FP TECHNOLOGY, INC. (as successor in interest to AFG Enterprises USA, Inc.) as Issuer and THE BANK OF NEW YORK as Trustee INDENTURE Dated as of January 24, 2007 Senior Secured Convertible Notes Due 2009
(as
successor in interest to AFG Enterprises USA, Inc.)
as
Issuer
and
THE
BANK OF NEW YORK
as
Trustee
--------------
Dated
as of January 24, 2007
-------------
Senior
Secured Convertible Notes Due 2009
|
|
Definitions
and Other Provisions of General Application
|
1
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|
Section
1.01.
|
Definitions
|
1
|
|
Section
1.02.
|
Compliance
Certificates and Opinions
|
15
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|
Section
1.03.
|
Form
of Documents Delivered to Trustee
|
15
|
|
Section
1.04.
|
Acts
of Holders; Record Dates
|
16
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|
Section
1.05.
|
Notices,
Etc., to Trustee and Company; Acts of Holders
|
17
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|
Section
1.06.
|
Notice
to Holders; Waiver
|
18
|
|
Section
1.07.
|
Conflict
with Trust Indenture Act
|
19
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|
Section
1.08.
|
Effect
of Headings and Table of Contents
|
19
|
|
Section
1.09.
|
Successors
and Assigns
|
19
|
|
Section
1.10.
|
Severability
Clause
|
19
|
|
Section
1.11.
|
Benefits
of this Indenture
|
19
|
|
Section
1.12.
|
Governing
Law; Jurisdiction; Jury Trial
|
19
|
|
Section
1.13.
|
Legal
Holidays
|
20
|
|
Section
1.14.
|
No
Strict Construction
|
20
|
|
Section
1.15.
|
Counterparts
|
20
|
|
Section
1.16.
|
Dispute
Resolution
|
20
|
|
Section
1.17.
|
Compliance
with Securities Laws
|
20
|
|
Article
II
|
Note
Forms
|
21
|
|
Section
2.01.
|
Forms
Generally
|
21
|
|
Section
2.02.
|
Form
of Face of Note
|
21
|
|
Section
2.03.
|
Form
of Reverse of Note
|
21
|
|
Section
2.04.
|
Form
of Trustee’s Certificate of Authentication
|
21
|
|
Section
2.05.
|
Legend
on Restricted Notes
|
21
|
|
Section
2.06.
|
Replacement
Notes
|
21
|
|
Section
2.07.
|
Outstanding
Notes
|
21
|
|
Article
III
|
The
Notes
|
22
|
|
Section
3.01.
|
Title
and Terms
|
22
|
|
Section
3.02.
|
Denominations
|
23
|
|
Section
3.03.
|
Execution,
Authentication, Delivery and Dating
|
23
|
|
Section
3.04.
|
Temporary
Notes
|
23
|
|
Section
3.05.
|
Registration;
Registration of Transfer and Exchange; Restrictions on
Transfer
|
23
|
|
Section
3.06.
|
Mutilated,
Destroyed, Lost and Stolen Notes
|
25
|
|
Section
3.07.
|
Persons
Deemed Owners
|
26
|
|
Section
3.08.
|
[Reserved]
|
26
|
|
Section
3.09.
|
Cancellation
and Transfer Provisions
|
26
|
|
Article
IV
|
Satisfaction
and Discharge
|
27
|
|
Section
4.01.
|
Satisfaction
and Discharge of Indenture
|
27
|
|
Section
4.02.
|
Application
of Trust Money
|
28
|
|
Section
4.03.
|
Repayment
to the Company
|
28
|
|
Article
V
|
Remedies
|
29
|
|
Section
5.01.
|
Events
of Default
|
29
|
|
Section
5.02.
|
Acceleration
of Maturity; Rescission and Annulment
|
31
|
|
Section
5.03.
|
Collection
of Indebtedness and Suits for Enforcement by Trustee
|
32
|
|
Section
5.04.
|
Trustee
May File Proofs of Claim
|
32
|
|
Section
5.05.
|
Application
of Money Collected
|
33
|
|
Section
5.06.
|
Limitation
on Suits
|
33
|
|
Section
5.07.
|
Unconditional
Right of Holders to Receive Payment
|
34
|
|
Section
5.08.
|
Restoration
of Rights and Remedies
|
34
|
|
Section
5.09.
|
Rights
and Remedies Cumulative
|
34
|
|
Section
5.10.
|
Delay
or Omission Not Waiver
|
34
|
|
Section
5.11.
|
Control
by Holders
|
35
|
|
Section
5.12.
|
Waiver
of Past Defaults
|
35
|
|
Section
5.13.
|
Undertaking
for Costs
|
35
|
|
Section
5.14.
|
Waiver
of Stay or Extension Laws
|
36
|
|
Article
VI
|
The
Trustee
|
36
|
|
Section
6.01.
|
Certain
Duties and Responsibilities
|
36
|
|
Section
6.02.
|
Notice
of Defaults
|
36
|
|
Section
6.03.
|
Certain
Rights of Trustee
|
37
|
|
Section
6.04.
|
Not
Responsible for Recitals
|
38
|
|
Section
6.05.
|
May
Hold Notes
|
38
|
|
Section
6.06.
|
Money
Held in Trust
|
38
|
|
Section
6.07.
|
Compensation
and Reimbursement
|
38
|
|
Section
6.08.
|
Disqualification;
Conflicting Interests
|
39
|
|
Section
6.09.
|
Corporate
Trustee Required; Eligibility
|
39
|
|
Section
6.10.
|
Resignation
and Removal; Appointment of Successor
|
40
|
|
Section
6.11.
|
Acceptance
of Appointment by Successor
|
41
|
|
Section
6.12.
|
Merger,
Conversion, Consolidation or Succession to Business
|
41
|
|
Section
6.13.
|
Preferential
Collection of Claims Against
|
41
|
|
Section
6.14.
|
Trustee’s
Disclaimer
|
42
|
|
Section
6.15.
|
Co-Trustee,
Co-Collateral Agent and Separate Trustees, Collateral Agent
|
42
|
|
Section
6.16.
|
Trustee
as Collateral Agent
|
44
|
|
Section
6.17.
|
[Reserved]
|
44
|
|
Section
6.18.
|
No
Liability for Clean-up of Hazardous Materials
|
44
|
|
Article
VII
|
Holders’
Lists and Reports by Trustee
|
44
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|
Section
7.01.
|
Company
to Furnish Trustee Names and Addresses of Holders
|
44
|
|
Section
7.02.
|
Preservation
of Information; Communications to Holders
|
45
|
|
Section
7.03.
|
Reports
by Trustee
|
45
|
|
Article
VIII
|
Consolidation,
Merger, Conveyance, Transfer or Lease
|
45
|
|
Section
8.01.
|
Company
May Consolidate, etc., Only on Certain Terms
|
45
|
|
Section
8.02.
|
Successor
Substituted
|
46
|
|
Article
IX
|
Supplemental
Indentures
|
46
|
|
Section
9.01.
|
Supplemental
Indentures Without Consent of Holders
|
46
|
|
Section
9.02.
|
Supplemental
Indentures With Consent of Holders
|
47
|
|
Section
9.03.
|
Execution
of Supplemental Indentures
|
49
|
|
Section
9.04.
|
Effect
of Supplemental Indentures
|
49
|
|
Section
9.05.
|
Conformity
with Trust Indenture Act
|
49
|
|
Section
9.06.
|
Reference
in Notes to Supplemental Indentures
|
49
|
|
Section
9.07.
|
Amendment
or Waiver Consideration
|
49
|
|
Article
X
|
Covenants
|
49
|
|
Section
10.01.
|
Payments
|
49
|
|
Section
10.02.
|
Maintenance
of Office or Agency
|
50
|
|
Section
10.03.
|
Money
for Note Payments to be Held in Trust
|
50
|
|
Section
10.04.
|
Statement
by Officers as to Default
|
51
|
|
Section
10.05.
|
Existence
|
51
|
|
Section
10.06.
|
Further
Instruments and Acts
|
52
|
|
Section
10.07.
|
Reports
and Delivery of Certain Information
|
52
|
|
Section
10.08.
|
Resale
of Certain Notes
|
53
|
|
Section
10.09.
|
[Reserved].
|
53
|
|
Section
10.10.
|
Information
for IRS Filings
|
53
|
|
Section
10.11.
|
Liquidated
Damages Under the Registration Rights Agreement
|
53
|
|
Section
10.12.
|
Incurrence
of Indebtedness
|
53
|
|
Section
10.13.
|
Existence
of Liens
|
54
|
|
Section
10.14.
|
Restricted
Payments
|
54
|
|
Section
10.15.
|
Restriction
on Redemption and Dividends
|
54
|
|
Section
10.16.
|
Reservation
of Authorized Shares
|
54
|
|
Section
10.17.
|
Financial
Covenants
|
55
|
|
Section
10.18.
|
[Reserved]
|
55
|
|
Section
10.19.
|
Management
Offerings
|
55
|
|
Article
XI
|
Redemptions
|
56
|
|
Section
11.01.
|
No
Redemption by the Company
|
56
|
|
Section
11.02.
|
Right
of Holder to Require Redemption
|
56
|
|
Section
11.03.
|
Deposit
of Aggregate Redemption Amount
|
56
|
|
Section
11.04.
|
Notes
Redeemed in Part
|
56
|
|
Section
11.05.
|
Repurchase
of Notes at Option of the Holder Upon Fundamental Change
|
56
|
|
Section
11.06.
|
Effect
of Fundamental Change Repurchase Notice
|
60
|
|
Section
11.07.
|
Notes
Repurchased in Whole or in Part
|
60
|
|
Section
11.08.
|
Covenant
to Comply With Securities Laws Upon Repurchase of Notes
|
61
|
|
Section
11.09.
|
Deposit
of Fundamental Change Repurchase Price and Common Stock for Fundamental
Change Conversion
|
61
|
|
Section
11.10.
|
Repayment
to the Company
|
61
|
|
Article
XII
|
Interest
Payments on the Notes
|
61
|
|
Section
12.01.
|
Interest
Rate
|
61
|
|
Section
12.02.
|
Interest
Payment Upon Redemption
|
62
|
|
Section
12.03.
|
Letter
of Credit.
|
63
|
|
Article
XIII
|
Conversion
|
63
|
|
Section
13.01.
|
Conversion
Privilege.
|
63
|
|
Section
13.02.
|
Conversion
Procedure
|
66
|
|
Section
13.03.
|
No
Fractional Shares
|
68
|
|
Section
13.04.
|
Taxes
on Conversion
|
68
|
|
Section
13.05.
|
Company
to Provide Stock
|
68
|
|
Section
13.06.
|
Adjustment
of Conversion Price
|
69
|
|
Section
13.07.
|
No
Adjustment
|
73
|
|
Section
13.08.
|
Notice
of Conversion Price Adjustment
|
73
|
|
Section
13.09.
|
Notice
of Certain Transactions
|
73
|
|
Section
13.10.
|
Effect
of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege
|
74
|
|
Section
13.11.
|
Trustee’s
Disclaimer
|
75
|
|
Section
13.12.
|
Voluntary
Decrease
|
75
|
|
Section
13.13.
|
Company
Determination Final
|
75
|
|
Article
XIV
|
Make-Whole
Premium
|
75
|
|
Section
14.01.
|
Make-Whole
Premium
|
75
|
|
Section
14.02.
|
Payment
of Make-Whole Premium
|
78
|
|
Article
XV
|
Security
|
78
|
|
Section
15.01.
|
Security
Documents
|
78
|
|
Section
15.02.
|
Recording
|
80
|
|
Section
15.03.
|
Possession
of the Collateral
|
80
|
|
Section
15.04.
|
Suits
to Protect the Collateral
|
80
|
|
Section
15.05.
|
Release
of Collateral
|
81
|
|
Section
15.06.
|
Permitted
Releases not to Impair Collateral
|
81
|
|
Section
15.07.
|
Sufficiency
of Release; Purchaser Protected
|
82
|
|
Section
15.08.
|
Actions
by the Collateral Agent
|
82
|
|
Section
15.09.
|
Powers
Exercisable by Receiver or Trustee
|
82
|
|
Section
15.10.
|
Determinations
Relating to Collateral
|
82
|
|
--
|
ny-686767
EXHIBITS:
Exhibit
A
-- Form of Face of Note
Exhibit
B
-- Form of Reverse of Note
Exhibit
C
-- Form of Trustee’s Certificate of Authentication
Exhibit
D
-- Fundamental Change Repurchase Notice
Exhibit
E
-- Form of Guarantee
Exhibit
F
-- Form of Pledge Agreement
Exhibit
G
- Form of Letter of Credit
ny-686767
INDENTURE,
dated as of January 24, 2007, between FP Technology, Inc. (as successor in
interest to AFG Enterprises USA, Inc.) a corporation duly organized and existing
under the laws of the State of Delaware, as Issuer (the “Company”),
having its principal office at 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
and The Bank of New York, a New York banking corporation, as Trustee (in such
capacity the “Trustee”).
RECITALS
OF THE COMPANY
The
Company has duly authorized the creation of an issue of its Senior Secured
Convertible Notes Due 2009 (each a “Note”
and,
collectively, the “Notes”)
of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
The
Company has caused, its Senior Secured Nonconvertible Notes Due 2011 (the
“Nonconvertible
Notes”)
issued
on March 29, 2006 to be exchanged for the Notes pursuant to a Master Exchange
Agreement dated as of January 24, 2007 (the “Exchange
Agreement”)
entered into by and among the Company and the Initial Purchasers (as defined
below) subject to the terms and conditions set forth in the Exchange Agreement,
including the repayment of a portion of the Nonconvertible Notes.
All
things necessary to make the Notes, when executed by the Company and
authenticated and delivered hereunder and duly issued by the Company, the valid
and legally binding obligations of the Company, and to make this Indenture
a
valid and legally binding agreement of the Company, in accordance with the
terms
of the Notes and the Indenture, have been done. Further, all things necessary
to
duly authorize the issuance of the Common Stock of the Company issuable upon
the
conversion of the Notes and in certain other circumstances as set forth herein,
and to duly reserve for issuance the number of shares of Common Stock issuable
upon such conversion, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and
in consideration of the premises and the exchange of the Nonconvertible Notes
for the Notes by the Holders thereof, it is mutually agreed, for the benefit
of
the Company and the equal and proportionate benefit of all Holders of the Notes,
as follows:
ARTICLE
I
Definitions
and Other Provisions of General Application
Section
1.01. Definitions.
For all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Article have the meanings assigned to them in this Article
and
include the plural as well as the singular;
(b) all
other
terms used herein and not otherwise defined that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all
accounting terms not otherwise defined herein have the meanings assigned to
them
in accordance with GAAP; and
(d) the
words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.
“Act,”
when
used in respect of any Holder, has the meaning specified in Section
1.04.
“Affiliate”
of
any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used in respect of
any specified Person means the power to direct the management and policies
of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Agent
Members”
has
the
meaning specified in Section 3.08.
“Applicable
Law”
means
any statute, law, ordinance, regulation, rule, code, order, judgment, decree,
treaty, other requirement or rule of law of any Governmental Authority,
applicable to the referenced party, asset or matter.
“Applicable
Price”
has
the
meaning specified in Section 13.06(a).
“Authorized
Share Allocation”
has
the
meaning specified in Section 10.16.
“Authorized
Share Failure”
has
the
meaning specified in Section 10.16.
“Board
of Directors”
means,
in respect of any Person, either the board of directors of such Person or any
duly authorized committee of that board.
“Board
Resolution”
means,
in respect of any Person, a copy of a resolution certified by the Secretary
or
an Assistant Secretary of such Person to have been duly adopted by the Board
of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
“Business
Day”
means
any day other than a Saturday or Sunday when banks are required or authorized
by
Applicable Law to be closed in New York City or San Francisco.
“Buy-In”
has
the
meaning specified in Section 13.02(c).
“Buy-In
Price”
has
the
meaning specified in Section 13.02(c).
“Calculation
Agent”
has
the
meaning specified in Section 14.01(c).
“Capital
Stock”
means
any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock, including, without limitation, in
respect of partnerships, partnership interests (whether general or limited)
and
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
such partnership.
“Cash
Collateral”
means
any cash or cash equivalents held by the Trustee for the benefit of the Holders
in the Reserve Account.
“Closing
Bid Price”
and
“Closing
Sale Price”
means,
for any security as of any date, the last closing bid price and last closing
trade price, respectively, for such security on the Principal Market, as
reported by Bloomberg, or, if the Principal Market begins to operate on an
extended hours basis and does not designate the closing bid price or the closing
trade price, as the case may be, then the last bid price or last trade price,
respectively, of such security prior to 4:00:00 p.m., New York time, as reported
by Bloomberg, or, if the Principal Market is not the principal securities
exchange or trading market for such security, the last closing bid price or
last
trade price, respectively, of such security on the principal securities exchange
or trading market where such security is listed or traded as reported by
Bloomberg, or if the foregoing do not apply, the last closing bid price or
last
trade price, respectively, of such security in the over-the-counter market
on
the electronic bulletin board for such security as reported by Bloomberg, or,
if
no closing bid price or last trade price, respectively, is reported for such
security by Bloomberg, the average of the bid prices, or the ask prices,
respectively, of any market makers for such security as reported in the “pink
sheets” by Pink Sheets, LLC (formerly the National Quotation Bureau, Inc.). If
the Closing Bid Price or the Closing Sale Price cannot be calculated for a
security on a particular date on any of the foregoing bases, the Closing Bid
Price or the Closing Sale Price, as the case may be, of such security on such
date shall be the fair market value as mutually determined by the Company and
the Majority Holders. If the Company and such Holders are unable to agree upon
the fair market value of such security, then such dispute shall be resolved
pursuant to Section 1.16. All such determinations to be appropriately adjusted
for any stock dividend, stock split, stock combination or other similar
transaction during the applicable calculation period.
“Closing
Price” means,
for any security as of any date, the last closing trade price for such security
on the principal United States securities market on which such security is
traded (which is currently The OTC Bulletin Board in respect of the Common
Stock) as reported by Bloomberg Financial Markets (or any successor thereto,
“Bloomberg”),
or,
if such exchange begins to operate on an extended hours basis and does not
designate the closing bid price or the closing trade price, as the case may
be,
then the last bid price or last trade price respectively, of such prior to
4:00:00 p.m. (New York City time) as reported by Bloomberg, or if such exchange
is not the principal securities exchange or trading market for such security,
the last trade price of such security on the principal securities exchange
or
trading market where such security is listed or traded as reported by Bloomberg,
or if the foregoing do not apply, the last trade price of such security in
the
over-the-counter market on the electronic bulletin board for such security
as
reported by Bloomberg, or, if no last trade price is reported for such security
by Bloomberg, the average of the highest bid prices of any market makers for
such security in the “pink sheets” by Pink Sheets LLC (formerly the National
Quotation Bureau, Inc.). If the Closing Price cannot be calculated for a
security on a particular date on any of the foregoing bases, the Closing Price
of such security on such date shall be the fair market value as mutually
determined by the Company and the Majority Holders.
“Closing
Price Per Share” means,
in
respect of the Common Stock, for any date, the Closing Price per share of Common
Stock.
“Collateral”
has
the
meaning specified in the Security Agreement.
“Collateral
Agent”
means
the Trustee, or any other Person (other than the Company or its Subsidiaries
or
Affiliates) authorized by the Holders to act as collateral agent in accordance
with the terms and conditions of the Security Agreement.
“Commission”
means
the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
“Common
Stock”
means
the shares of Common Stock, par value $0.001 per share, of the Company as they
exist on the date hereof, or any other shares of Capital Stock of the Company
into which the Common Stock shall be reclassified or changed or, in the event
of
a merger, consolidation or other similar transaction involving the Company
that
is otherwise permitted hereunder in which the Company is not the surviving
corporation, the common stock, common equity interests, ordinary shares or
depositary shares or other certificates representing common equity interests
of
such surviving corporation or, if such surviving corporation’s direct or
indirect parent is a public company, the common stock, common equity interests,
ordinary shares or depositary shares or other certificates representing common
equity interests of such direct or indirect parent corporation.
“Common
Stock Deemed Outstanding”
means,
at any given time, the number of shares of Common Stock actually outstanding
at
such time, plus the number of shares of Common Stock deemed to be outstanding
pursuant to Sections 13.06(a)(i) and 13.06(a)(ii) regardless of whether the
Options or Convertible Securities are actually exercisable at such time, but
excluding any shares of Common Stock owned or held by or for the account of
the
Company or issuable upon conversion of the Notes issued under this Indenture
and
exercise of the Warrants.
“Company”
means
the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Company” shall mean such successor
Person.
“Company
Request”
or
“Company
Order”
means
a
written request or order signed in the name of the Company by its Chairman
of
the Board, its CEO or President or any Vice President, its Chief Financial
Officer, its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
“Conversion
Agent”
means
the Trustee or any other Person previously designated by the Company in a
written notice provided to the Holders to which Notes may be presented for
conversion.
“Conversion
Amount”
has
the
meaning specified in Section 13.01(d).
“Conversion
Date”
has
the
meaning specified in Section 13.02(a).
“Conversion
Failure”
has
the
meaning specified in Section 13.02(c).
“Conversion
Failure Liquidated Damages”
has
the
meaning specified in Section 13.02(c).
“Conversion
Limitation”
has
the
meaning specified in Section 13.02(i).
“Conversion
Price”
has
the
meaning specified in Section 13.01(d).
“Conversion
Rate”
has
the
meaning specified in Section 13.01(d).
“Conversion
Shares”
means
shares of Common Stock issuable upon conversion of the Notes.
“Convertible
Securities”
means
any stock or securities (other than Options) directly or indirectly convertible
into or exercisable or exchangeable for shares of Common Stock.
“Corporate
Trust Office”
means
the principal office of the Trustee at which the corporate trust business of
the
Trustee shall, at any particular time, be principally administered, which office
is, at the date of this Indenture, located at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxx, Xxx Xxxx, XX 00000, Attn: Corporate Trust Administration.
“Corporation”
means
a
corporation, association, company, joint-stock company or business
trust.
“Current
Market Price”
means,
on any date, the average of the daily Closing Price per Share for the ten (10)
consecutive Trading Days commencing on the record date in respect of
distributions, issuances or other events requiring such computation.
“Default”
means
any event that is or with the passage of time or the giving of notice or both
would become an Event of Default.
“Dilutive
Issuance”
has
the
meaning specified in Section 13.06(a).
“Effective
Date” has
the
meaning specified in Section 14.01(b).
“Eligible
Market”
means
The New York Stock Exchange, Inc., the American Stock Exchange, The NASDAQ
Global Select Market, or The NASDAQ Global Market.
“Environmental
Laws”
means
all federal, state, local or foreign laws relating to pollution or protection
of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), including,
without limitation, laws relating to emissions, discharges, releases or
threatened releases of Hazardous Materials into
the
environment, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands or demand letters,
injunctions, judgments, licenses, notices or notice letters, orders, permits,
plans or regulations issued, entered, promulgated or approved
thereunder.
“Event
of Default”
has
the
meaning specified in Section 5.01.
“Exchange
Act”
means
the U.S. Securities Exchange Act of 1934, as amended.
“Excluded
Securities”
means
(a) any Common Stock issued or issuable: (i) pursuant to any equity
incentive plan or arrangement which has been approved by the Board of Directors
of the Company, pursuant to which the Company’s securities may be issued to
employees, officers, directors or consultants for services provided to the
Company or any Subsidiaries thereof; (ii) pursuant to a bona fide firm
commitment underwritten public offering with a nationally recognized underwriter
which generates gross proceeds to the Company in excess of $50,000,000 (other
than an “at-the-market offering” as defined in Rule 415(a)(4) under the
Securities Act of 1933 and “equity lines”); (iii) upon conversion of the
Notes or exercise of any of the Warrants; (iv) in connection with any
acquisition by the Company, whether through an acquisition of stock or a merger
of any business, assets or technologies the primary purpose of which is not
to
raise equity capital in an amount not to exceed, in the aggregate, 10% of the
outstanding shares of Common Stock in any calendar year, or (v) upon the
exercise of an option or warrant or the conversion of a security outstanding
on
the date hereof (provided that the terms of such options or warrants are not
amended or modified in any manner after the date hereof) or an option or warrant
issued or granted in compliance with this paragraph, and (b) any Common
Stock or preferred stock in a maximum aggregate amount of up to $10,000,000
issued in connection with the issuance of additional Notes as contemplated
by
Section 3.01 occurring within 90 days of the date hereof; provided
that in
order to constitute an Excluded Security for purposes of this Agreement, the
per
share price paid for such Common Stock or deemed to be paid for such Common
Stock upon the conversion of the preferred stock in accordance with the terms
thereof (with such “deemed price per share” calculated in accordance with the
provisions of Section 13.06(a)) shall not be less than 80% of the
Conversion Price in effect on the date of such issuance.
“Expiration
Date”
has
the
meaning specified in Section 13.06(d).
“Expiration
Time”
has
the
meaning specified in Section 13.06(d).
“Fundamental
Change”
means
any transaction or event or series of related transactions or events resulting
directly or indirectly in a (i) consolidation or merger with or into (wherein
the Company is not the surviving corporation) another Person, or (ii) sale,
assignment, transfer, conveyance or other disposition of all or substantially
all of the properties or assets of the Company to another Person, or (iii)
another Person or Persons making a purchase, tender or exchange offer that
is
accepted by the holders of more than the 50% of the outstanding shares of voting
stock of the Company (not including any shares of voting stock held by the
Person or Persons making or party to, or associated or affiliated with the
Person or Persons making or party to, such purchase, tender or exchange offer),
or (iv) consummation of a stock purchase agreement or other business combination
(including, without limitation, a reorganization, recapitalization, spin-off
or
scheme or arrangement or merger) with another Person whereby such other Person
acquires more than the 50% of the outstanding shares of voting stock of the
Company (not including any shares of voting stock held by the other Person
or
other Persons making or party to, or associated or affiliated with the other
Persons making or party to, such stock purchase agreement or other business
combination), (v) reorganization, recapitalization or reclassification of the
Common Stock; (vi) any “person” or “group” (as these terms are used for purposes
of Sections 13(d) and 14(d) of the Exchange Act) is or shall become the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of 50% or more of the aggregate voting stock of the Company
or
(vii) Termination of Trading.
“Fundamental
Change Company Notice”
has
the
meaning specified in Section 11.05(b).
“Fundamental
Change Conversion”
has
the
meaning specified in Section 13.02(e).
“Fundamental
Change Conversion/Repurchase Period”
has
the
meaning specified in Section 14.02.
“Fundamental
Change Repurchase”
has
the
meaning specified in Section 11.05(a).
“Fundamental
Change Repurchase Notice”
has
the
meaning specified in Section 11.05(c).
“Fundamental
Change Repurchase Price”
has
the
meaning specified in Section 11.05(a).
“Fundamental
Change Settlement Date”
means
the Effective Date for a Fundamental Change. In respect of any Fundamental
Change Conversion or Fundamental Change Repurchase for which a Notice of
Conversion or Fundamental Change Repurchase Notice, as applicable, has been
delivered after the Effective Date (and during the Fundamental Change
Conversion/Repurchase Period), the Fundamental Change Settlement Date shall
mean
the date that is five (5) Trading Days following the end of the Fundamental
Change Conversion/Repurchase Period.
“GAAP”
means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity
as
have been approved by a significant segment of the accounting profession, in
each case, as in effect in the United States on the date hereof.
“Governmental
Authority”
means
any nation or government, any state, regional, local or other political
subdivisions thereof, and any entity or official exercising executive,
legislative, judicial, regulatory or administrative functions of pertaining
to
government.
“Guarantee”
means
a
Guarantee executed by a Guarantor in favor of the Trustee for the benefit of
the
Holders, as amended and in effect from time to time, in substantially the form
of Exhibit E.
“Guarantor”
means
each direct or indirect Subsidiary of the Company, from time to time, other
than
a Special Purpose Acquisition Subsidiary, as further provided in Section
15.01(b) and in Section 5(m) of the Security Agreement.
“Guarantor
Collateral Documents”
means
all security agreements, mortgages, pledge agreements, deeds of trust and other
instruments, documents or agreements executed and delivered by any Guarantor
to
secure the Obligations, in each case as amended and in effect from time to
time.
“Hazardous
Materials”
means
chemicals, pollutants, contaminants, or toxic or hazardous substances or
wastes.
“Holder”
or
“Noteholder”
means
a
Person in whose name a Note is registered in the Note Register.
“Indenture”
means
this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.
“Initial
Principal Market”
means
the market(s) upon which the Common Stock is designated for quotation on the
date of original issuance of the Notes.
“Initial
Purchasers”
means
Cheyne Fund LP, Cheyne Leverage Fund, Context Advantage Fund, LP, Context
Offshore Advantage Fund Ltd., Cranshire Capital, LP, JMG Capital Partners,
LP,
JMG Triton Offshore Fund, Ltd., XX Xxxxxx Securities Inc., Xxxxxx Xxxxx Capital,
LP, Plexus Fund Limited, Portside Growth and Opportunity Fund, Radcliffe SPC,
Ltd. for and on behalf of the Class A Segregated Portfolio, Smithfield Fiduciary
LLC and Wolverine Convertible Arbitrage Fund Trading Limited.
“Interest
Dividend Payment Date”
means
the date any dividends or distributions payable or otherwise to be made or
to be
deemed made by the Company per share of Common Stock is paid or otherwise made
or deemed made by the Company to the holders of Common Stock.
“Interest
Payment Date”
means
the last Business Day of each calendar month, commencing January 31, 2007,
the
Maturity Date of each Note and, in respect of Notes redeemed pursuant to Article
XI, the date of such redemption.
“Investment
Company Act”
means
the Investment Company Act of 1940 and any statute successor thereto, in each
case as amended from time to time.
“Issue
Date”
means
the date the Notes are originally issued as set forth on the face of the Note
under this Indenture.
“L/C
Bank”
means
Xxxxx Fargo Bank, National Association, as issuer of the Letter of
Credit.
“Letter
of Credit”
means
that certain letter of credit in substantially the form of Exhibit G issued
by
the L/C Bank on the date hereof in favor of the Trustee in the Stated Amount,
expiring on the Stated Expiration Date and providing for the payment of interest
on the Notes as set forth herein.
“Liens”
has
the
meaning specified in Section 10.13.
“Liquidated
Damages”
shall
mean, without duplication, the Liquidated Damages as defined in the Registration
Rights Agreement, Conversion Failure Liquidated Damages and any payments due
pursuant to Section 13.02(c).
“Majority
Holders”
means
Holders of more than 50% in aggregate Principal Amount of the Outstanding Notes
voting as a single class.
“Make-Whole
Premium”
has
the
meaning specified in Section 14.01(b)..
“Maturity,”
when
used in respect of any Note, means the date on which the principal, the
Redemption Amount or the Fundamental Change Repurchase Price of such Note
becomes due and payable as therein or herein provided, whether at the Stated
Maturity, on a Redemption Date or a Fundamental Change Repurchase Date, or
by
declaration of acceleration or otherwise.
“Maturity
Date”
means,
when used in respect of any Note, the date of the Maturity of such
Note.
“Nonconvertible
Notes”
has
the
meaning specified in the second paragraph of the Recitals of the
Company.
“Note”
or
“Notes”
has
the
meaning specified in the first paragraph of the Recitals of the
Company.
“Note
Register”
and
“Note
Registrar”
have
the respective meanings specified in Section 3.05(a).
“Notice
of Conversion”
has
the
meaning specified in Section 13.02(a).
“Notice
of Default”
has
the
meaning specified in Section 5.01(f).
“Obligations”
shall
mean, collectively, (a) the due and punctual payment by the Company of (i)
the
obligation of the Company to pay the Principal Amount of and premium and
Liquidated Damages, if any, and interest (including interest accruing during
the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding)
on
the Notes when and as due, whether at Stated Maturity, by acceleration, upon
one
or more dates set for prepayment or otherwise and (ii) all other monetary
obligations, including reimbursement obligations, fees, costs, expenses and
indemnities, whether primary, secondary, direct, indirect, contingent, fixed
or
otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless
of
whether allowed or allowable in such proceeding), of the Company to the Trustee,
the Collateral Agent and the Holder or the Holders under this Indenture and
the
other Transaction Documents, and (b) the due and punctual performance of all
covenants, agreements, obligations and liabilities of the Company under or
pursuant to the Indenture and the other Transaction Documents.
“Officers’
Certificate”
means
a
certificate signed by the Chairman of the Board, the President or any Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers’ Certificate given pursuant to Section 10.04 shall
be the principal executive, financial or accounting officer of the
Company.
“Opinion
of Counsel”
means
a
written opinion of counsel, who may be external or in-house counsel for the
Company.
“Options”
means
any rights, warrants or options to subscribe for or purchase shares of Common
Stock or Convertible Securities.
“Outstanding”
when
used in respect of Notes, means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture, except: (i) Notes
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation; (ii) Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee
or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for
the Holders of such Notes; provided that if such Notes are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given to
the
Holders as herein provided, or provision satisfactory to a Responsible Officer
of the Trustee shall have been made for giving such notice; and (iii) Notes
that
have been paid or cancelled in exchange for, or in lieu of which, other Notes
have been authenticated and delivered pursuant to this Indenture; provided,
however,
that,
in determining whether the Holders of the requisite Principal Amount of the
Outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Notes owned by the Company or any other
obligor upon the Notes or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Notes
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Notes so owned which have been pledged in good faith may
be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act in respect of such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
“Paying
Agent”
means
any Person (including the Company) authorized by the Company to pay the
principal of, interest and Liquidated Damages, if any, to the Holders, including
the Redemption Amount or the Fundamental Change Repurchase Price on behalf
of
the Company. The Trustee shall initially be the Paying Agent.
“Permitted
Indebtedness”
means
(a) Indebtedness incurred by the Company or any Guarantor to finance
acquisitions from time to time that is approved in advance by the Majority
Holders and made expressly subordinate in right of payment to the Indebtedness
evidenced by the Notes, as reflected in a written agreement acceptable to the
Trustee and approved by the Trustee in writing, and which Indebtedness does
not
provide at any time for the payment, prepayment, repayment, repurchase or
defeasance, directly or indirectly, of any principal or premium, if any, thereon
until ninety-one (91) or more days after the Maturity Date; (b) that certain
12%
Senior Secured Convertible Debenture issued September 13, 2005 by FP Technology
Holdings, Inc. to Trident Growth Fund, L.P. in the principal amount not ot
exceed $2,000,000 (as amended by the Master Amendment, dated March 29, 2006
and
the First Amendment dated September 13, 2006 between the Company and Trident
Growth Fund, L.P., the “Trident
Loan”),
(c)
that certain amended and restated unsecured promissory note made September
13,
2005 by the Company in favor of General Motors Corporation in an amount not
to
exceed that in effect on the date hereof, (d) secured purchase money
Indebtedness incurred in connection with the purchase of equipment in an
aggregate maximum amount equal to $250,000 at any time outstanding to be used
in
the operations of the Company, (e) any Indebtedness in an amount of up to
$5,000,000 in the aggregate at any time outstanding of one or more Special
Purpose Acquisition Subsidiaries of the Company incurred to finance
acquisitions, which Indebtedness is without recourse to the Company or any
Guarantor and (f) Indebtedness under any reimbursement agreement related to
the
Letter of Credit.
“Permitted
Liens”
means
(i) Liens for taxes not yet due and payable; (ii) unrecorded workmen’s and
servicemen’s liens in the ordinary course of business; (iii) Liens securing
purchase money security obligations not in excess of $250,000 in the aggregate;
(iv) those Liens existing pursuant to the Trident Loan; (v) Liens securing
the
Company’s obligation to reimburse the L/C Bank for any drawings honored under
the Letter of Credit; (vi) Liens held by the Collateral Agent to secure the
Obligations; or (vii) Liens in support of Permitted Indebtedness (other than
Liens against the assets of the Company or any Guarantor in respect of
Indebtedness permitted pursuant to clause (e) of the definition of Permitted
Indebtedness).
“Person”
means
any individual, Corporation, partnership, limited liability company, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
“Physical
Notes”
means
permanent certificated Notes in registered form issued in denomination of
integral multiples of $500 Principal Amount.
“Pledge
Agreement”
means
a
Pledge Agreement in substantially the form of Exhibit F executed by the
Company or a Subsidiary of the Company to the extent required by
Section 15.01(b).
“Principal
Amount”
of
a
Note means the principal amount as set forth on the face of the Note as such
amount may be reduced by an conversions, redemptions or otherwise pursuant
hereto.
“Principal
Market”
means,
on any day, the market(s) upon which the Common Stock is designated for
quotation.
“Purchased
Shares”
has
the
meaning specified in Section 13.06(d).
“Qualified
Institutional Buyer”
or
“QIB”
shall
have the meaning specified in Rule 144A.
“Record
Date”
for
the
interest payable on any Interest Payment Date means the 15th
day of
the calendar month (whether or not a Trading Day) in which such Interest Payment
Date occurs.
“Redemption
Amount”
means
in respect of any Principal Amount of any Note(s) being redeemed pursuant to
Section 11.02, such Principal Amount, plus accrued and unpaid interest in
respect of such Principal and any other outstanding Obligations thereon
including any Liquidated Damages through but excluding the Redemption
Date.
“Redemption
Date”
means,
in respect of any Note(s), the date of redemption of such Note(s) at the option
of the Holder of such Notes pursuant to Section 11.02.
“Redemption
Notice”
means
in respect of any Holder electing to redeem Notes pursuant to Section 11.02,
a
written notice to the Company and the Trustee including the following: the
Principal Amount the Holder of such Note is electing to have redeemed and the
applicable Redemption Date; provided,
however,
that
such Redemption Date shall not be less than ten (10) Trading Days after the
date
of delivery of such notice.
“Registration
Rights Agreement”
means
the Registration Rights Agreement dated as of January 24, 2007, by and among
the
Company and the Initial Purchasers, for the benefit of themselves and the
Holders, as the same may be amended or modified from time to time in accordance
with the terms thereof.
“Required
Reserve Amount”
has
the
meaning specified in Section 10.16.
“Responsible
Officer”
shall
mean, when used with respect to the Trustee, any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
“Restricted
Note”
or
“Restricted
Notes”
has
the
meaning specified in Section 2.05.
“Rule
144”
means
Rule 144 under the Securities Act (including any successor rule thereto), as
the
same may be amended from time to time.
“Rule
144A”
means
Rule 144A under the Securities Act (including any successor rule thereto),
as
the same may be amended from time to time.
“Rule
144A Information”
has
the
meaning specified in the Section 10.07(b).
“Securities
Act”
means
the U.S. Securities Act of 1933, as amended, and the rules and regulations
of
the Commission promulgated thereunder.
“Security
Agreement”
means
the Security Agreement dated as of January 24, 2007, entered into by
and among the Company and the Collateral Agent, as the same may be amended
or
modified from time to time in accordance with the terms thereof.
“Security
Documents”
means
the Security Agreement, the Subordination Agreement, each Guarantee, the
Guarantor Collateral Documents, any Pledge Agreement and each other security
agreement or other instrument or document executed and delivered pursuant hereto
or thereto to secure any of the Obligations hereunder or
thereunder.
“Share
Delivery Date”
has
the
meaning specified in Section 13.02(b).
“Shelf
Registration Statement”
means
a
registration statement under the Securities Act registering the Transfer
Restricted Securities (as defined in the Registration Rights Agreement) pursuant
to the terms of the Registration Rights Agreement.
“Special
Purpose Acquisition Subsidiary” means
any
Subsidiary of the Company that is formed for the purpose of making acquisitions;
provided,
however,
that
any Subsidiary that has Indebtedness which is recourse to the Company or any
Guarantor or any assets of either of them (other than assets of such Subsidiary
and its Subsidiaries) shall not be deemed a Special Purpose Acquisition
Subsidiary.
“Stated
Amount”
means
the amount available for drawing under the Letter of Credit to pay interest
on
the Notes, initially $1,344,000, as from time to time reduced pursuant to the
terms hereof and of the Letter of Credit.
“Stated
Expiration Date”
means
the date which is two Business Days after the Stated Maturity of the
Notes.
“Stated
Maturity,”
when
used in respect of any Note, means two years after the date hereof.
“Stock
Price” has
the
meaning specified in Section 14.01(b).
“Stock
Price Cap” has
the
meaning specified in Section 14.01(b).
“Stock
Price Threshold” has
the
meaning specified in Section 14.01(b).
“Subordination
Agreement”
means
that certain Intercreditor and Subordination Agreement (as the same may be
amended or otherwise modified from time to time pursuant to the terms thereof),
dated as of March 29, 2006, among the Company, Trident Growth Fund,
L.P. and the Collateral Agent.
“Subsidiary”
means,
in respect of any Person, (a) any Corporation or other business entity of which
50% or more of the total voting power of shares of capital stock or other equity
interest entitled (without regard to the occurrence of any contingency) to
vote
in the election of directors, managers or trustees thereof is at the time owned
or controlled, directly or indirectly, by such Person or one or more of the
other subsidiaries of that Person (or a combination thereof) and (b) any
partnership (i) the sole general partner or managing general partner of which
is
such Person or a subsidiary of such Person or (ii) the only general partners
of
which are such Person or of one or more subsidiaries of such Person (or any
combination thereof).
“Surviving
Entity”
has
the
meaning specified in Section 8.01(a).
“Termination
of Trading”
means
that the Common Stock or other securities into which the Notes are convertible
is delisted or suspended by the Initial Principal Market (other than a delisting
from Pink Sheets LLC upon securing a listing of such Common Stock on the OTC
Bulletin Board, and/or a delisting from the OTC Bulletin Board upon securing
a
listing of such Common Stock on any Eligible Market) and, after the listing
of
such Common Stock on any Eligible Market(s), means that such Common Stock is
delisted or suspended by any Principal Market.
“Trading
Day”
means
(a) if the applicable security is listed or admitted for trading on the New
York
Stock Exchange or another national security exchange, a day on which the New
York Stock Exchange or such other national security exchange is open for
business, (b) if the applicable security is quoted on the American Stock
Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market, a day
during 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, a
Sunday or a day on which banking institutions in The City of New York or the
city in which the Corporate Trust Office is located are authorized or obligated
by law, or executive order or governmental decree to be closed.
“Transaction
Documents”
means
this Indenture, the Notes, the Warrants, the Exchange Agreement, the
Registration Rights Agreement and the Security Documents.
“transfer”
for
purposes of Section 3.05, has the meaning specified in Section
3.05(b).
“Transfer
Agent”
in
respect of the Notes, means The Bank of New York.
“Transfer
Restricted Note”
means
a
Note required to bear the restricted legend set forth in the form of Note set
forth as Exhibit
A
attached
hereto.
“Trust
Indenture Act”
means
the Trust Indenture Act of 1939, as in effect on the date as of which this
Indenture was executed, provided, however, that in the event the Trust Indenture
Act of 1939 is amended after such date, “Trust Indenture Act” means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
“Trustee”
means
the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean such successor
Trustee.
“United
States”
means
the United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction (its “possessions” including Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands).
“Vice
President”
when
used in respect of the Company or the Trustee, means any vice president, whether
or not designated by a number or a word or words added before or after the
title
“vice president.”
“Warrants”
means
those certain warrants issued by the Company on the date hereof to Xxxxxx &
Xxxxxxx, LLC and the Initial Purchasers to purchase shares of Common Stock
of
the Company.
Section
1.02. Compliance
Certificates and Opinions.
Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
such certificates and opinions as may be required under the Trust Indenture
Act.
Each such certificate or opinion shall be given in the form of an Officers’
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements
of
the Trust Indenture Act and any other requirement set forth in this
Indenture.
Every
certificate or opinion in respect of compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a
statement that each individual signing such certificate or opinion has read
such
covenant or condition and the definitions herein relating thereto;
(b) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(c) a
statement that, in the opinion of each such individual, such individual has
made
such examination or investigation as is necessary to enable such individual
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, in the opinion of each such individual, such condition
or covenant has been complied with.
Section
1.03. Form
of Documents Delivered to Trustee.
In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion in respect of some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as
to
such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as
it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations in respect
of
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates
to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information in respect
of
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations in respect of such matters are
erroneous.
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
Section
1.04. Acts
of Holders; Record Dates.
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee
and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as an “Act”
of
the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor
of
the Trustee and the Company, if made in the manner provided in this
Section.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the signature of an officer of the executing Holder who has witnessed
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his
individual capacity, such certificate or witnessing officer’s signature shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
reasonably deems sufficient.
(c) The
Company may, in the circumstances permitted by the Trust Indenture Act, fix
any
day as the record date for the purpose of determining the Holders entitled
to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or permitted to
be
given or taken by Holders. If not set by the Company prior to the first
solicitation of a Holder made by any Person in respect of any such action,
or,
in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 15th
day (or,
if later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.01) prior to such first solicitation or vote, as the
case
may be. With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action or give consent or revoke any consent previously given whether
or not such Persons continue to be Holders after such record date.
(d) The
ownership of Notes shall be proved by the Note Register.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
of the Holder of any Note shall bind every future Holder of the same Note and
the Holder of every Note issued upon the registration of transfer thereof or
in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Note.
Section
1.05. Notices,
Etc., to Trustee and Company; Acts of Holders.
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office; or
(b) the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the address
of
its principal office specified in the first paragraph of this instrument or
at
any other address previously furnished in writing to the Trustee by the Company,
Attention: Secretary.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee
and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act”
of
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section 1.05(c).
(d) The
fact
and date of the execution by any Person of any instrument or writing may be
proved by the signature of an officer of the executing Holder who has witnessed
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to such officer
the
execution thereof. Where such execution is by a signer acting in a capacity
other than such signer’s individual capacity, such certificate or affidavit
shall also constitute sufficient proof of such signer’s authority. The fact and
date of the execution of any such instrument or writing, or the authority of
the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(e) The
ownership of Notes shall be proved by the Register.
(f) Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
of the Holder of any Note shall bind every future Holder of the same Note and
the Holder of every Note issued upon the registration of transfer thereof or
in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Note.
(g) If
the
Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option,
by or pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have
no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of
business on such record date shall be deemed to be Holders for the purposes
of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided
that no
such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the applicable
record date.
Section
1.06. Notice
to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at such Holder’s address as it appears in the Note Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of
such
notice in respect of other Holders. Where this Indenture provides for notice
in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall
be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In
case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Whenever
under this Indenture the Trustee is required to provide any notice by mail,
in
all cases the Trustee may alternatively provide notice by overnight courier
or
by telefacsimile, with confirmation of transmission.
Section
1.07. Conflict
with Trust Indenture Act.
If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required hereunder to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may
be.
Section
1.08. Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof, and all Article
and Section references are to Articles and Sections, respectively, of this
Indenture unless otherwise expressly stated.
Section
1.09. Successors
and Assigns.
All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Trustee in this Indenture shall bind its successors and assigns whether
expressed or not.
Section
1.10. Severability
Clause.
If any
provision of this Indenture shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Indenture in that jurisdiction or
the
validity or enforceability of any provision of this Indenture in any other
jurisdiction.
Section
1.11. Benefits
of this Indenture.
Nothing
in this Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their respective successors hereunder and
the
Holders, any benefit or any legal or equitable right, remedy or claim under
this
Indenture.
Section
1.12. Governing
Law; Jurisdiction; Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Indenture shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of
the state and federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under
this Indenture and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS INDENTURE.
Section
1.13. Legal
Holidays.
In any
case where any Interest Payment Date, Stated Maturity or Redemption Date of
any
Note shall not be a Trading Day, then (notwithstanding any other provision
of
this Indenture or of the Notes) the payments otherwise required to be made
on
such date need not be made on such date, but may be made on the next succeeding
Trading Day with the same force and effect as if made on the Interest Payment
Date, at the Stated Maturity or on the Redemption Date, as applicable; provided
that no interest shall accrue in respect of such payment for the period from
and
after such Interest Payment Date, Stated Maturity or Redemption Date, as the
case may be.
Section
1.14. No
Strict Construction.
The
language used in this Indenture will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
Section
1.15. Counterparts.
This
Indenture may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if
the
signature were an original, not a facsimile signature.
Section
1.16. Dispute
Resolution.
In the
case of a dispute as to the determination of the Conversion Price or any
arithmetic calculation hereunder, the Trustee shall, if requested by any Holder,
notify the Company of such dispute via facsimile to the Company within five
(5)
Trading Days of the Trustee’s receipt of the initial determination or arithmetic
calculations from the Company. If the Company does not agree with such
requesting Holder’s determination or calculation within three (3) Trading Days
of such notice of disputed determination or arithmetic calculation, then the
Company shall, within two (2) Trading Days thereafter submit via facsimile
(a)
the disputed determination to an independent, reputable investment bank selected
by the Company, such approval not to be unreasonably withheld or (b) the
disputed arithmetic calculation to the Company’s independent, outside
accountant. The Company shall use its reasonable best efforts to cause the
investment bank or the accountant, as the case may be, to perform the
determinations or calculations and notify the Company and the Trustee of the
results no later than ten (10) Trading Days from the time it receives the
disputed determinations or calculations. Such investment bank’s or accountant’s
determination or calculation, as the case may be, shall be binding upon all
parties absent demonstrable error.
Section
1.17. Compliance
with Securities Laws.
Notwithstanding anything herein to the contrary, in connection with any action
to be taken in accordance with this Indenture, which shall include any Act
of
Holders, the Trustee and the Company shall comply with any applicable provisions
of the Securities Act or Exchange Act, including, without limitation, 17 CFR
§ 240.14a-1, et
seq.
ARTICLE
II
Note
Forms
Section
2.01. Forms
Generally.
The
Notes and the Trustee’s certificates of authentication shall be in substantially
the forms set forth in this Article, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or depositary
therefor, the Internal Revenue Code of 1986, as amended, and regulations
thereunder, or as may, consistently herewith, be determined by the officers
executing such Notes, as evidenced by their execution thereof.
The
Notes
shall be issued in the form of Physical Notes registered in the names of the
Holders thereof.
Section
2.02. Form
of Face of Note.
The
face of each Note shall be substantially in the form of Exhibit
A
attached
hereto.
Section
2.03. Form
of Reverse of Note.
The
reverse of each Note shall be substantially in the form of Exhibit
B
attached
hereto.
Section
2.04. Form
of Trustee’s Certificate of Authentication.
No Note
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Note a certificate of
authentication substantially in the form of Exhibit
C
attached
hereto manually signed by the Trustee.
Section
2.05. Legend
on Restricted Notes.
During
the period beginning on the Issue Date and ending on the date two years from
such date, any Note, including any Note issued in exchange therefor or in lieu
thereof, shall be deemed a “Restricted
Note”
and
shall be subject to the restrictions on transfer provided in the legends set
forth on the face of the form of Note attached hereto as Exhibit
A;
provided,
however,
that
the term “Restricted Note” shall not include any Notes as to which restrictions
have been terminated in accordance with Section 3.05. All Notes shall bear
the
applicable legends set forth on the face of the form of Note attached hereto
as
Exhibit
A.
Except
as provided in Section 3.05 and Section 3.09, the Trustee shall not issue any
unlegended Note until it has received an Officers’ Certificate from the Company
directing it to do so.
Section
2.06. Replacement
Notes.
In the
event any Note is mutilated, destroyed, lost or stolen, a replacement Note
shall
be issued in exchange for any such Note in accordance with Section
3.06.
Section
2.07. Outstanding
Notes.
Notes
outstanding at any time are all Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those paid,
redeemed, exchanged or converted pursuant to the terms hereof and those
described in this Section 2.07 as not outstanding. A Note does not cease to
be
outstanding because the Company or an Affiliate of the Company holds such Note;
provided,
however,
that in
determining whether the Holders of the requisite Principal Amount of Notes
have
given or concurred in any request, demand, authorization, direction, notice,
consent, waiver, or other Act hereunder, Notes owned by the Company or any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be outstanding, except that, in determining whether the Trustee shall
be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other Act, only Notes which a Responsible Officer
actually knows are so owned shall be so disregarded.
ARTICLE
III
The
Notes
Section
3.01. Title
and Terms.
The
aggregate Principal Amount of Notes that may be authenticated and delivered
under this Indenture is initially limited to $5,600,000, except for Notes
authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 3.04, 3.05, 3.06 or 9.06,
provided
that the
Company may within ninety (90) days of the date hereof issue additional Notes
to
the Initial Purchasers (which may be issued on a non pro
rata
basis
provided that such Notes are first offered on a pro
rata
basis to
all such Initial Purchasers for a minimum period of five (5) Business Days)
in
an aggregate face amount of up to $5,600,000 (for an aggregate consideration
of
up to $5,000,000) pursuant to a supplemental indenture to be entered into
without the consent of the Holders pursuant to Section 9.01(l) if and only
if
the Company has, prior to such issuance issued Common Stock or preferred stock
for an aggregate consideration that is at least equal to 100% of the amount
of
capital raised by the Company through the issuance of such additional Notes.
Other than as set forth in the preceding sentence, the Company shall not issue
any Notes under this Indenture.
The
Notes
shall be known and designated as the “Senior
Secured Convertible Notes Due 2009”
of
the
Company. The Principal Amount shall be payable at the Stated Maturity, or at
the
election of the Holder, on a Redemption Date or Fundamental Change Settlement
Date.
The
Principal Amount and accrued interest and Liquidated Damages, if any, on the
Notes shall be payable at the office or agency of the Paying Agent in The City
of New York maintained for such purpose and at any other office or agency
maintained by the Company for such purpose; provided, however, that at the
option of the Company payments may be made by wire transfer pursuant to
instructions provided in the Exchange Agreement or from time to time by the
relevant Holder or by check mailed to the address of the Person entitled thereto
as such address shall appear in the Note Register.
The
Notes
shall not have the benefit of a sinking fund.
The
Notes
shall be superior in right of payment and shall rank superior to all
indebtedness of the Company, provided that, the terms of the subordination
of
Trident Loan to the Notes shall be as set forth in the Subordination Agreement.
Section
3.02. Denominations.
The
Notes shall be issuable only in registered form without coupons and in
denominations of any integral multiple of $500.00.
Section
3.03. Execution,
Authentication, Delivery and Dating.
The
Notes shall be executed on behalf of the Company by its Chairman of the Board,
its CEO, Chief Financial Officer or President or one of its Vice
Presidents.
Notes
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding
that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Notes executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Notes. The Company Order shall specify the amount of Notes
to
be authenticated, and shall further specify the amount of such Notes to be
issued. The Trustee in accordance with such Company Order shall authenticate
and
deliver such Notes as in this Indenture provided and not otherwise.
Each
Note
shall be dated the date of its authentication.
No
Note
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Note a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
Section
3.04. Temporary
Notes.
Pending
the preparation of definitive Notes, the Company may execute, and upon Company
Order, the Trustee shall authenticate and deliver, temporary Notes which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in
any
authorized denomination, substantially of the tenor of the definitive Notes
in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
If
temporary Notes are issued, the Company will cause definitive Notes to be
prepared without unreasonable delay. After the preparation of definitive Notes,
the temporary Notes shall be exchangeable for definitive Notes upon surrender
of
the temporary Notes at any office or agency of the Company designated pursuant
to Section 10.02, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like Principal Amount
of
definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
Section
3.05. Registration;
Registration of Transfer and Exchange; Restrictions on Transfer.
(a)
The
Company shall cause to be kept at the Corporate Trust Office of the Trustee
a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 10.02 being herein sometimes collectively
referred to as the “Note
Register”)
in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Notes and of transfers of Notes. The
Trustee is hereby appointed “Note Registrar” (the “Note
Registrar”)
for
the purpose of registering Notes and transfers of Notes as herein
provided.
Upon
surrender for registration of transfer of any Note at an office or agency of
the
Company designated pursuant to Section 10.02 for such purpose, the Company
shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate Principal Amount and tenor, each such
Note
bearing such restrictive legends as may be required by this Indenture (including
Sections 2.02, 2.05 and 3.09).
At
the
option of the Holder and subject to the other provisions of this Section 3.05
and to Section 3.09, Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate Principal Amount and tenor, upon surrender
of the Notes to be exchanged at such office or agency. Whenever any Notes are
so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive.
All
Notes
issued upon any registration of transfer or exchange of Notes shall be the
valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon such registration
of transfer or exchange.
Every
Note presented or surrendered for registration of transfer or for exchange
shall
(if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing. As a condition to the registration of
transfer of any Restricted Notes, the Company or the Trustee may require
evidence satisfactory to them as to the compliance with the restrictions set
forth in the legend on such securities.
Except
as
provided in the following sentence and in Section 3.09, all Notes originally
issued hereunder and all Notes issued upon registration of transfer or exchange
or replacement thereof shall be Restricted Notes and shall bear the legend
required by Sections 2.02 and 2.05, unless the Company shall have delivered
to
the Trustee (and the Note Registrar, if other than the Trustee) a Company Order
stating that the Note is not a Restricted Note and may be issued without such
legend thereon. Notes which are issued upon registration of transfer of, or
in
exchange for, Notes which are not Restricted Notes shall not be Restricted
Notes
and shall not bear such legend.
No
service charge shall be made for any registration of transfer or exchange of
Notes, but the Company may require payment of a sum sufficient to cover any
tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges pursuant
to
Section 3.04 not involving any transfer.
The
Company shall not be required to exchange or register a transfer of any Note
(i)
that has been surrendered for conversion or (ii) as to which a Fundamental
Change Repurchase Notice has been delivered and not withdrawn, except, where
such Fundamental Change Repurchase Notice provides that such Note is to be
purchased only in part, the Company shall be required to exchange or register
a
transfer of the portion thereof not to be purchased. Nor shall the Company
be
required to issue, register or the transfer of, or exchange any Notes during
a
period of ten (10) days before a Redemption Date.
(b) Beneficial
ownership of every Restricted Note shall be subject to the restrictions on
transfer provided in the legends required to be set forth on the face of each
Restricted Note pursuant to Sections 2.02 and 2.05, unless such restrictions
on
transfer shall be terminated in accordance with this Section 3.05(b) or Section
3.09. The Holder of each Restricted Note, by such Xxxxxx’s acceptance thereof,
agrees to be bound by such restrictions on transfer.
The
restrictions imposed by this Section 3.05 and by Sections 2.02, 2.05 and 3.09
upon the transferability of any particular Restricted Note shall cease and
terminate upon delivery by the Company to the Trustee of an Officers’
Certificate stating that such Restricted Note has been sold pursuant to an
effective Shelf Registration Statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor provision
thereto). Any Restricted Note as to which the Company has delivered to the
Trustee an Officers’ Certificate that such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon
surrender of such Restricted Note for exchange to the Note Registrar in
accordance with the provisions of this Section 3.05, be exchanged for a new
Note, of like tenor and aggregate Principal Amount, which shall not bear the
restrictive legends required by Sections 2.02 and 2.05. The Company shall inform
the Trustee in writing of the effective date of any Shelf Registration Statement
registering the Notes under the Securities Act. The Trustee shall not be liable
for any action taken or omitted to be taken by it in good faith in accordance
with the aforementioned Shelf Registration Statement.
As
used
in the preceding two paragraphs, the term “transfer” encompasses any sale,
pledge, transfer or other disposition of any Restricted Note.
(c) Neither
the Trustee nor any of its agents shall (i) have any duty to monitor compliance
with or in respect of any federal or state or other securities or tax laws
or
(ii) have any duty to obtain documentation relating to any transfers or
exchanges other than as specifically required hereunder.
Section
3.06. Mutilated,
Destroyed, Lost and Stolen Notes.
If any
mutilated Note is surrendered to the Trustee, the Company shall execute and
the
Trustee shall authenticate and deliver in exchange therefor a new Note of like
tenor and Principal Xxxxxx and bearing a number not contemporaneously
outstanding.
If
there
shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Note and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Note has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu
of
any such destroyed, lost or stolen Note, a new Note of like tenor and Principal
Xxxxxx and bearing a number not contemporaneously outstanding.
In
case
any such mutilated, destroyed, lost or stolen Note has become or is about to
become due and payable or has been called for redemption in full, the Company
in
its discretion may, instead of issuing a new Note, pay such Note.
Upon
the
issuance of any new Note under this Section 3.06, the Company may require
payment by the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every
new
Note issued pursuant to this Section 3.06 in lieu of any destroyed, lost or
stolen Note shall constitute an original additional contractual obligation
of
the Company, whether or not the destroyed, lost or stolen Note shall be at
any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies in respect of the replacement or payment
of mutilated, destroyed, lost or stolen Notes.
Section
3.07. Persons
Deemed Owners.
Prior
to due presentment of a Note for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Note is registered as the owner of such Note for the purpose
of
receiving payment of the principal of and interest and Liquidated Damages,
if
any, on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section
3.08. [Reserved].
Section
3.09. Cancellation
and Transfer Provisions.
The
Company at any time may deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Notes previously authenticated hereunder which the Company
has
not issued and sold. The Trustee shall cancel and dispose of all Notes
surrendered for registration of transfer, exchange, payment, purchase,
repurchase, redemption, conversion (pursuant to Article XIII) or cancellation
in
accordance with its customary practices. If the Company shall acquire any of
the
Notes, such acquisition shall not operate as a redemption or satisfaction of
the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation. The Company may not issue new Notes to replace
Notes it has paid in full or delivered to the Trustee for
cancellation.
(a) Transfers
to QIBs.
In the
event of any proposed transfer of a Note constituting a Restricted Note to
a
QIB, the Note Registrar shall register the transfer if such transfer is being
made by a proposed transferor who has checked the box provided for on the form
of Note stating, or has otherwise advised the Company and the Note Registrar
in
writing, that the sale has been made in compliance with the provisions of Rule
144A to a transferee who has signed the certification provided for on the form
of Note stating, or has otherwise advised the Company and the Note Registrar
in
writing, that it is purchasing the Note for its own account or an account in
respect of which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it
has
received such information regarding the Company as it has requested pursuant
to
Rule 144A or has determined not to request such information and that it is
aware
that the transferor is relying upon its foregoing representations in order
to
claim the exemption from registration provided by Rule 144A.
(b) Private
Placement Legend.
Upon
the registration of transfer, exchange or replacement of Notes not bearing
the
legends required by Sections 2.02 and 2.05, the Note Registrar shall deliver
Notes that do not bear such legends. Upon the registration of transfer, exchange
or replacement of Notes bearing the legends required by Sections 2.02 and 2.05,
the Note Registrar shall deliver only Notes that bear such legends unless there
is delivered to the Note Registrar an Opinion of Counsel reasonably satisfactory
to the Company and the Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act.
(c) General.
By its
acceptance of any Note bearing the legends required by Sections 2.02 and 2.05,
each Holder of such a Note acknowledges the restrictions on transfer of such
Note set forth in this Indenture and in such legends and agrees that it will
transfer such Note only as provided in this Indenture.
The
Note
Registrar shall retain, in accordance with its customary procedures, copies
of
all letters, notices and other written communications received pursuant to
this
Section 3.09. The Company shall have the right to inspect and make copies of
all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Note Registrar.
The
Trustee shall have no obligation or duty to monitor, determine or inquire as
to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law in respect of any transfer of any interest in any Note
other than to require delivery of such certificates and other documentation
or
evidence as are expressly required by the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the express
requirements hereof.
ARTICLE
IV
Satisfaction
and Discharge
Section
4.01. Satisfaction
and Discharge of Indenture.
This
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Notes herein expressly provided
for),
and the Trustee, upon receipt of a Company Order and at the expense of the
Company shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(i) all
Notes
theretofore authenticated and delivered (other than (A) Notes which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in
Section 3.06 and (B) Notes the payment for which money has theretofore been
deposited with the Trustee in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust
as
provided in Section 10.03) have been delivered to the Trustee for cancellation;
or
(ii) all
such
Notes not theretofore delivered to the Trustee for cancellation have become
due
and payable at the Stated Maturity or as a result of a Fundamental Change
Repurchase or Event of Default Redemption and the Company has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness evidenced
by
such Notes not theretofore delivered to the Trustee for cancellation;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.
The
Trustee shall join in the execution of a document prepared by the Company
acknowledging satisfaction and discharge of this Indenture on demand at the
cost
and expense of the Company and accompanied by an Officers’ Certificate and
Opinion of Counsel. Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07
and,
if money shall have been deposited with the Trustee pursuant to clause (a)(ii)
of Section 4.01, the obligations of the Trustee under Section 4.02 and the
last
paragraph of Section 10.03 shall survive such satisfaction and discharge.
Section
4.02. Application
of Trust Money.
Subject
to the provisions of the last paragraph of Section 10.03, all money deposited
with the Trustee pursuant to Section 4.01 shall be held in trust and applied
by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, interest, Xxxxxxxxxx Damages or other
Obligations, if any, the payment for which such money has been deposited with
the Trustee.
Section
4.03. Repayment
to the Company.
The
Trustee and the Paying Agent shall return to the Company upon written request
any money held by them for the payment of any amount in respect of the Notes
that remains unclaimed for two years, subject to applicable unclaimed property
law. After return to the Company, Holders entitled to the money must look to
the
Company for payment as general unsecured creditors, unless an applicable
abandoned property law designates another Person, and the Trustee and the Paying
Agent shall have no further liability to the Holders of the Notes in respect
of
such money or securities for that period commencing after the return
thereof.
ARTICLE
V
Remedies
Section
5.01. Events
of Default.
“Event
of Default”
wherever used herein, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary
or be
effected by operation of law or pursuant to any judgment, decree or order of
any
court or any order, rule or regulation of any administrative or governmental
body):
(a) the
failure of the applicable Shelf Registration Statement required to be filed
pursuant to the Registration Rights Agreement to be declared effective by the
Commission on or before the Effectiveness Date (as defined in the Registration
Rights Agreement) or, while the applicable Shelf Registration Statement is
required to be maintained effective pursuant to the terms of the Registration
Rights Agreement, the effectiveness of the applicable Shelf Registration
Statement lapses for any reason (including, without limitation, the issuance
of
a stop order) or is unavailable to any Holder for sale of all of such Holder’s
Transfer Restricted Securities (as defined in the Registration Rights Agreement)
in accordance with the terms of the Registration Rights Agreement, and such
lapse or unavailability continues for a period of ten (10) consecutive days
or
for more than an aggregate of 30 days in any 365-day period (other than days
during a Valid Suspension Period (as defined in the Registration Rights
Agreement)); or
(b) the
Company’s (A) failure to cure a Conversion Failure by delivery of the required
number of shares of Common Stock within ten (10) Trading Days after the
applicable Conversion Date or (B) notice, written or oral, to any Holder,
including by way of public announcement or through any of its agents, at any
time, of its intention not to comply with a request for conversion of any Notes
into shares of Common Stock that is tendered in accordance with the provisions
of this Indenture; or
(c) the
failure for ten (10) consecutive Trading Days of a Holder’s Authorized Share
Allocation to equal or exceed the number of shares of Common Stock that the
Holder would be entitled to receive upon a conversion of the full Conversion
Amount of all of such Holder’s Notes (without regard to any limitations on
conversion set forth in Section 13.02(i) or otherwise); or
(d) default
in the payment of interest or Liquidated Damages, if any, on any Notes when
due
and payable and such default continues for a period of three days;
or
(e) default
in the payment of the Principal Amount, the Redemption Amount, the Fundamental
Change Repurchase Price and/or any applicable Make-Whole Premium on any Note
when it becomes due and payable; or
(f) breach
of
the requirements of paragraph (a) of Section 10.17; or
(g) violation
of the provisions of Section 10.19; or
(h) default
in the performance of any covenant, agreement or condition of the Company in
this Indenture or the Notes (other than a default specified in clauses (a)
through (g) above), and such default continues for a period of 30 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 30% in
aggregate Principal Amount of the Outstanding Notes a written notice specifying
such default and requiring it to be remedied and stating that such notice is
a
“Notice of Default” hereunder; or
(i) (i) default
by the Company or any Subsidiary in the payment of the principal or interest
on
any loan agreement or other instrument under which there may be outstanding,
or
by which there may be evidenced, any debt for money borrowed in excess of
$3 million in the aggregate of the Company and any Subsidiary (other than
indebtedness for borrowed money secured only by the real property to which
the
indebtedness relates and which is non-recourse to the Company or to such
Subsidiary), whether such debt now exists or shall hereafter be created, or
(ii)
any other default by the Company or any Subsidiary in respect of such debt
resulting in such debt becoming or being declared due and payable prior to
its
stated maturity; provided
that if
any time before a judgment or decree has been obtained by the Trustee as
hereinafter provided, such default is remedied or cured by the Company, or
is
waived by the holders of such indebtedness, such default under this clause
(g)
shall be deemed to have been remedied, cured or waived, as the case may be;
or
(j) the
failure by the Company to give the Fundamental Change Company Notice; or
(k) one
or
more final unsatisfied judgments not covered by insurance aggregating in excess
of $1 million, at any one time, are rendered against the Company or any
Subsidiary and not stayed, bonded or discharged within 60 days; or
(l) for
as
long as any Notes remain Outstanding, the Letter of Credit shall at any time
cease to be outstanding in a Stated Amount at least equal to the amount of
interest remaining to be paid through the Stated Maturity of the Notes;
or
(m) the
entry
by a court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company or any Subsidiary of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order adjudging the
Company or any Subsidiary as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or any Subsidiary under any applicable Federal
or State law or (iii) appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any Subsidiary
or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
for
relief or any such other decree or order unstayed and in effect for a period
of
60 consecutive days; or
(n) the
commencement by the Company or any Subsidiary of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company or any Subsidiary in an involuntary case
or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy
or
insolvency case or proceeding against it, or the filing by it of a petition
or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
any
Subsidiary or of any substantial part of its property, or the making by it
of an
assignment for the benefit of creditors, or the admission by it in writing
of
its inability to pay its debts generally as they become due, or the taking
of
corporate action by the Company or any Subsidiary in furtherance of any such
action; or
(o) any
representation or warranty made by the Company in any Transaction Document
shall
have been incorrect in a material way when made; or
(p) the
Company breaches any covenant or other term or condition of any Transaction
Document (other than covenants, terms or conditions, the breach of which
constitutes an “Event of Default” under any other subsection of this Section
5.01), except, in the case of a breach of a covenant which is curable, only
if
such breach continues for a period of at least fifteen (15) consecutive
days.
Section
5.02. Acceleration
of Maturity; Rescission and Annulment.
(a)
If an
Event of Default (other than those specified in clauses (m) and (n) of Section
5.01) occurs and is continuing, then and in every such case the Trustee or
the
Holders of not less than 30% in aggregate Principal Amount of the Outstanding
Notes may declare the Principal Amount plus accrued and unpaid interest and
Liquidated Damages, if any, on all the Outstanding Notes to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such Principal Amount plus accrued
and unpaid interest and Liquidated Damages, if any, shall become immediately
due
and payable. Notwithstanding the foregoing, in the case of an Event of Default
specified in clause (m) or (n) of Section 5.01, the Principal Amount plus
accrued and unpaid interest and Liquidated Damages, if any, on all Outstanding
Notes will ipso facto become due and payable without any declaration or other
Act on the part of the Trustee or any Holder.
(b) At
any
time after such a declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article V provided, the Majority Holders, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if such rescission and annulment will not conflict with
any
judgment or decree of a court of competent jurisdiction and:
(i) the
Company has paid or deposited with the Trustee a sum sufficient to pay
(A) any
overdue interest to the extent not theretofore paid by the L/C
Bank,
(B) the
Principal Amount plus accrued and unpaid interest and Liquidated Damages, if
any, the Redemption Amount or the Fundamental Change Repurchase Price, as
applicable, on any Notes which have become due otherwise than by such
declaration of acceleration, and
(C) all
sums
paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and
any other amounts due the Trustee under Section 6.07; and
(ii) all
Events of Default, other than the non-payment of the Principal Amount plus
accrued and unpaid interest and Liquidated Damages, if any, on Notes which
have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.12.
No
such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Section
5.03. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The
Company covenants that if a default is made in the payment of the Principal
Amount plus accrued and unpaid interest and Liquidated Damages, if any, at
the
Maturity thereof or in the payment of the Redemption Amount or the Fundamental
Change Repurchase Price in respect of any Note, the Company will, upon demand
of
the Trustee, pay to it, for the benefit of the Holders of such Notes, the whole
amount then due and payable on such Notes, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and
advances of the Trustee, its agents and counsel. If an Event of Default occurs
and is continuing, the Trustee may, but shall not be obligated to, pursue any
available remedy to collect the payment of the Principal Amount plus accrued
but
unpaid interest and Liquidated Damages, if any, on the Outstanding Notes or
to
enforce the performance of any provision of the Notes or this Indenture. The
Trustee may maintain a proceeding even if the Trustee does not possess any
of
the Notes or does not produce any of the Notes in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute
a
waiver of, or acquiescence in, the Event of Default. No remedy is exclusive
of
any other remedy. All available remedies are cumulative.
Section
5.04. Trustee
May File Proofs of Claim.
In case
of any judicial proceeding relative to the Company (or any other obligor upon
the Notes), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and
all
actions authorized under the Trust Indenture Act in order to have claims of
the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 6.07.
No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of
reorganization, arrangement, adjustment or composition affecting the Notes
or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
The
Trustee shall be entitled to participate as a member of any official committee
of creditors of the Company as it deems necessary or advisable.
Section
5.05. Application
of Money Collected.
Any
money collected by the Trustee pursuant to this Article (including pursuant
to a
drawing under the Letter of Credit) shall be applied in the following order,
at
the date or dates fixed by the Trustee and, in case of the distribution of
such
money to Holders, upon presentation of the Notes and the notation thereon of
the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST:
To
the payment of all amounts due the Trustee under Section 6.07;
SECOND:
To the payment of the amounts then due and unpaid on the Notes for the Principal
Amount, the Redemption Amount, the Fundamental Change Repurchase Price,
including Make-Whole Premium, if any, or interest, Liquidated Damages, if any,
and any other Obligations, as the case may be, in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or
priority of any kind, according to the amounts due and payable on such Notes;
and
THIRD:
The balance, if any, to the Company.
The
Trustee shall mail to each Holder and the Company, at least 15 days before
any
record date set by the Trustee for any payments, a notice that states such
record date, the payment date, and the amount to be paid.
Section
5.06. Limitation
on Suits.
No
Holder shall have any right to institute any proceeding, judicial or otherwise,
in respect of this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder (other than in the case of an Event of Default
specified in clause (m) or (n) of Section 5.01), unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default;
(b) the
Holders of not less than 30% in aggregate Principal Amount of the Outstanding
Notes shall have made written request to the Trustee to institute proceedings
in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) the
Trustee for 60 days after its receipt of such notice, request and offer of
security or indemnity has failed to institute any such proceeding;
(d) no
direction, in the opinion of the Trustee, inconsistent with such written request
has been given to the Trustee during such 60-day period by the Majority Holders;
and
(e) it
being
understood and intended that no one or more Holders shall have any right in
any
manner whatever by virtue of, or by availing itself of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders,
or to
obtain or to seek to obtain priority or preference over any other Holders or
to
enforce any right under this Indenture, except in the manner herein provided
and
for the equal and ratable benefit of all the Holders.
Section
5.07. Unconditional
Right of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the Principal Amount, the Redemption Amount, the
Fundamental Change Repurchase Price, including Make-Whole Premium, if any,
or
interest and Liquidated Damages, if any, in respect of the Notes held by such
Holder, on or after the respective due dates expressed in the Notes or any
Redemption Date or Fundamental Change Settlement Date, as applicable, and to
convert the Notes in accordance with Article XIII, or to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, shall not be impaired or affected adversely without the consent
of
such Holder.
Section
5.08. Restoration
of Rights and Remedies.
If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section
5.09. Rights
and Remedies Cumulative.
Except
as otherwise provided in respect of the replacement or payment of mutilated,
destroyed, lost or stolen Notes in the last paragraph of Section 3.06, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders
is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to
every other right and remedy given hereunder or now or hereafter existing at
law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section
5.10. Delay
or Omission Not Waiver.
No
delay or omission of the Trustee or of any Holder to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section
5.11. Control
by Holders.
The
Majority Holders shall have the right to direct the time, method and place
of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that:
(a) such
direction shall not be in conflict with any rule of law or with this Indenture,
except as provided herein;
(b) the
Trustee may take any other action deemed proper by the Trustee, as applicable
which is not inconsistent with such direction; and
(c) the
Trustee may refuse to follow any direction that may involve the Trustee, as
applicable in personal liability for which the Trustee, as applicable would
not
otherwise be entitled to indemnification pursuant to the terms of this
Indenture.
This
Section 5.11 shall be in lieu of Section 316(a)1(A) of the Trust Indenture
Act
and such Section 316(a)1(A) is hereby expressly excluded from this Indenture.
Section
5.12. Waiver
of Past Defaults.
The
Majority Holders may on behalf of the Holders of all the Notes waive any past
Default hereunder and its consequences, except a Default:
(a) Described
in clause (m) or (n) of Section 5.01; or
(b) in
respect of a covenant or provision hereof which under Article IX cannot be
modified or amended without the consent of the Holder of each Outstanding Note
affected.
Upon
any
such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or
impair any right consequent thereon.
This
Section 5.12 shall be in lieu of Section 316(a)1(B) of the Trust Indenture
Act
and such Section 316(a)1(B) is hereby expressly excluded from this
Indenture.
Section
5.13. Undertaking
for Costs.
In any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as Trustee,
in
either case in respect of the Notes, a court may require any party litigant
in
such suit to file an undertaking to pay the costs of the suit, and the court
may
assess reasonable costs, including reasonable attorney’s fees, and expenses,
against any party litigant in the suit having due regard to the merits and
good
faith of the claims or defenses made by the party litigant; but the provisions
of this Section 5.13 shall not apply to any suit instituted by the Company,
to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in aggregate Principal
Amount of the Outstanding Notes, or to any suit instituted by any Holder for
the
enforcement of the payment of the Principal Amount or interest or Liquidated
Damages on any Note on or after Maturity of such Note, the Redemption Amount
or
the Fundamental Change Repurchase Price. This Section 5.13 shall be in lieu
of
Section 315(e) of the Trust Indenture Act and such Section 315(e) is hereby
expressly excluded form this Indenture, as permitted by the Trust Indenture
Act.
Section
5.14. Waiver
of Stay or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, or extension law wherever enacted, now or
at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE
VI
The
Trustee
Section
6.01. Certain
Duties and Responsibilities.
(a)
Except
during the continuance of an Event of Default, the Trustee undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee. In case an Event of Default in respect of the
Notes has occurred (which has not been cured or waived), the Trustee shall
exercise the rights and powers vested in it by this Indenture, and use the
same
degree of care and skill in its exercise, as a prudent person would exercise
or
use under the circumstances in the conduct of such person’s own affairs.
Notwithstanding the foregoing, no provision of this Indenture shall require
the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers. In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not, in its role as
Trustee, confirm or investigate the accuracy of mathematical calculations or
other facts stated therein).
(b) Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 6.01.
Section
6.02. Notice
of Defaults.
The
Trustee shall give the Holders notice of any Default hereunder actually known
by
a Responsible Officer of the Trustee within ten days after the occurrence
thereof. The Trustee shall give the Holders notice if the Company shall ever
fail to provide the certification required by Section 10.17(c), or if such
certification ever indicates non-compliance with any of the requirements of
Section 10.17(a) or (b). The preceding sentences of this Section 6.02 shall
be
in lieu of the provision to Section 315(b) of the Trust Indenture Act and such
proviso is hereby expressly excluded from this Indenture, as permitted by the
Trust Indenture Act.
Section
6.03. Certain
Rights of Trustee.
Subject
to the provisions of Section 6.01 and the Trust Indenture Act:
(a) the
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other
evidence of indebtedness or other paper or document reasonably believed by
it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors of the Company may be sufficiently evidenced by a Board
Resolution;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, request and rely
upon
an Officers’ Certificate;
(d) the
Trustee may act and rely and shall be protected in acting and relying in good
faith on the opinion or advice of, or information obtained from, any Counsel,
accountant, appraiser or other expert or adviser, whether retained or employed
by the Company or by the Trustee, in relation to any matter arising in the
administration of the trusts hereof;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit; and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at
the
sole cost of the Company and shall incur no liability or additional liability
of
any kind by reason of such inquiry or investigation;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and shall not
be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(h) the
Trustee shall not be charged with knowledge of any Default or Event of Default
in respect of the Notes unless either (i) a Responsible Officer shall have
actual knowledge of such Default or Event of Default or (ii) written notice
of
such Default or Event of Default shall have been received by the Trustee from
the Company or any other obligor on such Notes or by any Holder of such
Notes;
(i) the
Trustee shall not be liable for any action taken, suffered or omitted by it
in
good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(j) the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian, director, officer, employee and other Person employed
to
act hereunder;
(k) the
Trustee may request, and the Company shall, deliver an Officers’ Certificate
setting forth the names of individuals and/or titles of officers authorized
at
such time to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded;
(l) the
permissive rights of the Trustee to take certain actions under this Indenture
shall not be construed as a duty unless so specified herein; and
(m) in
no
event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of
the
likelihood of such loss or damage and regardless of the form of
action.
Section
6.04. Not
Responsible for Recitals.
The
recitals contained herein and in the Notes, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity, sufficiency or priority of this Indenture
or
of the Notes. The Trustee shall not be accountable for the use or application
by
the Company of Notes or the proceeds thereof.
Section
6.05. May
Hold Notes.
The
Trustee, any Paying Agent (other than the Company), any Note Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Notes and, subject to Section 6.08 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Note Registrar or such other agent.
Section
6.06. Money
Held in Trust.
Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed
in
writing with the Company.
Section
6.07. Compensation
and Reimbursement.
The
Company agrees:
(a) to
pay to
the Trustee from time to time such compensation for all services rendered by
it
hereunder as the Company and the Trustee shall from time to time agree in
writing (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and
the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as shall be determined to have been caused by its own
negligence or willful misconduct; and
(c) to
indemnify the Trustee and its agents, officers, directors and employees and
any
predecessor Trustee for, and to hold them harmless against, any loss, liability,
damage, claim or expense including taxes (including attorney’s fees and
expenses, and taxes (other than taxes based upon, measured by or determined
by
the income of the Trustee)) incurred without negligence or willful misconduct
on
its part, arising out of or in connection with the acceptance or administration
of this trust, including the reasonable costs and expenses of defending itself
against any claim (whether assessed by the Company, by any Holder or any other
Person) or liability in connection with the exercise or performance of any
of
its powers or duties hereunder.
(d) The
obligations of the Company under this Section 6.07 shall survive the resignation
or removal of the Trustee and the satisfaction and discharge of this Indenture.
To secure the Company’s payment obligations in this Section 6.07, the Trustee
shall have a lien prior to the Notes on all money or property held or collected
by the Trustee, and the money or property held in trust to pay principal,
interest and Liquidated Damages, if any, on the Notes. Such lien shall survive
the resignation or removal of the Trustee and the satisfaction and discharge
of
this Indenture. When the Trustee incurs expenses or renders services after
a
Default or an Event of Default specified in clause (m) or (n) of Section 5.01
occurs, the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute expenses
of
administration under Title 11 of the U.S. Code or any other similar foreign,
federal or state law for the relief of debtors.
Section
6.08. Disqualification;
Conflicting Interests.
If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions
of,
the Trust Indenture Act and this Indenture.
Section
6.09. Corporate
Trustee Required; Eligibility.
There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has, or whose
parent banking company has, a combined capital and surplus of at least
$50,000,000. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section 6.09, the combined capital
and
surplus of such Person shall be deemed to be its combined capital and surplus
as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this
Section 6.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section
6.10. Resignation
and Removal; Appointment of Successor.
(a)
No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article VI shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The
Trustee may resign at any time by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.
(c) The
Trustee may be removed at any time by Act of the Majority Holders, delivered
to
the Trustee and to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
notice of removal, the Trustee being removed may petition, at the expense of
the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee in respect of the Notes.
(d) If
at any
time:
(i) the
Trustee shall fail to comply with Section 6.08 after written request therefor
by
the Company or by any Holder who has been a bona fide Holder of a Note for
at
least six months, or
(ii) the
Trustee shall cease to be eligible under Section 6.09 and shall fail to resign
after written request therefor by the Company or by any Holder, or
(iii) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or
(iv) a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then,
in
any such case, (A) the Company by a Company Order may remove the Trustee, or
(B)
subject to Section 5.13, any Holder who has been a bona fide Holder of a Note
for at least six months (including for purposes of calculating such six-month
period, the period such Holder held Nonconvertible Notes prior to the date
hereof) may, on behalf of such Holder and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
and
the appointment of a successor Trustee.
(e) If
the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Company
Order, shall promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy,
a
successor Trustee shall be appointed by Act of the Majority Holders delivered
to
the Company and the retiring Trustee and approved by the Issuer (such approval
not to be unreasonably withheld), the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and
all
others similarly situated, petition any court of competent jurisdiction for
the
appointment of a successor Trustee.
(f) The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee to all Holders in the manner
provided in Section 1.06. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
Section
6.11. Acceptance
of Appointment by Successor.
Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company
shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts.
No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article VI.
Notwithstanding
the resignation or removal of the Trustee, the Company’s obligations under
Section 6.07 shall continue for the benefit of the retiring trustee in respect
of expenses and liabilities incurred by it prior to such resignation or
removal.
Section
6.12. Merger,
Conversion, Consolidation or Succession to Business.
Any
Corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any Corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any Corporation
succeeding to all or substantially all the corporate trust business of the
Trustee by sale or otherwise, shall be the successor of the Trustee hereunder,
provided that such Corporation shall be otherwise qualified and eligible under
this Article VI, without the execution or filing of any paper or any further
act
on the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
Section
6.13. Preferential
Collection of Claims Against.
If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Notes), the Trustee shall be subject to the provisions of
the
Trust Indenture Act regarding the collection of claims against the Company
(or
any such other obligor).
Section
6.14. Trustee’s
Disclaimer.
The
Trustee shall not be accountable for any money paid to the Company or upon
the
Company’s direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying
Agent
other than the Trustee, and it shall not be responsible for any statement herein
or any statement in the Notes or any other document in connection with the
issuance or sale of the Notes or pursuant to this Indenture other than in its
certificate of authentication.
The
Trustee makes no representations as to the value, condition or adequacy of
the
Collateral or any part thereof, or as to the title of the Company or as to
the
security afforded or intended to be afforded thereby or hereby, or as to the
validity or genuineness of any securities at any time pledged and deposited
with
the Trustee hereunder, or as to the validity, attachment, perfection, priority
or enforceability of the Liens in any of the Collateral created or intended
to
be created by this Indenture or any Transaction Document. The Trustee shall
have
no responsibility to make or to see to the making of any recording, filing
or
registration of any instrument or notice (including any financing or
continuation statement or any tax or securities form) (or any rerecording,
refiling or reregistration of any thereof) at any time in any public office
or
elsewhere for the purpose of perfecting, maintaining the perfection of or
otherwise making effective the Lien of this Indenture or any Transaction
Documents or for any other purpose, and shall have no responsibility for
insuring the Collateral or for paying any taxes, charges or assessments on
or
relating to the Collateral or for otherwise maintaining the Collateral,
including, but not limited to, compliance with Environmental Laws, the
investigation or remediation of Hazardous Materials, or any other environmental
matter affecting the Company or the Collateral or any part thereof.
The
Trustee shall have no duty as to any Collateral in its possession or control
or
in the possession or control of any agent or bailee or any income thereon or
as
to preservation of rights against prior parties or any other rights pertaining
thereto.
Except
as
required in connection with fulfilling its obligations pursuant to Sections
6.02
and Section 7.03, the Trustee shall have no duty to ascertain or inquire as
to
the performance or observance of any of the terms of this Indenture or any
Transaction Document by the Company or any other Person that is a party thereto
or bound thereby.
Section
6.15. Co-Trustee,
Co-Collateral Agent and Separate Trustees, Collateral Agent.
At any
time or times, for the purpose of meeting the legal requirements of any
jurisdiction in which any of the Collateral may at the time be located, the
Company, the Collateral Agent and the Trustee shall have power to appoint,
and,
upon the written request of the Trustee or the Collateral Agent or the Majority
Holders, the Company shall for such purpose join with the Trustee or the
Collateral Agent in the execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Trustee
or
the Collateral Agent and, if no Event of Default shall have occurred and be
continuing, by the Company either to act as co-trustee, jointly with the Trustee
or the Collateral Agent, of all or any part of the Collateral, to act as
co-collateral agent, jointly with the Collateral Agent, or to act as separate
trustee or collateral agent of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest in
such
Person or Persons, in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other provisions of this
Section. As of the Issue Date, the Company hereby appoints The Bank of New
York
as initial Collateral Agent and The Bank of New York hereby accepts such
appointment and agrees to serve in such capacity. If the Company does not join
in such appointment within 15 days after the receipt by it of a request so
to
do, or if an Event of Default shall have occurred and be continuing, the Trustee
alone shall have power to make such appointment.
Should
any written instrument or instruments from the Company be required by any
co-trustee, co-collateral agent, separate trustee or separate collateral agent
so appointed to more fully confirm to such co-trustee, co-collateral agent,
separate trustee or separate collateral agent such property, title, right or
power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company.
Every
co-trustee, co-collateral agent, separate trustee or separate collateral agent
shall, to the extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the
Notes
shall be authenticated and delivered, and all rights, powers, duties and
obligations hereunder in respect of the custody of securities, cash and other
personal property held by, or required to be deposited or pledged with, the
Trustee hereunder, shall be exercised solely, by the Trustee;
(b) the
rights, powers, duties and obligations hereby conferred or imposed upon the
Trustee or the Collateral Agent in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed either
by the Trustee or by the Trustee and such co-trustee or separate trustee, or
by
the Collateral Agent and such co-collateral agent or separate collateral agent,
jointly, as shall be provided in the instrument appointing such co-trustee
or
separate trustee or co-collateral agent or separate collateral agent, except
to
the extent that under any law of any jurisdiction in which any particular act
is
to be performed the Trustee shall be incompetent or unqualified to perform
such
act, in which event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate trustee or co-collateral
agent or separate collateral agent;
(c) the
Company and the Trustee or the Collateral Agent, at any time by an instrument
in
writing, executed by them jointly, may accept the resignation of or remove
any
such separate trustee or co-trustee or co-collateral agent or separate
collateral agent, and in that case, by an instrument in writing executed with
the Trustee or Collateral Agent jointly, may appoint a successor to such
separate trustee or co-trustee or co-collateral agent or separate collateral
agent, as the case may be, anything herein contained to the contrary
notwithstanding. In the event that the Company shall not have joined in the
execution of any instrument within ten (10) days after the receipt of a written
request from the Trustee or Collateral Agent so to do, or in case an Event
of
Default shall have occurred and be continuing, the Trustee shall have the power
to accept the resignation of or remove any such separate trustee, co-trustee,
co-collateral agent or separate collateral agent and to appoint a successor
without the concurrence of the Company, the Company hereby irrevocably
appointing each of the Trustee and the Collateral Agent its agent and attorney
to act for it in such connection in either of such contingencies;
(d) neither
the Trustee nor any co-trustee, co-collateral agent, or separate trustee or
separate collateral agent hereunder shall be personally liable by reason of
any
act or omission of any other trustee or collateral agent hereunder;
and
(e) any
Act
of Holders delivered to the Trustee shall be deemed to have been delivered
to
each such co-trustee and separate trustee and any Act of Holders delivered
to
the Collateral Agent shall be deemed to have been delivered to each such
co-collateral agent or separate collateral agent.
Section
6.16. Trustee
as Collateral Agent.
Sections
6.03, 6.05, 6.06, 6.07, 6.10, 6.11, 6.12 and 6.18 shall extend to and include
the Trustee in it role as Collateral Agent mutatis
mutandis.
Section
6.17. [Reserved].
Section
6.18. No
Liability for Clean-up of Hazardous Materials.
In
the
event that the Trustee is required to acquire title to an asset for any reason,
or take any managerial action of any kind in regard thereto, in order to carry
out any fiduciary or trust obligation for the benefit of another, which in
the
Trustee’s sole discretion may cause the Trustee to be considered an “owner or
operator” under the provisions of the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”),
42
U.S.C. §9601, et seq., or otherwise cause the Trustee to incur liability under
CERCLA or any other federal, state or local law, the Trustee reserves the right,
instead of taking such action, to either resign as the Trustee or arrange for
the transfer of the title or control of the asset to a court-appointed receiver.
The Trustee shall not be liable to any Person for any environmental claims
or
contribution actions under any federal, state or local law, rule or regulation
by reason of the Trustee’s actions and conduct as authorized, empowered and
directed hereunder or relating to the discharge, release or threatened release
of hazardous materials into the environment. If at any time it is necessary
or
advisable for any real property to be possessed, owned, operated or managed
by
any Person (including the Trustee) other than the Company, the Majority Holders
shall direct the Trustee to appoint an appropriately qualified Person (excluding
the Trustee) who they shall designate to possess, own, operate or manage, as
the
case may be, the applicable asset.
ARTICLE
VII
Holders’
Lists and Reports by Trustee
Section
7.01. Company
to Furnish Trustee Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee:
(a) quarterly,
not more than 15 days after each Record Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders as
of
such Record Date; and
(b) at
such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its
capacity as Note Registrar; provided, however, that no such list need be
furnished so long as the Trustee is acting as Note Registrar.
Section
7.02. Preservation
of Information; Communications to Holders.
(a)
The
Trustee shall preserve, in as current a form as is reasonably practicable,
the
names and addresses of Holders contained in the most recent list furnished
to
the Trustee as provided in Section 7.01 and the names and addresses of Holders
received by the Trustee in its capacity as Note Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of
a
new list so furnished.
(b) The
rights of Holders to communicate with other Holders in respect of their rights
under this Indenture or under the Notes, and the corresponding rights and duties
of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every
Holder of Notes, by receiving and holding the same, agrees with the Company
and
the Trustee that neither the Company nor the Trustee nor any agent of either
of
them shall be held accountable by reason of any disclosure of information as
to
names and addresses of Holders made pursuant to the Trust Indenture
Act.
Section
7.03. Reports
by Trustee.
(a)
The
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto. Reports so
required to be transmitted at stated intervals of not more than 12 months shall
be transmitted no later than March 31 in each calendar year, commencing in
March, 2007. Each such report shall be dated as of a date not more than 60
days
prior to the date of transmission.
(b) A
copy of
each such report shall, at the time of such transmission to Holders, be filed
by
the Trustee with each stock exchange, if any, upon which the Notes are listed,
with the Commission and with the Company. The Company will notify the Trustee
when the Notes are listed if requested by the Company on any stock exchange
or
of any delisting thereof.
ARTICLE
VIII
Consolidation,
Merger, Conveyance, Transfer or Lease
Section
8.01. Company
May Consolidate, etc., Only on Certain Terms.
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to
any
Person, and the Company shall not permit any Person to consolidate with or
merge
into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(a) either
(i) the Company shall be the continuing Person or (ii) the Person (if other
than
the Company) formed by such consolidation or into which the Company is merged
or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety (the
“Surviving
Entity”),
and
the Surviving Entity shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, all of the obligations of the
Company under the Notes and this Indenture;
(b) immediately
after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing; and
(c) the
Company or the Surviving Entity has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply
with this Article VIII and Article IX, respectively.
Section
8.02. Successor
Substituted.
Upon
any consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of the properties and assets of
the
Company substantially as an entirety in accordance with Section 8.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease 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 had been
named as the Company herein, and thereafter, except in the case of a lease,
the
predecessor Person shall be relieved of all obligations and covenants under
this
Indenture and the Notes.
ARTICLE
IX
Supplemental
Indentures
Section
9.01. Supplemental
Indentures Without Consent of Holders.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any
of
the following purposes:
(a) to
evidence the succession of another Person to the Company and the assumption
by
any such successor of the covenants of the Company herein and in the Notes;
or
(b) to
add to
the covenants of the Company for the benefit of the Holders, or to surrender
any
right or power herein conferred upon the Company; or
(c) to
provide for a successor Trustee in respect of the Notes; or
(d) to
cure
any ambiguity or defect, to correct or supplement any provision herein which
may
be inconsistent with any other provision herein, or to make any other provisions
in respect of matters or questions arising under this Indenture which shall
not
be inconsistent with the provisions of this Indenture; provided
that
such action pursuant to this clause (d) shall not adversely affect the interests
of the Holders in any material respect; or
(e) to
add
any additional Events of Default for the benefit of the Holders; or
(f) to
convey, transfer, assign, mortgage or pledge to the Trustee as security for
the
Notes any property or assets; or
(g) to
decrease the Conversion Price of the Notes; provided,
however,
that
such decrease shall be in accordance with the terms of this Indenture and shall
not adversely affect the interests of the Holders; or
(h) to
supplement any provision of this Indenture to such extent as shall be necessary
to permit or facilitate the discharge of the Notes; provided
that
such change or modification does not adversely affect the interests of the
Holders; or
(i) to
make
any change or modification necessary in connection with the registration of
the
Notes under the Securities Act as contemplated in the Registration Rights
Agreement; provided that such change or modification does not adversely affect
the interests of the Holders; or
(j) to
allow
any Subsidiary or any other Person to guarantee the Notes; or
(k) if
necessary, in connection with any addition or release of Collateral permitted
under the terms of this Indenture, the Security Agreement or any other Security
Document; or
(l) to,
within 90 days of the date hereof, issue additional Notes to the Initial
Purchasers (which may be issued on a non pro
rata basis,
provided that such Notes are first offered on a pro
rata basis
to
all such Initial Purchasers for a minimum period of five (5) Business Days)
in
an aggregate face amount of up to $5,600,000 (for an aggregate consideration
of
up to $5,000,000) if and only if the Company has, prior to such issuance, issued
Common Stock or preferred stock for an aggregate price at least equal to 100%
of
the amount of capital raised by the Company through the issuance of such
additional Notes and, provided
that a
letter of credit upon terms substantially identical to those of the Letter
of
Credit be obtained in respect of the interest thereon; or
(m) to
add or
modify any other provision herein in respect of matters or questions arising
hereunder which the Company and the Trustee may deem necessary or desirable
and
which would not reasonably be expected to adversely affect the interests of
the
Holders in any material respect; it being understood that in order to determine
whether a proposed supplemental indenture has such an adverse effect, the
Trustee may request the Company to deliver an Officer’s Certificate upon which
the Trustee may conclusively rely.
Section
9.02. Supplemental
Indentures With Consent of Holders.
With
the consent of the Majority Holders, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; provided,
however,
that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(a) reduce
the rate of or extend the time for payment of interest, if any, on the Note;
or
(b) reduce
the Principal Amount of, or extend the Stated Maturity of, any Note;
or
(c) make
any
change that impairs or adversely affects the conversion rights of any Notes;
or
(d) reduce
the Redemption Amount, the Fundamental Change Repurchase Price of any Note,
or
the Make-Whole Premium or amend or modify in any manner adverse to the Holders
the Company’s obligation to make such payments, whether through an amendment or
waiver of provisions in the covenants, definitions or otherwise; or
(e) modify
the provisions in respect of the right of Holders to cause the Company to redeem
Notes on the Redemption Date or to repurchase Notes upon a Fundamental Change
in
a manner adverse to Holders; or
(f) make
any
interest or principal on a Note payable in money other than that stated in
the
Note or other than in accordance with the provisions of this Indenture;
or
(g) impair
the right of any Holder to receive payment of the Principal Amount of or
interest or Liquidated Damages, if any, on a Holder’s Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on or
in
respect of such Xxxxxx’s Notes; or
(h) reduce
the quorum or voting requirements under this Indenture; or
(i) change
the ranking of the Notes in a manner adverse to the Holders; or
(j) make
any
change in the amendment provisions which require each Holder’s consent or in the
waiver provisions; or
(k) reduce
the percentage in Principal Amount of the Outstanding Notes, the consent of
the
Holders of which is required for any such supplemental indenture, or the consent
of the Holders of which is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(l) modify
any of the provisions of Section 5.12 or this Section 9.02, except to increase
any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each
Outstanding Note affected thereby; or
(m) modify
the provisions of the Indenture in a manner adverse to the Holders in any
material respect; provided
that any
amendment or waiver of any covenant or representation in the Security Agreement
shall only require the consent of the Majority Holders.
It
shall
not be necessary for any Act of Holders under this Section 9.02 to approve
the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Section
9.03. Execution
of Supplemental Indentures.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be provided with, and
(subject to Section 6.01) shall be fully protected in relying upon, in addition
to the documents required by Section 1.02, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by
this
Indenture. Subject to the preceding sentence, the Trustee shall sign such
supplemental indenture if the same does not adversely affect the Trustee’s own
rights, duties or immunities under this Indenture or otherwise. The Trustee
may,
but shall not be obligated to, enter into any such supplemental indenture that
adversely affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.
Section
9.04. Effect
of Supplemental Indentures.
Upon
the execution of any supplemental indenture under this Article IX, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
Section
9.05. Conformity
with Trust Indenture Act.
Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section
9.06. Reference
in Notes to Supplemental Indentures.
Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX shall bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Notes.
Section
9.07. Amendment
or Waiver Consideration.
If, in
connection with any supplemental indenture, the Company offers to pay to the
Holders any fee or other consideration, such fee or other consideration must
be
offered to all Holders on a pro
rata
basis.
ARTICLE
X
Covenants
Section
10.01. Payments.
The
Company shall duly and punctually make all payments in respect of the Notes
in
accordance with the terms of the Notes and this Indenture.
Any
payments made or due pursuant to this Indenture shall be considered paid on
the
applicable date due if by 10:00 a.m., New York City time, on such date the
Paying Agent holds, in accordance with this Indenture, cash sufficient to pay
all such amounts then due. Payment of the Principal Amount and interest,
including Redemption Amount and Fundamental Change Repurchase Price, and
Liquidated Damages, if any, on the Notes shall be in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
Section
10.02. Maintenance
of Office or Agency.
The
Company shall maintain in the Borough of Manhattan, The City of New York, an
office or agency where Notes may be presented or surrendered for payment, where
Notes may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served, which shall initially be the Corporate Trust Office
of
the Trustee. The Company shall give prompt written notice to the Trustee of
any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of
the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all
such presentations, surrenders, notices and demands.
The
Company may also from time to time designate one or more other offices or
agencies (in or outside the Borough of Manhattan, The City of New York) where
the Notes may be presented or surrendered for any or all such purposes and
may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The
City
of New York, for such purposes. The Company shall give prompt written notice
to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. The Company hereby initially
designates The Bank of New York as one such office or agency of the
Company.
Section
10.03. Money
for Note Payments to be Held in Trust.
If the
Company shall at any time act as its own Paying Agent, it shall, on or before
each due date of any payment in respect of any of the Notes, segregate and
hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to
make the payment so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and shall promptly notify the
Trustee of its action or failure so to act.
Whenever
the Company shall have one or more Paying Agents, it will, prior to each due
date of any payment in respect of any Notes, deposit with a Paying Agent a
sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The
Company shall cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with
the Trustee, subject to the provisions of this Section 10.03, that such Paying
Agent will (i) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent and (ii) during the continuance of any default by the
Company (or any other obligor upon the Notes) in the making of any payment
in
respect of the Notes, upon the written request of the Trustee, forthwith pay
to
the Trustee all sums held in trust by such Paying Agent as such.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability in respect of such money.
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in
trust for the making of payments in respect of any Note and remaining unclaimed
for two years after such payment has become due shall be paid to the Company
on
Company Request, or (if then held by the Company) shall be discharged from
such
trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the
Trustee or such Paying Agent in respect of such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided,
however,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
a
newspaper published in the English language, customarily published on each
Trading Day and of general circulation in The City of New York, notice that
such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Company. In the
absence of a written request from the Company to return funds remaining
unclaimed for two years after such payment has become due to the Company, the
Trustee shall from time to time deliver all unclaimed payments to or as directed
by applicable escheat authorities, as determined by the Trustee in its sole
discretion, in accordance with the customary practices and procedures of the
Trustee. Any such unclaimed funds held by the Trustee pursuant to this Section
10.03 shall be held uninvested and without any liability for
interest.
Section
10.04. Statement
by Officers as to Default.
The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate, stating whether or not to the knowledge of the signers thereof
the
Company is in Default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall
be
in Default, specifying all such Defaults and the nature and status thereof
of
which they may have knowledge.
The
Company shall deliver to the Trustee, as soon as possible and in any event
within 30 days after the Company becomes aware of the occurrence of any Event
of
Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers’ Certificate setting forth the
details of such Event of Default or default and the action which the Company
is
taking or proposes to take with respect thereto.
Section
10.05. Existence.
Subject
to Article VIII, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect its existence, rights (charter
and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors
of
the Company shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is
not
disadvantageous in any material respect to the Holders.
Section
10.06. Further
Instruments and Acts.
Upon
request of the Trustee, the Company will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to
carry out more effectively the purposes of this Indenture.
Section
10.07. Reports
and Delivery of Certain Information.
(a)
The
Company shall furnish to the Holders (or cause the Trustee to furnish to the
Holders) such annual and quarterly reports, information, documents and other
reports with the Commission, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the Company
is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act, no later than the applicable filing date as set forth in the
Exchange Act, whether or not Company makes the filing with the Commission.
The
Company shall file with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof,
as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to the Trust Indenture Act and shall comply with Trust
Indenture Act Section 314(a), whether or not the Notes are governed by the
Trust Indenture Act. Delivery of such reports, information and documents to
the
Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein
or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officers’ Certificates). At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company
shall furnish to the Holders (or cause the Trustee to furnish to the Holders)
(i) quarterly financial statements within 45 days after the end of each fiscal
quarter that are substantially equivalent to those the Company would be required
to file with the Commission in a Quarterly Report on Form 10-Q, (ii) annual
financial statements within 90 days after the end of each fiscal year that
are
substantially equivalent to those the Company would be required to file with
the
Commission in an Annual Report on Form 10-K, including a report thereon by
the
Company’s certified independent accountants, and (iii) accompanying each of the
financial statements required by (i) and (ii) above, information substantially
equivalent to that required by Regulation S-K Item 303, “Management Discussion
and Analysis of Financial Condition and Results of Operations”; provided
that, in
each case, the delivery of materials to the Holders by electronic means shall
be
deemed “furnished” to the Holders for purposes of this Section 10.06;
provided,
further,
that
the Company shall be deemed to have satisfied its obligations under each of
(i),
(ii) and (iii) above if it files such information with the Commission (if the
Commission will accept such filing) or otherwise makes such financial statements
and other information available on or through its web site.
(b) Notwithstanding
the foregoing, at any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, upon the request of a Holder or any beneficial owner
of Notes or holder or beneficial owner of shares of Common Stock issued upon
conversion thereof, the Company will promptly furnish or cause to be furnished
Rule 144A Information (as defined below) and any reports required to be filed
by
them under the Exchange Act or the Securities Act to such Holder or any
beneficial owner of Notes or holder or beneficial owner of shares of Common
Stock, or to a prospective purchaser of any such security designated by any
such
holder, as the case may be, to the extent required to permit compliance by
such
Holder or holder with Rule 144A under the Securities Act in connection with
the
resale of any such security. “Rule
144A Information”
shall
be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act.
Section
10.08. Resale
of Certain Notes.
The
Company shall not, and shall not permit any of its “affiliates” (as defined
under Rule 144 under the Securities Act or any successor provision thereto)
to,
resell any Notes which constitute “restricted securities” under Rule 144 that
have been reacquired by any of them. The Trustee shall have no responsibility
in
respect of the Company’s performance of its agreement in the preceding
sentence.
Section
10.09. [Reserved].
Section
10.10. Information
for IRS Filings.
The
Company shall provide to the Trustee on a timely basis such information as
the
Trustee requires to enable the Trustee to prepare and file any form required
to
be submitted by the Company with the Internal Revenue Service and the Holders.
Section
10.11. Liquidated
Damages Under the Registration Rights Agreement.
If at
any time Liquidated Damages become payable by the Company pursuant to the
Registration Rights Agreement, the Company shall promptly deliver to the Trustee
an Officers’ Certificate to that effect and stating (i) the amount of such
Liquidated Damages that are payable and (ii) the date on which such Liquidated
Damages are payable pursuant to the terms of the Registration Rights Agreement.
Unless and until a Responsible Officer of the Trustee receives such an Officers’
Certificate or a notice from a Holder, the Trustee may assume without inquiry
that no Liquidated Damages are payable. If the Company has paid Liquidated
Damages directly to the Persons entitled to such Liquidated Damages, the Company
shall deliver to the Trustee an Officers’ Certificate setting forth the
particulars of such payment.
Section
10.12. Incurrence
of Indebtedness.
So long
as the Notes are Outstanding, the Company shall not, and the Company shall
not
permit any of its Subsidiaries to, directly or indirectly, incur or guarantee,
assume or suffer to exist any Indebtedness, other than (i) the Indebtedness
evidenced by the Notes and (ii) Permitted Indebtedness. The Company shall not,
and shall not permit any Subsidiary to, incur, create, issue, assume or
guarantee any Indebtedness that is contractually subordinate in right of payment
to any other Indebtedness of the Company unless such Indebtedness is also
contractually subordinated in right of payment to the Notes on substantially
similar terms. No Guarantor will incur, create, issue, assume or guarantee
any
Indebtedness that is contractually subordinate in right of payment to any other
Indebtedness of such Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to such Guarantor’s Guarantee on substantially
similar terms. For purposes of the foregoing, no Indebtedness shall be deemed
to
be subordinated in right of payment to any other Indebtedness of the Company
or
any Guarantor, as applicable, solely by virtue of being unsecured or by virtue
of the fact that the holders of any secured Indebtedness have entered into
intercreditor agreements giving one or more of such holders priority over the
other holders in the collateral held by them.
Section
10.13. Existence
of Liens.
So long
as the Notes are Outstanding, the Company shall not, and the Company shall
not
permit any Guarantor to, directly or indirectly, allow or suffer to exist any
mortgage, lien, pledge, charge, security interest or other encumbrance upon
or
in any property or assets (including accounts and contract rights) owned by
the
Company, or any Guarantor, (collectively, “Liens”)
other
than Permitted Liens.
Section
10.14. Restricted
Payments.
The
Company shall not, and the Company shall not permit any Guarantor to, directly
or indirectly, redeem, defease, repurchase, repay or make any payments in
respect of, by the payment of cash or cash equivalents (in whole or in part,
whether by way of open market purchases, tender offers, private transactions
or
otherwise), all or any portion of any Permitted Indebtedness, whether by way
of
payment in respect of principal of (or premium, if any) or interest on, such
Permitted Indebtedness if at the time such payment is due or is otherwise made
or, after giving effect to such payment, an event constituting, or that with
the
passage of time and without being cured would constitute, an Event of Default
has occurred and is continuing.
Section
10.15. Restriction
on Redemption and Dividends.
Until
all of the Notes have been converted, redeemed or otherwise satisfied in
accordance with their terms, the Company shall not, directly or indirectly,
redeem, repurchase, declare or pay any dividend or other distribution (whether
in cash or in kind) on its Capital Stock, provided
that the
Company shall be permitted to pay dividends in kind on preferred stock issued
pursuant to clause (b) of the definition of Excluded Securities.
Section
10.16. Reservation
of Authorized Shares.
(a) Reservation.
The
Company initially shall reserve out of its authorized and unissued Common Stock
a number of shares of Common Stock for each Note equal to 130% of the Conversion
Rate in respect of the Conversion Amount of each such Note as of the
Issue Date.
So
long as any Notes are Outstanding, the Company shall take all action necessary
to reserve and keep available out of its authorized and unissued Common Stock,
solely for the purpose of effecting the conversion of the Notes, 130% of the
number of shares of Common Stock as shall from time to time be necessary to
effect the conversion of all of the Outstanding Notes (the “Required
Reserve Amount”).
The
initial number of shares of Common Stock reserved for conversions of the Notes
and each increase in the number of shares so reserved shall be allocated pro
rata among the Holders based on the Principal Amount of the Notes held by each
Holder on the Issue Date or increase in the number of reserved shares, as the
case may be (the “Authorized
Share Allocation”).
In
the event that a Holder shall sell or otherwise transfer any of such Xxxxxx’s
interests in any Notes, each transferee shall be allocated a pro rata portion
of
such Holder’s Authorized Share Allocation. Any shares of Common Stock reserved
and allocated to any Person which ceases to hold any Notes shall be allocated
to
the remaining Holders of such Notes, pro rata based on the Principal Amount
of
the Notes then held by such Holders.
(b) Insufficient
Authorized Shares.
If at
any time while any of the Notes remain Outstanding the Company does not have
a
sufficient number of authorized and unreserved shares of Common Stock to satisfy
its obligation to reserve for issuance upon conversion of the Notes at least
a
number of shares of Common Stock equal to the Required Reserve Amount (an
“Authorized
Share Failure”),
then
the Company shall immediately take all action necessary to increase the
Company’s authorized shares of Common Stock to an amount sufficient to allow the
Company to reserve the Required Reserve Amount for the Outstanding Notes.
Without limiting the generality of the foregoing sentence, as soon as
practicable after the date of the occurrence of an Authorized Share Failure,
but
in no event later than 60 days after the occurrence of such Authorized Share
Failure, the Company shall hold a meeting of its shareholders for the approval
of an increase in the number of authorized shares of Common Stock. In connection
with such meeting, the Company shall provide each shareholder with a proxy
statement and shall use its best efforts to solicit its shareholders’ approval
of such increase in authorized shares of Common Stock and to cause its Board
of
Directors to recommend to the shareholders that they approve such
proposal.
Section
10.17. Financial
Covenants.
(a) Leverage
Coverage Ratio:
Convertible debt to annualized quarterly earnings before interest, taxes,
depreciation and amortization not to exceed 25 to 1, beginning first fiscal
quarter 2008 (September 30, 2007); not to exceed 20 to 1, beginning the first
quarter 2009 (September 30, 2008). No Event of Default shall be deemed to have
occurred pursuant to the provisions of this Section 10.17(a) until the required
ratios have not been met for two consecutive fiscal quarters.
(b) Business
Covenant:
Subscriber Targets (CPQ only): 6,000 seats by January 24, 2007 shall have been
achieved, increasing by 2,000 seats per fiscal quarter thereafter, with such
requirement ceasing to be effective 18 months after original issuance of the
Nonconvertible Notes. Failure to achieve the required numbers of subscribers
in
any two consecutive fiscal quarters, shall result in a right of redemption
in
respect of the Notes as provided in Section 11.02.
(c) Certification.
Within
15 days of the end of each fiscal quarter, the Company shall furnish an
Officers’ Certificate to the Trustee stating (i) the leverage coverage ratio
achieved in the applicable quarter and (ii) the average number of CPQ
subscribers during the applicable quarter. Reporting as to item (ii) above
shall
cease from the quarter that ends next after 18 months of the date of issuance
of
the Notes.
Section
10.18. [Reserved]
Section
10.19.
Management Offerings.
The
Company shall not issue to members of management or directors of, or consultants
to, the Company equity or securities convertible into equity of the Company
except (i) to Trident Growth Fund LP upon the exercise of options to acquire
up
to 1,000,000 shares of common stock of the Company at an exercise price of
$7.00
per share pursuant to that certain Consulting Agreement entered into between
the
Company and Trident Growth Fund L.P. dated as of September 1, 2006 in accordance
with the terms of such agreement as in effect on the date hereof, (ii) upon
the
conversion of the 12% Senior Secured Convertible Debenture referred to in clause
(b) of the definition of “Permitted Indebtedness” in accordance with the terms
of such debenture, as such debenture is in effect on the date hereof, (iii)
up
to 1,766,000 shares issuable pursuant to the Company’s 2006 Stock Incentive Plan
as in effect on the date hereof, and (iv) as otherwise may be approved by
the Majority Holders. For the avoidance of doubt, any amendment to the vesting
requirements or vesting schedules of the restricted stock awards granted to
Xxxx
Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx Xxxxx and Xxxx Xxxxxxx under those certain
Restricted Stock Awards issued to each of them in March 2006 shall not be
prohibited by this Section 10.19.
ARTICLE
XI
Redemptions
Section
11.01. No
Redemption by the Company.
Except
at the option of the Holders pursuant to Sections 11.02 and 11.05, the Notes
may
not be redeemed by the Company prior to Maturity.
Section
11.02. Right
of Holder to Require Redemption.
Any
redemption by the Company contemplated pursuant to this Section 11.02 shall
be
consummated by delivery to the Paying Agent of the consideration to be received
by the Holder(s) on the Redemption Date. On any Trading Day after the failure
by
the Company to achieve the numbers of subscribers required by Section 10.17(b)
in any two consecutive fiscal quarters, any Holder of Notes may elect to have
such Notes redeemed, in whole or in part, by the Company and, each Holder shall
have the right, in its sole discretion, to require that the Company redeem
all
or any part of the Principal Amount of such Holder’s Notes for the Redemption
Amount by delivering a Redemption Notice to the Company. The Company shall
pay
the applicable Redemption Amount in cash on the Redemption Date, with such
amount being attributed first to the reduction of interest (to the extent not
paid pursuant to a drawing under the Letter of Credit), Liquidated Damages,
if
any, and other Obligations (other than Principal Amount) owing on such Note(s),
and then to the repayment of the Principal Amount on such Note(s).
Section
11.03. Deposit
of Aggregate Redemption Amount.
Prior
to 10:00 a.m., New York City time, on any Redemption Date, the Company shall
deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate
of either of them is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Amount of all Notes to be redeemed on that
date
other than Notes or portions of Notes presented for redemption which on or
prior
thereto have been delivered by the Company to the Trustee for cancellation
or
have been converted. Notes must be surrendered to the Paying Agent for
cancellation to collect payment. The Paying Agent shall as promptly as
practicable return to the Company any money not required for that purpose
because of conversion of Notes pursuant to Article XIII. If such money is then
held by the Company in trust and is not required for such purpose it shall
be
discharged from such trust.
Section
11.04. Notes
Redeemed in Part.
Upon
surrender of a Note that is redeemed in part, the Company shall execute and
the
Trustee shall authenticate and deliver to the Holder a new Note in an authorized
denomination equal in principal amount to the unredeemed portion of the Note
surrendered. The Company shall not be required to (i) issue, register the
transfer of, or exchange any Notes during a period of ten days before the
Redemption Date or (ii) register the transfer of, or exchange any, Notes so
presented for redemption, in whole or in part, except the unredeemed portion
of
any Note being redeemed in part.
Section
11.05. Repurchase
of Notes at Option of the Holder Upon Fundamental Change.
(a) General.
If
prior to the Stated Maturity there shall have occurred a Fundamental Change,
each Holder shall have the option to require all or a portion of its Notes
to be
repurchased (the “Fundamental
Change Repurchase”)
by the
Company at the Fundamental Change Repurchase Price on the Fundamental Change
Settlement Date in accordance with the following procedures. The “Fundamental
Change Repurchase Price”
means
the Principal Amount of the Outstanding Notes to be repurchased, together with
accrued and unpaid interest and Liquidated Damages, if any, and Make-Whole
Premium, to, but excluding, the Fundamental Change Settlement Date.
(b) Company
Notice of Fundamental Change.
Within
15 days after the Company knows or reasonably should know of the occurrence
of a
Fundamental Change, the Company shall deliver a written notice of Fundamental
Change (the “Fundamental
Change Company Notice”)
by
first-class mail or by overnight courier to the Trustee and to each Holder
(and
to beneficial owners as required by applicable law). The notice shall include
a
form of Fundamental Change Repurchase Notice to be completed by the Noteholder
and shall state:
(i) the
events causing a Fundamental Change and the date of such Fundamental
Change;
(ii) the
last
date of the Fundamental Change Conversion/Repurchase Period by which a Holder
must deliver a Fundamental Change Repurchase Notice to elect the repurchase
option pursuant to this Section 11.05 or deliver a Notice of Conversion
requesting conversion upon a Fundamental Change in accordance with Section
13.02;
(iii) the
Fundamental Change Settlement Date;
(iv) the
Fundamental Change Repurchase Price;
(v) the
Conversion Price applicable on the date of the Fundamental Change Company
Notice;
(vi) that
Notes as to which a Fundamental Change Repurchase Notice has been given may
be
converted pursuant to Article XIII only if the Fundamental Change Repurchase
Notice has been withdrawn in accordance with the terms of this
Indenture;
(vii) that
Notes must be surrendered to the Paying Agent for cancellation to collect
payment;
(viii) that
the
Fundamental Change Repurchase Price for any Note as to which a Fundamental
Change Repurchase Notice has been duly given and not withdrawn will be paid
promptly following the later of the Fundamental Change Settlement Date and
the
time of surrender of such Note as described in clause (vii) above;
(ix) the
procedures the Holder must follow to exercise rights under this Section
11.05;
(x) the
conversion rights of the Notes;
(xi) the
procedures for withdrawing a Fundamental Change Repurchase Notice;
(xii) that,
unless the Company defaults in making payment of such Fundamental Change
Repurchase Price, Notes covered by any Fundamental Change Repurchase Notice
will
cease to be outstanding and interest and Liquidated Damages, if any, will cease
to accrue on and after the Fundamental Change Settlement Date;
(xiii) that
a
Make-Whole Premium is required to be paid by the Company upon any conversion
or
redemption in connection with a Fundamental Change; and
(xiv) whether
such Make-Whole Premium shall be paid in cash, by delivery of shares of Common
Stock or a combination thereof in accordance with Section 14.01(c).
The
Company shall, at least three (3) Trading Days prior to delivering the
Fundamental Change Company Notice, deliver an Officers’ Certificate to the
Trustee specifying:
(A) the
information required by the Fundamental Change Company Notice pursuant to
Section 11.05(b);
(B) if
the
Company elects to pay all or a portion of the Make-Whole Premium in shares
of
Common Stock, that the conditions to such manner of payment set forth in Section
14.01(d) have been or will be complied with; and
(C) whether
the Company desires the Trustee to give the Fundamental Change Company Notice
required by Section 11.05(b).
If
the
Company requests that the Trustee give (at the Company’s expense) such
Fundamental Change Company Notice in the Company’s name, the Company shall, in
all cases, prepare the text of such Fundamental Change Company Notice. In
connection with delivery of the Fundamental Change Company Notice to the
Holders, the Company shall publish a notice containing substantially the same
information that is required in the Fundamental Change Company Notice in a
newspaper published in the English language, customarily published each Trading
Day and of general circulation in The City of New York, or publish such
information on the Company’s website or through such other public medium as the
Company may use at such time.
(c) Fundamental
Change Repurchase Notice.
In
order to exercise its rights under this Section 11.05, a Holder must deliver
to
the Paying Agent:
(i) a
written
notice of repurchase (a “Fundamental
Change Repurchase Notice”),
substantially in the form of Exhibit
D
hereto,
at any time during the Fundamental Change Conversion/Repurchase
Period:
(A) the
certificate number of the Note which the Holder will deliver to be repurchased;
(B) the
portion of the Principal Amount of the Note which the Holder will deliver to
be
purchased, which portion must be in a Principal Amount of not less than the
lesser of $1,000 or the Outstanding Principal Amount of such Note;
and
(C) that
such
Note shall be purchased as of the Fundamental Change Settlement Date pursuant
to
the terms and conditions specified in the Notes and in this Indenture;
and
(ii) the
Note
for cancellation prior to, on or after the Fundamental Change Settlement Date
(together with all necessary endorsements) at the offices of the Paying Agent,
such delivery being a condition to receipt by the Holder of the Fundamental
Change Repurchase Price therefor; provided
that
such Fundamental Change Repurchase Price shall be so paid pursuant to this
Section 11.05 only if the Note so delivered to the Paying Agent shall conform
in
all respects to the description thereof in the related Fundamental Change
Repurchase Notice.
Provisions
of this Indenture that apply to the repurchase of all of a Note also apply
to
the repurchase of such portion of such Note.
Any
repurchase by the Company contemplated pursuant to the provisions of this
Section 11.05 shall be consummated by the delivery to the Paying Agent of the
consideration to be received by the Holder promptly following the later of
the
Fundamental Change Settlement Date and the time of delivery of the Note.
Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent
the
Fundamental Change Repurchase Notice contemplated by this Section 11.05(c)
shall
have the right to withdraw such Fundamental Change Repurchase Notice at any
time
prior to the close of business on the Trading Day prior to the Fundamental
Change Settlement Date by delivery of a written notice of withdrawal to the
Paying Agent in accordance with Section 11.06.
The
Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(d) Payment
of Fundamental Change Repurchase Price.
The
Notes to be repurchased pursuant to this Section 11.05 shall be paid for
(i) by the payment of the Fundamental Change Repurchase Price (excluding
the Make-Whole Premium) in cash; and (ii) the payment of the Make-Whole
Premium, at the option of the Company (or the Surviving Entity, as applicable),
in either cash or, subject to the satisfaction of the conditions to such manner
of payment set forth in Section 14.01(d), shares of Common Stock as
specified by the Company in the Fundamental Change Company Notice.
(e) Procedure
Upon Repurchase.
The
Company shall deposit cash at the time and in the manner as provided in Section
11.09, sufficient to pay the aggregate Fundamental Change Repurchase Price
(excluding the Make-Whole Premium) of all Notes to be purchased pursuant to
this
Section 11.05; provided
that the
Company shall make deposits relating to payment of the Make-Whole Premium in
accordance with Section 14.02.
Section
11.06. Effect
of Fundamental Change Repurchase Notice.
Upon
receipt by the Paying Agent of the Fundamental Change Repurchase Notice
specified in Section 11.05(c), the Holder of the Note in respect of which such
Fundamental Change Repurchase Notice was given shall (unless such Fundamental
Change Repurchase Notice is withdrawn as specified in the following two
paragraphs) thereafter be entitled to receive solely the Fundamental Change
Repurchase Price in respect of such Note. Such Fundamental Change Repurchase
Price shall be paid to such Holder, subject to receipt of funds by the Paying
Agent, promptly following the later of (x) the Fundamental Change Settlement
Date in respect of such Note (provided the conditions in Section 11.05(c) have
been satisfied) and (y) the time of delivery of such Note to the Paying Agent
by
the Holder thereof in the manner required by Section 11.05(c). Notes in respect
of which a Fundamental Change Repurchase Notice has been given by the Holder
thereof may not be converted pursuant to Article XIII on or after the date
of
the delivery of such Fundamental Change Repurchase Notice unless such
Fundamental Change Repurchase Notice has first been validly withdrawn as
specified in the following two paragraphs.
A
Fundamental Change Repurchase Notice may be withdrawn only by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the procedures set forth in the Fundamental Change Company Notice at any
time prior to the close of business on the Trading Day prior to the Fundamental
Change Settlement Date specifying:
(a) the
Principal Amount of the Outstanding Note in respect of which such notice of
withdrawal is being submitted;
(b) the
certificate number of the Note in respect of which such notice of withdrawal
is
being submitted; and
(c) the
Principal Amount, if any, of such Note which remains subject to the original
Fundamental Change Repurchase Notice and which has been or will be delivered
for
purchase or repurchase by the Company.
There
shall be no repurchase of any Notes pursuant to Section 11.07 if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders
of such Notes, of the required Fundamental Change Repurchase Notice) and is
continuing an Event of Default (other than a default in the payment of the
Fundamental Change Repurchase Price in respect of such Notes). The Paying Agent
will promptly return to the respective Holders thereof any Notes (x) in respect
of which a Fundamental Change Repurchase Notice has been withdrawn in compliance
with this Indenture, or (y) held by it during the continuance of an Event of
Default (other than a default in the payment of the Fundamental Change
Repurchase Price in respect of such Notes) in which case, upon such return,
the
Fundamental Change Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.
Section
11.07. Notes
Repurchased in Whole or in Part.
Any
Note which is to be repurchased, whether in whole or in part, shall be
surrendered at the office of the Paying Agent (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Xxxxxx’s attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
of
such Note, without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder in aggregate Principal Amount equal
to,
and in exchange for, the portion of the Principal Amount of the Outstanding
Note
so surrendered which is not repurchased.
Section
11.08. Covenant
to Comply With Securities Laws Upon Repurchase of Notes.
In
connection with any offer to repurchase Notes under Section 11.05 (provided
that
such offer or repurchase constitutes an “issuer tender offer” for purposes of
Rule 13e-4 (which term, as used herein, includes any successor provision
thereto) under the Exchange Act at the time of such offer or repurchase), the
Company shall (a) comply with Rule 13e-4 and Rule 14e-1 under the Exchange
Act,
(b) file the related Schedule TO (or any successor schedule, form or report)
under the Exchange Act, and (c) otherwise comply with all Federal and state
securities laws so as to permit the rights and obligations under Section 11.05
to be exercised in the time and in the manner specified in Section 11.05, as
applicable.
Section
11.09. Deposit
of Fundamental Change Repurchase Price and Common Stock for Fundamental Change
Conversion.
Prior
to 10:00 a.m. (local time in The City of New York) on the Trading Day preceding
the Fundamental Change Settlement Date, the Company shall deposit with the
Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an
Affiliate of either of them is acting as the Paying Agent, shall segregate
and
hold in trust as provided herein) (a) an amount of money (in immediately
available funds if deposited on such Trading Day), sufficient to pay the
Fundamental Change Repurchase Price and/or (b) Common Stock sufficient to
satisfy any Fundamental Change Conversion as applicable, of all the Notes or
portions thereof which are to be repurchased or converted, as applicable as
of
the Effective Date. The Company shall promptly notify the Trustee in writing
of
the amount of any deposits of cash or Common Stock made pursuant to this Section
11.09.
Section
11.10. Repayment
to the Company.
The
Trustee and the Paying Agent shall return to the Company upon Company request
any cash that remains unclaimed, together with interest or dividends, if any,
thereon, held by them for the payment of the Fundamental Change Repurchase
Price; provided
that to
the extent that the aggregate amount of cash or Common Stock deposited by the
Company pursuant to Section 11.09 exceeds the aggregate Fundamental Change
Repurchase Price of the Notes or portions thereof which the Company is obligated
to repurchase as of the Fundamental Change Settlement Date, then as soon as
practicable following the Fundamental Change Settlement Date, the Trustee or
the
Paying Agent, as the case may be, shall return any such excess to the Company
upon Company request.
ARTICLE
XII
Interest
Payments on the Notes
Section
12.01. Interest
Rate.
(a)
Interest
on the Notes shall be payable monthly in arrears on each Interest Payment Date
to Holders of record on the Record Date immediately preceding such Interest
Payment Date. Interest on the Notes shall accrue at a rate equal to twelve
percent (12%) per annum. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months. Interest on the Notes shall accrue
from
the most recent date to which interest has been paid, or if no interest has
been
paid, from the date of issuance until the Principal Amount is paid or duly
made
available for payment.
(b) On
each
Interest Dividend Payment Date, an additional sum determined by the Company
shall be payable as interest on each Note equal to the product of (i) the number
of shares of Common Stock into which such Note was convertible on the Record
Date for such Interest Dividend Payment Date (without regard to the Conversion
Limitation) and (ii) the dividends or distributions paid or otherwise made
or
deemed made by the Company per share of Common Stock on such Interest Dividend
Payment Date.
(c) Interest
on any Note that is payable, and is punctually paid or duly provided for, on
any
Interest Payment Date or Interest Dividend Payment Date shall be paid to the
Person in whose name that Note is registered at the close of business on the
Record Date for such interest at the office or agency of the Company maintained
for such purpose. Each installment of interest on any Note shall be made by
wire
transfer in immediately available funds in accordance with the written wire
transfer instructions supplied by such Holder in the Exchange Agreement or
from
time to time to the Trustee and Paying Agent (if different from the Trustee)
at
least ten (10) days prior to the applicable Interest Payment Date or Interest
Dividend Payment Date.
Section
12.02. Interest
Payment Upon Redemption.
On the
date of any redemption pursuant to Article XI, interest accrued but unpaid
thereon shall be payable on the Notes so redeemed.
Section
12.03. Letter
of Credit.
(a) All
payments of interest due to the Holders pursuant to clause (a) of Section 12.01,
Section 12.02 and, in the case of acceleration, pursuant to Section 5.02 shall
be made with funds paid by the L/C Bank pursuant to drawings by the Trustee
under the Letter of Credit.
(b) The
Trustee shall calculate the amount of interest due on each Interest Payment
Date. No later than one Business Day prior to each Interest Payment Date, the
Trustee shall submit to the L/C Bank a drawing certificate requesting the L/C
Bank to make a payment to the Paying Agent of the amount of accrued interest
due
all Holders on such Interest Payment Date. Upon receipt of the funds paid by
the
L/C Bank under the Letter of Credit, the Paying Agent will pay each Holder
its
pro rata share of the amount received from the L/C Bank.
(c)
In
the
event any Holder elects to redeem all or any portion of the Outstanding Notes
held by it pursuant to Section 11.02 or Section 11.05, the Company shall
promptly notify the Trustee of the scheduled Redemption Date or Fundamental
Change Settlement Date, as applicable. The Trustee shall calculate the amount
of
accrued interest payable to such Holder on such Redemption Date or Fundamental
Change Settlement Date, as applicable, and no later than one Business Day prior
to such Redemption Date or Fundamental Change Settlement Date, as applicable,
submit to the L/C Bank a drawing certificate requesting the L/C Bank to make
a
payment to the Paying Agent of the amount of accrued interest due such Holder
on
such Redemption Date or Fundamental Change Settlement Date, as applicable.
Upon
receipt of the funds paid by the L/C Bank, the Paying Agent will pay such Holder
the amount of interest received for its account from the L/C Bank. Each drawing
certificate submitted to the L/C Bank pursuant to this paragraph (c) shall
also
be accompanied by an authorization from the Trustee to reduce the Stated Amount
by an amount equal to the interest that would have accrued on the Note or Notes
so redeemed from the Redemption Date or Fundamental Change Settlement Date,
as
applicable, to the Stated Maturity Date of such Note or Notes if such Note
or
Notes had not been redeemed on the Redemption Date or Fundamental Change
Settlement Date, as applicable.
(d) If
the
Maturity of the Notes is accelerated prior to the Stated Maturity thereof as
provided in Section 5.02, the Trustee shall be entitled to draw under the Letter
of Credit for the entire Stated Amount then available for drawing thereunder.
The Trustee shall hold the amounts so drawn as collateral security for the
Obligations for the benefit of the Holders and shall distribute such amounts
to
the Holders based on the instructions of the Required Holders. Upon its receipt
of the payment made by the L/C Bank pursuant to this paragraph (d), the Trustee
shall promptly submit the Letter of Credit to the L/C Bank for
cancellation.
ARTICLE
XIII
Conversion
Section
13.01. Conversion
Privilege.
(a) Optional
Conversion.
Subject
to the further provisions of this Section 13.01 and Section 13.02(i), at any
time after the Issue Date, a Holder of a Note may convert the Principal Amount
of such Note (or any portion thereof equal to any integral multiple of $1,000)
into shares of Common Stock.
(b) Forced
Conversion.
(i) If
at any
time prior to the Stated Maturity, (x) the VWAP (as defined below) of the shares
of Common Stock exceeds 200% of the Conversion Price as of the Issue Date
($14.00 per share) (subject to adjustment as set forth herein) for each of
any
fifteen (15) consecutive Trading Days and (y) the Conditions to Forced
Conversion (as defined below) shall have been satisfied on each day during
the
period commencing on the Forced Conversion Notice Date and ending on the Forced
Conversion Date (each, as defined below), the Company shall have the right,
subject to the limitation in Section 13.02(i), to require each Holder of a
Convertible Note to convert all or a portion of such Note, as designated in
the
Forced Conversion Notice (as defined below) into Common Stock at the Conversion
Price as of the Forced Conversion Date (as defined below) (a “Forced
Conversion”).
The
Company may exercise its right to require conversion under this Section
13.01(b)(i) by delivering on the Trading Day following the end of the 15
consecutive Trading Days referred to in clause (x) above, a written notice
thereof to the Convertible Holders and the Trustee (the “Forced
Conversion Notice”
and
the
date the Trustee received such notice is referred to as the “Forced
Conversion Notice Date”).
The
Forced Conversion Notice shall be irrevocable. The Company shall make a public
announcement in respect of the Forced Conversion Notice on the Forced Conversion
Notice Date. The Forced Conversion Notice shall state (A) the Trading Day
selected for the Forced Conversion, which Trading Day shall be at least twenty
(20) Trading Days but not more than forty (40) Trading Days following the Forced
Conversion Notice Date (the “Forced
Conversion Date”),
and
(B) the Principal Amount of the Outstanding Notes for which such Forced
Conversion shall be applicable. Upon a Forced Conversion, each Holder shall
be
deemed to have delivered a Notice of Conversion pursuant to Section 13.02 on
the
Forced Conversion Notice Date.
(ii) If
the
Company elects to cause a Forced Conversion of any portion of any Note pursuant
to Section 13.01(b)(i), then it must simultaneously take the same action in
the
same proportion in respect of each other Notes issued under this Indenture.
If
the Company has elected a Forced Conversion, the mechanics of Conversion set
forth in Section 13.02 shall apply, to the extent applicable, as if the Company
had received from the Holder on the Forced Conversion Notice Date a Notice
of
Conversion.
(iii) For
purposes of this Section 13.01, the following definitions shall apply:
(A) “Conditions
to Forced Conversion”
means
that each of the following conditions have been met: (i) on each day during
the
period beginning three (3) months prior to the applicable date of determination
(such period, the “Measuring
Period”),
either (x) a Shelf Registration Statement filed pursuant to the Registration
Rights Agreement shall be effective and available for the resale of all
remaining Transfer Restricted Securities (as defined in the Registration Rights
Agreement) in accordance with the terms of the Registration Rights Agreement
or
(y) all shares of Common Stock issuable upon conversion of the Note shall be
eligible for sale without restriction and without the need for registration
under any applicable federal or state securities laws; (ii) on each day during
the Measuring Period, the Common Stock is designated for quotation on the
Principal Market and shall not have been suspended from trading on such exchange
or market (other than suspensions of not more than one (1) day and occurring
prior to the applicable date of determination due to business announcements
by
the Company) nor shall delisting or suspension by such exchange or market been
threatened or pending either (A) in writing by such exchange or market or (B)
by
falling below the minimum listing maintenance requirements of such exchange
or
market; (iii) during the Measuring Period, there shall not have occurred either
(A) the public announcement of a pending, proposed or intended Fundamental
Transaction which has not been abandoned, terminated or consummated, or (B)
an
Event of Default or (C) an event that with the passage of time or giving of
notice would constitute an Event of Default; (iv) the Company shall have no
knowledge of any fact that would cause any one of the following: (x) a Shelf
Registration Statement required pursuant to the Registration Rights Agreement
not to be effective and available for the resale of all remaining Transfer
Restricted Securities in accordance with the terms of the Registration Rights
Agreement or (y) any shares of Common Stock issuable upon conversion of the
Notes not to be eligible for sale without restriction pursuant to Rule 144(k)
and any applicable state securities laws; (v) the Company has a minimum average
daily dollar trading volume (as reported on Bloomberg) of the Common Stock
on
the Principal Market over the Measuring Period of $400,000; (vi) any applicable
shares of Common Stock to be issued in connection with the event requiring
determination may be issued in full without violating Section 13.02(i) and
the
rules or regulations of the Principal Market; (vii) the Company shall not have
failed to make any payment on any Obligation within five (5) Business Days
of
when such payment is due pursuant to any Transaction Document; (viii) the
Company shall not have effected during the thirty (30) consecutive day period
prior to the Forced Conversion Date, Forced Conversions into shares of Common
Stock (together with any shares of Common Stock to be issued upon the Forced
Conversion Date) in excess of 50% of the aggregate value of the shares of Common
Stock traded during the ten (10) consecutive Trading Days prior to the Forced
Conversion Notice Date as reported on Bloomberg; and (ix) the Company otherwise
shall have been in material compliance with and shall not have materially
breached any provision, covenant, representation or warranty of any Transaction
Document.
(B) “VWAP”
means,
for any date, the price determined by the Company by the first of the following
clauses that applies: (a) if the Common Stock is then listed or quoted on an
Eligible Market, the daily volume weighted average price of the Common Stock
for
such date (or the nearest preceding date) on the Eligible Market on which the
Common Stock is then listed or quoted as reported by Bloomberg Financial L.P.
(based on a Trading Day from 9:30 a.m. Eastern Time to 4:02 p.m. Eastern Time);
(b) if the Common Stock is not then listed or quoted on an Eligible Market
and
if prices for the Common Stock are then quoted on the OTC Bulletin Board, the
volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the OTC Bulletin Board; (c) if the Common Stock is not then
listed or quoted on the OTC Bulletin Board and if prices for the Common Stock
are then reported in the “Pink Sheets” published by the Pink Sheets, LLC (or a
similar organization or agency succeeding to its functions of reporting prices),
the most recent bid price per share of the Common Stock so reported; or (d)
in
all other cases, the fair market value of a share of Common Stock as determined
by an independent appraiser selected in good faith by the Company.
(c) Conversion
Period.
Notwithstanding the foregoing, if such Convertible Note is presented for
repurchase pursuant to Section 11.05, such conversion right shall terminate
at the close of business on the last day of the Fundamental Change
Conversion/Repurchase Period for such Note (unless the Company shall default
on
payment when due, in which case the conversion right shall extend to the close
of business on the date such default is cured and such Note is repurchased).
(d) Conversion
Rate.
The
number of shares of Common Stock issuable upon conversion of any Conversion
Amount pursuant to Section 13.01 shall be determined by dividing (x) such
Conversion Amount by (y) the Conversion Price (the “Conversion
Rate”).
(i) “Conversion
Amount”
means
the sum of (A) the portion of the Principal Amount to be converted, redeemed
or
otherwise in respect of which this determination is being made and (B) accrued
and unpaid interest and Liquidated Damages, if any, in respect of such Principal
Amount.
(ii) “Conversion
Price”
means,
as of any Conversion Date (as defined below) or other date of determination,
$7.00, subject to adjustment as provided in Section 13.06.
(e) Notes
Converted in Whole or in Part.
Provisions of this Indenture that apply to conversion of all of a Note also
apply to conversion of a portion of a Note.
(f) Rights
of Holders.
Unless
otherwise provided herein, a Holder of Notes is not entitled to any rights
of a
holder of Common Stock until such Holder has converted its Notes to Common
Stock, and only to the extent such Notes are deemed to have been converted
into
Common Stock pursuant to this Article XIII.
Section
13.02. Conversion
Procedure.
(a) To
convert a Note (or any portion thereof) into shares of Common Stock on any
date
(the “Conversion
Date”),
a
Holder must (i) complete and manually sign the conversion notice on the back
of
the Note (or a facsimile of the conversion notice) specifying the Principal
Amount of such Note such Holder seeks to convert and deliver such notice and
deliver such documentation (a “Notice
of Conversion”)
to a
Conversion Agent, (ii) surrender the Note to a Conversion Agent, (iii) furnish
appropriate endorsements and transfer documents if required by a Registrar
or a
Conversion Agent and (iv) pay any transfer or similar tax, if required.
(b) The
Company will, as soon as practicable after the Conversion Date, but in no event
later than two (2) Trading Days following the delivery of a Notice of Conversion
(the “Share
Delivery Date”)
issue,
or cause to be issued, and deliver to the Conversion Agent or to such Holder,
or
such Holder’s nominee or nominees, certificates for the number of full shares of
Common Stock, if any, to which such Holder shall be entitled. The Person or
Persons entitled to receive such Common Stock upon such conversion shall be
treated for all purposes as the record holder or holders of such Common Stock,
as of the close of business on the applicable Conversion Date; provided,
however,
that no
surrender of a Note on any date when the stock transfer books of the Company
shall be closed shall be effective to constitute the Person or Persons entitled
to receive the shares of Common Stock upon such conversion as the record holder
or holders of such shares of Common Stock on such date, but such surrender
shall
be effective to constitute the Person or Persons entitled to receive such shares
of Common Stock as the record holder or holders 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 Conversion
Date as if the stock transfer books of the Company had not been closed. Upon
conversion in full of a Note, such Person shall no longer be a Holder of such
Note. Except as otherwise provided in Section 13.06, no payment or adjustment
will be made for dividends or distributions on shares of Common Stock issued
upon conversion of a Note.
All
Notes
or portions thereof surrendered for conversion during the period from the close
of business on the Record Date to the opening of business on the immediately
following Interest Payment Date shall be accompanied by payment, in funds
acceptable to the Company, of an amount equal to the interest otherwise payable
on such Interest Payment Date on the Principal Amount being converted.
(c) Company’s
Failure to Timely Convert.
If
within three (3) Trading Days after the delivery by such Holder of a Notice
of
Conversion the Company shall, or at the Company’s request the Conversion Agent
shall, fail to issue and deliver a certificate or certificates to such Holder,
or such Holder’s nominee or nominees (a “Conversion
Failure”),
for
the number of shares of Common Stock to which such Holder is entitled upon
such
Holder’s conversion of any Notes, and if on or after such Trading Day such
Holder purchases (in an open market transaction or otherwise) Common Stock
to
deliver in satisfaction of a sale by such Holder of Common Stock issuable upon
such conversion that such Holder anticipated receiving from the Company (a
“Buy-In”),
then
the Company shall, within three Trading Days after such Holder’s request and in
such Holder’s discretion, either (i) pay cash to such Holder in an amount equal
to such Holder’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased (the “Buy-In
Price”),
at
which point the Company’s obligation to deliver such certificate (and to issue
such Common Stock) shall terminate, or (ii) promptly honor its obligation to
deliver to such Holder a certificate or certificates representing such Common
Stock and pay cash to such Holder in an amount equal to the excess (if any)
of
the Buy-In Price over the product of (A) such number of shares of Common Stock,
times (B) the closing bid price in respect of shares of Common Stock on the
Conversion Date. Unless the cause of such Conversion Failure is entirely out
of
the control of the Company, during a Conversion Failure, additional interest
shall accrue on the Notes subject to the applicable Notice of Conversion at
a
rate of 1.5% per day (such amount, the “Conversion
Failure Liquidated Damages”).
In
the case of a Conversion Failure, each Holder as to which such Conversion
Failure has occurred may, at its election, withdraw its Conversion Notice in
whole but not in part, provided in such case that each Holder making such
election shall, in respect of the Notes subject to such Conversion Notice,
not
be entitled to receive either the Buy-In Price or the Conversion Failure
Liquidated Damages.
(d) If
a
Holder converts more than one Note at the same time, the number of shares of
Common Stock issuable upon the conversion shall be based on the aggregate
Principal Amount of Notes converted.
(e) The
conversion by the Holder following its receipt of the Fundamental Change Company
Notice during the Fundamental Change Conversion/Repurchase Period shall be
a
“Fundamental
Change Conversion.”
In
connection with a Fundamental Change Conversion, the Holder shall be entitled
to
receive a Make-Whole Premium in accordance with Article XIV.
(f) Upon
surrender of a Note that is converted in part, the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder, as soon as practicable
but in no event later than three (3) Trading Days after receipt of such Note,
a
new Note equal in Principal Amount to the unconverted portion of the Note
surrendered.
(g) If
the
last day on which Note may be converted is not a Trading Day in a place where
a
Conversion Agent is located, the Notes may be surrendered to that Conversion
Agent on the next succeeding Trading Day.
(h) Holders
that have already delivered a Fundamental Change Repurchase Notice in respect
of
a Note may not surrender such Note for conversion until the Fundamental Change
Repurchase Notice has been withdrawn in accordance with the procedures set
forth
in Section 11.06.
(i) The
Company shall not effect any conversion of a Note, including, without limitation
a Forced Conversion pursuant to Section 13.01(b), and no Holder shall have
the
right to convert any portion of such Note, to the extent that after giving
effect to such conversion (including any Make-Whole Premium), the Holder
(together with the Holder’s affiliates) would beneficially own in excess of
4.99% of the number of shares of Common Stock outstanding immediately after
giving effect to such conversion (the “Conversion Limitation”).
For
purposes of the foregoing sentence, the number of shares of Common Stock
beneficially owned by the Holder and its affiliates shall include the number
of
shares of Common Stock issuable upon conversion of a Note in respect of which
the determination of such sentence is being made, but shall exclude the number
of shares of Common Stock which would be issuable upon (A) conversion of the
remaining, nonconverted portion of any Note beneficially owned by the Holder
or
any of its affiliates and (B) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without
limitation, any warrants) subject to a limitation on conversion or exercise
analogous to the limitation contained herein beneficially owned by the Holder
or
any of its affiliates. Except as set forth in the preceding sentence, for
purposes of this Section, beneficial ownership shall be calculated in accordance
with Section 13(d) of the Exchange Act. For purposes of this Section 13.02(i),
in determining the number of outstanding shares of Common Stock, the Holder
may
rely on the number of outstanding shares of Common Stock as reflected in (x)
the
Company’s most recent Form 10-K, 10-Q or Form 8-K, as the case may be, (y) a
more recent public announcement by the Company or (z) any other notice by the
Company or its transfer agent setting forth the number of shares of Common
Stock
outstanding. For any reason at any time, upon the written or oral request of
the
Holder, the Company shall within one Trading Day confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding. In any
case, the number of outstanding shares of Common Stock shall be determined
after
giving effect to the conversion or exercise of securities of the Company,
including any Note, by the Holder or its affiliates since the date as of which
such number of outstanding shares of Common Stock was reported. By written
notice to the Company, any Holder may increase or decrease the Conversion
Limitation to any other percentage not in excess of 9.99% specified in such
notice; provided
that (i)
any such increase will not be effective until the 61st day after such notice
is
delivered to the Company, and (ii) any such increase or decrease will apply
only
to the Holder sending such notice and not to any other Holder of Notes.
Section
13.03. No
Fractional Shares.
The
Company shall not issue any fraction of a share of Common Stock upon any
conversion. If the issuance would result in the issuance of a fraction of a
share of Common Stock, the Company shall round such fraction of a share of
Common Stock up to the nearest whole share. The Company shall pay any and all
taxes that may be payable in respect of the issuance and delivery of Common
Stock upon conversion of any Conversion Amount.
Section
13.04. Taxes
on Conversion.
If a
Holder converts a Note, the Company shall pay any documentary, stamp or similar
issue or transfer tax due on the issuance of shares of Common Stock upon such
conversion. However, the Holder shall pay any such tax which is due because
the
Holder requests the shares to be issued in a name other than the Holder’s name.
The Conversion Agent may refuse to deliver the certificate representing the
Common Stock being issued in a name other than the Holder’s name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder’s name.
Nothing herein shall preclude any tax withholding required by law or
regulation.
Section
13.05. Company
to Provide Stock.
(a)
The
Company shall, prior to issuance of any Notes hereunder, and from time to time
as may be necessary, reserve, out of its authorized but unissued Common Stock,
a
sufficient number of shares of Common Stock to permit the conversion of all
Outstanding Notes into shares of Common Stock (including after taking into
account any adjustments to the Conversion Price pursuant to Section 13.06).
(b) All
shares of Common Stock delivered upon conversion of the Notes shall be newly
issued shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any lien
or
adverse claim.
(c) The
Company will endeavor promptly to comply with all federal and state securities
laws regulating the offer and delivery of shares of Common Stock upon conversion
of Notes, if any, and will list or cause to have quoted such shares of Common
Stock on the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market or other over-the-counter market or such other market on which
the Common Stock is then listed or quoted. Unless registered, any shares of
Common Stock issued upon conversion of a Note hereunder which at the time of
conversion was a Transfer Restricted Note shall be a restricted
security.
Section
13.06. Adjustment
of Conversion Price.
The
Conversion Price shall be adjusted from time to time by the Company as
follows:
(a) Adjustment
upon Issuance of Shares of Common Stock.
If and
whenever on or after the Issue Date the Company issues or sells, or in
accordance with this Section 13.06 is deemed to have issued or sold, any shares
of Common Stock (including the issuance or sale of shares of Common Stock owned
or held by or for the account of the Company, but excluding shares of Common
Stock deemed to have been issued by the Company in connection with any Excluded
Securities) for a consideration per share less than a price (the “Applicable
Price”)
equal
to the Conversion Price in effect immediately prior to such issue or sale or
deemed issuance or sale (the foregoing a “Dilutive
Issuance”),
then
immediately after such Dilutive Issuance, the Conversion Price then in effect
shall be reduced to an amount equal to the product of (A) the Conversion Price
in effect immediately prior to such Dilutive Issuance and (B) the quotient
determined by dividing (1) the sum of (I) the product derived by multiplying
the
Conversion Price in effect immediately prior to such Dilutive Issuance and
the
number of shares of Common Stock Deemed Outstanding immediately prior to such
Dilutive Issuance plus (II) the consideration, if any, received by the Company
upon such Dilutive Issuance, by (2) the product derived by multiplying (I)
the
Conversion Price in effect immediately prior to such Dilutive Issuance by (II)
the number of shares of Common Stock Deemed Outstanding immediately after such
Dilutive Issuance. For purposes of determining the adjusted Conversion Price
under this Section 13.06(a), the following shall be applicable:
(i) Issuance
of Options.
If the
Company in any manner grants any Options and the lowest price per share for
which one share of Common Stock is issuable upon the exercise of any such Option
or upon conversion, exercise or exchange of any Convertible Securities issuable
upon exercise of any such Option is less than the Applicable Price, then such
share of Common Stock shall be deemed to be outstanding and to have been issued
and sold by the Company at the time of the granting or sale of such Option
for
such price per share. For purposes of this Section 13.06(a)(i), the “lowest
price per share for which one share of Common Stock is issuable upon the
exercise of any such Options or upon conversion, exercise or exchange of any
Convertible Securities issuable upon exercise of any such Option” shall be equal
to the sum of the lowest amounts of consideration (if any) received or
receivable by the Company with respect to any one share of Common Stock upon
the
granting or sale of the Option, upon exercise of the Option and upon conversion,
exercise or exchange of any Convertible Security issuable upon exercise of
such
Option. No further adjustment of the Conversion Price shall be made upon the
actual issuance of such shares of Common Stock or of such Convertible Securities
upon the exercise of such Options or upon the actual issuance of such shares
of
Common Stock upon conversion, exercise or exchange of such Convertible
Securities.
(ii) Issuance
of Convertible Securities.
If the
Company in any manner issues or sells any Convertible Securities and the lowest
price per share for which one share of Common Stock is issuable upon the
conversion, exercise or exchange thereof is less than the Applicable Price,
then
such share of Common Stock shall be deemed to be outstanding and to have been
issued and sold by the Company at the time of the issuance or sale of such
Convertible Securities for such price per share. For the purposes of this
Section 13.06(a)(ii), the “lowest price per share for which one share of Common
Stock is issuable upon the conversion, exercise or exchange thereof” shall be
equal to the sum of the lowest amounts of consideration (if any) received or
receivable by the Company in respect of one share of Common Stock upon the
issuance or sale of the Convertible Security and upon conversion, exercise
or
exchange of such Convertible Security. No further adjustment of the Conversion
Price shall be made upon the actual issuance of such shares of Common Stock
upon
conversion, exercise or exchange of such Convertible Securities, and if any
such
issue or sale of such Convertible Securities is made upon exercise of any
Options for which adjustment of Conversion Price has been or is to be made
pursuant to other provisions of this Section 13.06(a), no further adjustment
of
the Conversion shall be made by reason of such issue or sale.
(iii) Change
in Option Price or Rate of Conversion.
If the
purchase price provided for in any Options, the additional consideration, if
any, payable upon the issue, conversion, exercise or exchange of any Convertible
Securities, or the rate at which any Convertible Securities are convertible
into
or exercisable or exchangeable for shares of Common Stock increases or decreases
at any time, the Conversion Price in effect at the time of such increase or
decrease shall be adjusted to the Conversion Price which would have been in
effect at such time had such Options or Convertible Securities provided for
such
increased or decreased purchase price, additional consideration or increased
or
decreased conversion rate, as the case may be, at the time initially granted,
issued or sold. For purposes of this Section 13.06(a)(iii), if the terms of
any
Option or Convertible Security that was outstanding as of the date of original
issuance of the Notes are increased or decreased in the manner described in
the
immediately preceding sentence, then such Option or Convertible Security and
the
shares of Common Stock deemed issuable upon exercise, conversion or exchange
thereof shall be deemed to have been issued as of the date of such increase
or
decrease. No adjustment pursuant to this Section 13.06(a) shall be made if
such
adjustment would result in an increase of the Conversion Price then in
effect.
(iv) Calculation
of Consideration Received.
In case
any Option is issued in connection with the issue or sale of other securities
of
the Company, together comprising one integrated transaction in which no specific
consideration is allocated to such Options by the parties thereto, the Options
will be deemed to have been issued for a consideration of $0.01. If any shares
of Common Stock, Options or Convertible Securities are issued or sold or deemed
to have been issued or sold for cash, the consideration received therefor will
be deemed to be the net amount received by the Company therefor. If any shares
of Common Stock, Options or Convertible Securities are issued or sold for a
consideration other than cash, the amount of such consideration received by
the
Company will be the fair value of such consideration, except where such
consideration consists of securities, in which case the amount of consideration
received by the Company will be the Closing Sale Price of such security on
the
date of receipt. If any shares of Common Stock, Options or Convertible
Securities are issued to the owners of the non-surviving entity in connection
with any merger in which the Company is the surviving entity, the amount of
consideration therefor will be deemed to be the fair value of such portion
of
the net assets and business of the non-surviving entity as is attributable
to
such shares of Common Stock, Options or Convertible Securities, as the case
may
be. The fair value of any consideration other than cash or securities will
be
determined jointly by the Company and the Majority Holders. If such parties
are
unable to reach agreement within ten (10) days after the occurrence of an event
requiring valuation (the “Valuation
Event”),
the
fair value of such consideration will be determined within five (5) Business
Days after the tenth day following the Valuation Event by an independent,
reputable appraiser jointly selected by the Company and the Majority Holders.
The determination of such appraiser shall be final and binding upon all parties
absent manifest error and the fees and expenses of such appraiser shall be
borne
by the Company.
(v) Record
Date.
If the
Company takes a record of the holders of shares of Common Stock for the purpose
of entitling them (A) to receive a dividend or other distribution payable in
shares of Common Stock, Options or in Convertible Securities or (B) to subscribe
for or purchase shares of Common Stock, Options or Convertible Securities,
then
such record date will be deemed to be the date of the issue or sale of the
shares of Common Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the date of the
granting of such right of subscription or purchase, as the case may
be.
(b) If
the
Company at any time on or after the Issue Date subdivides (by any stock split,
stock dividend, recapitalization or otherwise) one or more classes of its
outstanding shares of Common Stock into a greater number of shares, the
Conversion Price in effect immediately prior to such subdivision will be
proportionately reduced. If the Company at any time on or after the Issue Date
combines (by combination, reverse stock split or otherwise) one or more classes
of its outstanding shares of Common Stock into a smaller number of shares,
the
Conversion Price in effect immediately prior to such combination will be
proportionately increased. Any adjustment under this Section 13.06(b) shall
become effective at the close of business on the date the subdivision or
combination becomes effective.
(c) If
the
Company shall declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to holders of shares of Common Stock, by
way
of return of capital or otherwise (including, without limitation, any
distribution of cash, stock or other securities, property or options by way
of a
dividend, spin off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction) (a “Distribution”),
at
any time after the original issuance of the Notes, then, in each such case
any
Conversion Price in effect immediately prior to the close of business on the
record date fixed for the determination of holders of shares of Common Stock
entitled to receive the Distribution shall be reduced, effective as of the
close
of business on such record date, to a price determined by multiplying such
Conversion Price by a fraction of which (i) the numerator shall be the Closing
Bid Price of the shares of Common Stock on the trading day immediately preceding
such record date minus the value of the Distribution (as determined in good
faith by the Company’s Board of Directors) applicable to one share of Common
Stock, and (ii) the denominator shall be the Closing Bid Price of the shares
of
Common Stock on the trading day immediately preceding such record
date.
(d) In
case
the Company or any of its Subsidiaries shall purchase any shares of the
Company’s Common Stock by means of a tender offer, then, effective immediately
prior to the opening of business on the day after the last date (the
“Expiration
Date”)
tenders could have been made pursuant to such tender offer (as it may be
amended) (the last time at which such tenders could have been made on the
Expiration Date is hereinafter sometimes called the “Expiration
Time”),
the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to
the close of business on the Expiration Date by a fraction of
which:
(1) the
numerator shall be the product of the number of shares of Common Stock
outstanding (including Purchased Shares but excluding any shares held in the
treasury of the Company) immediately prior to the Expiration Time multiplied
by
the then Current Market Price per share of the Common Stock; and
(2) the
denominator shall be the sum of (x) the aggregate consideration (determined
as
set forth below) payable to stockholders of the Company based on the acceptance
(up to any maximum specified in the terms of the tender offer) of all shares
validly tendered and not withdrawn as of the Expiration Time (the shares deemed
so accepted, up to any such maximum, being referred to as the “Purchased
Shares”)
and
(y) the product of the number of shares of Common Stock outstanding (less any
Purchased Shares and excluding any shares held in the treasury of the Company)
immediately prior to the Expiration Time and the Current Market Price per share
of Common Stock (as determined in accordance with clause (e) of Section 13.06).
For
purposes of this clause (d) of Section 13.06, the aggregate consideration in
any
such tender offer shall equal the sum of the aggregate amount of cash
consideration and the aggregate fair market value (as determined by the Board
of
Directors, whose determination shall be conclusive evidence thereof and which
shall be evidenced by an Officers’ Certificate delivered to the Trustee) of any
other consideration payable in such tender offer. In the event that the Company
is obligated to purchase shares pursuant to any such tender offer, but the
Company is permanently prevented by applicable law from effecting any or all
such purchases or any or all such purchases are rescinded, the Conversion Price
shall again be adjusted to be the Conversion Price which would have been in
effect based upon the number of shares actually purchased. If the application
of
this clause (d) of Section 13.06 to any tender offer would result in an increase
in the Conversion Price, no adjustment shall be made for such tender offer
under
this Section 13.06(d). For purposes of this clause (d) of Section 13.06, the
term “tender
offer”
shall
mean and include both tender offers and exchange offers, all references to
“purchases”
of
shares in tender offers (and all similar references) shall mean and include
both
the purchase of shares in tender offers and the acquisition of shares pursuant
to exchange offers, and all references to “tendered
shares”
(and
all similar references) shall mean and include shares tendered in both tender
offers and exchange offers.
(e) If
any
event occurs of the type contemplated by the provisions of this Section 13.06
but not expressly provided for by such provisions (including, without
limitation, the granting of stock appreciation rights, phantom stock rights
or
other rights with equity features), then the Company’s Board of Directors will
make an appropriate adjustment in the Conversion Price so as to protect the
rights of the Holder; provided that no such adjustment pursuant to this Section
13.06(e) will increase the Conversion Price as otherwise determined pursuant
to
this Section 13.06.
Section
13.07. No
Adjustment.
(a)
No
adjustment need be made for issuances of Excluded Securities.
(b) To
the
extent that the Notes become convertible into the right to receive cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue
on
the cash due.
(c) No
adjustment in the Conversion Price shall be made pursuant to Section 13.06
if
the Holders may participate in the transaction that would otherwise give rise
to
an adjustment pursuant to Section 13.06.
(d) Other
than as described above in Section 13.06, no adjustment to the Conversion Price
shall be required for any issuance of Common Stock or convertible or
exchangeable securities or rights to purchase Common Stock or convertible or
exchangeable securities.
Section
13.08. Notice
of Conversion Price Adjustment.
Whenever the Conversion Price is adjusted, the Company shall promptly mail
to
Holders 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. Unless and until the Trustee shall receive an Officers’
Certificate setting forth an adjustment of the Conversion Price, the Trustee
may
assume without inquiry that the Conversion Price has not been adjusted and
that
the last Conversion Price of which it has knowledge remains in effect.
Section
13.09. Notice
of Certain Transactions.
In the
event that:
(a) the
Company takes any action which would require an adjustment in the Conversion
Price;
(b) the
Company consolidates or merges with, or transfers all or substantially all
of
its property and assets to, another corporation and stockholders of the Company
must approve the transaction; or
(c) there
is
a dissolution or liquidation of the Company,
the
Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice at least twenty (20) days before such date. Failure to mail such
notice or any defect therein shall not affect the validity of any transaction
referred to in clause (a), (b) or (c) of this Section 13.09.
Section
13.10. Effect
of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege.
If any
of the following shall occur, namely: (a) any reclassification or change of
shares of Common Stock issuable upon conversion of the Notes (other than a
change in par value, or from par value to no par value, or from no par value
to
par value, or as a result of a subdivision or combination, or any other change
for which an adjustment is provided in Section 13.06); (b) any consolidation
or
merger or combination 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 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) in, outstanding shares of Common Stock; or (c) any sale or
conveyance as an entirety or substantially as an entirety of the property and
assets of the Company, directly or indirectly, to any Person, then the Company,
or such successor, purchasing or transferee corporation, as the case may be,
shall, as a condition precedent to such reclassification, change, combination,
consolidation, merger, sale or conveyance, execute and deliver to the Trustee
a
supplemental indenture providing that the Holder of each Note then Outstanding
shall have the right to convert such Note into the kind and amount of shares
of
stock and other securities and property (including cash) receivable upon such
reclassification, change, combination, consolidation, merger, sale or conveyance
by a holder of the number of shares of Common Stock deliverable upon conversion
of such Note immediately prior to such reclassification, change, combination,
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 XIII. If, in the case of any such consolidation,
merger, combination, sale or conveyance, the stock or other securities and
property (including cash) receivable thereupon by a holder of Common Stock
include shares of stock or other securities and property of a person other
than
the successor, purchasing or transferee corporation, as the case may be, in
such
consolidation, merger, combination, sale or conveyance, then such supplemental
indenture shall also be executed by such other Person and shall contain such
additional provisions to protect the interests of the Holders as the Board
of
Directors shall reasonably consider necessary by reason of the foregoing. The
provisions of this Section 13.10 shall similarly apply to successive
reclassifications, changes, combinations, consolidations, mergers, sales or
conveyances.
In
the
event the Company shall execute a supplemental indenture pursuant to this
Section 13.10, the Company shall promptly file with the Trustee (x) an Officers’
Certificate briefly stating the reasons therefor, the kind or amount of shares
of stock or other securities or property (including cash) receivable by Holders
upon the conversion of their Notes after any such reclassification, change,
combination, consolidation, merger, sale or conveyance, any adjustment to be
made with respect thereto and that all conditions precedent have been complied
with and (y) an Opinion of Counsel that all conditions precedent have been
complied with, and shall promptly mail notice thereof to all
Holders.
Section
13.11. Trustee’s
Disclaimer.
The
Trustee shall have no duty to determine when an adjustment under this Article
XIII should be made, how it should be made or what such adjustment should be,
but may accept as conclusive evidence of that fact or the correctness of any
such adjustment, and shall be protected in relying upon, an Officers’
Certificate including the Officers’ Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 13.08. The
Trustee makes no representation as to the validity or value of any securities
or
assets issued upon conversion of Notes and the Trustee shall not be responsible
for the Company’s failure to comply with any provisions of this Article
XIII.
The
Trustee shall not be under any responsibility to determine the correctness
of
any provisions contained in any supplemental indenture executed pursuant to
Section 13.10, but may accept as conclusive evidence of the correctness thereof,
and shall be fully protected in relying upon, the Officers’ Certificate with
respect thereto which the Company is obligated to file with the Trustee pursuant
to Section 13.10.
Section
13.12. Voluntary
Decrease.
The
Company from time to time may decrease the Conversion Price by any amount for
any period of time if the period is at least twenty (20) days and if the
decrease is irrevocable during the period if the Board of Directors determines
that such decrease would be in the best interest of the Company or the Board
of
Directors deems it advisable to avoid or diminish income tax to holders of
shares of Common Stock in connection with any stock or rights dividend or
distribution or similar event, and the Company provides fifteen (15) days’ prior
notice of any increase in the Conversion Price.
Section
13.13. Company
Determination Final.
Any
determination that the Company or the Board of Directors must make pursuant
to
this Article XIII shall be conclusive if made in good faith and in accordance
with the provisions of this Article XIII, absent manifest error, and set forth
in a resolution of the Board of Directors.
ARTICLE
XIV
Make-Whole
Premium
Section
14.01. Make-Whole
Premium.
(a)
If a
Fundamental Change occurs, Holders shall receive from the Company the Make-Whole
Premium in connection with a Fundamental Change Conversion or a Fundamental
Change Repurchase.
(b) The
Make-Whole Premium shall be determined as follows:
(i) “Effective
Date”
means
the date that the applicable Fundamental Change becomes effective.
(ii) “Stock
Price”
means
the price paid per share of Common Stock in the transaction constituting the
applicable Fundamental Change, determined as follows:
(x) if
holders of Common Stock receive only cash in the Fundamental Change, the Stock
Price shall be the cash amount paid per share of Common Stock; or
(y) in
all
other circumstances, the Stock Price shall be the arithmetic average of the
Closing Prices Per Share of the Common Stock on the five (5) Trading Days ending
on the Trading Day immediately prior to, but not including, the Effective
Date.
(iii) “Make-Whole
Premium”
means
a
number of additional shares of Common Stock to be received upon conversion
or
redemption per $1,000 original principal amount of Notes equal to the number
of
shares determined in accordance with the following formula: the greater of
(A)
(I) the product of (x) the Conversion Amount (for the entire Principal Amount)
and (y) the applicable Multiplier (as hereinafter defined), divided by (II)
the
Stock Price; and (B)(I) the difference between (x) the product of the Stock
Price and the Conversion Rate and (y) the Conversion Amount (for the entire
Principal Amount), divided by (II) the Stock Price. “Multiplier” means (1) for
the first twelve (12) months after the date hereof, 0.2 and (2) from the first
anniversary of the date hereof to the Stated Maturity, 0.1.
(c) Subject
to Section 14.01(d), the Company may pay the Make-Whole Premium in shares of
Common Stock (other than cash paid in lieu of fractional shares), in cash,
in
the same form of consideration into which shares of Common Stock have been
converted in connection with the applicable Fundamental Change or in any
combination of the foregoing. The Fundamental Change Company Notice delivered
pursuant to Section 11.05(b) in connection with the Fundamental Change shall
state the percentage of any Make-Whole Premium, stated in total principal amount
as if all Notes then Outstanding shall be converted or redeemed during the
Fundamental Change Conversion/Repurchase Period, that will be paid in shares
of
Common Stock (which indication shall be irrevocable). If holders of Common
Stock
have the right to elect the form of consideration received in a Fundamental
Change, then for purposes of the foregoing the consideration into which a share
of Common Stock has been converted shall be deemed to equal the same percentage
of each form of consideration as encompasses the aggregate consideration
distributed in respect of all shares of Common Stock participating in the
distribution. Unless the Company gives notice to the contrary, the Make-Whole
Premium shall be paid in shares of Common Stock (or, if applicable, in the
same
form of consideration into which shares of Common Stock have been converted
in
connection with the applicable Fundamental Change). The amount of cash to be
received shall equal the product of (i) the portion of the Make-Whole Premium
to
be paid in cash expressed as a number of shares of Common Stock and (ii) the
Stock Price.
The
Company may from time to time appoint a calculation agent in respect of the
calculation of the Make-Whole Premium (the “Calculation
Agent”).
The
Calculation Agent shall, on behalf and upon request by the Company or the
Trustee, calculate (A) the Stock Price and (B) the Make Whole Premium in respect
of such Stock Price based on the Effective Date specified by the Company or
the
Trustee, and shall deliver its calculation of the Stock Price and Make-Whole
Premium to the Company and the Trustee within five (5) Trading Days of the
request by the Company or the Trustee. The Company, or at the Company’s request
and expense, the Trustee in the name of the Company, (X) shall notify the
Holders of the Stock Price and the estimated Make-Whole Premium per $1,000
original principal amount of Notes in respect of a Fundamental Change as part
of
the Fundamental Change Company Notice delivered in connection with a Fundamental
Change in accordance with Section 11.05(b) or otherwise in accordance with
the
notice provisions of the Indenture and (Y) shall notify the Holders promptly
upon the opening of business on the Effective Date of the number of additional
shares (or, at the option of the Company, cash or other securities, assets
or
property into which all or substantially all of the shares of Common Stock
have
been converted as of the Effective Date as described above) to be delivered
in
respect of the Make-Whole Premium, if any, payable in connection with
conversions or redemptions upon such Fundamental Change.
(d) Provided
that the Company has timely given a Fundamental Change Company Notice containing
all the information required under Section 11.07(b), the Company may elect
to
pay all or any portion of the Make-Whole Premium in shares of Common Stock
if
and only if the following conditions shall have been satisfied (or waived by
the
applicable Holder):
(i) from
and
after the delivery of the Fundamental Change Company Notice relating to the
Make-Whole Premium through the payment of the Make-Whole Premium, (1) the shares
of Common Stock to be issued in connection with the Make-Whole Premium are
(x)
either registered, approved and/or qualified, as applicable, or exempt from
any
such registration, approval and qualification, as applicable, under applicable
federal and state securities law such that such shares of Common Stock shall
be
upon issue validly issued and delivered in accordance with applicable federal
and state securities laws and not subject to any transfer restrictions under
the
Securities Act or other securities laws and (y) listed or approved for listing
on The New York Stock Exchange, the American Stock Exchange, The NASDAQ Global
Select Market, The NASDAQ Global Market or The NASDAQ Capital Market; and (2)
there shall be sufficient authorized but unissued (or issued but not
outstanding) shares of Common Stock to issue the shares of Common Stock in
connection with the Make-Whole Premium, and such Common Stock will upon issue,
be duly and validly issued and fully paid and nonassessable and free of any
preemptive or similar rights; and
(ii) the
receipt by the Trustee of an (1) Officers’ Certificate stating that the terms of
the issuance of the shares of Common Stock are in conformity with this
Indenture, (2) an Opinion of Counsel to the effect that the shares of Common
Stock to be issued by the Company in payment of the Fundamental Change
Conversion in respect of the Notes have been duly authorized and, when issued
and delivered pursuant to the terms of this Indenture in payment of such
Make-Whole Premium will be validly issued, fully paid and non-assessable and
(3)
an Officer’s Certificate, stating that the conditions to the issuance of the
shares of Common Stock have been satisfied.
In
the
event of a Fundamental Change where the Company is not the surviving entity,
for
each conversion by a Holder after the Effective Date, such Holder shall receive
in lieu of each share of Common Stock payable as part of the Make-Whole Premium
the consideration received in such Fundamental Change for each share of Common
Stock (provided that any securities that are issuable as part of such
consideration shall meet the conditions set forth in this Section 14.01(d)
as if
such securities were “Common Stock” under this section).
Notwithstanding
anything herein to the contrary, if the surviving entity after a Fundamental
Change is not listed on an Eligible Market, each Holder shall receive, in lieu
of shares of Common Stock or other consideration such Holder is entitled to
receive hereunder in a Fundamental Change, the cash fair market value of such
shares of Common Stock or other consideration, as determined by an independent
accountant selected by the Company and the Majority Holders.
Promptly
after determination of the actual number of shares of Common Stock to be issued
(or cash amount to be paid) in respect of the Make-Whole Premium, the Company
shall be required to disseminate a press release through Dow Xxxxx &
Company, Inc. or Bloomberg Business News containing this information or publish
this information on the Company’s web site or through such other public medium
as the Company may use at that time.
Section
14.02. Payment
of Make-Whole Premium.
On or
prior to 10:00 a.m. (New York City time) on the Effective Date, the Company
will
deposit with the Trustee or with one or more Paying Agents additional shares
of
Common Stock and/or cash sufficient to satisfy the entitlement of the Holders
of
Notes under Section 14.01. Payment of the entitlement pursuant to Section 14.01
to Holders of Notes surrendered for conversion or redemption during the period
beginning upon receipt of the Fundamental Change Company Notice and ending
ten
(10) Trading Days after the Effective Date (the “Fundamental
Change Conversion/Repurchase Period”)
will
be made promptly on the Fundamental Change Settlement Date, by delivering
entitlements to securities, mailing checks in respect of cash and/or delivering
other assets or property for the amount payable to the Holders of such Notes
entitled thereto as they (and their addresses) shall appear in the security
register. To the extent that the aggregate amount of shares of Common Stock
or
cash deposited by the Company pursuant to this Section exceeds the aggregate
entitlement of the Holders of Notes under Section 14.01 that are converted
or
redeemed in respect of the Fundamental Change and are entitled to receive the
Make-Whole Premium, then, promptly after the Fundamental Change Settlement
Date,
the Paying Agent shall return any such excess to the Company.
ARTICLE
XV
Security
Section
15.01. Security
Documents.
(a) As
general and continuing collateral security for the due and punctual satisfaction
of all Obligations of the Company under this Indenture, and the other
Transaction Documents and the due performance by the Company of its other
Obligations hereunder and thereunder, the Company has entered into Security
Documents to grant Liens (subject to Permitted Liens) on the
Collateral.
(b) The
Company represents, covenants and agrees that it has full right, power and
lawful authority to grant, bargain, sell, release, convey, hypothecate, assign,
mortgage, pledge, transfer and confirm the property constituting the Collateral
pursuant to each Security Document to which the Company and/or any of its
Subsidiaries are party, free and clear of all Liens (other than Permitted
Liens), and that (i) it will forever warrant and defend the title to the same
against the claims of all Persons (except as to Permitted Liens), (ii) it will
execute, acknowledge and deliver to the Collateral Agent such further
assignments, transfers, assurances or other instruments as the Collateral Agent
may reasonably require, (iii) it will do or cause to be done all such acts
as
may be reasonably required by the Collateral Agent, to confirm to the Collateral
Agent such Lien on the Collateral, or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit
of
the Security Documents, this Indenture and the other Transaction Documents
and
(iv) it will take any and all actions reasonably required to cause the Security
Documents to create and maintain, as security for the Obligations of the Company
to the extent and on the terms provided herein and therein, a legal, valid
and
enforceable fully perfected first-priority Lien (subject to Permitted Liens)
and
security interest in and on all the Collateral, in favor of the Collateral
Agent
for the benefit of the Trustee, the Collateral Agent and the Holders. The
Company further represents, covenants and agrees that if any additional
Subsidiary of the Company, or of any of its Subsidiaries, is formed or acquired
after the Closing Date, the Company will notify the Collateral Agent, the
Trustee and the Holders thereof and (a) if such Subsidiary is not a foreign
Subsidiary or a Special Purpose Acquisition Subsidiary, the Company will cause
such Subsidiary to become a party to each applicable Security Document within
ten (10) Trading Days after such Subsidiary is formed or acquired and promptly
take such actions to create and perfect Liens on such Subsidiary’s assets to
secure the Obligations as the Collateral Agent or the Majority Holders shall
reasonably request and (b) if any shares of capital stock or Indebtedness of
such Subsidiary are owned by or on behalf of the Company or any of its
Subsidiaries, the Company will cause such shares and promissory notes evidencing
such Indebtedness to be pledged within ten (10) Trading Days after such
Subsidiary is formed or acquired (except that, if such Subsidiary is a foreign
Subsidiary shares of stock of such Subsidiary to be pledged may be limited
to
65% of the outstanding shares of voting stock of such Subsidiary).
(c) The
Trustee and the Company hereby acknowledge and agree that the Collateral Agent
holds the Collateral in trust for the benefit of the Trustee, the Collateral
Agent and the Holders, in each case pursuant to the terms of the Security
Documents. Each Holder, by accepting a Note, consents and agrees to the terms
of
the Security Documents, as the same may be in effect or may be amended from
time
to time, each in accordance with its terms and authorizes and directs the
Collateral Agent to enter into the Security Documents. The Company shall deliver
to the Trustee (if other than the Collateral Agent) copies of all documents
delivered to the Collateral Agent pursuant to the Security Documents, and will
do or cause to be done all such acts and things as may be required by this
Section 14.01, to assure and confirm to the Trustee and the Collateral Agent
the
security interest in the Collateral contemplated hereby, by the Security
Documents or any part thereof, as from time to time constituted, so as to render
the same available for the security and benefit of this Indenture and of the
Notes secured hereby, according to the intent and purposes herein
expressed.
(d) The
Company will execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the
filing and recording of financing statements and other documents), that may
be
required under any Applicable Law, or which the Collateral Agent or the Majority
Holders may reasonably request, or to grant, preserve, protect or perfect the
Liens created or intended to be created by the Security Documents or the
validity or priority of any such Lien, in each case at the expense of the
Company. The Company also agrees to provide to the Collateral Agent, from time
to time upon request, evidence reasonably satisfactory to the Collateral Agent
as to the perfection and priority of the Liens created or intended to be created
by the Security Documents.
(e) If
any
material assets are acquired by any Subsidiary after the Closing Date (other
than assets constituting Collateral under the Security Agreement that become
subject to the Lien of the Security Agreement upon acquisition thereof), the
Company will notify the Collateral Agent and the Holders thereof, and the
Company will cause such assets to be subjected to a Lien securing the
Obligations and will take such actions as shall be necessary or reasonably
requested by the Collateral Agent or the Majority Holders to grant and perfect
such Liens, in each case at the expense of the Company.
Section
15.02. Recording.
(a) The
Company shall cause, at the Company’s expense, this Indenture and each Security
Document, and all amendments or supplements thereto, to be registered, recorded
and filed and/or re-recorded and/or re-filed and/or renewed in such manner
and
in such place or places, if any, as may be required, or reasonably requested
by
the Collateral Agent, in order to preserve, protect and maintain the perfected
first-ranking Liens (subject to Permitted Liens) created by the Security
Documents on the Collateral. The Company shall pay all mortgage, mortgage
recording, stamp, intangible or other similar taxes, charges or fees required
to
be paid by any Governmental Authority under Applicable Law in connection with
the execution, delivery, recordation, filing, perfection or enforcement of
any
of the Security Documents.
(b) The
Company shall furnish to the Trustee and the Collateral Agent on the anniversary
date hereof, an Officer’s Certificate, dated as of such date, either (i)
certifying that such action has been taken in respect of the recording,
registering, filing, re-recording and re-filing of (x) this Indenture, the
Security Documents and all supplemental indentures and amendments thereto,
and
(y) financing statements, continuation statements or other instruments of
further assurances, as is necessary to maintain the Lien created by each such
Security Document and reciting the details of such action, and stating that
all
financing statements and continuation statements have been executed and filed
that are necessary to perfect such Lien, or (ii) certifying that no such action
is necessary to maintain such Liens.
Section
15.03. Possession
of the Collateral.
(a) Until
the
occurrence of an Event of Default, the Company may possess, manage, operate
and
enjoy, as applicable, the Collateral in accordance with the terms of this
Indenture, the Notes and the Security Documents.
(b) The
Collateral Agent is authorized to receive all amounts received as proceeds
of
any part of the Collateral and all amounts of money, securities, letters of
credit and other evidences of indebtedness deposited with or held by it and
shall hold such as security for the Obligations of the Company and the
Guarantors, if any, under this Indenture, the Notes and the other Transaction
Documents until applied in accordance with the terms of this
Indenture.
Section
15.04. Suits
to Protect the Collateral.
The
Collateral Agent shall have power to institute in its name and to maintain
such
suits and proceedings as it may deem expedient to prevent any impairment of
the
Collateral by any acts which may be unlawful or in violation of this Indenture
or any of the Security Documents, and such suits and proceedings as the
Collateral Agent may deem expedient to preserve or protect the interests of
the
Trustee, the Collateral Agent and the Holders in the Collateral and in the
principal, interest, issues, profits, rents, revenues and other income arising
therefrom, including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of, or compliance with, such enactment, rule or
order would impair the security hereunder or under any of the Security
Documents, or be prejudicial to the interests of the Holders, the Collateral
Agent or the Trustee.
Section
15.05. Release
of Collateral.
(a) The
Company shall be entitled to obtain a full release of all of the Collateral
from
the Liens of this Indenture and of the Security Documents and the Security
Documents shall be terminated upon payment in full (whether by conversion or
payment in cash) of all Principal Amount, premium, if any, Interest and
Liquidated Damages, if any, on the Notes and of all other Obligations for the
payment of money due and owing to the Trustee, the Collateral Agent or the
Holders under this Indenture, the Notes and the Security Documents either at
the
Stated Maturity or upon the satisfaction and discharge of this
Indenture.
(b) The
Company shall be entitled to obtain a release of all or a portion of the
Collateral, as applicable, pursuant to the terms of the Security
Documents.
Section
15.06. Permitted
Releases not to Impair Collateral.
(a) The
Collateral Agent shall not at any time release Collateral from the Liens created
by this Indenture and the Security Documents unless such release is in
accordance with the provisions of this Indenture and the Security
Documents.
(b) The
release of any Collateral from the Lien of the Security Documents or the
termination of the Security Documents shall not be deemed to impair the security
under this Indenture in contravention of the provisions hereof if and to the
extent the Collateral is released pursuant to this Indenture and the Security
Documents. To the extent applicable, the Company shall comply with Trust
Indenture Act Section 314(d) relating to the release of property from the Lien
of the Security Documents and relating to the substitution therefor of any
property to be subjected to the Lien of the Security Documents. Any certificate
or opinion required by Trust Indenture Act Section 314(d) may be made by an
Officer of the Company, except in cases where Trust Indenture Act Section 314(d)
requires that such certificate or opinion be made by an independent person,
which person shall be an independent engineer, appraiser or other expert
selected by the Company. A Person is “independent” if such Person (a) does not
have any direct financial interest or any material indirect financial interest
in the Company or in any Affiliate of the Company and (b) is not an officer,
employee, promoter, underwriter, trustee, partner or director or person
performing similar functions to any of the foregoing for the Company. The
Trustee and the Collateral Agent shall be entitled to receive and rely
conclusively upon a certificate provided by any such Person confirming that
such
Person is independent within the foregoing definition.
Section
15.07. Sufficiency
of Release; Purchaser Protected.
All
purchasers and grantees of any property or rights purporting to be released
shall be entitled to rely upon any release executed by the Collateral Agent
hereunder as sufficient for the purpose of this Indenture and as constituting
a
good and valid release of the property therein described from the Lien of this
Indenture and of the Security Documents. In no event shall any purchaser in
good
faith of any property purported to be released hereunder be bound to ascertain
the authority of the Trustee to execute the release or to inquire as to the
satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor shall any purchaser or other
transferee of any property or rights permitted by this Article XV to be sold
be
under obligation to ascertain or inquire into the authority of the Company
to
make any such sale or other transfer.
Section
15.08. Actions
by the Collateral Agent.
Subject
to the provisions of the Security Documents, the Collateral Agent may in its
sole discretion and without the consent of the Trustee or of the Holders take
all actions it deems necessary or appropriate in order to (i) enforce any of
the
terms of the Security Documents and (ii) to collect and receive all amounts
payable in respect of the Obligations of the Company or any Guarantor under
the
Security Documents.
Section
15.09. Powers
Exercisable by Receiver or Trustee.
In case
the Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article XV upon the Company in respect
of the release, sale or other disposition of such property may be exercised
by
such receiver or trustee, and an instrument signed by such receiver or trustee
shall be deemed the equivalent of any similar instrument of the Company or
of
any officer or officers thereof required by the provisions of this Article
XV;
and if the Collateral Agent shall be in the possession of the Collateral under
any provision of this Indenture, then such powers may be exercised by the
Collateral Agent.
Section
15.10. Determinations
Relating to Collateral.
In the
event (a) the Trustee or the Collateral Agent shall receive any written request
from the Company under any Security Agreement for consent or approval in respect
of any matter or thing relating to any Collateral or the Company’s Obligations
with respect thereto or (b) there shall be due to or from the Trustee or the
Collateral Agent under the provisions of any Security Agreement any material
performance or the delivery of any material instrument or (c) the Trustee or
the
Collateral Agent shall become aware of any material nonperformance by the
Company of any covenant or any material breach of any representation or warranty
of the Company set forth in any Security Agreement or the Exchange Agreement,
then, in each such event, the Trustee or the Collateral Agent shall be entitled
to hire, at the sole reasonable cost and expense of the Company, experts,
consultants, agents and attorneys to advise the Trustee or the Collateral Agent,
as applicable, on the manner in which the Trustee should respond to such request
or render any requested performance or response to such nonperformance or
breach. The Trustee and the Collateral Agent shall be fully protected in
accordance with Article VI in the taking of any action recommended or approved
by any such expert, consultant, agent or attorney and by indemnification
provided in accordance with Section 6.07.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
ny-686767
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
|
By:
|
/s/
Xxxxxxx Xxxxx
|
|
|
Name:
Xxxxxxx Xxxxx
Title:
Chief Financial Officer
|
||
|
THE
BANK OF NEW YORK, as Trustee
|
||
|
By:
|
/s/
Xxxxxxxx Xxxxxx
|
|
|
Name:
Xxxxxxxx Xxxxxx
Title:
Vice President
|
||
EXHIBIT
A
FORM
OF
FACE OF NOTE
[INCLUDE
IF NOTE IS RESTRICTED -- THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED
IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT
OF
1933, AS AMENDED (THE “SECURITIES
ACT”),
AND
THIS NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED
THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE
HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF FP
TECHNOLOGY,
INC.
THAT (A)
PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS NOTE
UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THIS
NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO FP
TECHNOLOGY, INC.
OR ANY
SUBSIDIARY THEREOF, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND
(B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE. THIS
LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS NOTE PURSUANT
TO
CLAUSE (A)(IV) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(K) UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER THE TRANSFER OF THIS
NOTE
IN VIOLATION OF THE FOREGOING RESTRICTION.]
(as
successor to AFG Enterprises USA, Inc.)
Senior
Secured Convertible Notes Due 2009
No.
[
] U.S.
$[
]
FP
Technology, Inc. (as successor by merger to AFG Enterprises USA, Inc.), a
corporation duly organized and validly existing under the laws of the State
of
Delaware (herein called the "Company",
which
term includes any successor corporation under the Indenture referred to on
the
reverse hereof), for value received hereby promises to pay to
[ ],
or registered assigns, the principal sum of [ ] United States Dollars ($ )
on
January___, 2009 and to pay interest on said principal sum monthly on the last
day of each calendar month commencing February 28, 2007, at the rate specified
in Section 12.01 of the Indenture to Holders of record on the 15th
day of
the calendar month in which such interest payment is due. Interest shall accrue
from the most recent date on which interest has been paid, or if no interest
has
theretofore been paid, from January __, 2007 until the Principal Amount is
paid
or duly made available for payment. Except as otherwise provided in the
Indenture, the interest payable on this Note pursuant to the Indenture on the
last day of each calendar month will be paid to the Person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the Record Date, which shall be the 15th
day of
each calendar month (whether or not a Trading Day) in which such interest
payment is due. Payment of the principal of and interest accrued on this Note
shall be made by wire transfer in immediately available funds, in such lawful
money of the United States of America as at the time of payment shall be legal
tender for the payment of public and private debts.
The
Issue
Date of this Note is January _____, 2007.
Reference
is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions requiring the redemption of such
part
of this Note as set forth in the Indenture at the option of the Holder, after
the failure by the Company to achieve the numbers of subscribers required by
Section 10.17(b) of the Indenture in any two consecutive fiscal quarters, and
provisions giving the Holder of the Note the right to convert this Note into
Common Stock of the Company subject to the limitations referred to on the
reverse hereof and as more fully specified in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set
forth
at this place. Capitalized terms used but not defined herein shall have such
meanings as are ascribed to such terms in the Indenture.
This
Note
shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with and governed by
the
laws of said State.
This
Note
shall not be valid or become obligatory for any purpose until the certificate
of
authentication hereon shall have been manually signed by the Trustee or a duly
authorized authenticating agent under the Indenture.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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By:
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Authorized
Signatory
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EXHIBIT
B
FORM
OF
REVERSE OF NOTE
This
Note
is one of a duly authorized issue of Notes of the Company, designated as its
Senior Secured Convertible Notes Due 2009 (the "Notes"),
all
issued or to be issued under and pursuant to an Indenture, dated as of January
___, 2007 (the "Indenture"),
between the Company and The Bank of New York (the "Trustee"),
to
which Indenture and all indentures supplemental thereto reference is hereby
made
for a description of the rights, limitations of rights, obligations, duties
and
immunities thereunder of the Trustee, the Company and the Holders of the
Notes.
The
indebtedness evidenced by the Notes is xxxxxx secured indebtedness of the
Company and ranks superior to the Company's unsecured and subordinated
indebtedness.
| 1. |
Interest
Rate.
Interest on the Notes shall be payable monthly in arrears on each
Interest
Payment Date to Holders of record on the Record Date immediately
preceding
such Interest Payment Date. Interest on the Notes shall accrue at
a rate
equal to twelve percent (12%) per annum. Interest will be computed
on the
basis of a 360-day year comprised of twelve 30-day months. On
each Interest Dividend Payment Date, an additional sum shall be payable
as
interest on each Note equal to the product of (i) the number of shares
of
Common Stock into which such Note was convertible on the Record Date
for
such Interest Payment Dividend Date (without regard to the Conversion
Limitation) and (ii) the dividends or distributions paid or otherwise
made
or deemed made by the Company in cash per share of Common Stock on
such
Interest Dividend Payment Date. Interest on the Notes shall accrue
from
the most recent date to which interest has been paid, or if no interest
has been paid, from January ___, 2007, until the Principal Amount
is paid
or duly made available for payment.
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| 2. |
Redemption
by the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Company
shall
become obligated, at the option of the Holder, to redeem the Notes
upon
the request of such Holder after the failure by the Company to achieve
the
numbers of subscribers required by Section 10.17(b) of the Indenture
in
any two consecutive fiscal
quarters.
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| 3. |
Repurchase
by the Company at the Option of the Holder Upon a Fundamental
Change.
Subject to the terms and conditions of the Indenture, the Company
shall
become obligated, at the option of the Holder, to repurchase the
Notes if
a Fundamental Change occurs at any time prior to the Stated Maturity
at
the Fundamental Change Repurchase Price (which Fundamental Change
Repurchase Price, excluding the Make-Whole Premium, will be paid
in cash)
plus any Make-Whole Premium required by the terms of the Indenture.
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| 4. |
Withdrawal
of Fundamental Change Repurchase Notice.
Holders have the right to withdraw, in whole or in part, any Fundamental
Change Repurchase Notice, by delivering to the Paying Agent a written
notice of withdrawal in accordance with the provisions of the
Indenture.
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| 5. |
Payment
of Redemption Price and Fundamental Change Repurchase
Price.
If cash sufficient to pay the Redemption Price or Fundamental Change
Repurchase Price as the case may be, of all Notes or portions thereof
to
be redeemed or repurchased on a Redemption Date or on a Fundamental
Change, as the case may be, is deposited with the Paying Agent on
the
Trading Day preceding the Redemption Date or the Fundamental Change
Settlement Date, as the case may be, the Notes to be redeemed or
repurchased will cease to be Outstanding and interest and Liquidated
Damages, if any, will cease to accrue on such Notes (or portions
thereof)
immediately after such Redemption Date or Fundamental Change Settlement
Date, as the case may be, and the Holder thereof shall have no other
rights as such (other than the right to receive the Redemption Price
or
Fundamental Change Repurchase Price as the case may be) upon surrender
of
such Note.
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| 6. |
Conversion
Privilege.
Subject to the terms and conditions of the Indenture, a Holder may
convert
at any time the Principal Amount of such Note (or any portion thereof
equal to any integral multiple of $500) into shares of Common Stock.
The
Conversion Price in effect at any given time is subject to adjustment.
A
Holder may convert fewer than all of such Xxxxxx's Notes so long
as the
Notes converted are an integral multiple of $500 principal amount.
If this
Note shall be surrendered for conversion during the period from the
close
of business on the Record Date to the opening of business on the
immediately following Interest Payment Date, the notice of such conversion
shall be accompanied by payment, in funds acceptable to the Company,
of an
amount equal to the interest otherwise payable on such Interest Payment
Date on the Principal Amount being converted.
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| 7. |
Forced
Conversion.
At any time prior to the Stated Maturity, at the Company's option,
the
Outstanding Notes may be forced to convert into Common Stock upon
at least
twenty Trading Days' notice to the Holders, if,
during the term of such Outstanding Notes certain conditions are
met,
including, without limitation, that the Common Stock trades above
200% of
the Conversion Price for fifteen consecutive trading days with a
specified
minimum aggregate volume for such
period.
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| 8. |
Limitation
on Conversion.
Notwithstanding anything contained herein to the contrary, the Company
shall not effect any conversion of any Note, and the Holder of any
Note
shall not have the right to convert any portion of any Note pursuant
to
this Section 8 that would be convertible into that number of shares
of
Common Stock which, when added to the number of shares of Common
Stock
otherwise beneficially owned by the Holder including those issuable
upon
the exercise of convertible securities, warrants or options held
by the
Holder, would exceed 4.99% of the outstanding Common Stock at the
time of
conversion. By written notice to the Company, the Holder may increase
or
decrease the Conversion Limitation to any other percentage not in
excess
of 9.99% specified in such notice; provided that (i) any such increase
will not be effective until the sixty-first (61st)
day after such notice is delivered to the Company, and (ii) any such
increase or decrease will apply only to the Holder and not to any
other
holder of Notes.
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[INCLUDE
IF NOTE IS A RESTRICTED NOTE -- Subject to certain limitations in the Indenture,
at any time when the Company is not subject to Section 13 or 15(d) of the United
States Securities Exchange Act of 1934, as amended, upon the request of a Holder
of a Restricted Note, the Company will promptly furnish or cause to be furnished
Rule 144A Information (as defined below) to such Holder of Restricted Notes,
or
to a prospective purchaser of any such Note designated by any such Holder,
to
the extent required to permit compliance by any such Holder with Rule 144A
under
the Securities Act of 1933, as amended (the "Securities
Act").
"Rule
144A Information"
shall
be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto).]
If
an
Event of Default shall occur and be continuing, the Principal Amount plus
accrued and unpaid interest and Liquidated Damages, if any, through such date
on
all the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Notes under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate Principal Amount of the Outstanding Notes. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate Principal Amount of the Outstanding Notes, on behalf of the Holders
of
all the Notes, to waive compliance by the Company with certain provisions of
the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of any provision of or applicable
to
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such
consent or waiver is made upon this Note.
As
provided in and subject to the provisions of the Indenture, the Holder of this
Note shall not have the right to institute any proceeding in respect of the
Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default in respect of the Notes, the
Holders of not less than 30% in aggregate Principal Amount of the Outstanding
Notes shall have made written request to the Trustee to institute proceedings
in
respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity satisfactory to it, the Trustee shall not have received from the
Holders of a majority in Principal Amount of Outstanding Notes a direction
inconsistent with such request, and the Trustee shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and
offer
of indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Note for the enforcement of any payment of said principal hereof or
interest hereon on or after the respective due dates expressed herein or for
the
enforcement of any conversion right.
No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the Principal Amount, Redemption Amount or Fundamental
Change Repurchase Price of or interest and Liquidated Damages, if any, on,
this
Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Note is registrable in the Note Register, upon surrender
of
this Note for registration of transfer at the office or agency of the Company
in
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing,
and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate Principal Amount, will be issued to the designated transferee or
transferees.
The
Notes
are issuable only in registered form in denominations of any integral multiple
of $500.00, as provided in the Indenture and subject to certain limitations
therein set forth. Notes are exchangeable for a like aggregate Principal Amount
of Notes of a different authorized denomination, as requested by the Holder
surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior
to
due presentment of this Note for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Note is registered as the owner hereof for all purposes, whether
or not this Note be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
This
Note
shall be governed by and construed in accordance with the laws of the State
of
New York.
All
terms
used in this Note that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
ASSIGNMENT
FORM
If
you
want to assign this Note, fill in the form below and sign:
I
or we
assign and transfer this Note to:
(Print
or
type name, address and zip code and social security or tax ID number of
assignee)
and
irrevocably appoint
agent
to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
|
Date:
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Signed:
|
(Sign
exactly as your name appears on the other side of this Note)
In
connection with any transfer of this Note occurring prior to the date which
is
the earlier of (i) the date of the declaration by the Commission of the
effectiveness of a registration statement under the Securities Act of 1933,
as
amended (the "Securities
Act"),
covering resales of this Note (which effectiveness shall not have been suspended
or terminated at the date of the transfer) and (ii) the second anniversary
of
the Issue Date set forth on the face of this Note, the undersigned confirms
that
it has not utilized any general solicitation or general advertising in
connection with the transfer and that this Note is being
transferred:
[Check
One]
(1)
_____
to the Company or a subsidiary thereof; or
(2)
_____
to a "Qualified Institutional Buyer" pursuant to and in compliance with Rule
144A under the Securities Act; or
(3)
_____
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act.
Unless
one of the above boxes is checked, the Trustee will refuse to register any
of
the Notes evidenced by this certificate in the name of any Person other than
the
registered Holder thereof, provided that if box (3) is checked, the Company
may
require, prior to registering any such transfer of the Notes, in its sole
discretion, such legal opinions, certifications and other information as the
Company may reasonably request to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
If
none
of the foregoing boxes is checked, the Trustee or Note Registrar shall not
be
obligated to register this Note in the name of any Person other than the Holder
hereof unless and until the conditions to any such transfer of registration
set
forth herein and in Section 3.09 of the Indenture shall have been
satisfied.
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Date:
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Signed:
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(Sign
exactly as your name appears on the other side of this Note)
TO
BE
COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The
undersigned represents and warrants that it is purchasing this Note for its
own
account or an account in respect of which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is aware that
the
sale to it is being made in reliance on Rule 144A and acknowledges that it
has
received such information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and
that
it is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided
by
Rule 144A.
|
Date:
|
Signed:
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NOTICE:
To be executed by an executive officer.
CONVERSION
NOTICE
If
you
want to convert this Note into Common Stock of the Company, check the
box:
To
convert only part of this Note, state the Principal Amount to be converted
(which must be either the Outstanding Principal Amount or an integral multiple
of $500):
$
If
you
want the stock certificate made out in another person's name, fill in the form
below:
(Insert
other person's social security or tax ID no.)
(Print
or
type other person's name, address and zip code)
|
Date:
|
Signed:
|
(Sign
exactly as your name appears on the other side of this Note)
EXHIBIT
C
FORM
OF
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
The
Bank
of New York, as Trustee, certifies that this is one of the Notes referred to
in
the within-mentioned Indenture.
|
Date:
|
The
Bank of New York, as Trustee
|
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By:
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||
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Authorized
Signatory
|
||
EXHIBIT
D
FORM
OF
FUNDAMENTAL CHANGE REPURCHASE NOTICE
|
,
20
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Attention:
Re:
FP
Technology, Inc. (the “Company”)
Senior
Secured Convertible Notes Due 2009
This
is a
Fundamental Change Repurchase Notice as defined in Section 11.05 of the
Indenture dated as of January 24, 2007 (the “Indenture”)
between the Company and The Bank of New York, as Trustee. Terms used but not
defined herein shall have the meanings ascribed to them in the
Indenture.
Certificate
No(s). of Notes:
I
intend
to deliver the following aggregate Principal Amount of Notes for purchase by
the
Company pursuant to Section 11.05 of the Indenture (in multiples of
$1,000):
$
I
hereby
agree that the Notes will be purchased as of the Fundamental Change Settlement
Date pursuant to the terms and conditions thereof and of the
Indenture.
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Signed:
|
EXHIBIT
E
Form
of
Guarantee
EXHIBIT
F
Form
of
Pledge Agreement
EXHIBIT
G
Form
of
Letter of Credit
