national securities exchange is open for business, (b) if the applicable
security is quoted on the Nasdaq National Market or Nasdaq Stock Market's Small
Cap Market, as the case may be, a day on which trades may be made thereon or (c)
if the applicable security is not so listed, admitted for trading or quoted, any
day other than a Saturday or Sunday or a day on which banking institutions in
the State of New York are authorized or obligated by law or executive order to
close.
"Transfer Agent" means any person authorized by the Company to
effectuate the exchange or facilitate the registration of transfer of any
Security on behalf the Company. The Company has initially appointed the Trustee
as its Transfer Agent.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer this Indenture.
"United States" or "U.S." means the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Bankruptcy Law"............................................................7.01
"Commencement Date" ........................................................3.08
"Conversion Date"...........................................................5.02
"Conversion Price"..........................................................5.01
"Conversion Shares".........................................................5.06
"Current Market Price"......................................................5.06
"Custodian".................................................................7.01
"Designated Event Offer"....................................................4.07
"Designated Event Payment"..................................................4.07
"Designated Event Payment Date".............................................3.08
"Distribution Date".........................................................5.06
"Distribution Record Date"..................................................5.06
"Excess Payment"............................................................5.06
"Event of Default"..........................................................7.01
"Legal Holiday"............................................................11.07
"Offer Amount"..............................................................3.08
"Officer"..................................................................11.10
"Payment Default"...........................................................7.01
"Purchase Date".............................................................5.06
"Restricted Securities Legend...............................................2.01
"Rights"....................................................................5.06
"Tender Period".............................................................3.08
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"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;
and
"obligor" on the Securities means the Company or any other obligor
on the Securities.
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 under the TIA
have the meanings so assigned to them.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP consistently applied;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and words in the
plural include the singular; and
(e) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A,
which is hereby incorporated in and expressly made a part of this Indenture.
The Securities may have notations, legends or endorsements required
by law, stock exchange rule, agreements to which the Company is subject, if any,
or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). The Company shall furnish any such legend not
contained in Exhibit A to the Trustee in writing. Each Security shall be dated
the date of its authentication. The terms and provisions of the Securities set
forth in Exhibit A are part of the terms of this Indenture and to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
The Securities are being offered in certificated form only to
"accredited investors" (as defined in Rule 501(a)(1), (2), (3), (5), (6) or (7)
of Regulation D under the Securities Act), shall bear the restricted Securities
legend set forth in Exhibit A hereto (the "Restricted Securities Legend") and
shall be issued in denominations of $25,000 or in integral multiples of $1,000
in excess thereof. The Securities will bear the Restricted Securities Legend
unless removed in accordance with Section 2.06(a).
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 Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of an authorized officer of the Trustee. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
Upon a written order of the Company signed by two Officers, the
Trustee shall authenticate the Securities for original issue up to an aggregate
principal amount of U.S. $22,150,000. The aggregate principal amount of
Securities outstanding at any time shall not exceed such amount except as
provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Company 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.
SECTION 2.03. Registrar, Transfer Agent, Paying Agent and Conversion
Agent. The Company shall maintain, or caused to be maintained, in the Borough of
Manhattan, The City of New York, (i) an office or agency where Securities may be
presented for registration of transfer or for exchange, (ii) an office or agency
where Securities may be presented for payment and (iii) an office or agency
where Securities may be presented for conversion. The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
appoint the Registrar, the Transfer Agent, the Paying Agents and the Conversion
Agents and may appoint one
or more co-registrars, one or more additional transfer agents, one or more
additional paying agents and one or more additional conversion agents in such
other locations as it shall determine. The term "Paying Agent" includes any
additional paying agent, the term "Transfer Agent" includes any additional
transfer agent, and the term "Conversion Agent" includes any additional
conversion agent. The Company may change any Paying Agent, Registrar, Transfer
Agent or Conversion Agent without prior notice to any Securityholder. The
Company shall notify the Trustee of the name and address of any such agent which
is not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar, Transfer Agent, Paying Agent or Conversion Agent,
the Trustee shall act as such. The Company or any of its Affiliates may act as
Paying Agent, Registrar, Transfer Agent or Conversion Agent.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Securityholders or the
Trustee all money held by the Paying Agent for the payment of principal,
interest or Liquidated Damages, if any, on the Securities, and will notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for any money disbursed by
it. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or an Affiliate of the Company) shall have no further liability for the
money. If the Company or an Affiliate of the Company acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the
Securityholders all money held by it as Paying Agent.
SECTION 2.05. 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 Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee on or before each interest
payment date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. Where Securities are presented
to the Registrar or a Transfer Agent with a request to register a transfer or to
exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall register the transfer or exchange if the
Registrar's or Transfer Agent's requirements for such transactions are met, and
such Registrar or Transfer Agent, as the case may be, shall effectuate such
registration of transfer or exchange. To permit registrations of transfers and
exchanges, the Company shall issue and the Trustee shall authenticate Securities
at the Registrar's or Transfer Agent's request. No service charge shall be made
for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.10, 3.06, 3.08, 5.02 or 10.05
hereof).
The Company shall not be required (i) to issue, register the
transfer of, or exchange Securities during a period beginning at the opening of
business 15 days before the day of any selection of Securities for redemption
under Section 3.02 hereof and ending at the close of business on the day of
selection, or (ii) to exchange or register the transfer of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
(a) Except in connection with a Shelf Registration Statement
contemplated by and in accordance with the terms of the Registration Rights
Agreement, if Securities are issued upon the registration of transfer, exchange
or replacement of Securities bearing the Restricted Securities Legend, or if a
request is made to remove such Restricted Securities Legend on certificates
evidencing Securities or shares of Common Stock issued upon conversion of such
Securities and bearing a comparable legend as provided in Section 5.05 hereof,
the certificates evidencing Securities or such shares so issued shall bear the
Restricted Securities Legend, or the Restricted Securities Legend shall not be
removed, as the case may be, unless there is delivered to the Company such
satisfactory evidence, which may include an opinion of counsel licensed to
practice law in the State of New York, as may be reasonably required by the
Company, that such Securities or shares are not "restricted" within the meaning
of Rule 144 under the Securities Act. Upon provision to the Company of such
satisfactory evidence, the Trustee, at the written direction of the Company,
shall authenticate and deliver Securities or shares of Common Stock that do not
bear the Restricted Securities Legend.
(b) The Trustee shall have no responsibility for any actions taken
or not taken by the Depositary.
SECTION 2.07. Replacement Securities. If the Holder of a Security
claims that the Security has been lost, destroyed or wrongfully taken or if such
Security is mutilated and is surrendered to the Trustee, the Company shall issue
and the Trustee shall authenticate a replacement Security if the Trustee's and
the Company's requirements are met. If required by the Trustee or the Company,
an indemnity bond must be sufficient in the judgment of both to protect the
Company, the Trustee, any Agent or any authenticating agent from any loss which
any of them may suffer if a Security is replaced. The Company may charge for its
expenses in replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be redeemed or
purchased by the Company pursuant to Article III hereof or converted into shares
of Common Stock pursuant to Article V hereof, the Company in its discretion may,
instead of issuing a new Security, pay, redeem or convert such Security, as the
case may be.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities. The Securities outstanding at
any time are all the Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Security is replaced, paid, redeemed or converted pursuant to
Section 2.07 hereof, it ceases to be outstanding unless, in the case of a
replaced Security, the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01 hereof, they
cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security.
SECTION 2.09. Treasury Securities. In determining whether the
Securityholders of the required principal amount of Securities have concurred in
any direction, waiver or consent, Securities owned by the Company or an
Affiliate of the Company shall be considered as though they are not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which a Trust Officer knows are so owned shall be so disregarded.
SECTION 2.10. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities.
SECTION 2.11. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar, Transfer Agent,
Paying Agents and Conversion Agents shall forward to the Trustee any Securities
surrendered to them for registration of transfer, redemption, conversion,
exchange or payment. The Trustee shall promptly cancel all Securities
surrendered for registration of transfer, redemption, conversion, exchange,
payment, replacement or cancellation and shall destroy all canceled Securities
unless the Company otherwise directs. The Company may not issue new Securities
to replace Securities that it has paid or that have been delivered to the
Trustee for cancellation or that any Holder has converted.
SECTION 2.12. Defaulted Interest or Liquidated Damages. If the
Company fails to make a payment of interest or Liquidated Damages, if any, on
the Securities, it shall pay such defaulted interest or Liquidated Damages, if
any, plus any interest payable on the defaulted interest or Liquidated Damages,
if any, in any lawful manner. It may pay such defaulted interest or Liquidated
Damages, if any, plus any such interest payable on them, to the persons who are
Securityholders on a subsequent special record date. The Company shall fix any
such record date and payment date. At least 15 days before any such record date,
the Company shall mail to Securityholders a notice that states the record date,
payment date, and amount of such interest or Liquidated Damages, if any, to be
paid.
ARTICLE III
REDEMPTION
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
Securities pursuant to Section 3.07 hereof, it shall notify the Trustee of the
redemption date and the principal amount of Securities to be redeemed. The
Company shall give each notice provided for in this Section 3.01 at least 40
days before the redemption date (unless a shorter notice period shall be
satisfactory to the Trustee).
SECTION 3.02. Selection of Securities to be Redeemed. If less than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed by a method that complies with the requirements of the principal
national securities exchange, if any, on which the Securities are listed, or, if
the Securities are not so listed, on a pro rata basis, by lot or by such other
method as the Trustee considers fair and appropriate. The Trustee shall make the
selection not more than 60 days and not less than 30 days before the redemption
date from Securities outstanding not previously called for redemption. The
Securities may be redeemed only in whole to the extent a redemption in part
would reduce the principal amount thereof to an amount less than U.S. $25,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be called
for redemption.
If any Security selected for partial redemption is converted in part
after such selection, the converted portion of such Security shall be deemed (so
far as may be) to be the portion to be selected for redemption. The Securities
(or portions thereof) so selected shall be deemed duly selected for redemption
for all purposes hereof, notwithstanding that any such Security is converted in
whole or in part before the mailing of the notice of redemption. Upon any
redemption of less than all the Securities, the Company and the Trustee may
treat as outstanding any Securities surrendered for conversion during the period
15 days next preceding the mailing of a notice of redemption and need not treat
as outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security converted in part during
such period.
SECTION 3.03. Notice of Redemption. At least 30 days but not more
than 60 days before a redemption date, the Company shall mail a notice of
redemption to each Holder whose Securities are to be redeemed at such Holder's
registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon cancellation of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued in the name of the Holder thereof;
(d) the name and address of the Paying Agents;
(e) that Securities called for redemption must be surrendered to any
Paying Agent to collect the redemption price plus accrued interest and
Liquidated Damages, if any;
(f) that, unless the Company defaults in making such redemption
payment or any Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, by law or otherwise, interest and
Liquidated Damages, if any, on Securities called for redemption ceases to
accrue on and after the redemption date; and
(g) the paragraph of the Securities pursuant to which the Securities
called for redemption are being redeemed.
Such notice shall also state the current Conversion Price and the
date on which the right to convert such Securities or portions thereof into
Common Stock of the Company will expire.
At the Company's request, the Trustee shall give notice of
redemption in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date at the price set forth in the Security.
SECTION 3.05. Deposit of Redemption Price. On or before the
redemption date, the Company shall deposit with the Trustee or with the Paying
Agents money sufficient to pay the redemption price of and accrued interest and
Liquidated Damages, if any, up to but not including the redemption date on all
Securities to be redeemed on that date (subject to the right of holders of
record on the relevant record date to receive interest and Liquidated Damages,
if any, due on an interest payment date) unless theretofore converted into
Common Stock pursuant to the provisions hereof. The Trustee or the Paying Agents
shall return to the Company any money not required for that purpose.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall issue and the Trustee shall
authenticate for the Holder at the expense of the Company one or more new
Securities of authorized denominations equal in aggregate principal amount to
the unredeemed portion of the Security surrendered.
SECTION 3.07. Optional Redemption. The Company may redeem all or any
portion of the Securities, upon the terms and at the redemption prices set forth
in each of the Securities. Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08. Designated Event Offer. (a) In the event that,
pursuant to Section 4.07 hereof, the Company shall commence a Designated Event
Offer, the Company shall follow the procedures in this Section 3.08.
(b) The Designated Event Offer shall remain open for a period
specified by the Company which shall be no less than 30 calendar days and no
more than 40 calendar days following its commencement on the date of the mailing
of notice in accordance with Section 4.07(b) hereof (the "Commencement Date"),
except to the extent that a longer period is required by applicable law (the
"Tender Period"). Upon the expiration of the Tender Period (the "Designated
Event Payment Date"), the Company shall purchase the principal amount of
Securities required to be purchased pursuant to Section 4.07 hereof (the "Offer
Amount").
(c) If the Designated Event Payment Date is on or after an interest
payment record date and on or before the related interest payment date, any
accrued interest and Liquidated Damages, if any, to the related interest payment
date will be paid to the person in whose name a Security is registered at the
close of business on such record date, and no additional interest or Liquidated
Damages, if any, will be payable to Securityholders who tender Securities
pursuant to the Designated Event Offer.
(d) The Company shall provide the Trustee with written notice of the
Designated Event Offer at least ten Business Days before the Commencement Date
(unless a shorter period shall be satisfactory to the Trustee).
(e) Subject to Section 4.07(b), on or before the Commencement Date,
the Company or the Trustee (at the request and expense of the Company) shall
send, by first class mail, a notice to each of the Securityholders, which shall
govern the terms of the Designated Event Offer and shall state:
(i) that the Designated Event Offer is being made pursuant to this
Section 3.08 and Section 4.07 hereof and that all Securities tendered will
be accepted for payment;
(ii) the Offer Amount, the purchase price (as determined in
accordance with Section 4.07 hereof), the length of time the Designated
Event Offer will remain open and the Designated Event Payment Date;
(iii) that any Security or portion thereof not tendered or accepted
for payment will continue to accrue interest and, if applicable,
Liquidated Damages, if any;
(iv) that, unless the Company defaults in the payment of the
Designated Event Payment, any Security or portion thereof accepted for
payment pursuant to the Designated Event Offer shall cease to accrue
interest or Liquidated Damages, if any, after the Designated Event Payment
Date;
(v) that Securityholders electing to have a Security or portion
thereof purchased pursuant to any Designated Event Offer will be required
to surrender the Security, with the form entitled "Option of
Securityholder To Elect Purchase" on the reverse of the Security
completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the
Designated Event Payment Date;
(vi) that Securityholders will be entitled to withdraw their
election if any Paying Agent receives, not later than the close of
business on the second Business Day preceding the Designated Event Payment
Date, or such longer period as may be required by law, a letter or a
telegram, telex, facsimile transmission (receipt of which is confirmed and
promptly followed by a letter) setting forth the name of the
Securityholder, the principal amount of the Security or portion thereof
the Securityholder delivered for purchase and a statement that such
Securityholder is withdrawing his election to have the Security or portion
thereof purchased; and
(vii) that Securityholders whose Securities are being purchased only
in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered, which unpurchased
portion must be equal to U.S. $25,000 in principal amount or an integral
multiple of $1,000 in excess thereof.
In addition, the notice shall contain all instructions and materials
that the Company shall reasonably deem necessary to enable such Securityholders
to tender Securities pursuant to the Designated Event Offer.
(f) At least one Business Day prior to the Designated Event Payment
Date, the Company shall irrevocably deposit with the Trustee or the Paying
Agents in immediately available funds an amount equal to the Offer Amount to be
held for payment in accordance with the terms of this Section 3.08. On the
Designated Event Payment Date, the Company shall, to the extent lawful, (i)
accept for payment the Securities or portions thereof tendered pursuant to the
Designated Event Offer, (ii) deliver or cause to be delivered to the Trustee
Securities so accepted and (iii) deliver to the Trustee an Officers' Certificate
stating such Securities or portions thereof have been accepted for payment by
the Company in accordance with the terms of this Section 3.08. The Paying Agents
shall promptly (but in any case not later than five calendar days after the
Designated Event Payment Date) mail or deliver to each tendering Securityholder
an amount equal to the purchase price of the Securities tendered by such
Securityholder, and the Trustee shall promptly authenticate and mail or deliver
to such Securityholders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered, if any; provided, that each new
Security shall be in a principal amount of U.S. $1,000 or an integral multiple
thereof; and provided, further that a Holder may tender such Security only in
whole to the extent a tender in part would reduce the principal amount thereof
to an amount less than U.S. $25,000. Any Securities not so accepted shall be
promptly mailed or delivered by or on behalf of the Company to the Holder
thereof. The Company will publicly announce the results of the Designated Event
Offer on, or as soon as practicable after, the Designated Event Payment Date.
(g) The Designated Event Offer shall be made by the Company in
compliance with all applicable provisions of the Exchange Act, and all
applicable tender offer rules promulgated thereunder, and shall include all
instructions and materials that the Company shall reasonably deem necessary to
enable such Securityholders to tender their Securities.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the
principal of and interest and Liquidated Damages, if any, on the Securities on
the dates and in the manner provided in the Securities. Principal, interest and
Liquidated Damages, if any, shall be considered paid on the date due if the
Paying Agents (other than the Company or an Affiliate of the Company) hold on
that date money designated for and sufficient to pay all principal, interest and
Liquidated Damages, if any, then due and such Paying Agents are not prohibited
from paying such money
to the Securityholders on that date pursuant to the terms of this Indenture. To
the extent lawful, the Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages, if any, (without regard to any applicable grace
period) at the rate borne by the Securities, compounded semiannually. The
Company shall also pay all Liquidated Damages, if any, in the manner, on the
dates and in the amounts set forth in the Registration Rights Agreement.
SECTION 4.02. SEC Reports. Whether or not required by the rules and
regulations of the SEC, so long as any Securities are outstanding, the Company
will file with the SEC and furnish to the Trustee and to the Holders of
Securities all quarterly and annual financial information required to be
contained in a filing with the SEC on Forms 10-Q and 10-K, including a
"Management's Discussion and Analysis of Financial Conditions and Results of
Operations" and, with respect to annual information only, a report thereon by
the Company's certified independent accountants.
SECTION 4.03. Compliance Certificate. The Company shall deliver to
the Trustee, within 120 days after the end of each fiscal year of the Company,
an Officers' Certificate stating that a review of the activities of the Company
and 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, and
complied with the covenants and conditions contained in, this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of such Officer's knowledge the Company has kept, observed, performed and
fulfilled each and every covenant, and complied with the covenants and
conditions contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which such Officer may have knowledge) and that to the best
of such Officer's knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal or of interest or
Liquidated Damages, if any, on the Securities are prohibited.
One of the Officers signing such Officers' Certificate shall be
either the Company's principal executive officer, principal financial officer or
principal accounting officer.
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of:
(a) any Default, Event of Default or default in the performance of
any covenant, agreement or condition contained in this Indenture; or
(b) any event of default under any other mortgage, indenture or
instrument as that term is used in Section 7.01(e),
an Officers' Certificate specifying such Default, Event of Default or default.
SECTION 4.04. Stay, Extension and Usury Law. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.05. Corporate Existence. Except as provided in Article VII
hereof, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and the corporate,
partnership or other existence of each Subsidiary of the Company in accordance
with the respective organizational documents of each Subsidiary and the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any Subsidiary, if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries taken as a whole and that the loss
thereof is not adverse in any material respect to the Securityholders.
SECTION 4.06. Taxes. The Company shall, and shall cause each of its
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies, except as contested in good faith and by appropriate
proceedings.
SECTION 4.07. Designated Event. (a) Upon the occurrence of a
Designated Event, each holder of Securities shall have the right, in accordance
with this Section 4.07 and Section 3.08 hereof, to require the Company to
repurchase all or any part (equal to U.S. $1,000 or an integral multiple
thereof, subject to the limitation set forth in the second proviso to the third
sentence of Section 3.08(f) hereof) of such holder's Securities pursuant to the
terms of Section 3.08 (the "Designated Event Offer") at a purchase price equal
to 101% of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the Designated Event Payment Date (the
"Designated Event Payment").
(b) Within 30 days following any Designated Event, the Company shall
mail to each Holder the notice provided by Section 3.08(e).
SECTION 4.08. Limitation on Secured Funded Indebtedness. The Company
shall not, and shall not permit any Subsidiary to, directly or indirectly,
create, incur, assume, guarantee, or otherwise become directly or indirectly
liable with respect to any Secured Funded Indebtedness.
ARTICLE V
CONVERSION
SECTION 5.01. Conversion Privilege. A holder of a Security may
convert the principal amount thereof (or any portion thereof that is an integral
multiple of U.S. $1,000); provided, however, that a Holder of a Security may
convert such Security only in whole to the extent a conversion in part would
reduce the principal amount thereof to an amount less than U.S. $25,000 into
fully paid and non-assessable shares of Common Stock of the Company at any time
after 90 days following the Issuance Date and prior to the close of business
(New York time) on the Business Day immediately preceding the maturity date of
the Security at the Conversion Price then in effect, except that, with respect
to any Security called for redemption, such conversion right shall terminate at
the close of business (New York time) on the Business Day immediately preceding
the redemption date (unless the Company shall default in making the redemption
payment when it becomes due, in which case the conversion right shall terminate
on the date such default is cured). The number of shares of Common Stock
issuable upon conversion of a Security is determined by dividing the principal
amount of the Security converted by the conversion price in effect on the
Conversion Date (the "Conversion Price").
The initial Conversion Price is stated in paragraph 9 of the
Securities and is subject to adjustment as provided in this Article V.
Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of it. A holder of Securities is
not entitled to any rights of a holder of Common Stock until such holder of
Securities has converted such Securities into Common Stock, and only to the
extent that such Securities are deemed to have been converted into Common Stock
under this Article V.
SECTION 5.02. Conversion Procedure. To convert a Security, a Holder
must satisfy the requirements in paragraph 9 of the Securities. The date on
which the Holder satisfies all of those requirements is the conversion date (the
"Conversion Date"). As soon as practicable after the Conversion Date (subject to
the expiration of any required waiting period following any required filing
pursuant to the provisions of the Xxxx-Xxxxx-Xxxxxx Improvements Act of 1976),
the Company shall deliver to the Holder through a Conversion Agent a certificate
for the number of whole shares of Common Stock issuable upon the conversion and
a check for any fractional share determined pursuant to Section 5.03. The person
in whose name the certificate is registered shall become the stockholder of
record on the Conversion Date and, as of such date, such person's rights as a
Holder with respect to the converted Security shall cease; provided, however,
that no surrender of a Security on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the person entitled to
receive the shares of Common Stock upon such conversion as the stockholder of
record of such shares of Common Stock on such date, but such surrender shall be
effective to constitute the person entitled to receive such shares of Common
Stock as the stockholder of record thereof for all purposes at the close of
business on the next succeeding day on which such stock
transfer books are open; provided further, that such conversion shall be at the
Conversion Price in effect on the date that such Security shall have been
surrendered for conversion, as if the stock transfer books of the Company had
not been closed.
No payment or adjustment will be made for accrued and unpaid
interest and Liquidated Damages, if any, on a converted Security or for
dividends or distributions on shares of Common Stock issued upon conversion of a
Security, but if any Holder surrenders a Security for conversion after the close
of business on the record date for the payment of an installment of interest and
Liquidated Damages, if any, and prior to the opening of business on the next
interest and Liquidated Damages, if any, payment date, then, notwithstanding
such conversion, the interest and Liquidated Damages, if any, payable on such
interest and Liquidated Damages, if any, payment date shall be paid to the
Holder of such Security on such record date. In such event, unless such Security
has been called for redemption on or prior to such interest payment date, such
Security, when surrendered for conversion, must be accompanied by payment in
funds acceptable to the Company of an amount equal to the interest and
Liquidated Damages, if any, payable on such interest and Liquidated Damages, if
any, payment date on the portion so converted.
If a Holder converts more than one Security at the same time, the
number of whole shares of Common Stock issuable upon the conversion shall be
based on the total principal amount of Securities converted.
Upon surrender of a Security that is converted in part, the Trustee
shall authenticate for the Holder one or more new Securities of authorized
denominations equal in aggregate principal amount to the unconverted portion of
the Security surrendered.
SECTION 5.03. Fractional Shares. The Company will not issue
fractional shares of Common Stock upon conversion of a Security. In lieu
thereof, the Company will pay an amount in cash based upon the Daily Market
Price of the Common Stock on the trading day prior to the date of conversion.
SECTION 5.04. Taxes on Conversion. The issuance of certificates for
shares of Common Stock upon the conversion of any Security shall be made without
charge to the converting Securityholder for such certificates or for any tax in
respect of the issuance of such certificates, and such certificates shall be
issued in the respective names of, or in such names as may be directed by, the
Holder or Holders of the converted Security; provided, however, that in the
event that certificates for shares of Common Stock are to be issued in a name
other than the name of the Holder of the Security converted, such Security, when
surrendered for conversion, shall be accompanied by an instrument of transfer,
in form satisfactory to the Company, duly executed by the Holder or his duly
authorized attorney; and provided further, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder of the converted Security, and the Company shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid or is not applicable.
SECTION 5.05. Company to Provide Stock. The Company shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, solely for the purpose of issuance upon
conversion of Securities as herein provided, a sufficient number of shares of
Common Stock to permit the conversion of all outstanding Securities for shares
of Common Stock.
All shares of Common Stock which may be issued upon conversion of
the Securities shall be duly authorized, validly issued, fully paid and
non-assessable when so issued.
Shares of Common Stock issued upon conversion of any Security shall
bear a legend comparable to the Restricted Securities Legend until the
requirements for the removal thereof set forth in Section 2.06(a) hereof are
met.
SECTION 5.06. Adjustment of Conversion Price. The Conversion Price
shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common
Stock to holders of Common Stock, (2) make a distribution in shares of Common
Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common
Stock into a greater number of shares of Common Stock or (4) combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, 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 which such holder would have owned immediately following such
action had such Securities been converted immediately prior thereto. Any
adjustment made pursuant to this subsection (a) 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 or combination.
(b) In case the Company shall issue rights or warrants to
substantially all holders of Common Stock entitling them (for a period
commencing no earlier than the record date for the determination of holders of
Common Stock entitled to receive such rights or warrants and expiring not more
than 45 days after such record date) to subscribe for or purchase shares of
Common Stock (or securities convertible into Common Stock) at a price per share
less than the Current Market Price (as determined pursuant to subsection (f)
below) of the Common Stock on such record date, 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 offered shares of Common Stock (or the aggregate
conversion price of the convertible securities so offered) would purchase at
such Current Market Price, and of 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 (or into which the convertible
securities so offered are convertible). Such adjustments shall become effective
immediately after such record date.
(c) In case the Company shall distribute to all holders of Common
Stock shares of any class of Capital Stock of the Company other than Common
Stock, evidences of indebtedness or other assets (other than cash dividends out
of current or retained earnings), or shall distribute to substantially all
holders of Common Stock rights or warrants to subscribe for securities (other
than those securities referred to in subsection (b) above), then in each such
case 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 the date of such distribution by a fraction of which the numerator shall be
the Current Market Price (determined as provided in subsection (f) below) 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 evidence of such fair market value and described in a Board
Resolution) of the portion of the assets so distributed 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 of the Common Stock. Such
adjustment shall become effective immediately after the record date for the
determination of the holders of Common Stock entitled to receive such
distribution. Notwithstanding the foregoing, in case the Company shall issue
rights or warrants to subscribe for additional shares of the Company's capital
stock (other than those referred to in subsection (b) above) ("Rights") to
substantially all holders of Common Stock, the Company may, in lieu of making
any adjustment pursuant to this Section 5.06, make proper provision so that each
holder of a Security who converts such Security (or any portion thereof) after
the record date for such distribution and prior to the expiration or redemption
of the Rights shall be entitled to receive upon such conversion, in addition to
the shares of Common Stock issuable upon such conversion (the "Conversion
Shares"), a number of Rights to be determined as follows: (i) if such conversion
occurs on or prior to the date for the distribution to the holders of Rights of
separate certificates evidencing such Rights (the "Distribution Date"), the same
number of Rights to which a holder of a number of shares of Common Stock equal
to the number of Conversion Shares is entitled at the time of such conversion in
accordance with the terms and provisions of and applicable to the Rights; and
(ii) if such conversion occurs after the Distribution Date, the same number of
Rights to which a holder of the number of shares of Common Stock into which the
principal amount of the Security so converted was convertible immediately prior
to the Distribution Date would have been entitled on the Distribution Date in
accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time
distribute to all holders of its Common Stock cash (including any distributions
of cash out of current or retained earnings of the Company but excluding any
cash that is distributed as part of a distribution requiring a Conversion Price
adjustment pursuant to paragraph (c) of this Section) in an aggregate amount
that, together with the sum of (x) the aggregate amount of any other
distributions to all holders of its Common Stock made in cash plus (y) all
Excess Payments, in each case made within the 12 months preceding the date fixed
for determining the stockholders entitled to such distribution (the
"Distribution Record Date") and in respect of which no Conversion Price
adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph
(d) has been made, exceeds 15% of the product of the Current Market Price per
share (determined as provided in paragraph (f) of this Section) of the Common
Stock on the Distribution Record Date multiplied by the number of shares of
Common Stock outstanding on the Distribution Record Date (excluding shares held
in the treasury of the Company), the Conversion Price shall be reduced so that
the same shall equal the price
determined by multiplying such Conversion Price in effect immediately prior to
the effectiveness of the Conversion Price reduction contemplated by this
paragraph (d) by a fraction of which the numerator shall be the Current Market
Price per share (determined as provided in paragraph (f) of this Section) of the
Common Stock on the Distribution Record Date less the amount of such cash and
other consideration (including any Excess Payments) so distributed applicable to
one share of Common Stock (equal to the aggregate amount of such cash and other
consideration (including any Excess Payments) divided by the number of shares of
Common Stock outstanding on the Distribution Record Date) and the denominator
shall be such Current Market Price per share (determined as provided in
paragraph (f) of this Section) of the Common Stock on the Distribution Record
Date, such reduction to become effective immediately prior to the opening of
business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by
the Company or any Subsidiary of the Company for all or any portion of the
Common Stock shall be consummated, if an Excess Payment is made in respect of
such tender offer or other negotiated transaction and the amount of such Excess
Payment, together with the sum of (x) the aggregate amount of all Excess
Payments plus (y) the aggregate amount of all distributions to all holders of
the Common Stock made in cash (including any distributions of cash out of
current or retained earnings of the Company), in each case made within the 12
months preceding the date of payment of such current negotiated transaction
consideration or expiration of such current tender offer, as the case may be
(the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c)
or paragraph (d) of this Section or this paragraph (e) has been made, exceeds
15% of the product of the Current Market Price per share (determined as provided
in paragraph (f) of this Section) of the Common Stock on the Purchase Date
multiplied by the number of shares of Common Stock outstanding (including any
tendered shares but excluding any shares held in the treasury of the Company or
any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall
be reduced so that the same shall equal the price determined by multiplying such
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this paragraph (e) by a fraction of
which the numerator shall be the Current Market Price per share (determined as
provided in paragraph (f) of this Section) of the Common Stock on the Purchase
Date less the amount of such Excess Payments and such cash distributions, if
any, applicable to one share of Common Stock (equal to the aggregate amount of
such Excess Payments and such cash distributions divided by the number of shares
of Common Stock outstanding on the Purchase Date) and the denominator shall be
such Current Market Price per share (determined as provided in paragraph (f) of
this Section) of the Common Stock on the Purchase Date, such reduction to become
effective immediately prior to the opening of business on the day following the
Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date
shall be deemed to be the average of the Daily Market Prices for the shorter of
(i) 30 consecutive Business Days ending on the last full Trading Day on the
exchange or market referred to in determining such Daily Market Prices prior to
the time of determination or (ii) the period commencing on the date next
succeeding the first public announcement of the issuance of such rights or such
warrants or such other distribution or such negotiated transaction through such
last full trading day on the exchange or market referred to in determining such
Daily Market Prices prior to the time of determination.
(g) "Excess Payment" means the excess of (A) the aggregate of the
cash and fair market value of other consideration paid by the Company or any of
its Subsidiaries with respect to the shares acquired in a tender offer or other
negotiated transaction over (B) the Daily Market Price on the Trading Day
immediately following the completion of such tender offer or other negotiated
transaction multiplied by the number of acquired shares.
(h) In any case in which this Section 5.06 shall require that an
adjustment be made immediately following a record date for an event, the Company
may elect to defer, until such event, issuing to the Holder of any Security
converted after such record date the shares of Common Stock and other Capital
Stock of the Company issuable upon such conversion over and above the shares of
Common Stock and other Capital Stock of the Company issuable upon such
conversion only on the basis of the Conversion Price prior to adjustment; and,
in lieu of the shares the issuance of which is so deferred, the Company shall
issue or cause its transfer agents to issue due bills or other appropriate
evidence of the right to receive such shares.
SECTION 5.07. No Adjustment. No adjustment in the Conversion Price
shall be required until cumulative adjustments amount to 1% or more of the
Conversion Price as last adjusted; provided, however, that any adjustments which
by reason of this Section 5.07 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article V shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be. No adjustment need be made for
rights to purchase Common Stock pursuant to a Company plan for reinvestment of
dividends or interest. No adjustment need be made for a change in the par value
or no par value of the Common Stock.
SECTION 5.08. Other Adjustments. (a) In the event that, as a result
of an adjustment made pursuant to Section 5.06 above, the holder of any Security
thereafter surrendered for conversion shall become entitled to receive any
shares of Capital Stock of the Company other than shares of its Common Stock,
thereafter the Conversion Price of such other shares so receivable upon
conversion of any Securities 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 V.
(b) In the event that shares of Common Stock are not delivered after
the expiration of any of the rights or warrants referred to in Section 5.06(b)
and Section 5.06(c) hereof, the Conversion Price shall be readjusted to the
Conversion Price which would otherwise be in effect had the adjustment made upon
the issuance of such rights or warrants been made on the basis of delivery of
only the number of shares of Common Stock actually delivered.
SECTION 5.09. Adjustments for Tax Purposes. The Company may, at its
option, make such reductions in the Conversion Price, in addition to those
required by Section 5.06 above, as it determines 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 made by the Company to its stockholders will not be
taxable to the recipients thereof.
SECTION 5.10. Adjustments by the Company. The Company from time to
time may, to the extent permitted by law, reduce the Conversion Price by any
amount for any period of at least 20 days, in which case the Company shall give
at least 15 days' notice of such reduction in accordance with Section 5.11, if
the Board of Directors has made a determination that such reduction would be in
the best interests of the Company, which determination shall be conclusive.
SECTION 5.11. Notice of Adjustment. Whenever the Conversion Price is
adjusted, the Company shall promptly mail to Securityholders at the addresses
appearing on the Registrar's books a notice of the adjustment and file with the
Trustee an Officers' Certificate briefly stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence of the correctness of such adjustment.
SECTION 5.12. Notice of Certain Transactions. In the event that:
(1) the Company takes any action which would require an adjustment
in the Conversion Price;
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 5.13; or
(3) there is a dissolution or liquidation of the Company;
a holder of a Security may wish to convert such Security into shares of Common
Stock prior to the record date for or the effective date of the transaction so
that such holder may receive the rights, warrants, securities or assets which a
holder of shares of Common Stock on that date may receive. Therefore, the
Company shall mail to Securityholders at the addresses appearing on the
Registrar's books and the Trustee a notice stating the proposed record or
effective date, as the case may be. The Company shall mail the notice at least
15 days before such date; however, failure to mail such notice or any defect
therein shall not affect the validity of any transaction referred to in clause
(1), (2) or (3) of this Section 5.12.
SECTION 5.13. Effect of Reclassifications, Consolidations, Mergers
or Sales on Conversion Privilege. If any of the following shall occur, namely:
(i) any reclassification or change of outstanding shares of Common Stock
issuable upon conversion of 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), (ii) any consolidation or merger
to which the Company is a party other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change (other than a change in name, or 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) in, outstanding shares of Common Stock or (iii) any sale or
conveyance of all or substantially all of the property or business of the
Company as an entirety, then the Company, or such successor or purchasing
corporation, as the case may be, shall, as a condition precedent to such
reclassification, change, consolidation, merger, sale or conveyance, execute and
deliver to the Trustee a supplemental indenture in form satisfactory to the
Trustee providing that the holder of each Security then outstanding shall have
the right to convert such Security into the kind and amount of shares of stock
and other securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of shares of Common Stock deliverable upon conversion of such
Security immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance. Such supplemental indenture shall provide for
adjustments of the Conversion Price which shall be as nearly equivalent as may
be practicable to the adjustments of the Conversion Price provided for in this
Article V. The foregoing, however, shall not in any way affect the right a
holder of a Security may otherwise have, pursuant to clause (ii) of the last
sentence of subsection (c) of Section 5.06, to receive Rights upon conversion of
a Security. If, in the case of any such consolidation, merger, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Common Stock includes shares of stock or
other securities and property of a corporation other than the successor or
purchasing corporation, as the case may be, in such consolidation, merger, sale
or conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the holders of the Securities as the Board of Directors of the
Company shall reasonably consider necessary by reason of the foregoing. The
provision of this Section 5.13 shall similarly apply to successive
consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 5.13, the Company shall promptly file with the Trustee
an Officers' Certificate briefly stating the reasons therefor, the kind or
amount of shares of stock or securities or property (including cash) receivable
by holders of the Securities upon the conversion of their Securities after any
such reclassification, change, consolidation, merger, sale or conveyance and any
adjustment to be made with respect thereto.
SECTION 5.14. Trustee's Disclaimer. The Trustee has no duty to
determine when an adjustment under this Article V should be made, how it should
be made or what such adjustment should be, but may accept as conclusive evidence
of the correctness of any such adjustment, and shall be protected in relying
upon the Officers' Certificate with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 5.11. The Trustee makes
no representation as to the validity or value of any securities or assets issued
upon conversion of Securities, and the Trustee shall not be responsible for the
Company's failure to comply with any provisions of this Article V.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 5. 13, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 5.13.
ARTICLE VI
SUCCESSORS
SECTION 6.01. Merger, Consolidation or Sale of Assets. The Company
may not consolidate or merge with or into any person (whether or not the Company
is the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets
unless:
(a) the Company is the surviving corporation or the person formed by
or surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia;
(b) the corporation formed by or surviving any such consolidation or
merger (if other than the Company) or the corporation to which such sale,
assignment, transfer, lease, conveyance or other disposition will have
been made assumes all the Obligations of the Company, pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee, under the Securities
and the Indenture;
(c) any such sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the Company's properties or assets
shall be as an entirety or virtually as an entirety to one corporation;
(d) immediately after such transaction no Default or Event of
Default exists; and
(e) the Company or such corporation shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such transaction and the supplemental indenture comply with the Indenture and
that all conditions precedent in the Indenture relating to such transaction have
been satisfied.
SECTION 6.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 6.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or the corporation to
which such sale, assignment, transfer, lease, conveyance or other disposition 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 person has been named as the Company herein; provided, however, that
the predecessor Company in the case of a sale, assignment, transfer, lease,
conveyance or other disposition shall not be released from the obligation to pay
the principal of and interest and Liquidated Damages, if any, on the Securities.
ARTICLE VII
DEFAULTS AND REMEDIES
SECTION 7.01. Events of Default. An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest or Liquidated
Damages, if any, on any Security when the same becomes due and payable, and the
Default continues for a period of 30 days after the date due and payable;
(b) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at maturity, upon redemption or
otherwise or the Cap Payment in respect of the Notes;
(c) the Company fails to observe or perform any covenant or
agreement contained in Section 4.07 hereof;
(d) the Company fails to observe or perform any other covenant or
agreement contained in this Indenture or the Securities, required by it to be
performed and the Default continues for a period of 60 days after the receipt of
written notice from the Trustee to the Company or from the Holders of 25% in
aggregate principal amount of the then outstanding Securities to the Company and
the Trustee stating that such notice is a "Notice of Default";
(e) there is a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any Material Subsidiary of
the Company (or the payment of which is guaranteed by the Company or any
Material Subsidiary of the Company), whether such Indebtedness or guarantee now
exists or is created after the Issuance Date, which default (i) is caused by a
failure to pay when due principal of or interest or Liquidated Damages, if any,
on such Indebtedness within the grace period provided for in such Indebtedness
(which failure continues beyond any applicable grace period) (a "Payment
Default") or (ii) results in the acceleration of such Indebtedness prior to its
express maturity (without such acceleration being rescinded or annulled) and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there is a Payment
Default or the maturity of which has been so accelerated, aggregates U.S.
$3,000,000 or more;
(f) a final, non-appealable judgment or final non-appealable
judgments (other than any judgment as to which a reputable insurance company has
accepted full liability) for the payment of money are entered by a court or
courts of competent jurisdiction against the Company or any Material Subsidiary
of the Company and remain undischarged for a period (during which execution
shall not be effectively stayed) of 60 days, provided that the aggregate of all
such judgments exceeds U.S. $3,000,000;
(g) the Company or any Material Subsidiary pursuant to or within the
meaning of any Bankruptcy Law: (i) commences a voluntary case, (ii) consents to
the entry of an order for relief against it in an involuntary case in which it
is the debtor, (iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property, (iv) makes a general assignment for the
benefit of its creditors, or (v) makes the admission in writing that it
generally is unable to pay its debts as the same become due; or
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (i) is for relief against the Company or any
Material Subsidiary of the Company in an involuntary case, (ii) appoints a
Custodian of the Company or any Material Subsidiary of the Company or for all or
substantially all of its property, and the order or decree remains unstayed and
in effect for 60 days or (iii) orders the liquidation of the Company or any
Material Subsidiary of the Company, and the order or decree remains unstayed and
in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
SECTION 7.02. Acceleration. If an Event of Default (other than an
Event of Default specified in clauses (g) and (h) of Section 7.01 hereof) occurs
and is continuing, the Trustee by notice to the Company, or the Holders of at
least 25% in principal amount of the then outstanding Securities by notice to
the Company and the Trustee, may declare all the Securities to be due and
payable. Upon such declaration, the principal of, premium, if any, and accrued
and unpaid interest and Liquidated Damages, if any, on the Securities shall be
due and payable immediately. If an Event of Default specified in clause (g) or
(h) of Section 7.01 hereof occurs, such an amount 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 aggregate
principal amount of the then outstanding Securities by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree, if all amounts payable to the Trustee
pursuant to Section 8.07 hereof have been paid and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest and
Liquidated Damages, if any, that has become due solely because of the
acceleration.
SECTION 7.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal or interest and Liquidated Damages, if any, 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. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 7.04. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the then outstanding Securities by notice to the
Trustee may waive an existing Default or Event of Default and its consequences
except a continuing Default or Event of Default in the payment of the Designated
Event Payment or the principal of, or interest or Liquidated Damages, if any,
on, any Security. 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
impair any right consequent thereon.
SECTION 7.05. Control by Majority. The Holders of a majority in
principal amount of the then 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. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, is
unduly prejudicial to the rights of other Securityholders, or would involve the
Trustee in personal liability.
SECTION 7.06. Limitation on Suits. A Securityholder may pursue a
remedy with respect to this Indenture or the Securities only if:
(a) the Securityholder gives to the Trustee notice of a continuing
Event of Default;
(b) the Securityholders of at least 25% in principal amount of the
then outstanding Securities make a request to the Trustee to pursue the remedy;
(c) such Securityholder or Securityholders offer to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then-outstanding Securities do not give the Trustee a direction
inconsistent with the request.
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 Securityholders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of principal and interest and Liquidated
Damages, if any, on such Security, on or after the respective due dates
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 7.08. Collection Suit by Trustee. If an Event of Default
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 for the whole amount of principal and interest and Liquidated Damages,
if any, remaining unpaid on the Securities and interest on overdue principal and
interest and Liquidated Damages, if any, and such further amount as shall be
sufficient to cover the costs and, to the extent lawful, expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts payable under Section
8.07 hereof.
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 and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property. Nothing contained herein 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 Securityholder thereof, or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 7.10. Priorities. If the Trustee collects any money pursuant
to this Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 8.07 hereof;
Second: to the Securityholders, for amounts due and unpaid on the
Securities for principal and interest and Liquidated Damages, if
any, ratably, according to the amounts due and payable on the
Securities for principal and interest and Liquidated Damages, if
any, respectively; and
Third: to the Company.
Except as otherwise provided in Section 2.12 hereof, the Trustee may
fix a record date and payment date for any payment to Securityholders made
pursuant to this Section.
SECTION 7.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit by a holder pursuant to Section
7.06 hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Securities.
ARTICLE VIII
TRUSTEE
SECTION 8.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default: (i) the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no others and (ii) 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, if required by the terms hereof, conforming to the
requirements of this Indenture. However, the Trustee 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: (i) this paragraph does not limit the effect of
paragraph (b) of this Section 8.01; (ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts and (iii) 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 hereof.
(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 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 in writing 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. (a) 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.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee shall not be charged with knowledge of any Event of
Default under Section 7.01 (other than an Event of Default under Section 7.01
(a) or (b) if the Trustee is also a Paying Agent with respect to the Securities)
unless either (1) a Trust Officer assigned to its Corporate Trust Department
shall have actual knowledge thereof, or (2) the Trustee shall have received
notice thereof in accordance with Section 11.02 hereof from the Company or any
Holder.
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 an Affiliate with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 8.10 and 8.11 hereof.
SECTION 8.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement of the
Company in the Indenture or any statement in the Securities (other than its
authentication) or for compliance by the Company with the Registration Rights
Agreement.
SECTION 8.05. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to Securityholders a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in
payment on any Security, the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 8.06. Reports by Trustee to Securityholders. Within 60 days
after the reporting date stated in Section 11.10, the Trustee shall mail to
Securityholders a brief report dated as of such reporting date that complies
with TIA ss. 313(a) if and to the extent required by such ss. 313(a). The
Trustee also shall comply with TIA ss. 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which the Securities are
listed. The Company shall notify the Trustee when the Securities are listed on
any stock exchange.
SECTION 8.07. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time reasonable compensation for its services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it. Such disbursements and expenses may include the
reasonable disbursements, compensation and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee against any loss or
liability incurred by it except as set forth in the next paragraph. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Company will not, without the prior written consent of the Trustee,
settle or compromise or consent to the entry of any judgment with respect to any
such claim unless such settlement, compromise or consent includes an
unconditional release of the Trustee from all liabilities arising out of such
claim. The Trustee may have separate counsel and the Company shall pay the
reasonable fees, disbursements and expenses of one such separate counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except money or property held in trust to pay
principal and interest and Liquidated Damages, if any, on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 7.01(g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 8.07 shall survive the appointment of
a successor trustee, the termination of this Indenture and the 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.
The Trustee may resign by so notifying the Company. The
Securityholders of a majority in principal amount of the then outstanding
Securities may remove the Trustee by so notifying the Trustee and the Company.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 8.10 hereof, unless the
Trustee's duty to resign is stayed as provided in TIA ss. 310(b);
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or 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
Securityholders of a majority in principal amount of the then outstanding
Securities may appoint a successor Trustee to replace the 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 then-outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 8.10 hereof, unless the
Trustee's duty to resign is stayed as provided in TIAss.310(b), any
Securityholder who has been a bona fide holder of a Security for at least six
months 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. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 8.07 hereof. Notwithstanding the resignation or
replacement of the Trustee pursuant to this Section 8.08, the Company's
obligations under Section 8.07 hereof shall continue for the benefit of the
retiring trustee with respect to expenses and liabilities incurred by it prior
to such resignation or replacement.
SECTION 8.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business 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 ss. 310(a)(1) and
(5). The Trustee shall always have a combined capital and surplus as stated in
Section 11.10 hereof. The Trustee is subject to TIA ss. 310(b).
SECTION 8.11. Preferential Collection of Claims Against Company. The
Trustee is subject to TIA ss. 311(a), excluding any creditor relationship listed
in TIA ss. 311(b). A Trustee who has resigned or been removed shall be subject
to TIA ss. 311(a) to the extent indicated therein.
ARTICLE IX
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations. This Indenture
shall cease to be of further effect (except that the Company's obligations under
Sections 8.07 and 9.02 hereof shall survive) when all outstanding Securities
theretofore authenticated and issued have been delivered to the Trustee for
cancellation and
the Company has paid all sums payable hereunder. Thereupon, the Trustee upon
request of the Company, shall acknowledge in writing the discharge of the
Company's obligations under this Indenture, except for those surviving
obligations specified above.
SECTION 9.02. Repayment to Company. The Trustee and the Paying
Agents shall promptly pay to the Company upon request any excess money or
securities held by them at any time.
The Trustee and the Paying Agents shall pay to the Company upon
request any money held by them for the payment of principal or interest or
Liquidated Damages, if any, that remains unclaimed for two years after the date
upon which such payment shall have become due; provided, however, that the
Company shall have first caused notice of such payment to the Company to be
mailed to each Securityholder entitled thereto no less than 30 days prior to
such payment. After payment to the Company, the Trustee and the Paying Agents
shall have no further liability with respect to such money, and Securityholders
entitled to the money must look to the Company for payment as general creditors
unless any applicable abandoned property law designates another person.
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Securityholders. The Company and
the Trustee may amend or supplement this Indenture or the Securities without the
consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Sections 5.13 and 6.01 hereof;
(c) to provide for uncertificated Securities in addition to
certificated Securities;
(d) to make any change that does not adversely affect the legal
rights hereunder of any Securityholder;
(e) to qualify this Indenture under the TIA or to comply with the
requirements of the SEC in order to maintain the qualification of the Indenture
under the TIA; or
(f) to make any change that provides any additional rights or
benefits to the holders of Securities.
SECTION 10.02. With Consent of Securityholders. Subject to Section
7.07 hereof, the Company and the Trustee may amend or supplement this Indenture
or the Securities with the written consent (including consents obtained in
connection with any tender or exchange offer for Securities) of the
Securityholders of at least a majority in principal amount of the then
outstanding Securities. Subject to Sections 7.04 and 7.07 hereof, the Holders of
a majority in principal amount of the Securities then outstanding may also by
their written consent (including consents obtained in connection with any tender
offer or exchange offer for Securities) waive any existing Default as provided
in Section 7.04 or waive compliance in a particular instance by the Company with
any provision of this Indenture or the Securities. However, without the consent
of each Securityholder affected, an amendment, supplement or waiver under this
Section may not (with respect to any Securities held by a nonconsenting
Securityholder):
(a) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate of or change the time for payment of interest on
any Security;
(c) reduce the principal of or change the fixed maturity of any
Security or alter the redemption provisions with respect thereto;
(d) make any Security payable in cash other than that stated in the
Security;
(e) make any change in Section 7.04, 7.07 or 10.02 hereof;
(f) waive a default in the payment of the Designated Event Payment
or principal of, or interest or Liquidated Damages, if any, on, any Security
(other than as provided in Section 7.04);
(g) waive a redemption payment payable on any Security; or
(h) make any change that adversely affects the right of
Securityholders to convert Securities into Common Stock of the Company.
To secure a consent of the Securityholders under this Section 10.02,
it shall not be necessary for the Securityholders to approve the particular form
of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to Securityholders a notice briefly describing
the amendment or waiver.
SECTION 10.03. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities shall be set forth in a supplemental
indenture that complies with the TIA; as then in effect.
SECTION 10.04. Revocation and Effect of Consents. Until an
amendment, supplement or waiver becomes effective, a consent to it by a
Securityholder of a Security is a continuing consent by the Securityholder and
every subsequent Securityholder of a Security or portion of a Security that
evidences the same debt as the consenting Securityholder's Security, even if
notation of the consent is not made on any Security. However, any such
Securityholder or subsequent Securityholder may revoke the consent as to such
Holder's Security or portion of a Security if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officers'
Certificate certifying that the Securityholders of the requisite principal
amount of Securities have consented to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then notwithstanding
the provisions of the immediately preceding paragraph, those persons who were
Securityholders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such persons
continue to be Securityholders after such record date. No consent shall be valid
or effective for more than 90 days after such record date unless consents from
Securityholders of the principal amount of Securities required hereunder for
such amendment or waiver to be effective shall have also been given and not
revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective it shall
bind every Securityholder, unless it is of the type described in any of clauses
(a) through (h) of Section 10.02 hereof. In such case, the amendment or waiver
shall bind each Securityholder who has consented to it and every subsequent
Securityholder that evidences the same debt as the consenting Securityholder's
Security.
SECTION 10.05. Notation on or Exchange of Securities. The Trustee
may place an appropriate notation about an amendment or waiver on any Security
thereafter authenticated. The Company in exchange for all Securities may issue
and the Trustee shall authenticate new Securities that reflect the amendment or
waiver.
SECTION 10.06. Trustee Protected. The Trustee shall sign all
supplemental indentures, except that the Trustee may, but need not, sign any
supplemental indenture that adversely affects its rights or duties hereunder. As
a condition to executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trust created by this Indenture, the Trustee shall be entitled to receive
(in addition to those documents required by Section 11.04), and (subject to
Section 315 of the TIA) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies, or conflicts with another provision which is
automatically deemed to be incorporated in this Indenture by the TIA, the
incorporated provision shall control.
SECTION 11.02. Notices. Any notice or communication by the Company
or the Trustee to the other is duly given if in writing and delivered in person
or mailed by first-class mail to the other's address stated in Section 11.10
hereof. The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar, not
later than the latest date (if any), and not earlier than the earliest date (if
any), prescribed for the giving of such notice. Failure to mail a notice or
communication to a Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders.
Any notice given by publication shall be deemed to have been validly
given on the date of such publication or, if published more than once, on the
date of the first publication. If a notice or communication is mailed in the
manner provided above within the time prescribed, it is duly given, whether or
not the addressee receives it.
If the Company mails a notice or communication to Securityholders,
it shall mail a copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by the Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 11.03. Communication by Securityholders with Other
Securityholders. Securityholders may communicate pursuant to TIA ss. 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 ss. 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Section 4.03) shall
include:
(a) a statement that the person signing such certificate or
rendering such opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, such person has
made such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by, or a meeting of, Securityholders. The Registrar,
Transfer Agent, Paying Agents or Conversion Agents may each make reasonable
rules and set reasonable requirements for its functions.
SECTION 11.07. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions in the State of New York are not
required to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest or Liquidated Damages, if any, shall accrue with
respect to such payment for the intervening period. If any other operative date
for purposes of this Indenture shall occur on a Legal Holiday then for all
purposes the next succeeding day that is not a Legal Holiday shall be such
operative date.
SECTION 11.08. No Recourse Against Others. A director, Officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
SECTION 11.09. Counterparts. This Indenture may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 11.10. Variable Provisions. "Officer" means the Chairman of
the Board, the President, any Vice-President, the Chief Financial Officer, the
Treasurer, the Secretary, the Corporate Controller, any Assistant Treasurer or
any Assistant Secretary of the Company.
The Company initially appoints the Trustee as Paying Agent, Transfer
Agent, Registrar and Conversion Agent in the Borough of Manhattan, The City of
New York, and the Trustee hereby accepts such appointments.
The first certificate pursuant to Section 4.03 hereof shall be for
the fiscal year ending on December 31, 1998.
The reporting date for Section 8.06 hereof is May 15 of each year.
The first reporting date is May 15, 1999.
The Trustee shall always have a combined capital and surplus of at
least U.S. $50,000,000 as set forth in its most recent published annual report
of condition.
The Company's address for purposes of the Indenture is:
Angeion Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
The Trustee's address is:
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Administration
The Company or the Trustee may change its address for purposes of
this Indenture by written notice to the other.
SECTION 11.11. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW
YORK SHALL GOVERN THIS INDENTURE AND THE SECURITIES, WITHOUT REGARD TO THE
CONFLICT OF LAWS PROVISIONS THEREOF.
SECTION 11.12. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or an Affiliate. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
SECTION 11.13. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.14. Severability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.15. Table of Contents, Headings, Etc. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
ANGEION CORPORATION,
as the Company,
by /s/ Xxxxxxx X. XxXxxxxx
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee,
by /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
EXHIBIT A
FORM OF SENIOR CONVERTIBLE NOTE
[FORM OF FACE OF NOTE]
[Restricted Securities Legend]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO A
NON-PUBLIC OFFERING, IN CONFORMITY WITH THE PRIVATE OFFERING EXEMPTION UNDER
SECTION 4(2) OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND IN
RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF APPLICABLE STATE
SECURITIES LAWS. SUCH SECURITIES HAVE NOT BEEN QUALIFIED WITH ANY STATE
SECURITIES COMMISSION, OR REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL COUNSEL FOR THE COMPANY SHALL HAVE DETERMINED THAT
THE INTENDED DISPOSITION IS PERMISSIBLE AND DOES NOT VIOLATE THE SECURITIES ACT
OR THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION
THEREUNDER, OR THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS, OR ANY
RULES OR REGULATIONS THEREUNDER.
No. __
CUSIP No.________
ANGEION CORPORATION
7 1/2% SENIOR CONVERTIBLE NOTE
DUE 2003
Angeion Corporation, a Minnesota corporation (the "Company")
promises to pay to ________________________________ or registered assigns, the
principal sum of ________ Dollars on April 15, 2003.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
Reference is hereby made to the further provisions of this Senior
Convertible Note set forth on the reverse hereof which further provisions shall
for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, Angeion Corporation has caused this Senior
Convertible Note to be signed manually or by facsimile by its duly authorized
Officers.
Dated: April 14, 1998 ANGEION CORPORATION
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the
7 1/2% Senior Convertible Notes due 2003
described in the within-
mentioned Indenture.
U.S. Bank National Association, as Trustee,
By
----------------------------------------
Authorized Signatory
ANGEION CORPORATION
7 1/2% Senior Convertible Note due 2003
1. Interest. Angeion Corporation, a Minnesota corporation (the
"Company"), is the issuer of the 7 1/2% Senior Convertible Notes due 2003 (the
"Convertible Notes"), of which this Convertible Note is a part. The Company
promises to pay interest on the Convertible Notes in cash semiannually on each
April 15 and October 15, commencing on October 15, 1998, to holders of record on
the immediately preceding April 1 and October 1.
Interest on the Convertible Notes will accrue from the most recent
date to which interest has been paid, or if no interest has been paid, from
April 14, 1998. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. To the extent lawful, the Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest or Liquidated Damages, if any, (without regard
to any applicable grace period) at the rate borne by the Convertible Notes,
compounded annually.
All payments made by the Company on the Convertible Notes will be
made without withholding or deduction for, or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of the jurisdiction of incorporation of the
Company or any political subdivision thereof or any authority therein or thereof
having power to tax unless the withholding or deduction of such taxes, duties,
assessments or governmental charges is required by law. If any such withholding
or deduction is required, the Company will not be obliged to pay any additional
amounts in respect of such withholding or deduction.
2. Method of Payment. The Company will pay interest and Liquidated
Damages, if any, on the Convertible Notes (except defaulted interest) to the
persons who are registered Holders of the Convertible Notes at the close of
business on the record date for the next interest payment date even though
Convertible Notes are canceled after the record date and on or before the
interest payment date. The Securityholder hereof must surrender Convertible
Notes to a Paying Agent to collect principal payments. The Company will pay
principal and interest and Liquidated Damages, if any, in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal and interest and
Liquidated Damages, if any, by check payable in such money drawn on a bank in
The City of New York. It may mail a check for interest or Liquidated Damages, if
any, to a Holders' registered address.
3. Paying Agent and Registrar. The Trustee will act as Paying Agent,
Transfer Agent, Registrar and Conversion Agent in the Borough of Manhattan, The
City of New York. The Company may change any Paying Agent, Registrar, Transfer
Agent or Conversion Agent without prior notice. The Company or any of its
Affiliates may act in any such capacity.
4. Indenture. The Company issued the Convertible Notes under an
indenture, dated as of April 14, 1998 (the "Indenture"), between the Company and
U.S. Bank National Association, as Trustee. The terms of the Convertible Notes
include those stated in the Indenture and those made part of the Indenture by
the Trust Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa77bbbb), as amended.
The Convertible Notes are subject to, and qualified by, all such terms, certain
of which are summarized hereon, and Securityholders are referred to the
Indenture and such Act for a statement of such terms. The Convertible Notes are
general unsecured obligations of the Company limited to an aggregate principal
amount of U.S. $22,150,000. The Indenture does not limit the ability of the
Company or any of its Subsidiaries to incur indebtedness or to grant security
interests or liens in respect of their assets.
5. Optional Redemption. The Convertible Notes are not redeemable at
the Company's option prior to the third anniversary of the initial issue date.
On or after the third anniversary of the initial issue date, the Convertible
Notes will be subject to redemption at the option of the Company, in whole or in
part (in any integral multiple of U.S. $1,000; provided, however, that a
Convertible Note may be redeemed only in whole to the extent a redemption in
part would reduce the principal amount thereof to an amount less than U.S.
$25,000), at a redemption price equal to 100% of the principal amount thereof
together with accrued interest and Liquidated Damages, if any, to the redemption
date (subject to the right of holders of record on the relevant record date to
receive interest and Liquidated Damages, if any, due on an interest payment
date). On or after the redemption date, interest and Liquidated Damages, if any,
will cease to accrue on the Convertible Notes, or portion thereof, called for
redemption.
6. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder of the Convertible Notes to be redeemed at his address of record. A
Convertible Note may be redeemed only in whole to the extent a redemption in
part would reduce the principal amount thereof to an amount less than U.S.
$25,000. In the event of a redemption of less than all of the Convertible Notes,
the Convertible Notes will be chosen for redemption by the Trustee in accordance
with the Indenture. Unless the Company defaults in making such redemption
payment, or any Paying Agent is prohibited from making such payment pursuant to
the Indenture, by law or otherwise, interest and Liquidated Damages, if any,
cease to accrue from and after the redemption date on the Convertible Notes or
portions thereof called for redemption.
If this Convertible Note is redeemed subsequent to a record date
with respect to any interest payment date specified above and on or prior to
such interest payment date, then any accrued interest or Liquidated Damages, if
any, will be paid to the person in whose name this Convertible Note is
registered at the close of business on such record date.
7. Mandatory Redemption. The Company will not be required to make
mandatory redemption payments with respect to the Convertible Notes. There are
no sinking fund payments with respect to the Convertible Notes.
8. Repurchase at Option of Holder. If there is a Designated Event,
the Company shall be required to offer to purchase on the Designated Event
Payment Date all outstanding Convertible Notes at a purchase price equal to 101%
of the principal amount thereof on the date of purchase, plus accrued and unpaid
interest and Liquidated Damages, if any, to the Designated Event Payment Date.
Holders of Convertible Notes that are subject to an offer to purchase will
receive a Designated Event Offer from the Company prior to any related
Designated Event Payment Date and may elect to have such Convertible Notes or
portions thereof in authorized denominations purchased by completing the form
entitled "Option of Securityholder To Elect Purchase" appearing below.
Securityholders have the right to withdraw their election by delivering a
written notice of withdrawal to the Company or any Paying Agent in accordance
with the terms of the Indenture.
9. Conversion. The holder of any Convertible Note has the right,
exercisable at any time after 90 days following the Issuance Date and prior to
the close of business (New York time) on the Business Day immediately preceding
the date of the Convertible Note's maturity, to convert the principal amount
thereof (or any portion thereof that is an integral multiple of U.S. $1,000;
provided, however that a holder of a Convertible Note may convert such Security
only in whole to the extent a conversion in part would reduce the principal
amount thereof to an amount less than U.S. $25,000) into shares of Common Stock
at the initial Conversion Price of U.S. $3.0516 per share, subject to adjustment
under certain circumstances, except that if a Convertible Note is called for
redemption, the conversion right will terminate at the close of business (New
York time) on the Business Day immediately preceding the date fixed for
redemption.
To convert a Convertible Note, a Holder must (1) complete and sign a
notice of election to convert (a "Conversion Notice") substantially in the form
set forth below (copies of which are available from the Conversion Agent in New
York, (2) deliver the Conversion Notice and the Convertible Note to be converted
in whole or in part to a Conversion Agent in New York, (3) furnish appropriate
endorsements or transfer documents if required by the Registrar or such
Conversion Agent and (4) pay any transfer or similar tax, if required. Upon
conversion, no adjustment or payment will be made for interest, Liquidated
Damages, if any, or dividends, but if any Securityholder surrenders a
Convertible Note for conversion after the close of business on the record date
for the payment of an installment of interest and Liquidated Damages, if any,
and prior to the opening of business on the next interest payment date, then,
notwithstanding such conversion, the interest and Liquidated Damages, if any,
payable on such interest payment date will be paid to the registered Holder of
such Convertible Note on such record date. In such event, such Convertible Note,
when surrendered for conversion, must be accompanied by payment in funds
acceptable to the Company of an amount equal to the interest and Liquidated
Damages, if any, payable on such interest payment date on the portion so
converted. The number of shares of Common Stock issuable upon conversion of a
Convertible Note is determined by dividing the principal amount of the
Convertible Note converted by the Conversion Price in effect on the Conversion
Date. No fractional shares will be issued upon conversion but a cash adjustment
will be made for any fractional interest.
A Convertible Note in respect of which a holder has delivered an
"Option of Securityholder to Elect Purchase" form appearing below exercising the
option of such holder to require the Company to purchase such Convertible Note
may be converted only if the notice of exercise is withdrawn as provided above
and in accordance
with the terms of the Indenture. The above description of conversion of the
Convertible Notes is qualified by reference to, and is subject in its entirety
by, the more complete description thereof contained in the Indenture.
The Conversion Price of the Notes shall be reduced on December 18,
1998 to the lower of (a) the previously applicable Conversion Price or (b) the
Market Price for the Common Stock on December 18, 1998; provided, however, in no
event shall the Conversion Price be reduced below $1.5258.
The Company shall not be obligated to issue upon conversion of the
Notes, the number of shares, if any, as would exceed the difference between (i)
19.9% of the number of shares of the Company's Common Stock outstanding as of
the date hereof and (ii) the number of Warrant Shares (as hereinafter defined)
(such difference hereinafter referred to as the "Nasdaq Cap"), if issuing such
shares would constitute a breach of the Company's obligations under its
agreements with the National Association of Securities Dealers, Inc. ("NASD") or
the Nasdaq Stock Market, Inc. or the rules and regulations promulgated thereby
(collectively, the "Nasdaq Rules"). As long as the issuance of any shares of
Common Stock exceeding the Nasdaq Cap would constitute such a breach of the
Company's obligations under the Nasdaq Rules, if any Notes are submitted for
conversion, the holders of such Notes shall receive, to the extent of the Notes
or portion of the Note or Notes not converted in accordance with the preceding
sentence, in lieu of effecting such conversion, a cash payment (the "Cap
Payment") in an amount equal to 100% of the principal amount thereof or of such
portion thereof, together with accrued and unpaid interest and Liquidated
Damages for such amount or such portion thereof, if any, to the date the Cap
Payment is made, plus the Applicable Amount for the Notes or portion of the Note
or Notes not converted. Payment of the Cap Payment shall be made no later than
one business day after the date the holder has submitted a properly completed
Conversion Notice (the "Conversion Notice Date"), and shall bear interest daily
thereafter at the rate of 7 1/2% (the interest rate on the Notes) per day until
paid. The Nasdaq Cap shall be proportionately and equitably adjusted in the
event of stock splits, stock dividends, reverse stock splits, reclassifications
or other such events, in such manner as the Board of Directors of the Company
shall reasonably determine. "Warrant Shares" means shares of Common Stock of the
Company issuable upon exercise of the warrants pursuant to the Warrant
Agreements each dated April 14, 1998 entered into by the Company with each of
HSBC Securities, Inc. and Prudential Securities Incorporated.
10. Registration Rights Agreement. The holder of the Convertible
Notes is entitled to the benefits of the Registration Rights Agreement among the
Company and the initial purchasers of the Notes (the "Registration Rights
Agreement"), which agreement is attached to the Indenture as an Exhibit thereto.
Such benefits include the right of the holder to receive Liquidated Damages, if
any, in the event of a failure on the part of the Company to comply with certain
covenants pertaining to registration and availability of a prospectus for
resale, as provided in the Registration Rights Agreement.
11. Denominations, Transfer, Exchange. The Convertible Notes are in
registered form and without coupons, in minimum denominations of U.S. $25,000
and integral multiples of U.S. $10,000 in excess thereof. The transfer of
Convertible Notes may be registered, and Convertible Notes may be exchanged, as
provided in the Indenture. The Transfer Agent or Registrar may require a
Securityholder, 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 Transfer Agent or Registrar need not exchange or register the
transfer of, respectively, any Convertible Note or portion of a Convertible Note
selected for redemption (except the unredeemed portion of any Convertible Note
being redeemed in part). Also, the Transfer Agent or Registrar need not exchange
or register the transfer of, respectively, any Convertible Note for a period of
15 days before a selection of Convertible Notes to be redeemed.
12. Persons Deemed Owners. The registered Holder of a Convertible
Note may be treated as its owner for all purposes.
13. Unclaimed Money. If money for the payment of principal or
interest and Liquidated Damages, if any, remains unclaimed for two years, the
Trustee and the Paying Agents shall pay the money back to the Company at its
request. After that, Securityholders of Convertible Notes entitled to the money
must look to the Company for payment, unless an abandoned property law
designates another person, and all liability of the Trustee and such Paying
Agents with respect to such money shall cease.
14. Defaults and Remedies. The Convertible Notes shall have the
Events of Default as set forth in Section 7.01 of the Indenture. Subject to
certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee by notice to the Company or the Securityholders of at
least 25% in aggregate principal amount of the then-outstanding Convertible
Notes by notice to the Company and the Trustee may declare all the Convertible
Notes to be due and payable immediately, except that in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all unpaid
principal and interest and Liquidated Damages, if any, accrued on the
Convertible Notes shall become due and payable immediately without further
action or notice. Upon acceleration as described in either of the preceding
sentences, the subordination provisions of the Indenture preclude any payment
being made to Securityholders for at least five Business Days except as
otherwise provided in the Indenture.
The Securityholders of a majority in principal amount of the
Convertible Notes then outstanding by written notice to the Trustee may rescind
an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest or Liquidated Damages, if any,
that has become due solely because of the acceleration. Securityholders may not
enforce the Indenture or the Convertible Notes except as provided in the
Indenture. Subject to certain limitations, Securityholders of a majority in
principal amount of the then outstanding Convertible Notes issued under the
Indenture may direct the Trustee in its exercise of any trust or power. The
Company must furnish compliance certificates to the Trustee annually. The above
description of Events of Default and remedies is qualified by reference to, and
subject in its entirety by, the more complete description thereof contained in
the Indenture.
15. Amendments, Supplements and Waivers. Subject to certain
exceptions, the Indenture or the Convertible Notes may be amended or
supplemented with the consent of the Securityholders of at least a majority in
principal amount of the then outstanding Convertible Notes (including consents
obtained in connection with a tender offer or exchange offer for Convertible
Notes), and any existing default may be waived with the consent of the
Securityholders of a majority in principal amount of the then outstanding
Convertible Notes, including consents obtained in connection with a tender offer
or exchange offer for Convertible Notes. Without the consent of any
Securityholder, the Indenture or the Convertible Notes may be amended, among
other things, to cure any ambiguity, defect or inconsistency, to provide for
assumption of the Company's obligations to Securityholders, to make any change
that does not adversely affect the rights of any Securityholder, to qualify the
Indenture under the TIA, or to comply with the requirements of the SEC in order
to maintain the qualification of the Indenture under the TIA.
16. Trustee Dealings with the Company. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of the
Convertible Notes and may otherwise deal with the Company or an Affiliate with
the same rights it would have, as if it were not Trustee, subject to certain
limitations provided for in the Indenture and in the TIA. Any Agent may do the
same with like rights.
17. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Convertible Notes or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder, by accepting a Convertible Note, waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Convertible Notes.
18. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THE CONVERTIBLE NOTES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
19. Authentication. The Convertible Notes shall not be valid until
authenticated by the manual signature of an authorized officer of the Trustee or
an authenticating agent.
20. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as: TEN COM (for tenants in common),
TEN ENT (for tenants by the entireties), JT TEN (for joint tenants with right of
survivorship and not as tenants in common), CUST (for Custodian), and U/G/M/A
(for Uniform Gifts to Minors Act).
21. Definitions. Capitalized terms not defined in this Convertible
Note have the meaning given to them in the Indenture.
The Company will furnish to any Securityholder of the Convertible
Notes upon written request and without charge a copy of the Indenture and the
Registration Rights Agreement. Request may be made to:
Xxx Xxxxxx
Corporate Controller
Angeion Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ASSIGNMENT FORM
To assign this Convertible Note, fill in the form below:
(1) or (we) assign and transfer this Convertible Note to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint __________________ agent to transfer this Convertible
Note on the books of the Company. The agent may substitute another to act for
him.
Your Signature: ____________________________________________________
(Sign exactly as your name appears on
the other side of this Convertible Note)
Date: _____________________
Signature Guarantee:*** _________________________
--------------------
*** Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
OPTION OF SECURITYHOLDER TO ELECT PURCHASE
If you want to elect to have this Convertible Note or a portion
thereof repurchased by the Company pursuant to Section 3.08 or 4.07 of the
Indenture, check the box: |_|
If the purchase is in part, indicate the portion (U.S. $1,000 or any
integral multiple thereof) to be purchased: ________
Your Signature: _________________________________________
(Sign exactly as your name appears
on the other side of this Convertible
Note)
Date: _____________
Signature Guarantee:* _________________
---------------------
* Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
ELECTION TO CONVERT
To Angeion Corporation:
The undersigned owner of this Convertible Note hereby irrevocably
exercises the option to convert this Convertible Note, or the portion below
designated, into Common Stock of ANGEION CORPORATION in accordance with the
terms of the Indenture referred to in this Convertible Note, and directs that
the shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
The undersigned hereby represents and warrants that the undersigned
did not, directly or indirectly, within the period of 90 days after the original
issuance of the Convertible Note, sell, dispose of, hedge or otherwise transfer
or part with the economics of ownership of all or any part of the Common Stock
issuable upon conversion of the Convertible Note.
The undersigned agrees to be bound by the terms of the Registration
Rights Agreement relating to the Common Stock issuable upon conversion of the
Convertible Notes.
Date:
In whole or Portion of Convertible Note to be converted (U.S. $1,000
or any integral multiple thereof): U.S. $_______
Your Signature: ____________________________________________________
(Sign exactly as your name appears on the other
side of this Convertible Note.)
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or other Identifying
Number
Signature Guarantee:*
----------------
--------------
* Signature must be guaranteed by a commercial bank, trust company or member
firm of the New York Stock Exchange.
