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COMMONWEALTH TELEPHONE ENTERPRISES, INC.
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INDENTURE
Dated as of , 1998
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Trustee
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TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...................................................2
SECTION 1.02. Other Definitions.............................................7
SECTION 1.03. Trust Indenture Act Provisions................................7
SECTION 1.04. Rules of Construction.........................................8
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating...............................................9
SECTION 2.02. Execution and Authentication..................................10
SECTION 2.03. Registrar, Paying Agent and Conversion Agent..................11
SECTION 2.04. Paying Agent to Hold Money in Trust...........................11
SECTION 2.05. Securityholder Lists..........................................12
SECTION 2.06. Transfer and Exchange.........................................12
SECTION 2.07. Replacement Securities........................................13
SECTION 2.08. Outstanding Securities........................................14
SECTION 2.09. Treasury Securities...........................................14
SECTION 2.10. Temporary Securities..........................................15
SECTION 2.11. Cancellation..................................................15
SECTION 2.12. CUSIP, ISIN and CINS Numbers..................................15
SECTION 2.13. Book-entry Provisions for the Global Certificates.............15
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01. Right to Redeem; Notice to Trustee............................17
SECTION 3.02. Selection of Securities to Be Redeemed........................17
SECTION 3.03. Notice of Redemption..........................................18
SECTION 3.04. Effect of Notice of Redemption................................19
SECTION 3.05. Deposit of Redemption Price...................................19
SECTION 3.06. Securities Redeemed in Part...................................19
SECTION 3.07. Conversion Arrangement on Call for Redemption.................19
SECTION 3.08. Purchase of Securities at Option of the Holder Upon
Change in Control...................................................20
SECTION 3.09. Effect of Change in Control Purchase Notice...................24
SECTION 3.10. Deposit of Change in Control Purchase Price...................25
SECTION 3.11. Securities Purchased in Part..................................26
SECTION 3.12. Compliance with Securities Laws Upon Purchase of
Securities..........................................................26
SECTION 3.13. Repayment to the Company......................................26
ARTICLE 4
CONVERSION
SECTION 4.01. Conversion Privileges.........................................27
SECTION 4.02. Conversion Procedure..........................................28
SECTION 4.03. Fractional Shares.............................................29
SECTION 4.04. Taxes on Conversion...........................................29
SECTION 4.05. Company to Provide Stock......................................29
SECTION 4.06. Adjustment of Conversion Price................................30
SECTION 4.07. No Adjustment.................................................33
SECTION 4.08. Adjustment for Tax Purposes...................................34
SECTION 4.09. Notice of Adjustment..........................................34
SECTION 4.10. Notice of Certain Transactions................................34
SECTION 4.11. Effect of Reclassification, Consolidation, Merger or Sale
on Conversion Privilege.............................................35
SECTION 4.12. Trustee's Disclaimer..........................................36
SECTION 4.13. Voluntary Reduction...........................................37
ARTICLE 5
COVENANTS
SECTION 5.01. Payment of Securities.........................................37
SECTION 5.02. SEC Reports...................................................37
SECTION 5.03. Compliance Certificates.......................................38
SECTION 5.04. Notice of Defaults............................................38
SECTION 5.05. Further Instruments and Acts..................................39
SECTION 5.06. Liquidation...................................................39
SECTION 5.07. Reservation of Shares of Common Stock for Issuance Upon
Conversion..........................................................39
ARTICLE 6
SUCCESSOR CORPORATION
SECTION 6.01. When Company May Merge, Etc...................................39
SECTION 6.02. Successor Corporation Substituted.............................40
ARTICLE 7
DEFAULT AND REMEDIES
SECTION 7.01. Events of a Default...........................................40
SECTION 7.02. Acceleration..................................................42
SECTION 7.03. Other Remedies................................................43
SECTION 7.04. Waiver of Defaults and Events of Default......................43
SECTION 7.05. Control by Majority...........................................43
SECTION 7.06. Limitations on Suits..........................................44
SECTION 7.07. Rights of Holders to Receive Payment and to Convert...........44
SECTION 7.08. Collection Suite by Trustee...................................44
SECTION 7.09. Trustee May File Proofs of Claim..............................45
SECTION 7.10. Priorities....................................................45
SECTION 7.11. Undertaking for Costs.........................................46
SECTION 7.12. Waiver of Usury, Stay or Extension Laws.......................46
ARTICLE 8
TRUSTEE
SECTION 8.01. Duties of Trustee.............................................46
SECTION 8.02. Rights of Trustee.............................................48
SECTION 8.03. Individual Rights of Trustee..................................48
SECTION 8.04. Trustee's Disclaimer..........................................48
SECTION 8.05. Notice of Default or Events of Default........................49
SECTION 8.06. Reports by Trustee to Holders.................................49
SECTION 8.07. Compensation and Indemnity....................................49
SECTION 8.08. Replacement of Trustee........................................50
SECTION 8.09. Successor Trustee by Merger, Etc..............................51
SECTION 8.10. Eligibility, Disqualification.................................52
SECTION 8.11. Preferential Collection of Claims Against Company.............52
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 9.01. Satisfaction and Discharge of Indenture.......................52
SECTION 9.02. Application of Trust Money....................................53
SECTION 9.03. Repayment to Company..........................................53
SECTION 9.04. Reinstatement.................................................54
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders...................................54
SECTION 10.02. With Consent of Holders......................................55
SECTION 10.03. Compliance with Trust Indenture Act..........................56
SECTION 10.04. Revocation and Effect of Consents............................56
SECTION 10.05. Notation on or Exchange of Securities........................57
SECTION 10.06. Trustee to Sign Amendments, Etc..............................57
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.................................57
SECTION 11.02. Notices......................................................57
SECTION 11.03. Communications by Holders with Other Holders.................58
SECTION 11.04. Certificate and Opinion as to Conditions Precedent...........58
SECTION 11.05. Record Date for Vote or Consent of Securityholders...........59
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar and
Conversion..........................................................60
SECTION 11.07. Legal Holidays...............................................60
SECTION 11.08. Governing Law................................................60
SECTION 11.09. No Adverse Interpretation of Other Agreements................60
SECTION 11.10. No Recourse Against Others...................................60
SECTION 11.11. Successors...................................................60
SECTION 11.12. Multiple Counterparts........................................61
SECTION 11.13. Separability.................................................61
SECTION 11.14. Table of Contents, Headings, Etc.............................61
ARTICLE 12
SUBORDINATION
SECTION 12.01. Securities Subordinated to Senior Indebtedness...............61
SECTION 12.02. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation, Reorganization, Etc., of
the Company.........................................................62
SECTION 12.03. Securityholders to be Subrogated to Right of Holders of
Senior Indebtedness.................................................63
SECTION 12.04. Obligations of the Company Unconditional.....................64
SECTION 12.05. Company Not to Make Payment with Respect to
Securities in Certain Circumstances.................................64
SECTION 12.06. Notice to Trustee............................................66
SECTION 12.07. Application by Trustee of Money Deposited with It............66
SECTION 12.08. Subordination Rights Not Impaired by Acts or Omissions
of Company or Holders of Senior Indebtedness........................67
SECTION 12.09. Trustee to Effectuate Subordination..........................67
SECTION 12.10. Right of Trustee to Hold Senior Indebtedness.................67
SECTION 12.11. Article 12 Not to Prevent Events of Default..................68
SECTION 12.12. No Fiduciary Duty Created to Holders of Senior
Indebtedness........................................................68
SECTION 12.13. Article Applicable to Paying Agents..........................68
EXHIBIT A-1
THIS INDENTURE dated as of , 1998, is between Commonwealth Telephone
Enterprises, Inc., a Pennsylvania corporation (the "Company"), and
, a New York banking corporation, as Trustee (the "Trustee").
Both parties agree as follows for the benefit of the other and for the
equal and ratable benefit of the registered holders of the Company's %
[Convertible Subordinated Notes] due [ ]:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" means, with respect to any specified person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Board of Directors" means the Board of Directors of the Company or
any authorized committee of the Board of Directors.
"Business Day" means a day that is not a Legal Holiday.
"Cash" or "cash" means such coin or currency of the United States as
at any time of payment is legal tender for the payment of public and private
debts.
"Cedel" means Cedel Bank, societe anonyme.
"Common Stock" means the common stock of the Company, $1.00 par value,
as it exists on the date of this Indenture and any shares of any class or
classes of capital stock of the Company resulting from any reclassification or
reclassifications thereof.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture, and thereafter means the
successor.
"Conversion Agent" has the meaning set forth in Section 2.3.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is
located at , Attention: Corporate Trust Trustee Administration, or at any
other time at such other address as the Trustee may designate from time to time
by notice to the Company.
"Default" or "default" means any event which is, or after notice or
passage of time, or both, would be an Event of Default.
"Definitive Securities" has the meaning set forth in Section 2.1.
"Depository" or "DTC" means The Depository Trust Company, its nominees
and their respective successors.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States of America, which are applicable from time to
time and are consistently applied.
"Global Certificates" has the meaning set forth in Section 2.1.
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time
to time pursuant to the terms of this Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim or preference
or priority or other encumbrance upon or with respect to any property of any
kind; provided, that in no event shall an operating lease be deemed to
constitute a Lien. A person shall be deemed to own subject to Lien any property
which such person has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement.
"Material Joint Venture" means a Joint Venture that, as of the end of
the most recent four-quarter period, had (i) total assets which exceeded 10
percent of the total combined assets of the Company at the end of such period
or (ii) total revenues which exceeded 15 percent of the total combined revenues
of the Company for such period.
"Maturity" means (i) when used with respect to the Securities, , [ ]
and (ii) when used with respect to any indebtedness of the Company other than
the Securities, the date specified in the instrument governing such
indebtedness as the fixed date on which the principal of such indebtedness, or
any installment of interest thereon, is due and payable.
"Officer" means the Chairman or any Co-Chairman of the Board, any Vice
Chairman of the Board, the President, any Vice President, the Chief Financial
Officer, the Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers;
provided, however, that for purposes of Section 5.3, "Officers' Certificate"
means a certificate signed by the principal executive officer, principal
financial officer or principal accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company or the Trustee.
"Paying Agent" has the meaning set forth in Section 2.3.
"Permitted Holders" means Xxxxx Xxxxxx Sons' Inc., Level 3
Communications Inc. and Xxxxx 0 Xxxxxxx Xxxxxxxx, Inc. and any of their
respective controlled affiliates.
"Person" or "person" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock
company, trust, or any other entity or organization, including a government or
political subdivision or instrumentality thereof.
"Principal" or "principal" of a debt security, including the
Securities, means the principal of the security plus, when appropriate, the
premium, if any, on the security.
"Redemption Date" or "redemption date," when used with respect to any
Security to be redeemed, means the date fixed for such redemption pursuant to
this Indenture.
"Redemption Price" or "redemption price," when used with respect to
any Security to be redeemed, means the price fixed for such redemption pursuant
to this Indenture, as set forth in the form of Security annexed as Exhibit A
hereto.
"Registrar" has the meaning set forth in Section 2.3.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities" means the % Convertible Subordinated Notes due [ ] or any
of them (each, a "Security"), as amended or supplemented from time to time,
that are issued under this Indenture.
"Senior Indebtedness" means the principal of, premium, if any,
interest and other amounts payable on or in respect of (i) any indebtedness of
the Company, now or hereafter outstanding, in respect of borrowed money, (ii)
any indebtedness of the Company, now or hereafter outstanding, evidenced by a
bond, note, debenture, capitalized lease, letter of credit or other similar
instrument, (iii) any other written obligation of the Company, now or hereafter
outstanding, to pay money issued or assumed as all or part of the consideration
for the acquisition of property, assets or securities and (iv) any guaranty or
endorsements (other than for collection or deposit in the ordinary course of
business) or discount with recourse of, or other agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire, to supply or advance
funds or to become liable with respect to (directly or indirectly), any
indebtedness or obligation of any Person of the type referred to in the
preceding clauses (i), (ii) and (iii) now or hereafter outstanding.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include (a)
indebtedness evidenced by the Securities, (b) indebtedness that is pursuant to
the instrument creating such indebtedness expressly pari passu or subordinate
or junior in right of payment to Securities, (c) indebtedness which, when
incurred and without respect to any election under Section 1111(b) of Xxxxx 00,
Xxxxxx Xxxxxx Code, is without recourse to the Company, (d) indebtedness for
goods, materials or services purchased in the ordinary course of business or
indebtedness consisting of trade accounts payable or other current liabilities
incurred in the ordinary course of business, (e) indebtedness of or amounts
owed by the Company for compensation to employees or for services rendered to
the Company, (f) any liability for federal, state, local or other taxes owed or
owing by the Company, (g) indebtedness of the Company to any Subsidiary of the
Company and (h) amounts owing under leases (other than capital leases).
"Subsidiary" means, with respect to the Company, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
the Company, by one or more Subsidiaries of the Company or by the Company and
one or more Subsidiaries and (ii) any other person (other than a corporation),
including, without limitation, a joint venture, in which the Company, one or
more Subsidiaries of the Company or the Company and one or more Subsidiaries,
directly or indirectly, at the date of determination thereof, has at least
majority ownership interest entitled to vote in the election of directors,
managers or trustees thereof (or other person performing similar functions).
For purposes of this definition, any directors' qualifying shares or
investments by foreign nationals mandated by applicable law shall be
disregarded in determining the ownership of a Subsidiary.
"TIA" means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 and as in effect on the date of this Indenture,
except as provided in Section 10.3, and except to the extent an amendment to
the Trust Indenture Act expressly provides for application of the Trust
Indenture Act as in effect on another date.
"Trading Day" means, with respect to an security, each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on which securities
are not generally traded on the exchange or market in which such security is
traded.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture, and
thereafter means the successor.
"Trust Officer" means, with respect to the Trustee, any officer
assigned to the Corporate Trust Office, including any managing director, vice
president, assistant vice president, assistant treasurer, assistant secretary
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above-designated officers and having direct
responsibility for the administration of this Indenture, and also, with respect
to a particular matter, any other officer, to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof under ordinary circumstances have the power to vote
in the election of the board of directors, managers or trustees of any person
(irrespective of whether or not, at the time, Capital Stock of any other class
or classes shall have, or might have, voting power by reason of the happening
of any contingency).
SECTION 1.02. Other Definitions.
Term Defined In Section
"Bankruptcy Law" 7.1
"Change in Control" 3.8
"Change in Control Purchase Date" 3.8
"Change in Control Purchase Notice" 3.8
"Change in Control Purchase Price" 3.8
"Company Order" 2.2
"Conversion Agent" 2.3
"Conversion Date" 4.2
"Conversion Price" 4.6
"Conversion Shares" 4.6
"Custodian" 7.1
"Determination Date" 4.6
"Distribution Date" 4.6
"Event of Default" 7.1
"Exchange Act" 3.8
"Legal Holiday" 11.7
"NASDAQ" 4.6
"NYSE" 4.6
"Paying Agent" 2.3
"Registrar" 2.3
"Rights" 4.6
"Triggering Distribution" 4.6
"Unissued Shares" 3.8
"U.S. Government Obligations" 9.1
SECTION 1.03. Trust Indenture Act Provisions.
Whenever this Indenture refers to a provision of the TIA, that
provision is incorporated by reference in and made a part of this Indenture.
The Indenture shall also include those provisions of the TIA required to be
included herein by the provisions of the Trust Indenture Reform Act of 1990.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined in the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in the United
States of America and in effect on the date hereof, and any other reference in
this Indenture to "generally accepted accounting principles" refers to
generally accepted accounting principles in the United States of America and in
effect on the date hereof;
(3) words in the singular include the plural, and words in the plural
include the singular;
(4) provisions apply to successive events and transactions;
(5) the term "merger" includes a statutory share exchange and the
term "merged" has a correlating meaning;
(6) the masculine gender includes the feminine and the neuter;
(7) references to agreements and other instruments include subsequent
amendments thereto; and
(8) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form set forth in Exhibit A, which is incorporated in
and made part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Security shall
be dated the date of its authentication.
The Securities shall be issued in the form of one or more global
certificates in definitive, fully registered form, without interest coupons,
substantially in the form set forth in Exhibit A (the "Global Certificates"),
deposited with the Trustee, as custodian for the Depository, and registered in
the name of a nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as herein provided. In the event that the
Depository is at any time unwilling or unable to continue as a depository and a
successor depository is not appointed by the Company within 90 days, the
Securities shall be issued in the form of physical Securities in registered
form, without interest coupons, in substantially the form set forth in Exhibit
A (the "Definitive Securities").
Each Global Certificate shall bear the following legend:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
SECTION 2.02. Execution and Authentication.
An Officer shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be affixed to or reproduced on
the Securities and attested by the Secretary or an Assistant Secretary of the
Company. Typographic and other minor errors or defects in any such reproduction
of the seal or any such facsimile signature shall not affect the validity or
enforceability of any Security which has been authenticated and delivered by
the Trustee.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities for original issue in the aggregate principal amount of up to $
(plus up to an additional $ issued pursuant to the exercise of the
over-allotment option described in Section 2(b) of the Purchase Agreement dated
between the Company and ) upon receipt of a written order or orders of the
Company signed by two Officers of the Company (a "Company Order"). The Company
Order shall specify the amount of Securities to be authenticated and the date
on which each original issue of Securities is to be authenticated. The
aggregate principal amount of Securities outstanding at any time may not exceed
$ , except as provided above and in Section 2.7.
The Trustee shall act as the initial authenticating agent. Thereafter,
the Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent shall have the same rights as an Agent to deal with the
Company or an Affiliate of the Company.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar, Paying Agent and Conversion Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar"), an
office or agency where Securities may be presented for payment (the "Paying
Agent"), an office or a agency where Securities may be presented for conversion
(the "Conversion Agent") and an office or agency where notices and demands to
or upon the Company in respect of the securities and this Indenture may be
served. The Registrar shall keep a register of the Securities and of their
transfer and exchange.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee of the name and address of any Agent not a party to this
Indenture. If the Company fails to maintain a Registrar, Paying Agent,
Conversion Agent or agent for service of notices and demands, or fails to give
the foregoing notice, the Trustee shall act as such. The Company or any
Affiliate of the Company may act as Paying Agent (except for the purposes of
Section 5.1 and Article 9), Registrar or Conversion Agent.
The Company also shall maintain a Registrar, Paying Agent, Transfer
Agent and Conversion Agent in Luxembourg so long as the Securities are listed
on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange
so require.
The Company initially appoints the Trustee as Registrar, Transfer
Agent, Conversion Agent, Paying Agent and agent for service of notices and
demands in connection with the Securities in New York [and [Banque
Internationale a Luxembourg S.A.,] as additional Registrar, Transfer Agent,
Conversion Agent and Paying Agent in Luxembourg.]
SECTION 2.04. Paying Agent to Hold Money in Trust.
Prior to 11:00 a.m., New York City time, on each due date of the
principal of or interest on any Securities, the Company shall deposit with the
Paying Agent a sum sufficient to pay such principal or interest so becoming
due. Subject to Section 12.7, the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent
for the payment of principal of or interest on the Securities, and shall
promptly notify the Trustee of any default by the Company (or any other obligor
on the Securities) in making any such payment. If the Company or an Affiliate
of the Company acts as Paying Agent, it shall, before 11:00 a.m., New York City
time, on each due date of the principal of or interest on any Securities,
segregate the money and hold it as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee, and
the Trustee may at any time during the continuance of any default, upon written
request to a Paying Agent, require such Paying Agent to forthwith pay to the
Trustee all sums so held in trust by such Paying Agent. Upon doing so, the
Paying Agent (other than the Company) shall have no further liability for the
money.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each semiannual interest payment date and at such
other times as the Trustee may request in writing a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.06. Transfer and Exchange.
When a Security is presented to the Registrar with a request to
register a transfer thereof or to exchange such Security for an equal principal
amount of Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested; provided, however,
that every Security presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by the Holder
thereof or its attorney duly authorized in writing. Furthermore, the Depository
shall, by acceptance of a Global Certificate, agree that transfers of
beneficial interests in such Global Certificate may be effected only through a
book-entry system maintained by the Depository (or its agent), and that
ownership of a beneficial interest in the Security shall be required to be
reflected in a book-entry. To permit registration of transfers and exchanges,
upon surrender of any Security for registration of transfer or exchange at the
office or agency maintained pursuant to Section 2.3, the Company shall execute
and the Trustee shall authenticate Securities of a like aggregate principal
amount at the Registrar's request. An exchange or transfer shall be without
charge, except that the Company or the Registrar may require payment of a sum
sufficient to cover any tax, assessment or other governmental charge that may
be imposed in relation thereto, and provided further that this sentence shall
not apply to any exchange pursuant to Section 2.10, 3.6, 3.11, 4.2 (last
paragraph) or 10.5.
Neither the Company, the Registrar nor the Trustee shall be required
to exchange or register a transfer of (a) any Securities for a period of 15
days next preceding any selection of Securities to be redeemed, (b) any
Securities or portions thereof selected or called for redemption (except, in
the case of redemption of a Security in part, the portion not to be redeemed)
or (c) any Securities or portions there in respect of which a Change in Control
Purchase Notice has been delivered and not withdrawn by the Holder thereof
(except, in the case of the purchase of a Security in part, the portion not to
be purchased).
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt and
entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
SECTION 2.07. Replacement Securities.
If any mutilated Security is surrendered to the Company, the Registrar
or the Trustee, or the Company, the Registrar and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company, the Registrar and the Trustee such Security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company, the Registrar or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute,
and upon its written request the Trustee shall authenticate and deliver, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, a new Security of like tenor and principal amount, bearing
a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be redeemed or
purchased by the Company pursuant to Article 3, the Company in its discretion
may, instead of issuing a new Security, pay, redeem or purchase such Security,
as the case may be.
Upon the issuance of any new Securities under this Section 2.7, the
Company may require the payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee or the
Registrar) in connection therewith.
Every new Security issued pursuant to this Section 2.7 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities authenticated by
the Trustee, except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.8 as not outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Company receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company) holds on a redemption
date or maturity date money sufficient to pay the principal of (including
premium, if any) and accrued interest on Securities payable on that date, then
on and after that date such Securities cease to be outstanding and interest on
them ceases to accrue.
Subject to the restriction contained in Section 2.9, a Security does
not cease to be outstanding and need not be cancelled if the Company or an
Affiliate of the Company holds the Security.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any notice, direction, waiver or consent,
Securities owned by the Company or any other obligor or by any Affiliate of the
Company or such other obligor shall be disregarded, except that, for purposes
of determining whether the Trustee shall be protected in relying on any such
notice, direction, waiver or consent, only Securities which the Trustee knows
are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith shall not be disregarded if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with respect to
the Securities and that the pledgee is not the Company or any other obligor on
the Securities or any Affiliate of the Company or of such other obligor.
Notwithstanding the foregoing, for so long as the Securities are listed on the
Luxembourg Stock Exchange, a Security which is held by the Company or an
Affiliate shall be immediately cancelled and may not be held reissued or
resold.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and execute, and, upon receipt of a Company Order, the Trustee shall
authenticate and deliver, temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company with the consent of the Trustee considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate and deliver definitive Securities in exchange for
temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, the Paying Agent and the Conversion Agent shall
forward to the Trustee or its agent any Securities surrendered to them for
transfer, exchange, payment or conversion. The Trustee and no one else shall
cancel, in accordance with its standard procedures, all Securities surrendered
for transfer, exchange, redemption, payment, conversion or cancellation and
shall deliver the canceled Securities to the Company. The Company may not issue
new Securities to replace Securities it has paid or delivered to the Trustee
for cancellation or that any Holder has converted pursuant to Article 4.
SECTION 2.12. CUSIP, ISIN and CINS Numbers.
The Company in issuing the Securities may use "CUSIP," "ISIN" and
"CINS" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP," "ISIN" and "CINS" numbers, as the case may be, in notices of
redemption as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP," "ISIN" or "CINS"
numbers.
SECTION 2.13. Book-entry Provisions for the Global Certificates.
(a) The Global Certificates initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for the Depository and (iii) bear legends as set forth
in Section 2.1. Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Certificates held on their behalf by the Depository, or the Trustee as its
custodian, and the Depository shall be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Certificates for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Security.
(b) Transfers of any Global Certificate shall be limited to transfers
of such Global Certificate in whole, but not in part, to the Depository, its
successors or their respective nominees. Beneficial interests in any Global
Certificates may be transferred in accordance with the applicable rules and
procedures of the Depository and, if applicable, Euroclear and Cedel. Other
than as permitted in the next sentence, a beneficial owner may not exchange an
interest in a Global Certificate for Definitive Securities. Definitive
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in any Security only if (i) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for such
Global Certificate and a successor Depository is not appointed by the Company
within 90 days of such notice or (ii) the Trustee has instituted or been
directed to institute any judicial proceedings in a court to enforce the rights
of Holders under the Securities and has been advised by counsel that it is
necessary or appropriate to obtain possession of Definitive Securities.
(c) In connection with the transfer of an entire Global Certificate
to beneficial owners pursuant to paragraph (b) of this Section, such Global
Certificate shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and deliver,
to each beneficial owner identified by the Depository in exchange for its
beneficial interest in such Global Certificate an equal aggregate principal
amount of Definitive Securities of authorized denominations.
(d) The registered holder of a Global Certificate may grant proxies
and otherwise authorize any person, including Agent Members and persons that
may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01. Right to Redeem; Notice to Trustee.
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time on or after , [ ], at the
redemption prices specified in paragraph 5 of the form of Security attached
hereto as Exhibit A, together with accrued interest up to but not including the
Redemption Date.
If the Company elects to redeem Securities pursuant to this Section
3.1 and paragraph 5 of the Securities, it shall notify the Trustee at least 45
days prior to the redemption date as fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee) of the redemption date and the
principal amount of Securities to be redeemed. If fewer than all of the
Securities are to be redeemed, the record date relating to such redemption
shall be selected by the Company and given to the Trustee, which record date
shall not be less than ten days after the date of notice to the Trustee.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed, the Trustee
shall, not more than 60 days prior to the redemption date, select the
Securities to be redeemed by lot, pro rata or by another method the Trustee
considers fair and appropriate. The Trustee shall make the selection from the
Securities outstanding and not previously called for redemption by lot, pro
rata or by another method the Trustee considers fair and appropriate.
Securities in denominations of $1,000 may only be redeemed in whole. The
Trustee may select for redemption portions (equal to $1,000 or any multiple
thereof) of the principal of Securities that have denominations larger than
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed
for purposes of selection only (so far as may be) to be the portion selected
for redemption; provided, however, subject to compliance with Article 4, such
Security shall be converted. Securities which have been converted during a
selection of Securities to be redeemed shall be treated by the Trustee as
outstanding for the purpose of such selection.
SECTION 3.03. Notice of Redemption.
At least 20 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed a notice of redemption to each
Holder of Securities to be redeemed at such Holder's address as it appears on
the Registrar's books.
The notice shall identify the Securities to be redeemed and shall
include the CUSIP, ISIN and CINS numbers (if any) and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the then current Conversion Price;
(4) the name and address of the Paying Agent and the Conversion
Agent;
(5) that Securities called for redemption must be presented and
surrendered to the Paying Agent to collect the redemption price;
(6) that the Securities called for redemption may be converted at any
time up to one business day prior to the redemption date;
(7) that Holders who wish to convert Securities must satisfy the
requirements in paragraph 8 of the Securities;
(8) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption shall cease accruing on
and after the redemption date and the only remaining right of the Holder shall
be to receive payment of the redemption price upon presentation and surrender
to the Paying Agent of the Securities; and
(9) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the redemption
date, upon presentation and surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed portion
thereof will be issued.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
All notices required to be furnished to the Holders hereunder shall
concurrently therewith be furnished to the Trustee. For so long as the
Securities are listed on the Luxembourg Stock Exchange, the Company shall,
concurrently with the furnishing of such notices to the Holders, furnish such
notices to the Luxembourg Stock Exchange and publish such notices once in the
Luxemburger Wort.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price
stated in the notice, except for Securities that are converted in accordance
with the provisions of Section 4.1. Upon presentation and surrender to the
Paying Agent, Securities called for redemption shall be paid at the redemption
price, plus accrued interest up to but not including the redemption date.
SECTION 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m. New York City time, on the redemption date, the
Company shall deposit with the Paying Agent (or, if the Company acts as Paying
Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest on all Securities to be redeemed on
that date, other than Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee for
cancellation or have been converted. The Paying Agent shall return to the
Company any money not required for that purpose because of the conversion of
Securities pursuant to Article 4 or otherwise. If such money is then held by
the Company in trust and is not required for such purpose, it shall be
discharged from the trust.
SECTION 3.06. Securities Redeemed in Part.
Upon presentation and surrender of a Security that is redeemed in
part, the Company shall execute and the Trustee shall authenticate for and
deliver to the Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
SECTION 3.07. Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities having conversion
privileges specified in paragraph 8 of the form of Security attached hereto as
Exhibit A, the Company may arrange for the purchase and conversion of any
Securities called for redemption by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Paying
Agent in trust for the Securityholders, on or before the close of business on
the Redemption Date, an amount that, together with any amounts deposited with
the Paying Agent by the Company for the redemption of such Securities, is not
less than the Redemption Price, together with interest, if any, accrued to, but
not including, the Redemption Date, of such Securities. Notwithstanding
anything to the contrary contained in this Article 3, the obligation of the
Company to pay the Redemption Price of such Securities, including all accrued
interest, if any, shall be deemed to be satisfied and discharged to the extent
such amount is so paid by such purchasers. If such an agreement is entered
into, any Securities not duly surrendered for conversion by the Holders thereof
may, at the option of the Company, be deemed, to the fullest extent permitted
by law, acquired by such purchasers from such Holders and (notwithstanding
anything to the contrary contained in Article 4) surrendered by such purchasers
for conversion, all as of immediately prior to the close of business on the
Redemption Date, subject to payment of the above amount as aforesaid. The
Paying Agent shall hold and pay to the Holders whose Securities are selected
for redemption any such amount paid to it for purchase and conversion in the
same manner as it would money deposited with it by the Company for the
redemption of Securities. Without the Paying Agent's prior written consent, no
arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Paying Agent as set
forth in this Indenture, and the Company agrees to indemnify the Paying Agent
from, and hold it harmless against, any loss, liability or expense arising out
of or in connection with any such arrangement for the purchase and conversion
of any Securities between the Company and such purchasers, including the costs
and expenses incurred by the Paying Agent in the defense of any claim or
liability arising out of or in connection with the exercise or performance of
any of its powers, duties, responsibilities or obligations under this
Indenture, including counsel fees.
SECTION 3.08. Purchase of Securities at Option of the Holder Upon
Change in Control.
(a) If at any time that Securities remain outstanding there shall
have occurred a Change in Control, each Holder will have the option to require
the Company to purchase all or any part of such Holder's Securities, as of the
date that is 50 Business Days after the occurrence of the Change in Control
(the "Change in Control Purchase Date") at a purchase price equal to 100% of
the principal amount thereof (the "Change in Control Purchase Price") plus
accrued interest up to but not including the Change in Control Purchase Date,
subject to satisfaction by or on behalf of any Holder of the requirements set
forth in subsection (c) of this Section 3.8.
A "Change in Control" shall be deemed to have occurred at such time
after the initial issuance of the Securities if any of the following shall
occur:
(1) any Person or group, other than the Permitted Holders, is or
becomes owner, directly or indirectly, of shares of capital stock of the
Company representing 50% of the total voting power of all shares of capital
stock of the Company entitling the holders thereof to vote generally in
elections of directors of the Company;
(2) the Company consolidates with, or merges with or into, another
Person or the Company sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of the assets of the Company, or any
Person consolidates with, or merges with or into, the Company, in any such
event other than pursuant to a transaction in which the Person or Persons that
"beneficially owned," directly or indirectly, shares of capital stock of the
Company representing a majority of the total voting power of all classes of
capital stock of the Company immediately prior to such transaction,
"beneficially own," directly or indirectly, shares of capital stock of the
Company representing a majority of the total voting power of all classes of
capital stock of the surviving or transferee Person; or
(3) during any consecutive two year period, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by the Board of Directors of
the Company or whose nomination for election by the stockholders of the Company
was approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason (other
than by action of the Permitted Holders) to constitute a majority of the Board
of Directors of the Company then in office.
For purposes of a Change in Control, (i) "group" has the meaning under
Section 13(d) and 14(d) of the Exchange Act or any successor provision to
either of the foregoing, including any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act, and (ii) a "beneficial owner" shall be
determined in accordance with Rule 13d-3 promulgated by the Commission under
the Exchange Act, as in effect on the date of execution of this Indenture,
except that, for purposes of this definition, the number of shares of capital
stock of the Company entitling the holders thereof to vote generally in
elections of directors shall be deemed to include, in addition to all
outstanding shares of capital stock of the Company entitling the holders
thereof to vote generally in the election of directors and Unissued Shares
deemed to be held by the Person with respect to which the Change in Control
determination is being made, all Unissued Shares deemed to be held by all other
Persons. As used herein, "Unissued Shares" shall mean shares of capital stock
of the Company not outstanding that are subject to options, warrants, rights to
purchase or conversion privileges exercisable within 60 days following the date
of determination of a Change in Control and that, upon issuance, will entitle
the holders thereof to vote generally in the election of directors.
Notwithstanding the foregoing, a Change in Control will be deemed not
to have occurred (i) if the last sale price of the Common Stock for any five
Trading Days during the ten Trading Days immediately preceding the Change in
Control is at least equal to % of the Conversion Price in effect immediately
preceding the Change in Control or (ii) if at least % of the consideration
(excluding cash payments for fractional shares or cash payments for appraisal
rights) in the transaction or transactions constituting the Change in Control
consists of shares of Common Stock or securities convertible into shares of
Common Stock that are, or upon issuance will be, traded on a national
securities exchange or through NASDAQ.
(b) Within 20 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of Change in Control to the
Trustee and to each Holder (and to beneficial owners as required by applicable
law) and shall cause a copy of such notice to be published in a daily newspaper
of national circulation. For so long as the Securities are listed on the
Luxembourg Stock Exchange, such notice shall also be furnished to the
Luxembourg Stock Exchange and published once in the Luxemburger Wort. The
notice shall include the form of a Change in Control Purchase Notice to be
completed by the Holder and shall include the CUSIP, ISIN and CINS numbers (if
any) and shall state:
(1) the date of such Change in Control and, briefly, the events
causing such Change in Control;
(2) the date by which the Change in Control Purchase Notice pursuant
to this Section 3.8 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) briefly, the conversion rights of the Securities;
(6) the name and address of the Paying Agent and the Conversion
Agent;
(7) the then current Conversion Price;
(8) that Securities as to which a Change in Control Purchase Notice
has been given may be converted into Common Stock only to the extent that the
Change in Control Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(9) the procedures that the Holder must follow to exercise rights
under this Section 3.8;
(10) the procedures for withdrawing a Change in Control Purchase
Notice, including a form of notice of withdrawal; and
(11) that the Holder must satisfy the requirements set forth in the
Securities in order to convert the Securities.
(c) A Holder may exercise its rights specified in subsection (a) of
this Section 3.8 upon delivery of a written notice of the exercise of such
rights (a "Change in Control Purchase Notice") to the Paying Agent at any time
prior to the close of business on the Business Day next preceding the Change in
Control Purchase Date, stating:
(1) the name of the Holder;
(2) the certificate number of each Security that the Holder will
deliver to be purchased;
(3) the portion of the principal amount of each Security that the
Holder will deliver to be purchased, which portion must be $1,000 or an
integral multiple thereof; and
(4) that such Security shall be purchased pursuant to the terms and
conditions specified in this Indenture.
The delivery of such Security to the Paying Agent (together with all
necessary endorsements) at the office of the Paying Agent shall be a condition
to the receipt by the Holder of the Change in Control Purchase Price therefor;
provided, however, that such Change in Control Purchase Price shall be so paid
pursuant to this Section 3.8 only if the Security so delivered to the Paying
Agent shall conform in all respects to the description thereof set forth in the
related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.8, a portion of a Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security pursuant to Sections 3.8 through
3.13 also apply to the purchase of such portion of such Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Change in Control Purchase Notice contemplated by this
subsection (c) shall have the right to withdraw such Change in Control Purchase
Notice in whole or in a portion thereof that is $1,000 or in an integral
multiple thereof at any time prior to the close of business on the Business Day
next preceding the Change in Control Purchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 3.9.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Change in Control Purchase Notice or written withdrawal thereof.
SECTION 3.09. Effect of Change in Control Purchase Notice.
Upon receipt by the Paying Agent of the Change in Control Purchase
Notice specified in Section 3.8(c), the Holder of the Security in respect of
which such Change in Control Purchase Notice was given shall (unless such
Change in Control Purchase Notice is withdrawn as specified below) thereafter
be entitled to receive solely the Change in Control Purchase Price with respect
to such Security plus accrued interest thereon up to but not including the
Change in Control Purchase Date. Such Change in Control Purchase Price and
accrued interest shall be paid to such Holder promptly following the later of
(a) the Change in Control Purchase Date with respect to such Security (provided
the conditions in Section 3.8(c) have been satisfied) and (b) the time of
delivery of such Security to the Paying Agent by the Holder thereof in the
manner required by Section 3.8(c). Securities in respect of which a Change in
Control Purchase Notice has been given by the Holder thereof may not be
converted into shares of Common Stock on or after the date of the delivery of
such Change in Control Purchase Notice unless such Change in Control Purchase
Notice has first been validly withdrawn.
A Change in Control Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered by the Holder to the office of the
Paying Agent at any time prior to the close of business on the Business Day
immediately preceding the Change in Control Purchase Date, specifying:
(1) the name of the Holder;
(2) the certificate number of each Security in respect of which such
notice of withdrawal is being submitted;
(3) the principal amount of the Security or portion thereof with
respect to which such notice of withdrawal is being submitted; and
(4) the principal amount, if any, of such Security that remains
subject to the original Change in Control Purchase Notice and that has been or
will be delivered for purchase by the Company.
There shall be no purchase of any Securities pursuant to Section 3.8
if there has occurred (prior to, on or after, as the case may be, the giving,
by the Holders of such Securities, of the required Change in Control Purchase
Notice) and is continuing an Event of Default (other than a default in the
payment of the Change in Control Purchase Price with respect to such
Securities).
SECTION 3.10. Deposit of Change in Control Purchase Price.
At or before 11:00 a.m., New York City time, on the second Business
Day immediately following a Change in Control Purchase Date, the Company shall
deposit with the Trustee or with the Paying Agent (or, if the Company is acting
as the Paying Agent, shall segregate and hold in trust as provided in Section
2.4) an amount of money sufficient to pay the aggregate Change in Control
Purchase Price of all the Securities or portions thereof that are to be
purchased as of such Change in Control Purchase Date plus accrued interest
thereon up to but not including the Change in Control Purchase Date. The manner
in which the deposit required by this Section 3.10 is made by the Company shall
be at the option of the Company, provided that such deposit shall be made in a
manner such that the Trustee or the Paying Agent shall have immediately
available funds on the second Business Day immediately following the Change in
Control Purchase Date.
If the Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Change in Control Purchase Price of any Security tendered
for purchase, then, on the second Business Day immediately following to the
Change in Control Purchase Date, such Security will cease to be outstanding and
will be deemed paid, whether or not such Security is delivered to the Paying
Agent, and all other rights of the Holder in respect thereof shall terminate
(other than the right to receive the Change in Control Purchase Price upon
delivery of such Security).
SECTION 3.11. Securities Purchased in Part.
Any Security that is to be purchased only 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 Holder's attorney-in-fact duly authorized in writing), and
promptly after the Change in Control Purchase Date the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge, a new Security or Securities, of such authorized
denomination or denominations as may be requested by such Holder, in aggregate
principal amount equal to, and in exchange for, the portion of the principal
amount of the Security so surrendered that is not purchased.
SECTION 3.12. Compliance with Securities Laws Upon Purchase of
Securities.
In connection with any offer to purchase or purchase of Securities
under Section 3.8 (provided that such offer or purchase constitutes an "issuer
tender offer" for purposes of Rule 13e-4 under the Exchange Act (which term, as
used herein, includes any successor provision thereto) at the time of such
offer or purchase), the Company shall (a) comply with Rule 13e-4 and Rule 14e-1
under the Exchange Act (b) file the related Schedule 13E-4 (or any successor or
similar schedule, form or report) under the Exchange Act, an (c) otherwise
comply with all federal and state securities laws so as to permit the rights of
the Holders and obligations of the Company under Sections 3.8 through 3.11 to
be exercised in the time and in the manner specified therein.
SECTION 3.13. Repayment to the Company.
Subject to the provisions of Section 12.7, to the extent that the
aggregate amount of cash deposited by the Company pursuant to Section 3.10
exceeds the aggregate Change in Control Purchase Price of the Securities or
portions thereof that the Company is obligated to purchase, plus accrued
interest thereon up to but not including the Change in Control Purchase Date,
then promptly after the second Business Day immediately following the Change in
Control Purchase Date, the Trustee or the Paying Agent, as the case may be,
shall return any such excess to the Company.
ARTICLE 4
CONVERSION
SECTION 4.01. Conversion Privileges.
Conversion privileges, if any, shall be specified in paragraph 8 of
the form of Security attached hereto as Exhibit A. Subject to the further
provisions of this Section 4.1, a Holder of a Security that is a convertible
security may convert such Security (or any portion thereof, subject to this
Section 4.1) into Common Stock at any time prior to Maturity, at the Conversion
Price then in effect; provided, however, that, if such Security is called for
redemption pursuant to Article 3, such conversion right shall terminate at the
close of business on the Business Day immediately preceding the Redemption Date
for such Security (unless the Company shall default in making the redemption
payment when due, in which case the conversion right shall terminate at the
close of business on the date such default is cured and such Security is
redeemed); provided, further, that, if the Holder of a Security presents such
Security for redemption prior to the close of business on the Business Day
immediately preceding the redemption date for such Security, the right of
conversion shall terminate upon presentation of the Security to the Trustee
(unless the Company shall default in making the redemption payment when due, in
which case the conversion right shall terminate at the close of business on the
date such default is cured and such Security is redeemed). The number of shares
of Common Stock issuable upon conversion of a Security shall be determined by
dividing the principal amount of the Security or portion thereof surrendered
for conversion by the Conversion Price in effect on the Conversion Date. The
initial Conversion Price is set forth in paragraph 8 of the Securities and is
subject to adjustment as provided in this Article 4.
A Holder may convert a portion of a Security equal to $1,000 or any
integral multiple thereof. Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of a
Security.
A Security in respect of which a Holder has delivered a Change in
Control Purchase Notice pursuant to Section 3.8(c) exercising the option of
such Holder to require the Company to purchase such Security may be converted
only if such Change in Control Purchase Notice is withdrawn by a written notice
of withdrawal delivered to the Paying Agent prior to the close of business on
the Business Day immediately preceding the Change in Control Purchase Date in
accordance with Section 3.9.
A Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities to Common Stock,
and only to the extent such Securities are deemed to have been converted into
Common Stock pursuant to this Article 4.
SECTION 4.02. Conversion Procedure.
To convert a Security, a Holder mus (a) complete and manually sign the
conversion notice on the back of the Security and deliver such notice to the
Conversion Agent (b) surrender the Security to the Conversion Agent (c) furnish
appropriate endorsements and transfer documents if required by the Registrar or
the Conversion Agent, an (d) pay any transfer or similar tax, if required. The
date on which the Holder satisfies all of those requirements is the "Conversion
Date." As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder through the Conversion Agent a certificate for the number
of whole shares of Common Stock issuable upon the conversion, payment for
accrued interest on such Security to the extent required by this Section 4.2
and cash in lieu of any fractional shares pursuant to Section 4.3.
The person in whose name the certificate is registered shall be deemed
to be a shareholder of record on the Conversion Date; provided, however, that
no surrender of a Security on any date when the stock transfer books of the
Company shall be closed shall be effective to constitute the person 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 of a
Security, such person shall no longer be a Holder of such Security. No payment
or adjustment will be made for dividends or distributions on shares of Common
Stock issued upon conversion of a Security.
Except as otherwise provided in this Section 4.2, no payment or
adjustment will be made for accrued interest on a converted Security. Interest
accrued through and including , [ ] shall be paid on any Security called for
redemption pursuant to Article 3 and surrendered for conversion pursuant to
this Article 4 before the close of business on , [ ]. If any Holder surrenders
a Security for conversion after the close of business on the record date for
the payment of an installment of interest and before the close of business on
the related interest payment date, then, notwithstanding such conversion, the
interest payable on such interest payment date shall be paid to the Holder of
such Security on such record date. In such event, unless such Security has been
called for redemption, such Security, when surrendered for conversion, must be
accompanied by delivery of a check or draft payable to the Conversion Agent in
an amount equal to the interest payable on such interest payment date on the
portion so converted. If such payment does not accompany such Security, the
Security shall not be converted. If the Company defaults in the payment of
interest payable on the interest payment date, the Conversion Agent shall repay
such funds to the Holder.
If a Holder converts more than one Security at the same time, the
number of shares of Common Stock issuable upon the conversion shall be based on
the aggregate principal amount of Securities converted.
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security equal in principal amount to the unconverted portion of the
Security surrendered.
SECTION 4.03. Fractional Shares.
The Company will not issue fractional shares of Common Stock upon
conversion of Securities. In lieu thereof, the Company will pay an amount in
cash based upon the closing sale price of the Common Stock on the Trading Day
immediately prior to the date of conversion.
SECTION 4.04. Taxes on Conversion.
If a Holder converts a Security, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue 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 4.05. Company to Provide Stock.
The Company shall, prior to issuance of any Securities hereunder, and
from time to time as it 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 Securities into shares of Common Stock.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury 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.
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 Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange or in
the over-the-counter market or such other market on which the Common Stock is
then listed or quoted.
SECTION 4.06. Adjustment of Conversion Price.
The conversion price as stated in paragraph 8 of the Securities (the
"Conversion Price") shall be adjusted from time to time by the Company as
follows:
(a) In case the Company shall (i) pay a dividend in shares of Common
Stock to all holders of Common Stock, (ii) make a distribution in shares of
Common Stock to all holders of Common Stock, (iii) subdivide its outstanding
Common Stock into a greater number of shares, or (iv) combine its outstanding
Common Stock into a smaller number of shares, the Conversion Price in effect
immediately prior thereto shall be adjusted so that the Holder of any Security
thereafter surrendered for conversion shall be entitled to receive that number
of shares of Common Stock which it would have owned had such Security been
converted immediately prior to the happening of such event. An adjustment made
pursuant to this subsection (a) shall become effective immediately after the
record date in the case of a dividend in shares or distribution and shall
become effective immediately after the effective date in the case of
subdivision or combination.
(b) In case the Company shall issue rights or warrants to all or
substantially all holders of its Common Stock entitling them (for a period
commencing no earlier than the record date described below and expiring not
more than 60 days after such record date) to subscribe for or purchase shares
of Common Stock (or securities convertible into Common Stock) at a price per
share less than the current market price per share of Common Stock (as
determined in accordance with subsection (e) of this Section 4.6) at the record
date for the determination of shareholders entitled to receive such rights or
warrants, the Conversion Price in effect immediately prior thereto shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction
of which the numerator shall be the number of shares of Common Stock
outstanding on such record date, plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock so offered (or the
aggregate Conversion Price of the convertible securities so offered) would
purchase at such current market price, and of which the denominator shall be
the number of shares of Common Stock outstanding on such record date plus the
number of additional shares of Common Stock offered (or into which the
convertible securities so offered are convertible). Such adjustment shall be
made successively whenever any such rights or warrants are issued, and shall
become effective immediately after such record date. If at the end of the
period during which such rights or warrants are exercisable not all rights or
warrants shall have been exercised, the adjusted Conversion Price shall be
immediately readjusted to what it would have been based upon the number of
additional shares of Common Stock actually issued (or the number of shares of
Common Stock issuable upon conversion of convertible securities actually
issued).
(c) In case the Company shall distribute to all or substantially all
holders of its Common Stock any shares of capital stock of the Company (other
than Common Stock), evidences of indebtedness or other non-cash assets
(including securities of any company other than the Company), or shall
distribute to all or substantially all holders of its Common Stock rights or
warrants to subscribe for or purchase any of its securities (excluding those
referred to in subsection (b) of this Section 4.6), then in each such case the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the date of such distribution by a fraction of which the numerator shall be the
current market price per share (as defined in subsection (e) of this Section
4.6) of the Common Stock on the record date mentioned below less the fair
market value on such record date (as determined by the Board of Directors,
whose determination shall be conclusive evidence of such fair market value) of
the portion of the capital stock, evidences of indebtedness or other non-cash
assets so distributed or of such rights or warrants applicable to one share of
Common Stock (determined on the basis of the number of shares of Common Stock
outstanding on the record date), and of which the denominator shall be the
current market price per share (as defined in subsection (e) of this Section
4.6) of the Common Stock on such record date. Such adjustment shall become
effective immediately after the record date for the determination of
shareholders entitled to receive such distribution. Notwithstanding the
foregoing, in the event that the Company shall distribute rights or warrants
(other than those referred to in subsection (b) of this Section 4.6) ("Rights")
pro rata to holders of Common Stock, the Company may, in lieu of making any
adjustment pursuant to this Section 4.6, make proper provision so that each
holder of a Security who converts such Security (or any portion thereof) after
the record date for such distribution and prior to the expiration or redemption
of the Rights shall be entitled to receive upon such conversion, in addition to
the shares of Common Stock issuable upon such conversion (the "Conversion
Shares"), a number of Rights to be determined as follows: (i) if such
conversion occurs on or prior to the date for the distribution to the holders
of Rights of separate certificates evidencing such Rights (the "Distribution
Date"), the same number of Rights to which a holder of a number of shares of
Common Stock equal to the number of Conversion Shares is entitled at the time
of such conversion in accordance with the terms and provisions of and
applicable to the Rights and (ii) if such conversion occurs after the
Distribution Date, the same number of Rights to which a holder of the number of
shares of Common Stock into which the principal amount of the Security so
converted was convertible immediately prior to the Distribution Date would have
been entitled on the Distribution Date in accordance with the terms and
provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time
distribute (a "Triggering Distribution") to all or substantially all holders of
its Common Stock cash in an aggregate amount that, together with the aggregate
amount of all cash distributions to all or substantially all holders of its
Common stock made within the 12 months preceding the date of payment of the
Triggering Distribution and in respect of which no Conversion Price adjustment
pursuant to this Section 4.6 has been made, exceeds % of the product of the
current market price per share of Common Stock (as determined in accordance
with subsection (e) of this Section 4.6) on the Business Day (the
"Determination Date") immediately preceding the day on which such Triggering
Distribution is declared by the Company multiplied by the number of shares of
Common Stock outstanding on such date (excluding shares held in the Treasury of
the Company), the Conversion Price shall be reduced so that the same shall
equal the price determined by multiplying such Conversion Price in effect
immediately prior to the Determination Date by a fraction of which the
numerator shall be the current market price per share of the Common Stock (as
determined in accordance with subsection (e) of this Section 4.6) on the
Determination Date less the amount of cash (plus the fair market value of such
other consideration) so distributed within such 12 months (including, without
limitation, the Triggering Distribution) applicable to one share of Common
Stock (determined on the basis of the number of shares of Common Stock
outstanding on the Determination Date) and the denominator shall be such
current market price per share of the Common Stock (as determined in accordance
with subsection (e) of this Section 4.6) on the Determination Date, such
reduction to become effective immediately prior to the opening of business on
the day following the date on which the Triggering Distribution is paid.
(e) For the purpose of any computation under subsections (b), (c) and
(d) of this Section 4.6, the current market price per share of Common Stock on
any date shall be deemed to be the average of the daily closing prices for the
30 consecutive Trading Days commencing 45 Trading Days before (1) the
Determination Date with respect to distributions under subsection (d) of this
Section 4.6 or (ii) the record date with respect to distributions, issuances or
other events requiring such computation under subsection (b) or (c) of this
Section 4.6. The closing price for each day shall be the last reported sales
price or, in case no such reported sale takes place on such date, the average
of the reported closing bid and asked prices in either case on the New York
Stock Exchange (the "NYSE") or, if the Common Stock is not listed or admitted
to trading on the NYSE, on the principal national securities exchange on which
the Common Stock is listed or admitted to trading or, if not listed or admitted
to trading on any national securities exchange, the closing sales price of the
Common Stock as quoted by the Nasdaq National Market ("NASDAQ") or, in case no
reported sale takes place, the average of the closing bid and asked prices as
quoted by NASDAQ or any comparable system or, if the Common Stock is not quoted
on NASDAQ or any comparable system, the closing sales price or, in case no
reported sale takes place, the average of the closing bid and asked prices, as
furnished by any two members of the National Association of Securities Dealers,
Inc. selected from time to time by the Company for that purpose. If no such
prices are available, the current market price per share shall be the fair
value of a share of Common Stock as determined by the Board of Directors.
(f) In any case in which this Section 4.6 shall require that an
adjustment be made following a record date or a Determination Date, as the case
may be, established for purposes of this Section 4.6, the Company may elect to
defer (but only until five Business Days following the filing by the Company
with the Trustee of the certificate described in Section 4.9) issuing to the
Holder of any Security converted after such record date or Determination Date
the shares of Common Stock and other capital stock of the Company issuable upon
such conversion over and above the shares of Common Stock and other capital
stock of the Company issuable upon such conversion only on the basis of the
Conversion Price prior to adjustment; and, in lieu of the shares the issuance
of which is so deferred, the Company shall issue or cause its transfer agents
to issue due bills or other appropriate evidence prepared by the Company of the
right to receive such shares. If any distribution in respect of which an
adjustment to the Conversion Price is required to be made as of the record
date, effective date or Determination Date therefor is not thereafter made or
paid by the Company for any reason, the Conversion Price shall be readjusted to
the Conversion Price which would then be in effect if such record date had not
been fixed or such effective date or Determination Date had not occurred.
SECTION 4.07. No Adjustment.
No adjustment in the Conversion Price shall be required unless the
adjustment would require an increase or decrease of at least 1% in the
Conversion Price as last adjusted; provided, however, that any adjustments
which by reason of this Section 4.7 are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article 4 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
No adjustment need be made for a transaction referred to in Section
4.6 if all Securityholders are entitled to participate in the transaction on a
basis and with notice that the Board of Directors determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock
participate in the transaction. The Company shall give notice to the Trustee of
any such determination.
No adjustment need be made for rights to purchase Common Stock or
issuances of Common Stock pursuant to a Company plan for reinvestment of
dividends or interest.
No adjustment need be made for a change in the par value or a change
to no par value of the Common Stock.
To the extent that the Securities 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.
SECTION 4.08. Adjustment for Tax Purposes.
The Company shall be entitled to make such reductions in the
Conversion Price, in addition to those required by Section 4.6, as it in its
discretion shall determine to be advisable in order that any stock dividends,
subdivisions of shares, distributions of rights to purchase stock or securities
or distributions of securities convertible into or exchangeable for stock
hereafter made by the Company to its shareholders shall not be taxable.
SECTION 4.09. Notice of Adjustment.
Whenever the Conversion Price is adjusted, the Company shall promptly
mail to Securityholders 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. For so long as the Securities are listed on the
Luxembourg Stock Exchange, such notice shall also be furnished to the
Luxembourg Stock Exchange and published once in the Luxemburger Wort.
SECTION 4.10. Notice of Certain Transactions.
In the event that:
(1) the Company takes any action which would require an adjustment in
the Conversion Price;
(2) the Company consolidates or merges with, or transfers all or
substantially all of its property and assets to, another corporation and
shareholders of the Company must approve the transaction; or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Securityholders and file with the Trustee a notice
stating the proposed record or effective date, as the case may be. For so long
as the Securities are listed on the Luxembourg Stock Exchange, such notice
shall also be furnished to the Luxembourg Stock Exchange and published once in
the Luxemburger Wort. The Company shall mail and publish the notice (as
applicable) at least ten 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 (1), (2) or (3) of this Section 4.10.
SECTION 4.11. 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 Securities
(other than a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or combination, or
any other change for which an adjustment is provided in Section 4.6); (b) any
consolidation or merger to which the Company is a party other than a merger in
which the Company is the continuing corporation and which does not result in
any reclassification of, or change (other than a change in name, or 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; (c) any sale or conveyance of all or substantially all of the property
and assets of the Company to any person, then the Company, or such successor or
purchasing corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, consolidation, merger, sale or conveyance,
execute and deliver to the Trustee a supplemental indenture providing that the
Holder of each Security then outstanding shall have the right to convert such
Security into the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of shares
of Common Stock deliverable upon conversion of such Security immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance.
Such supplemental indenture shall provide for adjustments of the Conversion
Price which shall be as nearly equivalent as may be practicable to the
adjustments of the Conversion Price provided for in this Article 4. If, in the
case of any such consolidation, merger, sale or conveyance, the stock or other
securities and property (including cash) receivable thereupon by a holder of
Common Stock include shares of stock or other securities and property of a
corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, merger, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the
Securities as the Board of Directors shall reasonably consider necessary by
reason of the foregoing. The provisions of this Section 4.11 shall similarly
apply to successive consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 4.11, 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 of the Securities upon the conversion of their Securities
after any such reclassification, change, 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.
SECTION 4.12. Trustee's Disclaimer.
The Trustee shall have no duty to determine when an adjustment under
this Article 4 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
4.9. The Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities, and the Trustee
shall not be responsible for the Company's failure to comply with any
provisions of this Article 4.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 4.11, 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 4.11.
SECTION 4.13. Voluntary Reduction.
The Company from time to time may reduce the Conversion Price by any
amount for any period of time if the period is at least 20 days or such longer
period as may be required by law and if the reduction is irrevocable during the
period; provided, however, that in no event may the Conversion Price be less
than the par value of a share of Common Stock.
ARTICLE 5
COVENANTS
SECTION 5.01. Payment of Securities.
The Company shall promptly make all payments in respect of the
Securities on the dates and in the manner provided in the Securities and this
Indenture. An installment of principal or interest shall be considered paid on
the date it is due if the Paying Agent (other than the Company) holds by 11:00
a.m., New York City time, on that date money, deposited by the Company or an
Affiliate thereof, sufficient to pay the installment. To the extent lawful, the
Company shall pay interest on overdue principal at the rate borne by the
Securities per annum and shall pay interest on overdue installments of interest
at the same rate.
SECTION 5.02. SEC Reports.
The Company shall file all reports and other information and documents
which it is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act, and within 15 days after it files them with the SEC, the
Company shall file copies of all such reports, information and other documents
with the Trustee. The Company will cause any quarterly and annual reports which
it makes to its shareholders to be mailed to Holders of the Securities.
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.
In the event the Company is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will prepare, for the first three quarters of each fiscal year, quarterly
financial statements substantially equivalent to the financial statements
required to be included in a report on Form 10-Q under the Exchange Act. The
Company will also prepare, on an annual basis, complete audited consolidated
financial statements, including, but not limited to, a balance sheet, a
statement of operations, a statement of cash flows and all appropriate notes.
All such financial statements will be prepared in accordance with GAAP. The
Company will cause a copy of such financial statements to be filed with the
Trustee and mailed to the Holders of the Securities within 60 days after the
end of each of the first three quarters of each fiscal year and within 135 days
after the close of each fiscal year. The Company will also comply with the
other provisions of TIA Section 314(a).
For so long as the Securities are listed on the Luxembourg Stock
Exchange, the Company shall furnish to the Paying and Transfer Agent in
Luxembourg copies of the most recent consolidated financial statements of the
Company for the preceding financial year and any quarterly financial statements
published by the Company.
SECTION 5.03. Compliance Certificates.
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company, an Officers' Certificate as to the signer's
knowledge of the Company's compliance with all conditions and covenants on its
part contained in this Indenture and stating whether or not the signer knows of
any default or Event of Default. If such signer knows of such a default or
Event of Default, the Officers' Certificate shall describe the default or Event
of Default and the efforts to remedy the same. For the purposes of this Section
5.3, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
SECTION 5.04. Notice of Defaults.
In the even (a) that indebtedness of the Company in an aggregate
principal amount in excess of $ is declared due and payable before its maturity
because of the occurrence of any default under such indebtedness, or (b) of the
occurrence of any event which entitles the holder or holders of such
indebtedness to declare such indebtedness due and payable before its maturity
and with respect to which any applicable grace period has lapsed or expired,
the Company will promptly give written notice to the Trustee of such
declaration or event.
SECTION 5.05. 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 5.06. Liquidation.
The Company shall not adopt any plan of liquidation which provides
for, contemplates or the effectuation of which is preceded b (a) the sale,
lease, conveyance or other disposition of all or substantially all the assets
of the Company otherwise than substantially as an entirety in accordance with
Article 6 an (b) the distribution of all or substantially all the proceeds of
such sale, lease, conveyance or other disposition and the remaining assets of
the Company to holders of the Capital Stock of the Company, unless the Company
shall in connection with the adoption of such plan make provision for, or agree
that prior to making any liquidating distributions it will make provision for,
the satisfaction of the Company's obligations under this Indenture and under
the Securities as to the payment of principal and interest thereof.
SECTION 5.07. Reservation of Shares of Common Stock for Issuance Upon
Conversion.
The Company will at all times cause there to be authorized and
reserved for issuance upon conversion of the Securities such number of shares
of Common Stock as would be issuable upon conversion of all the Securities then
outstanding.
ARTICLE 6
SUCCESSOR CORPORATION
SECTION 6.01. When Company May Merge, Etc.
The Company shall not consolidate with or merge with or into, or
transfer all or substantially all of its property and assets to, any person
unless:
(a) either the Company shall be the resulting or surviving
corporation or such person is a corporation organized and existing under the
laws of the United States, a State thereof or the District of Columbia, and
such person expressly assumes by supplemental indenture executed and delivered
to the Trustee, in form satisfactory to the Trustee, all the obligations of the
Company under the Securities and this Indenture (in which case all such
obligations of the Company shall terminate); and
(b) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company as a result of such
transaction as having been incurred by the Company at the time of such
transaction, no default or Event of Default shall have occurred and be
continuing.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate and an Opinion of Counsel, each of which
shall comply with Section 11.4 and shall state that such consolidation, merger
or transfer and any such supplemental indenture comply with this Article 6 and
that all conditions precedent herein provided for relating to such transaction
have been complied with; provided, however, that such Opinion of Counsel shall
address only the matters referred to in clause (a) of this Section 6.1.
SECTION 6.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the property and assets of the Company in accordance with
Section 6.1, the successor corporation formed by such consolidation or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein.
ARTICLE 7
DEFAULT AND REMEDIES
SECTION 7.01. Events of a Default. An "Event of Default" shall occur
if:
(1) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and the default continues for a period of
30 days;
(2) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at maturity, upon redemption or
otherwise;
(3) the Company fails to comply with any of its other agreements
contained in the Securities or this Indenture and the default continues for the
period and after the notice specified below;
(4) a default shall occur under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company having an aggregate
outstanding principal amount in excess of $ , which default shall have resulted
in such indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have been due and payable, without such
indebtedness having been discharged, such acceleration having been rescinded or
annulled or there having been deposited in trust a sum of money sufficient to
discharge in full such indebtedness, in each case within a period of 10 days
following the occurrence of such acceleration;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property; or
(D) makes a general assignment for the benefit of its creditors; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case or proceeding;
(B) appoints a Custodian of the Company or for all or
substantially all of its property; or
(C) orders the liquidation of the Company;
and in each case the order or decree remains unstayed and in effect
for 60 days.
The term "Bankruptcy Law" means Title 11 of the United States Code or
any similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law.
A default under clause (3) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the Securities then outstanding notify the Company and the Trustee,
of the default, and the Company does not cure the default within 60 days after
receipt of such notice. The notice given pursuant to this Section 7.1 must
specify the default, demand that it be remedied and state that the notice is a
"Notice of Default." When any default under this Section 7.1 is cured, it
ceases.
Subject to the provisions of Sections 8.1 and 8.2, the Trustee shall
not be charged with knowledge of any Event of Default unless written notice
thereof shall have been given to a Trust Officer at the Corporate Trust Office
of the Trustee by the Company, the Paying Agent, any Holder or any agent of any
Holder.
SECTION 7.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (5) or (6) of Section 7.1) occurs and is continuing, the Trustee may, by
notice to the Company, or the Holders of at least 25% in principal amount of
the Securities then outstanding may, by notice to the Company and the Trustee,
and the Trustee shall, upon the request of such Holders, declare all unpaid
principal of and accrued interest to the date of acceleration on the Securities
then outstanding (if not then due and payable) to be due and payable upon any
such declaration, and the same shall become and be immediately due and payable.
If an Event of Default specified in clause (5) or (6) of Section 7.1 occurs,
all unpaid principal of and accrued interest on the Securities then outstanding
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of a Trust Officer of the Trustee or any
Securityholder. The Holders of a majority in principal amount of the Securities
then outstanding by notice to a Trust Officer of the Trustee may rescind an
acceleration and its consequences if (a) all existing Events of Default, other
than the nonpayment of the principal of and accrued interest on the Securities
which has become due solely by such declaration of acceleration, have been
cured or waived; (b) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid;
(c) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and (d) all payments due to the Trustee and any
predecessor Trustee under Section 8.7 have been made. Anything herein contained
to the contrary notwithstanding, in the event of any acceleration pursuant to
this Section 7.2, the Company shall not be obligated to pay any premium which
it would have had to pay if it had then elected to redeem the Securities
pursuant to paragraph 5 of the Securities, except in the case of any Event of
Default occurring by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Company with the intention of avoiding payment of
the premium which it would have had to pay if it had then elected to redeem the
Securities pursuant to paragraph 5 of the Securities, in which case an
equivalent premium shall also become and be immediately due and
payable to the extent permitted by law.
SECTION 7.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of the principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 7.04. Waiver of Defaults and Events of Default.
Subject to Sections 7.7 and 10.2, the Holders of a majority in
principal amount of the Securities then outstanding by notice to a Trust
Officer of the Trustee may waive an existing default or Event of Default and
its consequence, except a default in the payment of the principal of or
interest on any Security as specified in clauses (1) and (2) of Section 7.1.
When a default or Event of Default is waived, it is cured and ceases.
SECTION 7.05. Control by Majority.
The Holders of a majority in principal amount of the Securities then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of another Securityholder or the Trustee, or that may
involve the Trustee in personal liability; provided, however, that the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 7.06. Limitations on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities (except actions for payment of overdue principal or
interest or for the conversion of the Securities pursuant to Article 4) unless:
(1) the Holder gives to a Trust Officer of the Trustee written notice
of a continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities make a written request to a Trust Officer of the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has been given
to a Trust Officer of the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Securities then outstanding.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 7.07. Rights of Holders to Receive Payment and to Convert.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of the principal of and interest on
the Security, on or after the respective due dates expressed in the Security,
to convert such Security in accordance with Article 4 and to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 7.08. Collection Suite by Trustee.
If an Event of Default in the payment of principal or interest
specified in clause (1) or (2) of Section 7.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or another obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with, to the
extent that payment of such interest is lawful, interest on overdue principal
and on overdue installments of interest, in each case at the rate per annum
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 7.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor on the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any money or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceeding is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 8.7, and to
the extent that such payment of the reasonable compensation, expenses,
disbursements and advances in any such proceedings shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
property which the Securityholders may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to, or, on behalf of any Securityholder, to
authorize, accept or adopt any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding.
SECTION 7.10. Priorities.
If the Trustee collects any money pursuant to this Article 7, it shall
pay out the money in the following order:
First, to the Trustee for amounts due under Section 8.7;
Second, to the holders of Senior Indebtedness to the extent required
by Article 12;
Third, to Securityholders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for principal
and interest, respectively; and
Fourth, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 7.10.
SECTION 7.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 7.11 does not apply to a suit made by the Trustee, a suit by a
Holder pursuant to Section 7.7, or a suit by Holders of more than 10% in
principal amount of the Securities then outstanding.
SECTION 7.12. Waiver of Usury, 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 usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it 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 8
TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties as are specifically
set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. The Trustee, however, shall examine any
certificates and opinions which by any provision hereof are
specifically required to be delivered to the Trustee to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of subsection (b) of
this Section 8.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 7.5.
(d) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability, expense or fee.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to subsections (a), (b), (c) and (d) of this Section 8.1.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 8.02. Rights of Trustee.
Subject to Section 8.1:
(a) The Trustee may conclusively rely on any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, which shall conform to
Section 11.4(b). The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Certificate or Opinion.
(c) The Trustee may act through its agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights
or powers.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any such action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
SECTION 8.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 8.10 and 8.11.
SECTION 8.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for
any statement in the Securities other than its certificate of authentication.
SECTION 8.05. Notice of Default or Events of Default.
If a default or an Event of Default occurs and is continuing and if it
is actually known to a Trust Officer of the Trustee, the Trustee shall mail to
each Securityholder notice of the default or Event of Default within 90 days
after it occurs. At the expense of the Company, the Trustee shall also publish
in the Luxemburger Wort any notice mailed to Securityholders pursuant to this
section. Except in the case of a default or an Event of Default in payment of
the principal of or interest on any Security, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding notice is in the interests of Securityholders.
SECTION 8.06. Reports by Trustee to Holders.
If such report is required by TIA Section 313, within 60 days after
each September 1, beginning with the September 1 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated
as of such September 1 that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b)(2) and (c).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed. The Company shall notify the
Trustee whenever the Securities become listed on any stock exchange and any
changes in the stock exchanges on which the Securities are listed.
SECTION 8.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services as the parties shall agree (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust). The Company shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or
made by it. Such expenses may include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee (which for purposes of this
Section 8.7 shall include its officers, directors, employees and agents) for,
and hold it harmless against, any loss, liability or expense (including
reasonable legal fees and expenses) incurred by it in connection with its
duties under this Indenture or any action or failure to act as authorized or
within the discretion or rights or powers conferred upon the Trustee hereunder
including the reasonable costs and expenses of the Trustee and its counsel in
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for which
it may seek indemnity. The Company need not pay for any settlement without its
written consent, which shall not be unreasonably withheld.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it resulting from its
negligence or bad faith.
To secure the Company's payment obligations in this Section 8.7, the
Trustee shall have a lien to which the Securities are hereby made subordinate
on all money or property held or collected by the Trustee, except such money or
property held in trust to pay the principal of and interest on particular
Securities. The obligations of the Company under this Section 8.7 to compensate
or indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Securities. The obligations of the Company under this Section 8.7 shall survive
the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (5) or (6) of Section 7.1 occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 8.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee and may, with the Company's written
consent, appoint a successor Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of l0% in principal amount of the Securities then outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 8.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee after receipt of payment for its fees and expenses (including
its fees of counsel and agents) and be released from its obligations (exclusive
of any liabilities that the retiring Trustee may have incurred while acting as
Trustee) hereunder, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Securityholder.
A retiring Trustee shall not be liable for the acts or omissions of
any successor Trustee after its succession.
Notwithstanding replacement of the Trustee pursuant to this Section
8.8, the Company's obligations under Section 8.7 shall continue for the benefit
of the retiring Trustee.
SECTION 8.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, the resulting, surviving or transferee corporation, without any
further act, shall be the successor Trustee, provided such transferee
corporation shall qualify and be eligible under Section 8.10. Such successor
Trustee shall promptly mail notice of its succession to the Company and each
Securityholder.
SECTION 8.10. Eligibility, Disqualification.
The Trustee shall always satisfy the requirements of paragraphs (1),
(2) and (5) of TIA Section 310(a). If at any time the Trustee shall cease to
satisfy any such requirements, it shall resign immediately in the manner and
with the effect specified in this Article 8. The Trustee shall be subject to
the provisions of TIA Section 310(b). Nothing herein shall prevent the Trustee
from filing with the SEC the application referred to in the penultimate
paragraph of TIA Section 310(b).
SECTION 8.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 9.01. Satisfaction and Discharge of Indenture.
Subject to applicable rules of any stock exchange or system on which
the Securities are listed or quoted, the Company may terminate all of its
obligations under the Securities and this Indenture (except as to any surviving
rights of conversion, registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.7 and (ii)
Securities for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Company as provided in Section 9.3)
have been delivered to the Trustee or Paying Agent for cancellation
and the Company has paid all sums payable by it hereunder; or
(B) the Company irrevocably deposits in trust with the Trustee or the
Paying Agent, pursuant to a written trust agreement satisfactory to
the Trustee, money or U.S. Government Obligations maturing as to
principal and interest in such amounts and at such times as are
sufficient, without consideration of any reinvestment of such
interest, to pay the principal of and interest on the Securities then
outstanding to maturity or to the date fixed for redemption and to pay
all other sums payable by it hereunder. The Company may make an
irrevocable deposit pursuant to this Section 9.1 only if at such time
it is not prohibited from doing so under the provisions of Article 12;
and
(2) the Company has delivered to the Trustee and any such Paying Agent
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 and the provisions of
Article 12 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.7 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 9.2 and the last
paragraph of Section 9.3 shall survive.
"U.S. Government Obligations" means direct non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States is pledged.
SECTION 9.02. Application of Trust Money.
Subject to the provisions of Section 9.3, the Trustee or the Paying
Agent shall hold in trust, for the benefit of the Holders, all money or U.S.
Government Obligations deposited with it pursuant to Section 9.1, and shall
apply the deposited money and the money from U.S. Government Obligations in
accordance with this Indenture to the payment of the principal of and interest
on the Securities. Money and U.S. Government Obligations so held in trust shall
not be subject to the subordination provisions of Article 12.
SECTION 9.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or U.S. Government Obligations held by them at
any time.
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal or interest that remains
unclaimed for two years after a right to such money has matured; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such payment, may at the expense of the Company cause to be published once
in a newspaper of general circulation in The City of New York and, for so long
as the Securities are listed on the Luxembourg Stock Exchange, the Luxemburger
Wort, or mail to each Holder entitled to such money notice that such money
remains unclaimed and that after a date specified therein, which shall be at
least 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Securityholders entitled to money must look to the
Company for payment as general creditors unless otherwise prohibited by law.
SECTION 9.04. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 9.2 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.1 until such time as the Trustee or the Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 9.2; provided, however, that if the Company has made any payment
of the principal of or interest on any Securities because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive any such payment from the money held by
the Trustee or the Paying Agent.
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Securityholder:
(a) to comply with Sections 4.11 and 6.1;
(b) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(c) to cure any ambiguity, defect or inconsistency, or to make any
other change that does not adversely affect the rights of any Securityholder;
(d) to comply with the provisions of the TIA; or
(e) to appoint a successor Trustee.
SECTION 10.02. With Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities with the written consent of the Holders of at least a majority
in principal amount of the Securities then outstanding. The Holders of at least
a majority in principal amount of the Securities then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Securities without notice to any Securityholder. Subject to
Section 10.4, without the written consent of each Securityholder affected,
however, an amendment, supplement or waiver, including a waiver pursuant to
Section 7.4, may not:
(1) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest
on any Security;
(3) reduce the principal of or premium on or change the fixed maturity
of any Security or alter the redemption provisions with respect thereto in a
manner adverse to the Holder thereof;
(4) alter the conversion provisions with respect to any Security in a
manner adverse to the Holder thereof;
(5) waive a default in the payment of the principal of (including any
premium) or interest on any Security;
(6) make any changes in Section 7.4 or in this Section 10.2, except to
increase any percentage in principal amount of outstanding Securities required
for any amendment, supplement or waiver;
(7) modify the provisions of Article 12 in a manner adverse to
the Holders; or
(8) make any Security payable in money other than that stated in the
Security.
It shall not be necessary for the consent of the Holders under this
Section 10.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 10.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
An amendment under this Section 10.2 may not make any change that
adversely affects the rights under Article 12 of any holder of an issue of
Senior Indebtedness unless the holders of that issue, pursuant to its terms,
consent to the change.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as in effect at the date of such amendment or
supplement.
SECTION 10.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver
becomes effective.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (7) of Section 10.2. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security.
SECTION 10.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Company may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
SECTION 10.06. Trustee to Sign Amendments, Etc.
The Trustee shall sign any amendment or supplement authorized pursuant
to this Article 10 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee, but need not sign any
amendment or supplement that adversely affects the Trustee's rights, duties,
liabilities or immunities. In signing or refusing to sign such amendment or
supplement, the Trustee shall be entitled to receive and, subject to Section
8.1, shall be fully protected in relying upon, an Opinion of Counsel stating
that such amendment or supplement is authorized or permitted by this Indenture.
The Company may not sign an amendment or supplement until the Board of
Directors approves it.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the TIA through
operation of Section 318(c) thereof, such imposed duties shall control.
SECTION 11.02. Notices.
Any notice, request or communication shall be given in writing and
delivered in person or mailed by first-class mail, postage prepaid, addressed as
follows:
If to the Company:
Commonwealth Telephone Enterprises, Inc.
000 XXX Xxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention:Chief Financial Officer
If to the Trustee:
Attention: Corporate Trust Trustee
Administration
Such notices or communications shall be effective when received.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Notices to Holders shall be validly given if (i) mailed by first class
mail to them at their respective addresses in the Register and (ii) so long as
the Securities are listed on the Luxembourg Stock Exchange, published in a
daily newspaper having a general circulation in Luxembourg, which is expected
to be the Luxemburger Wort.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication to a Securityholder is mailed in
the manner provided above, it is duly given, whether or not the addressee
receives it.
SECTION 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
(a) Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
at the request of the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent (including any covenants, compliance
with which constitutes a condition precedent), if any, provided for in
this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent (including any covenants,
compliance with which constitutes a condition precedent) have been
complied with.
(b) Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however,
that with respect to matters of fact, an Opinion of Counsel may rely
on an Officers' Certificate or certificates of public officials.
SECTION 11.05. Record Date for Vote or Consent of Securityholders.
The Company (or, in the event deposits have been made pursuant to
Section 5.6 or 9.1, the Trustee) may set a record date for purposes of
determining the identity of Securityholders entitled to vote or consent to any
action by vote or consent authorized or permitted under this Indenture, which
record date shall be the later of ten days prior to the first solicitation of
such vote or consent or the date of the most recent list of Securityholders
furnished to the Trustee pursuant to Section 2.5 prior to such solicitation.
Notwithstanding the provisions of Section 10.4, if a record date is fixed,
those persons who were Holders of Securities at such record date (or their duly
designated proxies), and only those persons, shall be entitled to take such
action by vote or consent or to revoke any vote or consent previously given,
whether or not such persons continue to be Holders after such record date.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar and
Conversion.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar, Paying Agent or Conversion Agent may make reasonable
rules for its functions.
SECTION 11.07. Legal Holidays.
A "Legal Holiday" is a Saturday, Sunday or a day on which state or
federally chartered banking institutions in New York, New York (or such other
city and state where the Trustee's corporate trust operations are then located)
are not required to be open. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08. Governing Law.
This Indenture and the Securities shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York, without
regard to principles of conflicts of law.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
All liability described in paragraph 17 of the Securities of any
director, officer, employee or shareholder, as such, of the Company is waived
and released.
SECTION 11.11. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.12. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent the same agreement.
SECTION 11.13. Separability.
In case any provisions in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.14. Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
ARTICLE 12
SUBORDINATION
SECTION 12.01. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Securities issued
hereunder by its acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article 12; and
each person holding any Security, whether upon original issue or upon transfer
or assignment thereof, accepts and agrees to be bound by such provisions.
The payment of all amounts on account of all Securities issued
hereunder (including, without limitation, in connection with any redemption of
Securities) shall, to the extent and in the manner hereinafter set forth, be
subordinated and subject in right of payment to the prior payment in full of
all Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter created, assumed or guaranteed.
SECTION 12.02. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation, Reorganization, Etc., of the Company.
Upon the payment or distribution of the assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any dissolution, winding-up, liquidation or reorganization of the Company
(whether voluntary or involuntary, or in bankruptcy, insolvency,
reorganization, liquidation, receivership proceedings, or upon an assignment
for the benefit of creditors, or any other marshaling of the assets and
liabilities of the Company, or otherwise), then in such event:
(a) all Senior Indebtedness and the reasonable fees and expenses of
the Trustee shall first be paid in full, in cash, before any payment is made on
account of the Securities, whether by way of the payment of principal of or
interest on the indebtedness evidenced by the Securities, a deposit pursuant to
Section 9.1, a repurchase, redemption or other acquisition of the Securities or
otherwise (collectively, "pay the Securities");
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than securities of
the Company as reorganized or readjusted, or securities of the Company or any
other Person provided for by a plan of reorganization or readjustment, junior,
or the payment of which is otherwise subordinate, at least to the extent
provided in this Article 12, with respect to the Securities, to the payment of
all Senior Indebtedness), to which the Holders or the Trustee on behalf of the
Holders would be entitled except for the provisions of this Article 12,
including any such payment or distribution which may be payable or deliverable
by reason of the payment of another debt of the Company being subordinated to
the payment of the Securities, shall be paid or delivered by any debtor,
Custodian or other person making such payment or distribution, directly to the
holders of the Senior Indebtedness or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness have been issued,
ratably according to the aggregate amounts remaining unpaid on account of the
Senior Indebtedness held or represented by each, for application to payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay all
Senior Indebtedness in full after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior Indebtedness;
and
(c) in the event that, notwithstanding the foregoing provisions of
this Section 12.2, any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted, or securities of the
Company or any other Person provided for by a plan of reorganization or
readjustment, junior, or the payment of which is otherwise subordinate, at
least to the extent provided for in this Article 12, with respect to the
Securities, to the payment of all Senior Indebtedness), shall be received by
the Trustee or the Holders before all Senior Indebtedness is paid in full, such
payment or distribution (subject to the provisions of Sections 12.6 and 12.7)
shall be held in trust for the benefit of, and shall be immediately paid or
delivered by the Trustee or such Holders, as the case may be, to, the holders
of Senior Indebtedness remaining unpaid or unprovided for, or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all Senior Indebtedness in full after
giving effect to any concurrent payment or distribution to or for the benefit
of the holders of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding-up, liquidation or reorganization of the Company.
Upon any distribution of assets of the Company referred to in this
Article 12, the Trustee, subject to the provisions of Sections 8.1 and 8.2, and
the Holders shall be entitled to rely conclusively upon any order or decree by
any court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceeding is pending, or a certificate of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the Holders, for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 12.
SECTION 12.03. Securityholders to be Subrogated to Right of Holders
of Senior Indebtedness.
Subject to the prior payment in full of all Senior Indebtedness then
due, the Holders shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until the principal of and interest on
the Securities shall be paid in full, and, for purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of assets,
whether in cash, property or securities, distributable to the holders of Senior
Indebtedness under the provisions hereof to which the Holders would be entitled
except for the provisions of this Article 12, and no payment pursuant to the
provisions of this Article 12 to the holders of Senior Indebtedness by the
Holders shall, as among the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders, be deemed to be a payment by the Company
to or on account of Senior Indebtedness, it being understood that the
provisions of this Article 12 are, and are intended, solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders
of Senior Indebtedness, on the other hand.
SECTION 12.04. Obligations of the Company Unconditional.
Nothing contained in this Article 12 or elsewhere in this Indenture or
in any Security is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the principal of and interest on the Securities, as and when the same
shall become due and payable in accordance with the terms of the Securities, or
to affect the relative rights of the Holders and other creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon the happening of an Event of Default
under this Indenture, subject to the provisions of Article 7, and the rights,
if any, under this Article 12 of the holders of Senior Indebtedness to receive
assets, whether in cash, property or securities, of the Company otherwise
payable or deliverable to the Trustee or such Holder upon the exercise of any
such remedy.
SECTION 12.05. Company Not to Make Payment with Respect to Securities
in Certain Circumstances.
(a) Upon the happening of a default in payment (whether at maturity
or at a date fixed for prepayment or by acceleration or otherwise) of the
principal of, interest on or other amount due in respect of any Senior
Indebtedness, as such default is defined under or in respect of such Senior
Indebtedness or in any agreement pursuant to which such Senior Indebtedness has
been incurred, then, unless and until the amount of such Senior Indebtedness
then due shall have been paid in full or provision made therefor in a manner
satisfactory to the holders of such Senior Indebtedness, or such default shall
have been cured or waived or shall have ceased to exist, the Company shall not
pay the Securities.
(b) Upon the happening of an event of default with respect to any
Senior Indebtedness (other than under circumstances when the terms of
subsection (a) of this Section 12.5 are applicable), as such event of default
is defined under or in respect of such Senior Indebtedness or in any agreement
pursuant to which such Senior Indebtedness has been incurred, permitting the
holders thereof to immediately accelerate the maturity thereof, and upon
written notice thereof given to the Company and a Trust Officer of the Trustee
by any one or more holders of such Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any of such Senior Indebtedness have been
issued (a "Default Notice"), then, unless and until such event of default shall
have been cured or waived in writing by the holders of such Senior Indebtedness
or shall have ceased to exist, the Company shall not pay the Securities;
provided, however, that this subsection (b) shall not prevent the making of any
such payment (which is not otherwise prohibited by subsection (a) of this
Section 12.5) for more than 180 days after the Default Notice shall have been
given unless the Senior Indebtedness in respect of which such event of default
exists has been declared due and payable in its entirety, in which case no such
payment may be made until such acceleration has been waived, rescinded or
annulled, or such Senior Indebtedness shall have been paid in full, or payment
thereof shall be duly provided for in cash or in any other manner satisfactory
to the holders of such Senior Indebtedness. Notwithstanding the foregoing, not
more than one Default Notice shall be given with respect to the same issue of
Senior Indebtedness within a period of 360 consecutive days, and no event of
default which existed or was continuing on the date of any Default Notice and
was known to the holders of such issue of Senior Indebtedness shall be made the
basis for the giving of a subsequent Default Notice by the holders of such
issue of Senior Indebtedness.
(c) In the event that, notwithstanding the foregoing provisions of
this Section 12.5, the Company shall pay the Securities and such payment shall
be received by the Trustee, any Holder or any Paying Agent (or, if the Company
is acting as its own Paying Agent, money for any such payment shall be
segregated and held in trust), after the happening of a default under any
Senior Indebtedness of the type specified in subsections (a) and (b) of this
Section 12.5, then, unless and until the amount of such Senior Indebtedness
then due shall have been paid in full, or provision made therefor or such
default shall have been cured or waived or shall have ceased to exist, such
payment (subject, in each case, to the provisions of Sections 12.6 and 12.7 and
the proviso contained in subsection (b) of this Section 12.5) shall be held in
trust for the benefit of, and shall be immediately paid over to, the holders of
Senior Indebtedness or their representative or representatives or the trustee
or trustees under any indenture under which any instruments evidencing any of
the Senior Indebtedness may have been issued ratably according to the aggregate
amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of
Senior Indebtedness.
SECTION 12.06. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article 12 or any other provision of this Indenture, the Trustee shall not
at any time be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee, unless and until a
Trust Officer of the Trustee shall have received written notice thereof from
the Company or from the holder or holders of Senior Indebtedness or from their
representative or representatives or from the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness have been issued; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Sections 8.1 and 8.2, shall
be entitled to assume conclusively that such facts do not exist.
The Trustee shall be entitled to rely conclusively on the delivery to
it of a written notice by a person representing himself or herself to be a
holder of Senior Indebtedness (or a representative of such holder or the
trustee under any indenture pursuant to which any instruments evidencing any of
such Senior Indebtedness have been issued) to establish that such notice has
been given by a holder of Senior Indebtedness or a representative of any such
holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 12, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
each person under this Article 12, and, if such evidence is not furnished, the
Trustee may defer any payment to such person pending judicial determination as
to the right of such person to receive such payment.
SECTION 12.07. Application by Trustee of Money Deposited with It.
Money or U.S. Government Obligations deposited in trust with the
Trustee pursuant to Section 9.1 and not in violation of this Article 12 shall
be for the sole benefit of Securityholders and shall thereafter not be subject
to the subordination provisions of this Article 12. Otherwise, any deposit of
money by the Company with the Trustee or any Paying Agent (whether or not in
trust) for the payment of the principal of or interest on any Securities shall
be subject to the provisions of Sections 12.1, 12.2, 12.3 and 12.5; except
that, if two Business Days prior to the date on which by the terms of this
Indenture any such money may become payable for any purpose (including, without
limitation, the payment of either the principal of or interest on any Security)
a Trust Officer of the Trustee shall not have received with respect to such
money the notice provided for in Section 12.6, then the Trustee or any Paying
Agent shall have full power and authority to receive such money and to apply
such money to the purpose for which it was received, and shall not be affected
by any notice to the contrary which may be received by it on or after such
date. This Section 12.7 shall be construed solely for the benefit of the
Trustee and the Paying Agent and shall not otherwise affect the rights that
holders of Senior Indebtedness may have to recover any such payments from the
Holders in accordance with the provisions of this Article 12.
SECTION 12.08. Subordination Rights Not Impaired by Acts or Omissions
of Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination, as herein provided, shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have
or be otherwise charged with. The holders of any Senior Indebtedness may
extend, renew, modify or amend the terms of such Senior Indebtedness or any
security therefor and release, sell or exchange such security and otherwise
deal freely with the Company, all without affecting the liabilities and
obligations of the parties to this Indenture or the Holders. No provision in
any supplemental indenture which affects the superior position of the holders
of the Senior Indebtedness shall be effective against the holders of the Senior
Indebtedness unless the holders of such Senior Indebtedness (required pursuant
to the terms of such Senior Indebtedness to give such consent) have consented
thereto.
SECTION 12.09. Trustee to Effectuate Subordination.
Each Holder of a Security by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article 12 and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 12.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee, in its individual capacity, shall be entitled to all of
the rights set forth in this Article 12 in respect of any Senior Indebtedness
at any time held by it to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 8.7.
SECTION 12.11. Article 12 Not to Prevent Events of Default.
The failure to make a payment on account of the principal of or
interest on the Securities by reason of any provision in this Article 12 shall
not be construed as preventing the occurrence of an Event of Default under
Section 7.1.
SECTION 12.12. No Fiduciary Duty Created to Holders of Senior
Indebtedness.
Notwithstanding any other provision in this Article 12, the Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness by virtue of the provisions of this Article 12.
SECTION 12.13. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article 12 shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying
Agent were named in this Article 12 in addition to or in place of the Trustee;
provided, however, that Sections 12.6, 12.10 and 12.12 shall not apply to the
Company if it acts as Paying Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the th day of , 1998.
COMMONWEALTH TELEPHONE
ENTERPRISES, INC.
By:
---------------------------------------
Name:
Title:
, as Trustee
By:
---------------------------------------
Name:
Title:
[FORM OF FACE OF SECURITY]
COMMONWEALTH TELEPHONE ENTERPRISES, INC.
INCORPORATED UNDER THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
CUSIP: ______ R-_____
% [CONVERTIBLE] SUBORDINATED NOTES DUE [ ]
Commonwealth Telephone Enterprises, Inc. promises to pay to Cede &
Co. or registered assigns, the principal sum of ____________ Dollars on ,
2008.
Interest Payment Dates: 1 and 1
Record Dates: 15 and 15
[This Note is convertible as specified on the other side of this
Note.] Additional provisions of this Note are set forth on the other side of
this Note.
In Witness Whereof, Commonwealth Telephone Enterprises, Inc. has
caused this instrument to be duly executed in its corporate name and its
corporate seal to be affixed hereunto or imprinted hereon.
COMMONWEALTH TELEPHONE
ENTERPRISES, INC.
By:
---------------------------------------
Name:
Title:
[SEAL]
Attest:
By:
---------------------------------------
Name:
Title:
Trustee's Certificate of Authentication:
This is one of the Securities referred to in the within-mentioned Indenture.
,
as Trustee
By:
------------------------------------
Authorized Signatory
Dated:
[FORM OF REVERSE SIDE OF SECURITY]
COMMONWEALTH TELEPHONE ENTERPRISES, INC.
% [CONVERTIBLE] SUBORDINATED NOTES DUE [ ]
1. Interest
Commonwealth Telephone Enterprises, Inc., a Pennsylvania corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate per annum shown above. The Company shall pay interest semiannually
on 1 and 1 of each year, commencing 1, [ ]. 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 first issuance of the Notes under the Indenture
(as defined below); provided, however, that if there is not an existing default
in the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding interest payment
date, interest shall accrue from such interest payment date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
The Company shall pay interest on this Note (except defaulted
interest) to the person who is the Holder of this Note at the close of business
on the 15th or 15th next preceding the related interest payment date. The
Holder must surrender this Note to the Paying Agent to collect payment of
principal. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. The Company may, however pay principal and interest by its check
or wire payable in such money. It may mail an interest check to the Holder's
registered address.
3. Paying Agent, Registrar and Conversion Agent
Initially, (the "Trustee") will act as Paying Agent, Registrar and
Conversion Agent. The Company may change any Paying Agent, Registrar or
Conversion Agent without notice to the Holder. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or Conversion Agent.
4. Indenture, Limitations
This Note is one of a duly authorized issue of Notes of the Company
designated as its % [Convertible] Subordinated Notes due [ ] (the "Notes"),
issued under an Indenture dated as of , 1998 (the "Indenture"), between the
Company and the Trustee. The terms of this Note include those stated in the
Indenture and those required by or made part of the Note by reference to the
Trust Indenture Act of 1939, as amended, and as in effect on the date of the
Indenture. This Note is subject to all such terms, and the Holder of this Note
is referred to the Indenture and said Act for a statement of them.
The Notes are subordinated unsecured obligations of the Company
limited to up to $ aggregate principal amount, subject to Section 2.2 of the
Indenture. The Indenture does not limit other debt of the Company, secured or
unsecured, including Senior Indebtedness.
5. Optional Redemption
The Notes are subject to redemption, at any time on or after , 2001,
as a whole or in part, at the election of the Company. The Redemption Prices
(expressed as percentages of the principal amount) beginning 1 of the years
indicated are as follows:
Year Redemption Price
[ ] [ ]%
in each case together with accrued interest up to but not including the
Redemption Date.
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its registered address. Notes in denominations larger
than $1,000 may be redeemed in part, but only in whole multiples of $1,000. On
and after the Redemption Date, subject to the deposit with the Paying Agent of
funds sufficient to pay the Redemption Price, interest ceases to accrue on
Notes or portions of them called for redemption.
7. Purchase of Notes at Option of Holder Upon a Change in Control
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple thereof) of the Notes held by such Holder on the date
that is 50 Business Days after a Change in Control, at a purchase price equal
to 100% of the principal amount thereof together with accrued interest up to
but not including the Change in Control Purchase Date. The Holder shall have
the right to withdraw any Change in Control Purchase Notice by delivering a
written notice of withdrawal to the Paying Agent in accordance with the terms
of the Indenture.
[8. Conversion
A Holder of a Note may convert such Note into shares of Common Stock
of the Company at any time prior to maturity; provided, however, that if the
Note is called for redemption, the conversion right will terminate at the close
of business on the Business Day immediately preceding the redemption date for
such Note (unless the Company shall default in making the redemption payment
when due, in which case the conversion right shall terminate at the close of
business on the date such default is cured and such Note is redeemed);
provided, further, that if the Holder of a Note presents such Note for
redemption prior to the close of business on the Business Day immediately
preceding the redemption date for such Note, the right of conversion shall
terminate upon presentation of the Note to the Trustee (unless the Company
shall default in making the redemption payment when due, in which case the
conversion right shall terminate on the close of business on the date such
default is cured and such Note is redeemed). The initial Conversion Price is $
per share, subject to adjustment under certain circumstances. The number of
shares issuable upon conversion of a Note is determined by dividing the
principal amount converted by the Conversion Price in effect on the Conversion
Date. No payment or adjustment will be made for accrued interest on a converted
Note, except as described in the next succeeding paragraph, or for dividends or
distributions on shares of Common Stock issued upon conversion of a Note. No
fractional shares will be issued upon conversion; in lieu thereof, an amount
will be paid in cash based upon the closing sale price of the Common Stock on
the last Trading Day prior to the Conversion Date.
To convert a Note, a Holder must (a) complete and manually sign the
conversion notice set forth below and deliver such notice to the Conversion
Agent, (b) surrender the Note to the Conversion Agent, (c) furnish appropriate
endorsements or transfer documents if required by the Registrar or Conversion
Agent, and (d) pay any transfer or similar tax, if required. Interest accrued
through and including 1, 2001 shall be paid on any Note called for redemption
and surrendered for conversion before the close of business on 1, 2001. If a
Holder surrenders a Note for conversion after the close of business on the
record date for the payment of an installment of interest and before the close
of business on the related interest payment date then, notwithstanding such
conversion, the interest payable on such interest payment date shall be paid to
the Holder of such Note on such record date. In such event, unless the Note has
been called for redemption, the Note must be accompanied by payment of an
amount equal to the interest payable on such interest payment date on the
principal amount of the Note or portion thereof then converted. A Holder may
convert a portion of a Note equal to $1,000 or any integral multiple thereof.
A Note in respect of which a Holder had delivered a Change in Control
Purchase Notice exercising the option of such Holder to require the Company to
purchase such Note may be converted only if the Change in Control Purchase
Notice is withdrawn as provided above and in accordance with the terms of the
Indenture.
9. Conversion Arrangement on Call for Redemption
Any Securities called for redemption, unless surrendered for
conversion before the close of business on the Business Day immediately
preceding the Redemption Date, may be deemed to be purchased from the Holders
of such Securities at an amount not less than the Redemption Price, together
with accrued interest, if any, to, but not including, the Redemption Date, by
one or more investment bankers or other purchasers who may agree with the
Company to purchase such Securities from the Holders, to convert them into
Common Stock of the Company and to make payment for such Securities to the
Paying Agent in Trust for such Holders.]
10. Subordination
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Company. Any Holder
by accepting this Note agrees to and shall be bound by such subordination
provisions and authorizes the Trustee to give them effect.
In addition to all other rights of Senior Indebtedness described in
the Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions irrespective of
any amendment, modification or waiver of any terms of any instrument relating
to the Senior Indebtedness or any extension or renewal of the Senior
Indebtedness.
11. Denominations, Transfer, Exchange
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. A Holder may register the transfer of
or exchange Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes or other governmental charges that may be
imposed by law or permitted by the Indenture.
12. Persons Deemed Owners
The Holder of a Note may be treated as the owner of it for all
purposes.
13. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent will pay the money back to the
Company at its written request. After that, Holders entitled to money must look
to the Company for payment.
14. Amendment, Supplement and Waiver
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding and any past default or
compliance with any provision may be waived in a particular instance with the
consent of the Holders of a majority in principal amount of the Notes then
outstanding. Without the consent of or notice to any Holder, the Company and
the Trustee may amend or supplement the Indenture or the Notes to, among other
things, provide for uncertificated Notes in addition to or in place of
certificated Notes, or to cure any ambiguity, defect or inconsistency or make
any other change that does not adversely affect the rights of any Holder.
15. Successor Corporation
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture in accordance with the terms and
conditions of the Indenture, the predecessor corporation will be released from
those obligations.
16. Defaults and Remedies
An Event of Default is: default for 30 days in payment of interest on
the Notes; default in payment of principal on the Notes when due; failure by
the Company for 60 days after notice to it to comply with any of its other
agreements contained in the Indenture or the Notes; certain events of
bankruptcy, insolvency or reorganization of the Company; and the acceleration
of certain other indebtedness. If an Event of Default (other than as a result
of certain events of bankruptcy, insolvency or reorganization) occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the Notes then outstanding may declare all unpaid principal of and accrued
interest to the date of acceleration on the Notes then outstanding to be due
and payable immediately, all as and to the extent provided in the Indenture. If
an Event of Default occurs as a result of certain events of bankruptcy,
insolvency or reorganization, unpaid principal of and accrued interest on the
Notes then outstanding shall become due and payable immediately without any
declaration or other act on the part of the Trustee or any Holder, all as and
to the extent provided in the Indenture. Holders may not enforce the Indenture
or the Notes except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Notes.
Subject to certain limitations, Holders of a majority in principal amount of
the Notes then outstanding may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests. The Company is required to file
periodic reports with the Trustee as to the absence of default.
17. Trustee Dealings With the Company
, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from and
perform services for the Company or an Affiliate of the Company, and may
otherwise deal with the Company or an Affiliate of the Company, as if it were
not the Trustee.
18. No Recourse Against Others
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or the Indenture nor for any claim based on, in respect of or by reason of such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
19. Discharge Prior to Maturity
If the Company deposits with the Trustee or the Paying Agent money or
U.S. Government Obligations sufficient to pay the principal of and interest on
the Notes to maturity, the Company will be discharged from the Indenture except
for certain sections thereof.
20. Authentication
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of
this Note.
21. Abbreviations and Definitions
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
All capitalized terms used in this Note and not specifically defined
herein are defined in the Indenture and are used herein as so defined.
22. Indenture to Control
In the case of any conflict between the provisions of this Note and
the Indenture, the provisions of the Indenture shall control.
The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to: Commonwealth
Telephone Enterprises, Inc., 000 XXX Xxxxx, Xxxxxx, XX 00000, Attention: Chief
Financial Officer.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him or her.
Date:
------------------
Your signature:
------------------------------------
(Sign exactly as your name appears on the other side of this Note)
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(Sign exactly as your name appears on the other side of this Note)
a Signature guaranteed by:
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By:
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------------------------------------
a The signature must be guaranteed by a bank, a trust company or a member
firm of the Nasdaq National Market.
CONVERSION NOTICE
To convert this Note into Common Stock of the Company, check the box: [ ]
To convert only part of this Note, state the amount to be converted: $
--------
If you want the stock certificate made out in another person's name, fill in
the form below:
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(Insert other person's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
Date:
------------------
Your signature:
------------------------------------
(Sign exactly as your name appears on the other side of this Note)
-------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
a Signature guaranteed by:
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By:
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------------------------------------
a The signature must be guaranteed by a bank, a trust company or a member
firm of the Nasdaq National Market.
