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EXHIBIT 4.3
XXXXXXXX.XXX CORPORATION
(Doing Business as Xxxxxx.xxx)
7 1/4% Convertible Subordinated Notes
Due December 1, 2003
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INDENTURE
Dated as of November 23, 1998
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LaSalle National Bank
Trustee
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CROSS-REFERENCE TABLE*
TIA Indenture
Section Section
Section 310(a)(1)............................................................... 9.10
(a)(2).................................................................... 9.10
(a)(3).................................................................... N.A.**
(a)(4).................................................................... N.A.
(a)(5).................................................................... 9.10
(b)....................................................................... 9.8; 9.10
(c)....................................................................... N.A.
Section 311(a).................................................................. 9.11
(b)....................................................................... 9.11
(c)....................................................................... N.A.
Section 312(a).................................................................. 2.5
(b)....................................................................... 12.3
(c)....................................................................... 12.3
Section 313(a).................................................................. 9.6
(b)(1).................................................................... N.A.
(b)(2).................................................................... 9.6
(c)....................................................................... 9.6; 12.2
(d)....................................................................... 9.6
Section 314(a).................................................................. 6.2; 6.4;12.2
(b)....................................................................... N.A.
(c)(1).................................................................... 12.4(a)
(c)(2).................................................................... 12.4(a)
(c)(3).................................................................... N.A.
(d)....................................................................... N.A.
(e)....................................................................... 12.4(b)
(f)....................................................................... N.A.
Section 315(a).................................................................. 9.1(b)
(b)....................................................................... 9.5; 12.2
(c)....................................................................... 9.1(a)
(d)....................................................................... 9.1(c)
(e)....................................................................... 8.11
Section 316(a)(last sentence)................................................... 2.9
(a)(1)(A)................................................................. 8.5
(a)(1)(B)................................................................. 8.4
(a)(2).................................................................... N.A.
(b)....................................................................... 8.7
(c)....................................................................... 12.5
Section 317(a)(1)............................................................... 8.8
(a)(2).................................................................... 8.9
(b)....................................................................... 2.4
Section 318(a).................................................................. 12.1
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* This Cross-Reference Table shall not, for any purpose, be deemed a part
of this Indenture.
** N.A. means Not Applicable.
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TABLE OF CONTENTS*
Table of Contents
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions..........................................................1
SECTION 1.2. Other Definitions....................................................6
SECTION 1.3. Trust Indenture Act Provisions.......................................6
SECTION 1.4. Rules of Construction................................................7
ARTICLE 2
THE SECURITIES
SECTION 2.1. Form and Dating......................................................7
SECTION 2.2. Execution and Authentication.........................................9
SECTION 2.3. Registrar, Paying Agent and Conversion Agent.........................9
SECTION 2.4. Paying Agent to Hold Money In Trust.................................10
SECTION 2.5. Securityholder Lists................................................10
SECTION 2.6. Transfer and Exchange...............................................10
SECTION 2.7. Replacement Securities..............................................11
SECTION 2.8. Outstanding Securities..............................................12
SECTION 2.9. Treasury Securities.................................................12
SECTION 2.10. Temporary Securities...............................................12
SECTION 2.11. Cancellation.......................................................13
SECTION 2.12. Additional Transfer and Exchange Requirements......................13
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.1. Right to Redeem; Notice to Trustee..................................18
SECTION 3.2. Selection of Securities to Be Redeemed..............................19
SECTION 3.3. Notice of Redemption................................................19
SECTION 3.4. Effect of Notice of Redemption......................................20
SECTION 3.5. Deposit of Redemption Price.........................................20
SECTION 3.6. Securities Redeemed in Part.........................................21
SECTION 3.7. Conversion Arrangement on Call for Redemption.......................21
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* This Table of Contents shall not, for any purpose, be deemed a part of this
Indenture.
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SECTION 3.8. Purchase of Securities at Option of the Holder Upon Change in
Control............................................................21
SECTION 3.9. 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........................................25
SECTION 3.12. Compliance With Securities Laws Upon Purchase of Securities.........25
SECTION 3.13. Repayment to the Company............................................26
ARTICLE 4
CONVERSION
SECTION 4.1. Conversion Privilege................................................26
SECTION 4.2. Conversion Procedure................................................27
SECTION 4.3. Fractional Shares...................................................28
SECTION 4.4. Taxes on Conversion.................................................28
SECTION 4.5. Company to Provide Stock............................................28
SECTION 4.6. Adjustment of Conversion Price......................................29
SECTION 4.7. No Adjustment.......................................................33
SECTION 4.8. Adjustment for Tax Purposes.........................................33
SECTION 4.9. 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................................................34
SECTION 4.12. Trustee's Disclaimer................................................35
SECTION 4.13. Voluntary Reduction.................................................35
ARTICLE 5
SUBORDINATION
SECTION 5.1. Securities Subordinated to Senior Indebtedness......................36
SECTION 5.2. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation, Reorganization, Etc.......36
SECTION 5.3. Holders to Be Subrogated to Right of Holders of Senior
Indebtedness.......................................................37
SECTION 5.4. Obligations of the Company Unconditional............................38
SECTION 5.5. Company Not to Make Payment With Respect to Securities in
Certain Circumstances..............................................38
SECTION 5.6. Notice to Trustee...................................................39
SECTION 5.7. Application by Trustee of Money Deposited With It...................40
SECTION 5.8. Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness...........................40
SECTION 5.9. Trustee to Effectuate Subordination.................................40
SECTION 5.10. Right of Trustee to Hold Senior Indebtedness........................41
SECTION 5.11. Article 5 Not to Prevent Events of Default..........................41
SECTION 5.12. No Fiduciary Duty Created to Holders of Senior Indebtedness.........41
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SECTION 5.13. Article Applicable to Paying Agents..................................41
ARTICLE 6
COVENANTS
SECTION 6.1. Payment of Securities................................................41
SECTION 6.2. SEC Reports..........................................................42
SECTION 6.3. Compliance Certificates..............................................42
SECTION 6.4. Notice of Defaults...................................................42
SECTION 6.5. Further Instruments and Acts.........................................43
SECTION 6.6. Maintenance of Corporate Existence...................................43
ARTICLE 7
SUCCESSOR CORPORATION
SECTION 7.1. When Company May Merge, Etc..........................................43
SECTION 7.2. Successor Corporation Substituted....................................44
ARTICLE 8
DEFAULT AND REMEDIES
SECTION 8.1. Events of Default....................................................44
SECTION 8.2. Acceleration.........................................................45
SECTION 8.3. Other Remedies.......................................................46
SECTION 8.4. Waiver of Defaults and Events of Default.............................46
SECTION 8.5. Control by Majority..................................................47
SECTION 8.6. Limitations on Suits.................................................47
SECTION 8.7. Rights of Holders to Receive Payment and to Convert..................47
SECTION 8.8. Collection Suit by Trustee...........................................48
SECTION 8.9. Trustee May File Proofs of Claim.....................................48
SECTION 8.10. Priorities...........................................................48
SECTION 8.11. Undertaking for Costs................................................49
SECTION 8.12. Waiver of Usury, Stay or Extension Laws..............................49
ARTICLE 9
TRUSTEE
SECTION 9.1. Duties of Trustee....................................................49
SECTION 9.2. Rights of Trustee....................................................50
SECTION 9.3. Individual Rights of Trustee.........................................51
SECTION 9.4. Trustee's Disclaimer.................................................51
SECTION 9.5. Notice of Default or Events of Default...............................51
SECTION 9.6. Reports by Trustee to Holders........................................51
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SECTION 9.7. Compensation and Indemnity.........................................51
SECTION 9.8. Replacement of Trustee.............................................52
SECTION 9.9. Successor Trustee by Xxxxxx, Etc...................................53
SECTION 9.10. Eligibility; Disqualification......................................53
SECTION 9.11. Preferential Collection of Claims Against Company..................53
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 10.1. Satisfaction and Discharge of Indenture............................54
SECTION 10.2. Application of Trust Money.........................................55
SECTION 10.3. Repayment to Company...............................................55
SECTION 10.4. Reinstatement......................................................55
ARTICLE 11
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 11.1. Without Consent of Holders.........................................56
SECTION 11.2. With Consent of Holders............................................56
SECTION 11.3. Compliance With Trust Indenture Act................................57
SECTION 11.4. Revocation and Effect of Consents..................................57
SECTION 11.5. Notation on or Exchange of Securities..............................57
SECTION 11.6. Trustee to Sign Amendments, etc....................................58
ARTICLE 12
MISCELLANEOUS
SECTION 12.1. Trust Indenture Act Controls.......................................58
SECTION 12.2. Notices............................................................58
SECTION 12.3. Communications by Holders With Other Holders.......................59
SECTION 12.4. Certificate and Opinion as to Conditions Precedent.................59
SECTION 12.5. Record Date for Vote or Consent of Securityholders.................60
SECTION 12.6. Rules by Trustee, Paying Agent, Registrar and Conversion Agent.....60
SECTION 12.7. Legal Holidays.....................................................60
SECTION 12.8. Governing Law......................................................60
SECTION 12.9. No Adverse Interpretation of Other Agreements......................60
SECTION 12.10. No Recourse Against Others.........................................60
SECTION 12.11. Successors.........................................................60
SECTION 12.12. Multiple Counterparts..............................................61
SECTION 12.13. Separability.......................................................61
SECTION 12.14. Table of Contents, Headings, etc...................................61
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THIS INDENTURE dated as of November 23, 1998 is between xxxxxxxx.xxx
Corporation, a Delaware corporation (the "Company") doing business as
Xxxxxx.xxx, and LaSalle National Bank, a banking corporation duly organized and
existing under the laws of the United States, as Trustee (the "Trustee").
In consideration of the premises and the purchase of the Securities by
the Holders thereof, 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
7 1/4% Convertible Subordinated Notes Due December 1, 2003.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. 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. For the purposes of this
definition, "control" when used with respect to any person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Applicable Procedures" means, with respect to any transfer or exchange
of beneficial ownership interests in a global Security, the rules and procedures
of the Depositary that are applicable to such transfer or exchange.
"Board of Directors" means the board of directors of the Company or any
authorized committee of the Board of Directors. The term "board of directors",
when used with lower-case letters, means the board of directors of the Company.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" or "capital stock" of any person means any and all
shares, interests, partnership interests, participations, rights or other
equivalents (however designated) of such person's equity interest (however
designated).
"Capitalized Lease Obligation" means any obligation under a lease of
(or other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and the amount of such obligation at any
date shall be the capitalized amount thereof at such date, determined in
accordance with GAAP.
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"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.
"Certificated Security" means a Security that is in substantially the
form attached hereto as Exhibit A and that does not include the information or
the schedule called for by footnotes 1, 3 and 4 thereof.
"Common Stock" means the common stock of the Company, $.001 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 and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to redemption
by the Company; provided, however, that if at any time there shall be more than
one such resulting class, the shares of each such class then so issuable on
conversion of Securities shall be substantially in the proportion which the
total number of shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes resulting from all such
reclassifications.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture, and thereafter means the
successor.
"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 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate
Trust Department or at any other time at such other address as the Trustee may
designate from time to time by notice to the Company.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company against fluctuations in currency values.
"Default" or "default" means, when used with respect to the Securities,
any event which is or, after notice or passage of time or both, would be an
Event of Default.
"Final Maturity Date" means December 1, 2003.
"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 the 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 Security" means a permanent global Security that is in
substantially the form attached hereto as Exhibit A and that includes the
information and schedule called for by
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footnotes 1, 3 and 4 thereof and which is deposited with the Depositary or its
custodian and registered in the name of the Depositary or its nominee
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Primary Registrar's books.
"Indebtedness" means , with respect to any person, without duplication,
(a) all liabilities of such person for borrowed money or for the deferred
purchase price of property or services, excluding any trade accounts payable and
other current liabilities incurred in the ordinary course of business; (b) all
obligations of such person evidenced by bonds, notes, debentures, or other
similar instruments; (c) all Capitalized Lease Obligations of such person; (d)
all guarantees of Indebtedness referred to in this definition by such person;
(e) all obligations of such person under or in respect of Currency Agreements
and Interest Rate Protection Obligations of such person; and (f) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) through (e) above.
"Indenture" means this Indenture as amended or supplemented from time
to time pursuant to the terms of this Indenture.
"Initial Issuance Date" means November 23, 1998.
"Interest Rate Protection Agreement" means any arrangement between the
Company and any other person whereby, directly or indirectly, such person is
entitled to receive from time to time periodic payments calculated by applying
either a floating or a fixed rate of interest on a stated notional amount in
exchange for periodic payments made by such person calculated by applying a
fixed or a floating rate of interest on the same notional amount and shall
include without limitation, interest rate swaps, caps, floors, collars and
similar agreements.
"Interest Rate Protection Obligations" means the obligations of the
Company pursuant to an Interest Rate Protection Agreement.
"Officer" means the Chairman or any Co-Chairman of the Board, any Vice
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers;
provided, however, that for purposes of Sections 4.11 and 6.3, "Officers'
Certificate" means a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company and
by one other Officer.
"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.
"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.
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"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.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of November 23, 1998 among the Company and Credit Suisse First Boston
Corporation, Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and X.X.
Xxxxxxxxx, Towbin.
"Restricted Certificated Security" means a Certificated Security which
is a Transfer Restricted Security.
"Restricted Global Security" means a global Security that is a Transfer
Restricted Security.
"Rule 144" means Rule 144 under the Securities Act or any successor to
such Rule.
"Rule 144A" means Rule 144A under the Securities Act or any successor
to such Rule.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities" means the 7 1/4% Convertible Subordinated Notes Due
December 1, 2003 or any of them (each, a "Security"), as amended or supplemented
from time to time, that are issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor thereto.
"Senior Indebtedness" means the principal of and premium, if any,
interest and other amounts payable on or in respect of any Indebtedness of the
Company, whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to, or shall be junior in right of payment to,
or shall be pari passu in right of payment with, the Securities. Notwithstanding
the foregoing, "Senior Indebtedness" shall not include (a) Indebtedness
evidenced by the Securities, (b) Indebtedness which, when incurred and without
respect to any election under Section 1111(b) of Title 11, United States Code
(or any successor provision thereto), is without recourse to the Company, (c)
trade accounts payable or other current liabilities incurred in the ordinary
course of business, (d) Indebtedness of or amounts owed by the Company for
compensation to employees or for services rendered to the Company,
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(e) any liability for federal, state, local or other taxes owed or owing by the
Company, (f) Indebtedness of the Company to a Subsidiary of the Company and (g)
amounts owing under leases (other than Capitalized Lease Obligations).
"Significant Subsidiary" means any Subsidiary of the Company which is a
"significant subsidiary" within the meaning of Rule 1-02 under Regulation S-X
promulgated by the Commission, as such Rule is in effect on the date of this
Indenture, but substituting 50% for 10% in each instance that 10% appears in
such Rule.
"Subsidiary" means, with respect to any person, (i) a corporation a
majority of whose outstanding Voting Stock is at the time of determination
thereof, directly or indirectly, owned by such person, by one or more
Subsidiaries of such person or by such person and one or more of its
Subsidiaries and (ii) any other person (other than a corporation), including,
without limitation, a joint venture, in which such person, one or more
Subsidiaries of such person or such person and one or more of its Subsidiaries,
directly or indirectly, at the date of determination thereof, owns at least a
majority of the ownership interests entitled to vote in the election of
directors, managers or trustees thereof (or other persons 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, as in effect
on the date of this Indenture, except as provided in Section 11.3, and except to
the extent any 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 any security, each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on which securities
are not generally traded on the principal 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.
"Unrestricted Certificated Security" means a Certificated Security
which is not a Transfer Restricted Security.
"Unrestricted Global Security" means a global Security which is not a
Transfer Restricted Security.
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"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 (or
other persons performing similar functions), 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 1.2. Other Definitions.
Term Defined in Section
---- ------------------
"Agent Members".................................................... 2.1
"Bankruptcy Law"................................................... 8.1
"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
"closing price".................................................... 4.6
"Company Order".................................................... 2.2
"Conversion Agent"................................................. 2.3
"Conversion Date".................................................. 4.2
"Conversion Price"................................................. 4.6
"current market price"............................................. 4.6
"Custodian"........................................................ 8.1
"DTC".............................................................. 2.1
"Default Notice"................................................... 5.5
"Depositary"....................................................... 2.1
"Determination Date"............................................... 4.6
"Distribution Date"................................................ 4.6
"Event of Default"................................................. 8.1
"Exchange Act"..................................................... 2.12
"Expiration Date".................................................. 4.6
"Expiration Time".................................................. 4.6
"Legal Holiday".................................................... 12.7
"NYSE"............................................................. 4.6
"Paying Agent"..................................................... 2.3
"Primary Registrar"................................................ 2.3
"Purchase Agreement"............................................... 2.1
"Purchased Shares"................................................. 4.6
"QIB".............................................................. 2.1
"Registrar"........................................................ 2.3
"Transfer Certificate"............................................. 2.12
"Transfer Restricted Security"..................................... 2.12
"Triggering Distribution".......................................... 4.6
"Unissued Shares".................................................. 3.8
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SECTION 1.3. 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 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) 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.
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ARTICLE 2
THE SECURITIES
SECTION 2.1. Form and Dating.
The Securities and the Trustee's certificate of authentication shall be
substantially in the respective forms set forth in Exhibit A, which Exhibit 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 are being offered and sold by the Company pursuant to a Purchase
Agreement, dated November 17, 1998 (the "Purchase Agreement"), between the
Company and Credit Suisse First Boston Corporation, X. X. Xxxxxxxxx, Xxxxxx and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, in transactions exempt
from, or not subject to, the registration requirements of the Securities Act.
(a) Restricted Global Securities. All of the Securities are initially
being offered and sold to qualified institutional buyers as defined in Rule 144A
(collectively, "QIBs" or individually a "QIB") in reliance on Rule 144A under
the Securities Act and shall be issued initially in the form of one or more
Restricted Global Securities, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Trustee, at its
Corporate Trust Office, as custodian for the depositary, The Depository Trust
Company ("DTC") (such depositary, or any successor thereto, being hereinafter
referred to as the "Depositary"), and registered in the name of its nominee,
Cede & Co., duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Restricted Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Securities Custodian as hereinafter provided, subject in each
case to compliance with the Applicable Procedures.
(b) Global Securities in General. Each global Security shall represent
such of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, purchases or conversions of such
Securities. Any endorsement of a global Security to reflect the amount of any
increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Securities Custodian in accordance with the standing
instructions and procedures existing between the Depositary and the Securities
Custodian.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any global Security held on
their behalf by the Depositary or under the global Security, and the Depositary
(including, for this purpose, its nominee) may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner and
Holder of such global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall (A) prevent the Company, the Trustee or any
agent of the
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Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or (B) impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.
(c) Certificated Securities. Certificated Securities shall be issued
only under the limited circumstances provided in Section 2.12(a)(1) hereof.
SECTION 2.2. Execution and Authentication.
An Officer shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal or a facsimile thereof shall be affixed
to or reproduced on the Securities and attested by the manual or facsimile
signature of 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
$55,000,000 (plus up to an additional $8,250,000 issuable upon exercise of the
option described in the Purchase Agreement) 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,
shall provide that all such Securities will be represented by a Restricted
Global Security 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 $63,250,000, 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.
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SECTION 2.3. Registrar, Paying Agent and Conversion Agent.
The Company shall maintain one or more offices or agencies where
Securities may be presented for registration of transfer or for exchange (each,
a "Registrar"), one or more offices or agencies where Securities may be
presented for payment (each, a "Paying Agent"), one or more offices or agencies
where Securities may be presented for conversion (each, a "Conversion Agent")
and one or more offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will at all times maintain a Paying Agent, Conversion Agent, Registrar
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 in Chicago, Illinois
and, if any Certificated Securities are issued, in the Borough of Manhattan, the
City of New York. One of the Registrars (the "Primary 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 in any place required by this
Indenture, 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 6.1 and Article 10).
The Company initially appoints the Trustee, acting through its
Corporate Trust Office in Chicago, Illinois, as Registrar, Paying Agent,
Conversion Agent and agent for service of notices and demands in connection with
the Securities.
SECTION 2.4. 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 a
Paying Agent a sum sufficient to pay such principal or interest so becoming due.
Subject to Section 5.7, a 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 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.
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SECTION 2.5. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Primary 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 2.6. Transfer and Exchange.
(a) Subject to compliance with any applicable additional requirements
contained in Section 2.12, when a Security is presented to a 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. To permit
registration of transfers and exchanges, upon surrender of any Security for
registration of transfer or exchange at an 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. Any
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 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, 2.12(a)(1), 3.6, 3.11, 4.2 (last paragraph) or 11.5.
Neither the Company, any 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 thereof 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.
(b) Any Registrar appointed pursuant to Section 2.3 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
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SECTION 2.7. Replacement Securities.
If any mutilated Security is surrendered to the Company, a Registrar or
the Trustee, or the Company, a 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 applicable 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, such 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 or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the reasonable 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 (to the extent lawful) 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 2.8. 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 a Paying Agent (other than the Company or an Affiliate of the
Company) holds on a redemption date, a Change in Control Purchase Date or the
Final Maturity Date money sufficient to pay the principal of (including premium,
if any) and accrued interest on Securities (or portions
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thereof) payable on that date, then on and after that date such Securities (or
portions thereof, as the case may be) cease to be outstanding and interest on
them ceases to accrue.
Subject to the restrictions contained in Section 2.9, a Security does
not cease to be outstanding because the Company or an Affiliate of the Company
holds the Security.
SECTION 2.9. 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 on the Securities or by any
Affiliate of the Company or of 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.
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. All Securities which are
redeemed, purchased or otherwise acquired by the Company or any of its
Subsidiaries or Affiliates prior to the Final Maturity Date shall be delivered
to the Trustee for cancellation and the Company may not hold or resell such
Securities or issue any new Securities to replace any such Securities or any
Securities that any Holder has converted pursuant to Article 4. Without
limitation to the foregoing, any Securities acquired by any investment bankers
or other purchasers pursuant to Section 3.7 shall be surrendered for conversion
and thereafter cancelled, and may not be reoffered, sold or otherwise
transferred.
SECTION 2.12. Additional Transfer and Exchange Requirements.
(a) Transfer and Exchange of Global Securities.
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(1) Certificated Securities shall be issued in exchange for
interests in the global Securities only if (x) the Depositary notifies
the Company that it is unwilling or unable to continue as depositary
for the global Securities or if it at any time ceases to be a "clearing
agency" registered under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), if so required by applicable law or
regulation and a successor depositary is not appointed by the Company
within 90 days, or (y) an Event of Default has occurred and is
continuing. In either case, the Company shall execute, and the Trustee
shall, upon receipt of a Company Order (which the Company agrees to
delivery promptly), authenticate and deliver Certificated Securities in
an aggregate principal amount equal to the principal amount of such
global Securities in exchange therefor. Only Restricted Certificated
Securities shall be issued in exchange for beneficial interests in
Restricted Global Securities, and only Unrestricted Certificated
Securities shall be issued in exchange for beneficial interests in
Unrestricted Global Securities. Certificated Securities issued in
exchange for beneficial interests in global Securities shall be
registered in such names and shall be in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver or cause to be delivered such Certificated Securities to
the persons in whose names such Securities are so registered. Such
exchange shall be effected in accordance with the Applicable
Procedures.
(2) Notwithstanding any other provisions of this Indenture
other than the provisions set forth in Section 2.12(a)(1), a global
Security may not be transferred as a whole except by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(b) Transfer and Exchange of Certificated Securities. When Certificated
Securities are presented by a Holder to a Registrar with a request:
(x) to register the transfer of the Certificated Securities to
a person who will take delivery thereof in the form of Certificated
Securities only; or
(y) to exchange such Certificated Securities for an equal
principal amount of Certificated Securities of other authorized
denominations,
such Registrar shall register the transfer or make the exchange as requested;
provided, however, that the Certificated Securities presented or surrendered for
register of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to the first
paragraph of Section 2.6; and
(2) in the case of a Restricted Certificated Security, such
request shall be accompanied by the following additional information
and documents, as applicable:
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(A) if such Restricted Certificated Security is being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, or such Restricted
Certificated Security is being transferred to the Company or a
Subsidiary of the Company, a certification to that effect from
such Holder (in substantially the form set forth in the
Transfer Certificate);
(B) if such Restricted Certificated Security is being
transferred to a person the Holder reasonably believes is a
QIB in accordance with Rule 144A or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form set forth in the Transfer Certificate);
or
(C) if such Restricted Certificated Security is being
transferred (i) pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
or (ii) pursuant to an exemption from the registration
requirements of the Securities Act (other than pursuant to
Rule 144A or Rule 144) and as a result of which, in the case
of a Security transferred pursuant to this clause (ii), such
Security shall cease to be a "restricted security" within the
meaning of Rule 144, a certification to that effect from the
Holder (in substantially the form set forth in the Transfer
Certificate) and, if the Company or such Registrar so
requests, a customary opinion of counsel, certificates and
other information reasonably acceptable to the Company and
such Registrar to the effect that such transfer is in
compliance with the Securities Act.
(c) Transfer of a Beneficial Interest in a Restricted Global Security
for a Beneficial Interest in an Unrestricted Global Security. Any person having
a beneficial interest in a Restricted Global Security may upon request, subject
to the Applicable Procedures, transfer such beneficial interest to a person who
is required or permitted to take delivery thereof in the form of an Unrestricted
Global Security. Upon receipt by the Trustee of written instructions or such
other form of instructions as is customary for the Depositary, from the
Depositary or its nominee on behalf of any person having a beneficial interest
in a Restricted Global Security and the following additional information and
documents in such form as is customary for the Depositary from the Depositary or
its nominee on behalf of the person having such beneficial interest in the
Restricted Global Security (all of which may be submitted by facsimile or
electronically):
(1) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certification to that effect from the transferor (in substantially the
form set forth in the Transfer Certificate); or
(2) if such beneficial interest is being transferred (i)
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 or (ii) pursuant to an
exemption from the registration requirements of the Securities Act
(other than pursuant to Rule 144A or Rule 144) and as a result of
which, in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security" within
the meaning of Rule 144, a certification to that effect from the
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transferor (in substantially the form set forth in the Transfer
Certificate) and, if the Company or the Trustee so requests, a
customary opinion of counsel, certificates and other information
reasonably acceptable to the Company and the Trustee to the effect that
such transfer is in compliance with the Securities Act,
the Trustee, as a Registrar and Securities Custodian, shall reduce or cause to
be reduced the aggregate principal amount of Restricted Global Security by the
appropriate principal amount and shall increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Security by a like
principal amount. Such transfer shall otherwise be effected in accordance with
the Applicable Procedures. If no Unrestricted Global Security is then
outstanding, the Company shall execute and the Trustee shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly), authenticate and
deliver an Unrestricted Global Security.
(d) Transfer of a Beneficial Interest in an Unrestricted Global
Security for a Beneficial Interest in a Restricted Global Security. Any person
having a beneficial interest in an Unrestricted Global Security may upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted to take delivery thereof in the form of
a Restricted Global Security (it being understood that only QIBs may own
beneficial interests in Restricted Global Securities). Upon receipt by the
Trustee of written instructions or such other form of instructions as is
customary for the Depositary, from the Depositary or its nominee, on behalf of
any person having a beneficial interest in an Unrestricted Global Security and
the following additional information and documents in such form as its customary
for the Depositary from the Depositary or its nominee on behalf of the person
having such beneficial interest in the Unrestricted Global Security (all of
which may be submitted by facsimile or electronically):
(1) a certification from the transferor (in substantially the
form set forth in the Transfer Certificate) to the effect that such
beneficial interest is being transferred to a person that the
transferor reasonably believes is a QIB in accordance with Rule 144A;
the Trustee, as a Registrar and Securities Custodian, shall reduce or cause to
be reduced the aggregate principal amount of the Unrestricted Global Security by
the appropriate principal amount and shall increase or cause to be increased the
aggregate principal amount of the Restricted Global Security by a like principal
amount. Such transfer shall otherwise be effected in accordance with the
Applicable Procedures. If no Restricted Global Security is then outstanding, the
Company shall execute and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to deliver promptly), authenticate and deliver a
Restricted Global Security.
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(e) Transfers of Certificated Securities for Beneficial Interest in
Global Securities. In the event that Certificated Securities are issued in
exchange for beneficial interests in Global Securities and, thereafter, the
events or conditions specified in Section 2.12(a)(1) which required such
exchange shall have ceased to exist, the Company shall mail notice to the
Trustee and to the Holders stating that Holders may exchange Certificated
Securities for interests in global Securities by complying with the procedures
set forth in this Indenture and briefly describing such procedures and the
events or circumstances requiring that such notice be given. Thereafter, if
Certificated Securities are presented by a Holder to a Registrar with a request:
(x) to register the transfer of such Certificated Securities
to a person who will take delivery thereof in the form of a beneficial
interest in a global Security, which request shall specify whether such
global Security will be a Restricted Global Security or an Unrestricted
Global Security; or
(y) to exchange such Certificated Securities for an equal
principal amount of beneficial interests in a global Security, which
beneficial interests will be owned by the Holder transferring such
Certificated Securities (provided that in the case of such an exchange,
Restricted Certificated Securities may be exchanged only for Restricted
Global Securities and Unrestricted Certificated Securities may be
exchanged only for Unrestricted Global Securities),
the Registrar shall register the transfer or make the exchange as requested by
canceling such Certificated Security and causing, or directing the Securities
Custodian to cause, the aggregate principal amount of the applicable global
Security to be increased accordingly and, if no such global Security is then
outstanding, the Company shall issue and the Trustee shall authenticate and
deliver a new global Security; provided, however, that the Certificated
Securities presented or surrendered for registration of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to Section 2.6;
(2) in the case of a Restricted Certificated Security to be
transferred for a beneficial interest in an Unrestricted Global
Security, such request shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Restricted Certificated Security is being
transferred pursuant to an effective registration statement
under the Securities Act, a certification to that effect from
such Holder (in substantially the form set forth in the
Transfer Certificate); or
(B) if such Restricted Certificated Security is being
transferred pursuant to (i) an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
or (ii) pursuant to an exemption from the registration
requirements of the Securities Act (other than pursuant to
Rule 144A or Rule 144) and as a result of which, in the case
of a Security transferred pursuant to this clause (ii), such
Security shall cease to be a "restricted security" within the
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meaning of Rule 144, a certification to that effect from such
Holder (in substantially the form set forth in the Transfer
Certificate), and, if the Company or the Registrar so
requests, a customary opinion of counsel, certificates and
other information reasonably acceptable to the Company and the
Trustee to the effect that such transfer is in compliance with
the Securities Act;
(3) in the case of a Restricted Certificated Security to be
transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by a certification
from such Holder (in substantially the form set forth in the Transfer
Certificate) to the effect that such Restricted Certificated Security
is being transferred to a person the Holder reasonably believes is a
QIB (which, in the case of an exchange, shall be such Holder) in
accordance with Rule 144A;
(4) in the case of an Unrestricted Certificated Security to be
transferred or exchanged for a beneficial interest in an Unrestricted
Global Security, such request need not be accompanied by any additional
information or documents; and
(5) in the case of an Unrestricted Certificated Security to be
transferred or exchanged from a beneficial interest in a Restricted
Global Security, such request shall be accompanied by a certification
from such Holder (in substantially the form set forth in the Transfer
Certificate) to the effect that such Unrestricted Certificated Security
is being transferred to a person the Holder reasonably believes is a
QIB (which, in the case of an exchange, shall be such Holder) in
accordance with Rule 144A.
(f) Legends.
(1) Except as permitted by the following paragraphs (2) and
(3), each global Security and Certificated Security (and all Securities
issued in exchange therefor or upon registration of transfer or
replacement thereof) shall bear a legend in substantially the form
called for by footnote 2 to Exhibit A hereto (each a "Transfer
Restricted Security" for so long as it is required by this Indenture to
bear such legend). Each Transfer Restricted Security shall have
attached thereto a certificate (a "Transfer Certificate") in
substantially the form called for footnote 5 to Exhibit A hereto.
(2) Upon any sale or transfer of a Transfer Restricted
Security (x) pursuant to Rule 144, (y) pursuant to an effective
registration statement under the Securities Act or (z) pursuant to any
other available exemption (other than Rule 144A) from the registration
requirements of the Securities Act and as a result of which, in the
case of a Security transferred pursuant to this clause (z), such
Security shall cease to be a "restricted security" within the meaning
of Rule 144:
(A) in the case of any Restricted Certificated
Security, any Registrar shall permit the Holder thereof to
exchange such Restricted Certificated Security for an
Unrestricted Certificated Security, or (under the
circumstances described in Section 2.12(e)) to transfer such
Restricted Certificated Security to a transferee who shall
take such Security in the form of a beneficial interest in an
Unrestricted
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Global Security, and in each case shall rescind any
restriction on the transfer of such Security; provided,
however, that the Holder of such Restricted Certificated
Security shall, in connection with such exchange or transfer,
comply with the other applicable provisions of this Section
2.12; and
(B) in the case of any beneficial interest in a
Restricted Global Security, the Trustee shall permit the
beneficial owner thereof to transfer such beneficial interest
to a transferee who shall take such interest in the form of a
beneficial interest in an Unrestricted Global Security and
shall rescind any restriction on transfer of such beneficial
interest; provided, that such Unrestricted Global Security
shall continue to be subject to the provisions of Section
2.12(a)(2); and provided, further, that the owner of such
beneficial interest shall, in connection with such transfer,
comply with the other applicable provisions of this Section
2.12.
(3) Upon the exchange, registration of transfer or replacement
of Securities not bearing the legend described in paragraph (1) above,
the Company shall execute, the Trustee shall authenticate and deliver
Securities that do not bear such legend and which do not have a
Transfer Certificate attached thereto.
(g) Transfers to the Company. Nothing in this Indenture or in the
Securities shall prohibit the sale or other transfer of any Securities
(including beneficial interests in global Securities) to the Company or any of
its Subsidiaries, which Securities shall thereupon be cancelled in accordance
with the last sentence of Section 2.11.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.1. 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 December 6, 2001, 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 35 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.
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SECTION 3.2. 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. 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 to
be the portion selected for redemption. 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 3.3. Notice of Redemption.
At least 30 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 Xxxxxx's address as it appears on
the Primary Registrar's books.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the then current Conversion Price;
(4) the name and address of each Paying Agent and Conversion
Agent;
(5) that Securities called for redemption must be presented
and surrendered to a Paying Agent to collect the redemption price;
(6) that the Securities called for redemption may be converted
at any time before the close of business on the Business Day
immediately preceding the redemption date;
(7) that Holders who wish to convert Securities must surrender
such Securities for conversion no later than the close of business on
the Business Day immediately preceding the redemption date and must
satisfy the other 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
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price, plus accrued interest, if any upon presentation and surrender to
a 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.
If any of the Securities to be redeemed is in the form of a global
Security, then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depositary applicable to redemptions.
At the Company's written request, which request shall (i) be
irrevocable once given and (ii) set forth all relevant information required by
clauses (1) through (9) of the second preceding paragraph, the Trustee shall
give the notice of redemption in the Company's name and at the Company's
expense.
SECTION 3.4. 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, together with accrued interest, if any, except for Securities
that are converted in accordance with the provisions of Article 4. Upon
presentation and surrender to a Paying Agent, Securities called for redemption
shall be paid at the redemption price, plus accrued interest up to but not
including the redemption date; provided that installments of interest which are
due and payable on interest payment dates falling on or prior to a redemption
date will be payable to the Holders in whose names the Securities are registered
at the close of business on the relevant record dates.
SECTION 3.5. Deposit of Redemption Price.
Prior to 11:00 a.m. New York City time, on the redemption date, the
Company shall deposit with a 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, 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 3.6. 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 and deliver to the
Holder a new Security equal in principal amount to the unredeemed portion of the
Security surrendered.
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SECTION 3.7. Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities, 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 a Paying Agent (other than the Company or
any of its Affiliates) in trust for the Securityholders, on or before 11:00 A.M.
New York City time on the Redemption Date, an amount that, together with any
amounts deposited with such Paying Agent by the Company for the redemption of
such Securities, is not less than the Redemption Price, together with interest
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, shall be deemed to be satisfied and discharged
to the extent such amount is so paid by such purchasers; provided, however, that
nothing in this Section 3.7 shall relieve the Company of its obligation to pay
the Redemption Price, plus accrued interest to but excluding the relevant
redemption date, on Securities called for redemption. If such an agreement is
entered into, any Securities called for redemption and not surrendered for
conversion by the Holders thereof prior to the relevant redemption date may, at
the option of the Company upon written notice to the Trustee, 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 11:00 A.M. New York
City time 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 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.
SECTION 3.8. Purchase of Securities at Option of the Holder Upon Change
in Control.
(a) If at any time that Securities remain outstanding there shall occur
a Change in Control, Securities shall be purchased by the Company at the option
of the Holders thereof as of the date that is 30 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.
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A "Change in Control" shall be deemed to have occurred if any of the
following occurs after the Initial Issuance Date:
(1) any "person" or "group" (as such terms are defined below)
is or becomes the "beneficial owner" (as defined below), directly or
indirectly, of shares of Voting Stock of the Company representing 50%
or more of the total voting power of all outstanding classes of Voting
Stock of the Company or has the power, directly or indirectly, to elect
a majority of the members of the board of directors of the Company; or
(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 Persons that "beneficially owned" (as defined
below), directly or indirectly, shares of Voting Stock of the Company
immediately prior to such transaction "beneficially own" (as defined
below), directly or indirectly, shares of Voting Stock of the Company
representing at least a majority of the total voting power of all
outstanding classes of Voting Stock of the surviving or transferee
Person; or
(3) there shall occur the liquidation or dissolution of the
Company.
For the purpose of the definition of "Change in Control", (i) "person" and
"group" have the meanings given such terms under Section 13(d) and 14(d) of the
Exchange Act or any successor provision to either of the foregoing, and the term
"group" includes 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 (or any successor provision thereto), (ii) a "beneficial owner"
shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in
effect on the date of this Indenture, except that the number of shares of Voting
Stock of the Company shall be deemed to include, in addition to all outstanding
shares of Voting Stock of the Company and Unissued Shares deemed to be held by
the "person" or "group" (as such terms are defined above) or other Person with
respect to which the Change in Control determination is being made, all Unissued
Shares deemed to be held by all other Persons, and (iii) the terms "beneficially
owned" and "beneficially own" shall have meanings correlative to that of
"beneficial owner". The term "Unissued Shares" means shares of Voting Stock not
outstanding that are subject to options, warrants, rights to purchase or
conversion privileges exercisable within 60 days of the date of determination of
a Change in Control.
Notwithstanding the foregoing, a Change in Control will be deemed not
to have occurred (i) if the closing 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 105% of the Conversion Price in effect immediately
preceding the Change in Control or (ii) if at least 90% 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
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will be, traded on a national securities exchange in the United States of
America or through the Nasdaq National Market.
(b) Within 10 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of the 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. The notice shall include the form of a Change in
Control Purchase Notice to be completed by the Holder 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 each Paying Agent and 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.
If any of the Securities is in the form of a global Security, then the
Company shall modify such notice to the extent necessary to accord with the
procedures of the Depositary applicable to the repurchase of global securities.
(c) A Holder may exercise its rights specified in subsection (a) of
this Section 3.8 upon delivery of a written notice (which shall be in
substantially the form included in Exhibit A hereto and which may be delivered
by letter, overnight courier, hand delivery, facsimile transmission or in any
other written form and, in the case of global Securities, may be delivered
electronically or by other means in accordance with the Depositary's customary
procedures) of the exercise of
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such rights (a "Change in Control Purchase Notice") to any Paying Agent at any
time prior to the close of business on the Business Day next preceding the
Change in Control Purchase Date.
The delivery of such Security to any Paying Agent (together with all
necessary endorsements) at the office of such Paying Agent shall be a condition
to the receipt by the Holder of the Change in Control Purchase Price therefor.
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 a 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.
A Paying Agent shall promptly notify the Company of the receipt by it
of any Change in Control Purchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of global
Securities, any Change in Control Purchase Notice may be delivered or withdrawn
and such Securities may be surrendered or delivered for purchase in accordance
with the applicable procedures of the Depositary as in effect from time to time.
SECTION 3.9. Effect of Change in Control Purchase Notice.
Upon receipt by any 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 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 a 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 (which may be delivered by letter, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case
of global Securities, may be delivered electronically or by
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other means in accordance with the Depositary's customary procedures) of
withdrawal delivered by the Holder to a Paying Agent at any time prior to the
close of business on the Business Day immediately preceding the Change in
Control Purchase Date, specifying the principal amount of the Security or
portion thereof (which must be $1,000 or an integral multiple of $1,000 in
excess thereof) with respect to which such notice of withdrawal is being
submitted.
SECTION 3.10. Deposit of Change in Control Purchase Price.
On the Change in Control Purchase Date, the Company shall deposit with
the Trustee or with a Paying Agent (other than the Company or an Affiliate of
the Company) 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 a Paying Agent shall have immediately available
funds on the Change in Control Purchase Date.
If a 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 plus accrued interest thereon to but not including the Change in
Control Purchase Date, then, on the Change in Control Purchase Date, such
Security will cease to be outstanding and the rights of the Holder in respect
thereof shall terminate (other than the right to receive the Change in Control
Purchase Price plus accrued interest as aforesaid). The Company shall publicly
announce the principal amount of Securities purchased as a result of such Change
in Control on or as soon as practicable after the Change in Control Purchase
Date.
SECTION 3.11. Securities Purchased In Part.
Any Security that is to be purchased only in part shall be surrendered
at the office of a Paying Agent 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, the Company shall (a) comply with Rule 13e-4 and Rule 14e-1
(or any successor to either such Rule), if applicable, under the Exchange Act,
(b) file the related Schedule 13E-4 (or any successor or similar schedule, form
or report) if required under the Exchange Act, and (c) otherwise comply with all
federal and state securities laws in connection with such offer, all 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.
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SECTION 3.13. Repayment to the Company.
Subject to the provisions of Section 5.7, 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 Change in Control Purchase Date the Trustee or a Paying
Agent, as the case may be, shall return any such excess to the Company.
ARTICLE 4
CONVERSION
SECTION 4.1. Conversion Privilege.
Subject to the further provisions of this Section 4.1, a Holder of a
Security may convert the principal amount of such Security (or any portion
thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof)
into Common Stock at any time prior to the close of business on the Final
Maturity Date, 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 or such earlier date as the
Holder presents such Security for redemption (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 a 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.
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SECTION 4.2. Conversion Procedure.
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice on the back of the Security and deliver such notice to a
Conversion Agent, (b) surrender the Security to a Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by a Registrar or a
Conversion Agent, and (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 a Conversion Agent a certificate for the number of
whole shares of Common Stock issuable upon the conversion and cash in lieu of
any fractional shares pursuant to Section 4.3. Anything herein to the contrary
notwithstanding, in the case of global Securities, conversion notices may be
delivered and such Securities may be surrendered for conversion in accordance
with the applicable procedures of the Depositary as in effect from time to time.
The person in whose name the Common Stock 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; provided,
however, that interest accrued to but excluding December 6, 2001 shall be paid
on any Security called for redemption pursuant to Article 3 and surrendered for
conversion pursuant to this Article 4 on or before the close of business on the
Business Day immediately preceding December 6, 2001 (with interest accrued from
and including December 1, 2001 through and including December 6, 2001 being paid
to the Holder surrendering such Security for conversion). 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 in whose name such Security was registered at the close of business
on such record date; and, in such event, unless such Security has been called
for redemption, such Security, when surrendered for conversion, must be
accompanied by delivery by such Holder of payment (which may be in the form 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 principal amount of such
Security or portion thereof so converted. If the Company defaults in the payment
of interest
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payable on such interest payment date, the Company shall promptly repay such
funds to such Holder.
Nothing in this Section shall affect the right of a Holder in whose
name any Security is registered at the close of business on a record date to
receive the interest payable on such Security on the related interest payment
date in accordance with the terms of this Indenture and the Securities.
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 4.3. 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 price of the Common Stock on the Trading Day
immediately prior to the Conversion Date.
SECTION 4.4. 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 4.5. Company to Provide Stock.
The Company shall, prior to issuance of any Securities hereunder, and
from time to time as may be necessary, reserve, out of its authorized but
unissued Common Stock, a sufficient number of shares of Common Stock to permit
the conversion of all outstanding Securities into shares of Common Stock.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares, shall be duly authorized, validly issued, fully
paid and nonassessable and shall be free from preemptive rights and free of any
lien or adverse claim.
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
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any, and will list or cause to have quoted such shares of Common Stock on each
national securities exchange or on the Nasdaq National Market or other
over-the-counter market or such other market on which the Common Stock is then
listed or quoted.
SECTION 4.6. 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 on its Common
Stock in shares of Common Stock, (ii) make a distribution on its Common
Stock in shares 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 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 (or having a conversion 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) on
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,
which shall be determined by multiplying the number of shares of Common
Stock issuable upon conversion of such convertible securities by the
conversion price per share of Common Stock pursuant to the terms of
such convertible securities) would purchase at the current market price
per share (as defined in subsection (e) of this Section 4.6) of Common
Stock on such record date, 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
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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
person 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 rights
and warrants referred to in subsection (b) of this Section 4.6 and also
excluding the distribution of rights to all holders of Common Stock
pursuant to the adoption of a stockholders rights plan or the
detachment of such rights under the terms of such stockholder rights
plan), then in each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the
current Conversion Price 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 and which shall be evidenced by an
Officers' Certificate delivered to the Trustee) 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 be made successively whenever any such distribution is
made and shall become effective immediately after the record date for
the determination of shareholders entitled to receive such
distribution.
(d) (1) 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 (A) any cash and the
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence thereof and which shall be
evidenced by an Officers' Certificate delivered to the Trustee) of any
other consideration payable in respect of any tender offer by the
Company or a Subsidiary of the Company for Common Stock consummated
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 and (B) all other 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 an
amount equal to 12.5% 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
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Distribution is declared by the Company multiplied by the number of
shares of Common Stock outstanding on the Determination 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 sum of the aggregate amount of cash and the
aggregate fair market value (determined as aforesaid) of any such other
consideration so distributed, paid or payable 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.
(2) In case any tender offer made by the Company or any of its
Subsidiaries for Common Stock shall expire and such tender offer (as
amended upon the expiration thereof) shall involve the payment of
aggregate consideration in an amount (determined as the sum of the
aggregate amount of cash consideration and the aggregate fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive evidence thereof and which shall be evidenced by an
Officers' Certificate delivered to the Trustee thereof ) of any other
consideration) that, together with the aggregate amount of (A) any cash
and the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive evidence thereof and which
shall be evidenced by an Officers' Certificate delivered to the
Trustee) of any other consideration payable in respect of any other
tender offers by the Company or any Subsidiary of the Company for
Common Stock consummated within the 12 months preceding the date of the
Expiration Date (as defined below) and in respect of which no
Conversion Price adjustment pursuant to this Section 4.6 has been made
and (B) all cash distributions to all or substantially all holders of
its Common Stock made within the 12 months preceding the Expiration
Date and in respect of which no Conversion Price adjustment pursuant to
this Section 4.6 has been made, exceeds an amount equal to 12.5% 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) as of
the last date (the "Expiration Date") tenders could have been made
pursuant to such tender offer (as it may be amended) (the last time at
which such tenders could have been made on the Expiration Date is
hereinafter sometimes called the "Expiration Time") multiplied by the
number of shares of Common Stock outstanding (including tendered shares
but excluding any shares held in the treasury of the Company) at the
Expiration Time, then, immediately prior to the opening of business on
the day after the Expiration Date, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to close
of business on the Expiration Date by a fraction of which the numerator
shall be the product of the number of shares of Common Stock
outstanding (including tendered shares but excluding any shares held in
the treasury of the Company) at the
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Expiration Time multiplied by the current market price per share of the
Common Stock (as determined in accordance with subsection (e) of this
Section 4.6) on the Trading Day next succeeding the Expiration Date and
the denominator shall be the sum of (x) the aggregate consideration
(determined as aforesaid) payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender
offer) of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased Shares
and excluding any shares held in the treasury of the Company) at the
Expiration Time and the current market price per share of Common Stock
(as determined in accordance with subsection (e) of this Section 4.6)
on the Trading Day next succeeding the Expiration Date, such reduction
to become effective immediately prior to the opening of business on the
day following the Expiration Date. In the event that the Company is
obligated to purchase shares pursuant to any such tender offer, but the
Company is permanently prevented by applicable law from effecting any
or all such purchases or any or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion Price
which would have been in effect based upon the number of shares
actually purchased. If the application of this Section 4.6(d)(2) to any
tender offer would result in an increase in the Conversion Price, no
adjustment shall be made for such tender offer under this Section
4.6(d)(2).
(3) For purposes of this Section 4.6(d), the term "tender
offer" shall mean and include both tender offers and exchange offers,
all references to "purchases" of shares in tender offers (and all
similar references) shall mean and include both the purchase of shares
in tender offers and the acquisition of shares pursuant to exchange
offers, and all references to "tendered shares" (and all similar
references) shall mean and include shares tendered in both tender
offers and exchange offers.
(e) 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 (i) the Determination Date or the Expiration Date,
as the case may be, with respect to distributions or tender offers
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 last reported sales price of the Common Stock
as quoted on NASDAQ (the term "NASDAQ" shall include, without
limitation, the Nasdaq National Market) or, in case no reported sales
takes place, the average of the closing bid and asked prices as quoted
on NASDAQ or any comparable system or, if the Common Stock is not
quoted on NASDAQ or any comparable system,
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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 (which shall be evidenced by an Officers' Certificate
delivered to the Trustee).
(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
or Expiration 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 or
Expiration 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 or Determination Date or Expiration 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 or Expiration Date had not occurred.
SECTION 4.7. 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 issuances of Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or 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.
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SECTION 4.8. 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 4.9. Notice of Adjustment.
Whenever the Conversion Price or conversion privilege 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.
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 Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice at least 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;
or (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,
purchasing or transferee corporation, as the case may be, shall, as a condition
precedent to such reclassification, change,
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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 person other than the successor,
purchasing or transferee corporation, as the case may be, in such consolidation,
merger, sale or conveyance, then such supplemental indenture shall also be
executed by such other person and shall contain such additional provisions to
protect the interests of the Holders 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 reclassifications,
changes, 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, and shall promptly mail notice
thereof to all Holders.
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.
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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 Company reduce the
Conversion Price to be less than the par value of a share of Common Stock.
ARTICLE 5
SUBORDINATION
SECTION 5.1. 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 5; 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 shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior 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 5.2. 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 (including any
collateral at any time securing the 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 in any similar proceedings), then in such event:
(a) all Senior Indebtedness 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 10.1, 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
5, with respect to the Securities,
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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 5, 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 5.2, 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 5, with respect to the Securities, to the payment of
all Senior Indebtedness), shall be received by the Trustee or any
Paying Agent or the Holders before all Senior Indebtedness is paid in
full, such payment or distribution (subject to the provisions of
Sections 5.6 and 5.7) shall be held in trust for the benefit of, and
shall be immediately paid or delivered by the Trustee, such Paying
Agent 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 5, the Trustee 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 5.
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SECTION 5.3. Holders 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 5, and no payment pursuant to the
provisions of this Article 5 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 5 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 5.4. Obligations of the Company Unconditional.
Nothing contained in this Article 5 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 and
this Indenture, 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 8, and the rights, if any, under this Article 5 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 5.5. 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, or premium, if any, or interest on 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 5.5 are applicable), as such event of default is defined
under or in respect of such Senior Indebtedness or
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in any agreement pursuant to which such Senior Indebtedness has been incurred,
permitting the holders thereof to accelerate the maturity thereof, and upon
written notice thereof given to the Company and the Trustee by any one or more
holders of such Senior Indebtedness or their representative or representatives
or 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 or shall have ceased to exist, the Company shall not pay the Securities;
provided, however, that the foregoing provisions of this sentence shall not
prevent the making of any such payment (which is not otherwise prohibited by
subsection (a) of this Section 5.5) 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 5.5, 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 or event of default, as the
case may be, under any Senior Indebtedness of the type specified in subsections
(a) and (b) of this Section 5.5, 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 or event of default, as the case may be, shall have
been cured or waived or shall have ceased to exist or any such acceleration
referred to in the proviso to subsection (b) of this Section 5.5 shall have been
waived, rescinded or annulled, such payment (subject, in each case, to the
provisions of Sections 5.6 and 5.7 and the proviso contained in subsection (b)
of this Section 5.5) 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 5.6. 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 5 or any other provision of this
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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 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 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 5, 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 5, 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 5.7. Application by Trustee of Money Deposited With It.
Money deposited in trust with the Trustee pursuant to Section 10.1 and
not in violation of this Article 5 shall be for the sole benefit of Holders and
shall thereafter not be subject to the subordination provisions of this Article
5. 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 5.1, 5.2, 5.3
and 5.5; 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) the Trustee shall not have received with respect to
such money the notice provided for in Section 5.6, 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 5.7 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 5.
SECTION 5.8. 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
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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.
SECTION 5.9. 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 5 and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 5.10. 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 5 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 9.7.
SECTION 5.11. Article 5 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 5 shall
not be construed as preventing the occurrence of a default or an Event of
Default.
SECTION 5.12. No Fiduciary Duty Created to Holders of Senior
Indebtedness.
Notwithstanding any other provision in this Article 5, 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 5.
SECTION 5.13. 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 5 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 5 in addition to or in place of the Trustee; provided, however,
that Sections 5.6, 5.10 and 5.12 shall not apply to the Company if it acts as
Paying Agent.
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ARTICLE 6
COVENANTS
SECTION 6.1. 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. The Company shall, to the
fullest extent permitted by law, pay interest on overdue principal (including
premium, if any) and overdue installments of interest at the rate borne by the
Securities per annum.
SECTION 6.2. 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.
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 generally
accepted accounting principles. 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 50 days after the end of each of the first three quarters of
each fiscal year and within 95 days after the close of each fiscal year. The
Company will also comply with the other provisions of TIA Section 314(a).
If at any time while any of the Securities are "restricted securities"
within the meaning of Rule 144, the Company is no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will prepare and will furnish to any Holder , any beneficial owner of Securities
and any prospective purchaser of Securities designated by a Holder or a
beneficial owner of Securities, promptly upon request, the information required
pursuant to Rule 144A(d)(4) (or any successor thereto) under the Securities Act
in connection with the offer, sale or transfer of Securities.
SECTION 6.3. 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
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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 6.3, compliance
shall be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 6.4. Notice of Defaults.
In the event (a) that indebtedness of the Company or any Significant
Subsidiary in an aggregate principal amount in excess of $10,000,000 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 6.5. 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 6.6. Maintenance of Corporate Existence.
Subject to Article 7, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises, and the existence,
rights (charter and statutory) and franchises of its Subsidiaries; provided,
however, that the Company will not be required to preserve any such right or
franchise or the existence of any Subsidiary if the Board of Directors
determines that the preservation thereof is no longer desirable in the conduct
of its business and that the loss thereof is not disadvantageous in any material
respect to the Holders of the outstanding Securities.
ARTICLE 7
SUCCESSOR CORPORATION
SECTION 7.1. When Company May Merge, Etc.
The Company shall not consolidate with or merge with or into, or sell,
lease, convey, assign or otherwise 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 of America, any State thereof or
the District of Columbia, and such person expressly
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assumes, by supplemental indenture executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and interest on all of the outstanding
Securities and the due and punctual performance and observance of all
other covenants, agreements and conditions contained in this Indenture
and the Securities to be performed or observed by the Company
(including, without limitation, the obligations of the Company under
Article 4 hereof); and
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
such successor corporation as a result of such transaction as having
been incurred by the Company or such successor corporation, as the case
may be, 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 12.4 and shall state that such transaction and any
such supplemental indenture comply with this Article 7 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 7.1.
SECTION 7.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance,
assignment or other transfer of all or substantially all of the property and
assets of the Company in accordance with Section 7.1, the successor corporation
(if other than the Company) formed by such consolidation or into which the
Company is merged or to which such sale, lease, conveyance, assignment or other
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, and the
predecessor corporation (except in the case of a lease) shall be released from
all of its obligations under this Indenture and the Securities.
ARTICLE 8
DEFAULT AND REMEDIES
SECTION 8.1. Events of Default.
An "Event of Default" shall occur if:
(1) the Company defaults in the payment of any 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 any principal of
(including, without limitation, any premium, if any, on) any Security
when the same becomes due and
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payable (whether at maturity, upon redemption, on a Change of Control
Purchase Date 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 of the Company or any
Significant Subsidiary having an aggregate outstanding principal amount
in excess of $10,000,000, 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, or such acceleration having
been rescinded or annulled, within a period of 10 days following the
occurrence of such acceleration;
(5) the Company or any Significant Subsidiary 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 or any
Significant Subsidiary in an involuntary case or proceeding;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of the
property of the Company or any Significant Subsidiary; or
(C) orders the liquidation of the Company or any
Significant Subsidiary;
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 successor thereto) 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.
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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 aggregate
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 8.1
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 8.1 is cured, it
ceases.
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, a Paying Agent, any Holder
or any agent of any Holder.
SECTION 8.2. Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (5) or (6) of Section 8.1) occurs and is continuing, the Trustee may, by
notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding may, by notice to the Company and the
Trustee, 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 8.1 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 the Trustee or any
Holder. The Holders of a majority in aggregate principal amount of the
Securities then outstanding by notice to 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
(calculated at the rate per annum borne by the Securities) 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 9.7 have been made. Anything herein contained to the
contrary notwithstanding (other than the provisions of this sentence), in the
event of any acceleration pursuant to this Section 8.2, 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, and except that any
premium payable in respect of any Securities which shall have been called for
redemption shall be due and payable upon such acceleration.
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SECTION 8.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may, but
shall not be obligated to, 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 8.4. Waiver of Defaults and Events of Default.
Subject to Sections 8.7 and 11.2, the Holders of a majority in
principal amount of the Securities then outstanding by notice to the Trustee may
waive an existing default or Event of Default and its consequence, except a
default or Event of Default in the payment of the principal of or interest on
any Security or any default or Event of Default in respect of any provision of
this Indenture or the Securities which, under Section 11.2, cannot be modified
or amended without the consent of the Holder of each Security affected. When a
default or Event of Default is waived, it is cured and ceases.
SECTION 8.5. 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 Holder 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 8.6. Limitations on Suits.
A Holder 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 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 the Trustee to
pursue the remedy;
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(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 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 8.7. 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 and
this Indenture, 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 8.8. Collection Suit by Trustee.
If an Event of Default in the payment of principal or interest
specified in clause (1) or (2) of Section 8.1 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 8.9. 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 Holders 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 Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due 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 9.7, and to the extent
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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 Holders 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 Holder, 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 Holder in any such
proceeding.
SECTION 8.10. Priorities.
If the Trustee collects any money pursuant to this Article 8, it shall
pay out the money in the following order:
First, to the Trustee for amounts due under Section 9.7;
Second, to the holders of Senior Indebtedness to the extent
required by Article 5;
Third, to Holders 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
Holders pursuant to this Section 8.10.
SECTION 8.11. 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 8.11 does not apply to a suit made by the Trustee, a suit by a
Holder pursuant to Section 8.7, or a suit by Holders of more than 10% in
principal amount of the Securities then outstanding.
SECTION 8.12. 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
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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 9
TRUSTEE
SECTION 9.1. 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 9.1;
(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 8.5.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers unless the Trustee shall have received adequate indemnity in
its opinion against potential costs and liabilities incurred by it relating
thereto.
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(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 9.1.
(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 9.2. Rights of Trustee.
Subject to Section 9.1:
(a) The Trustee may rely conclusively 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 12.4(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, 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 9.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company 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 9.10 and 9.11.
SECTION 9.4. 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.
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SECTION 9.5. Notice of Default or Events of Default.
If a default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Securityholder notice of
the default or Event of Default within 90 days after it occurs. 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 9.6. Reports by Trustee to Holders.
If such report is required by TIA Section 313, within 60 days after
each January 15, beginning with the January 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated as
of such January 15 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 or listed or
admitted to trading on any quotation system and any changes in the stock
exchanges or quotation systems on which the Securities are listed or admitted to
trading.
SECTION 9.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation (as agreed to from time to time by the Company and the Trustee) for
its services (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust). The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it. 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 9.7 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 gross
negligence or bad faith.
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To secure the Company's payment obligations in this Section 9.7, the
Trustee shall have a senior claim 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 the
Securities. The obligations of the Company under this Section 9.7 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 8.1 occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 9.8. 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 9.10;
(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. The resignation or removal of a Trustee shall not be effective until a
successor Trustee shall have delivered the written acceptance of its appointment
as described below.
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 10% 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 9.10, any Holder 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 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 Holder.
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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
9.8, the Company's obligations under Section 9.7 shall continue for the benefit
of the retiring Trustee.
SECTION 9.9. Successor Trustee by Xxxxxx, Etc..
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust 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 9.10. Such successor Trustee shall
promptly mail notice of its succession to the Company and each Holder.
SECTION 9.10. 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 9. 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 9.11. 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 10
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 10.1. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for and except as further provided below),
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
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has theretofore been deposited in trust and thereafter repaid
to the Company as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at the
Final Maturity Date within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of clause (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee or a Paying Agent (other than the Company or any of its
Affiliates) as trust funds in trust for the purpose cash in an amount
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Final Maturity
Date or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.7 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the provisions of Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 3.8,
3.9, 3.10, 3.11, 3.12, 3.13 and 12.5, Article 4, the last paragraph of Section
6.2 and this Article 10, shall survive.
SECTION 10.2. Application of Trust Money.
Subject to the provisions of Section 10.3, the Trustee or a Paying
Agent shall hold in trust, for the benefit of the Holders, all money deposited
with it pursuant to Section 10.1 and shall apply the deposited money in
accordance with this Indenture and the Securities to the payment of the
principal of and interest on the Securities. Money so held in trust shall not be
subject to the subordination provisions of Article 5.
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SECTION 10.3. Repayment to Company.
The Trustee and each Paying Agent shall promptly pay to the Company
upon request any excess money (i) deposited with them pursuant to Section 10.1
and (ii) held by them at any time.
The Trustee and each 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 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, Holders entitled to
money must look to the Company for payment as general creditors.
SECTION 10.4. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 10.2 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 10.1 until such
time as the Trustee or such Paying Agent is permitted to apply all such money in
accordance with Section 10.2; 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 such Paying Agent.
ARTICLE 11
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 11.1. 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 7.1;
(b) to cure any ambiguity, defect or inconsistency or to make
any other change that does not adversely affect the rights of any
Securityholder;
(c) to comply with the provisions of the TIA; or
(d) to appoint a successor Trustee.
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SECTION 11.2. 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
aggregate principal amount of the Securities then outstanding. The Holders of at
least a majority in aggregate 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. However, notwithstanding the foregoing but subject to Section
11.4, without the written consent of each Securityholder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 8.4, may not:
(1) reduce the percentage of the aggregate principal amount of
the outstanding 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 change the definition of "Change in
Control" or "Change in Control Purchase Date" applicable to any
Security or the amount payable by the Company to the Holder of any
Security upon a Change in Control, or alter any of the other Change in
Control provisions or any of the redemption provisions in a manner
adverse to the Holder of any Security;
(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 (whether at maturity, upon
redemption, on an interest payment date, on a Change in Control
Purchase Date or otherwise) of the principal of (including any premium)
or interest on any Security;
(6) make any changes in Section 8.4 or in this Section 11.2,
except to increase any percentage in aggregate principal amount of
outstanding Securities required for any amendment, supplement or
waiver;
(7) modify the provisions of Article 5 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 11.2 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 11.2
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
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defect therein, shall not, however, in any way impair or affect the validity of
any such amendment, supplement or waiver.
An amendment or supplement under this Section 11.2 or under Section
11.1 may not make any change that adversely affects the rights under Article 5
of any holder of an issue of Senior Indebtedness unless the holders of that
issue, pursuant to its terms, consent to the change.
SECTION 11.3. 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 11.4. 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 (8) of Section 11.2. 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 Xxxxxx's Security.
SECTION 11.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
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 11.6. Trustee to Sign Amendments, etc..
The Trustee shall sign any amendment or supplement authorized pursuant
to this Article 11 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, in its sole discretion, but need not sign it. In signing or
refusing to sign such amendment or supplement, the Trustee shall be entitled to
receive and, subject to Section 9.1, 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.
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ARTICLE 12
MISCELLANEOUS
SECTION 12.1. 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 12.2. 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:
xxxxxxxx.xxx Corporation
(doing business as Xxxxxx.xxx)
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
If to the Trustee:
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
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.
Any notice or communication mailed to a Securityholder shall be mailed
by first-class mail to it at its address shown on the register kept by the
Primary Registrar.
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 12.3. Communications by Holders With Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
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SECTION 12.4. 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 12.5. Record Date for Vote or Consent of Securityholders.
The Company (or, in the event deposits have been made pursuant to
Section 10.1, the Trustee) may set a record date for purposes of determining the
identity of Holders 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 11.4, if a record date is fixed, those persons who were
Holders of Securities at the close of business on 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.
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SECTION 12.6. Rules by Trustee, Paying Agent, Registrar and Conversion
Agent.
The Trustee may make reasonable rules (not inconsistent with the terms
of this Indenture) for action by or at a meeting of Holders. Any Registrar,
Paying Agent or Conversion Agent may make reasonable rules for its functions.
SECTION 12.7. 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 are not required
to be open. If a payment date is a Legal Holiday, payment may be made on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
SECTION 12.8. Governing Law.
This Indenture and the Securities shall be governed by, and construed
in accordance with, the laws of the State of New York.
SECTION 12.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10. No Recourse Against Others.
All liability described in paragraph 18 of the Securities of any
director, officer, employee or shareholder, as such, of the Company is waived
and released.
SECTION 12.11. 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 12.12. 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 12.13. 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.
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SECTION 12.14. 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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as
of the date and year first above written.
XXXXXXXX.XXX CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxxx
-----------------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Chairman of the Board of Directors
LASALLE NATIONAL BANK, as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trust Officer
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EXHIBIT A
[FORM OF FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.](1)
[THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD UNDER RULE 144(k) (OR ANY SUCCESSOR
----------
(1) These paragraphs should be included only if the Security is a global
Security.
73
PROVISION) UNDER THE SECURITIES ACT WHICH IS APPLICABLE TO THIS SECURITY (THE
"RESALE RESTRICTION TERMINATION DATE"), ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (D) PURSUANT TO AND IN COMPLIANCE WITH RULE
144 UNDER THE SECURITIES ACT, IF AVAILABLE, OR (E) PURSUANT TO AND IN COMPLIANCE
WITH ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (SUBJECT TO THE CONDITION THAT, IF THIS SECURITY IS SOLD OR
TRANSFERRED PURSUANT TO THIS CLAUSE (E), THIS SECURITY MUST UPON SUCH SALE OR
TRANSFER CEASE TO BE A "RESTRICTED SECURITY" WITHIN THE MEANING OF RULE 144 (OR
ANY SUCCESSOR PROVISION) UNDER THE SECURITIES ACT), SUBJECT IN EACH OF THE
FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF THE HOLDER'S
PROPERTY BE AT ALL TIMES WITHIN ITS CONTROL, AND SUBJECT TO THE RIGHT OF THE
COMPANY, ANY REGISTRAR FOR THIS SECURITY AND THE TRUSTEE, PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E), TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE TRUSTEE OR A REGISTRAR. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY
AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.](2)
----------
(2) These paragraphs to be included only if the Security is a Transfer
Restricted Security.
2
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XXXXXXXX.XXX CORPORATION
(Doing Business as Xxxxxx.xxx)
INCORPORATED UNDER THE
LAWS OF THE STATE OF DELAWARE
CUSIP: [83403E AA 6 - For Restricted Global Securities] R-_____
7 1/4% Convertible Subordinated Notes Due December 1, 2003
Xxxxxxxx.xxx Corporation, a Delaware corporation doing business as
Xxxxxx.xxx (the "Company" or "Xxxxxx.xxx", which terms shall include any
successor corporation under the Indenture referred to on the reverse hereof),
promises to pay to ___________, or registered assigns, the principal sum of
______________ Dollars ($______________) on December 1, 2003 [or such greater or
lesser amount as is indicated on the Schedule of Exchanges of Notes on the other
side of this Note].(3)
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 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.
[SIGNATURE PAGE FOLLOWS]
----------
(3) This phrase should be included only if the Security is a global Security.
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75
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
XXXXXXXX.XXX CORPORATION
By:_____________________________________
Name:
Title:
[SEAL]
Attest:
By:_____________________________________
Name:
Title:
Dated:
Trustee's Certificate of Authentication: This is
one of the Securities referred to in the
within-mentioned Indenture.
LASALLE NATIONAL BANK,
as Trustee
By:_____________________________________
Authorized Signatory
4
76
[FORM OF REVERSE SIDE OF SECURITY]
XXXXXXXX.XXX CORPORATION
(Doing Business as Xxxxxx.xxx)
7 1/4% Convertible Subordinated Notes Due December 1, 2003
1. Interest
Xxxxxxxx.xxx Corporation, a Delaware corporation doing business as
Xxxxxx.xxx (the "Company" or "Xxxxxx.xxx", which terms shall include any
successor corporation under the Indenture hereinafter referred to), promises to
pay interest on the principal amount of this Note at the rate of 7 1/4% per
annum. The Company shall pay interest semiannually on June 1 and December 1 of
each year, commencing June 1, 1999. 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 November 23, 1998; 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 May
15th or November 15th, as the case may be, next preceding the related interest
payment date. The Holder must surrender this Note to a 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
in respect of any Certificated Security by check or wire payable in such money.
It may mail an interest check to the Holder's registered address.
Notwithstanding the foregoing, so long as this Note is registered in the name of
a Depositary or its nominee, all payments hereon shall be made by wire transfer
of immediately available funds to the account of the Depositary or its nominee.
3. Paying Agent, Registrar and Conversion Agent
Initially, LaSalle National Bank (the "Trustee", which term shall
include any successor trustee under the Indenture hereinafter referred to) 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, subject to certain limitations set forth
in the Indenture, act as Paying Agent or Registrar.
4. Indenture, Limitations
This Note is one of a duly authorized issue of Securities of the
Company designated as its 7 1/4% Convertible Subordinated Notes Due December 1,
2003 (the "Notes"), issued under an Indenture dated as of November 23, 1998
(together with any supplemental indentures thereto, the
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"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
Indenture by reference to the Trust Indenture Act of 1939, as amended, 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 $63,250,000 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 December
6, 2001, as a whole or from time to time in part, at the election of the
Company. The Redemption Prices (expressed as percentages of the principal
amount) are as follows for Notes redeemed during the periods set forth below:
Period Redemption Price
------ ----------------
December 6, 2001 through November 30, 2002..................... 101.813%
December 1, 2002 and thereafter................................ 100.000%
in each case together with accrued interest up to but not including the
Redemption Date; provided that installments of interest that are due and payable
on interest payment dates falling on or prior to the relevant Redemption Date
will be payable to the Holders in whose names the Notes are registered at the
close of business on the relevant record dates.
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 plus accrued interest, if any,
accrued to but excluding the Redemption Date, 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 of $1,000 in excess thereof) of the Notes held by such
Holder on the date that is 30 Business Days after the occurrence of 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 (in whole or in a portion thereof that is $1,000 or an integral
multiple of $1,000 in excess thereof) at any time prior to the
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close of business on the Business Day next preceding the Change in Control
Purchase Date 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 the principal amount of such Note (or
any portion thereof equal to $1,000 or any integral multiple of $1,000 in excess
thereof) into shares of Common Stock at any time prior to the close of business
on December 1, 2003; 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 or such
earlier date as the Holder presents such Note for redemption (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). The initial Conversion Price is
$18.34 per share, subject to adjustment under certain circumstances. The number
of shares of Common Stock issuable upon conversion of a Note is determined by
dividing the principal amount of the Note or portion thereof 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 price (as defined in the Indenture) of the Common Stock on the Trading
Day immediately 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 a Conversion Agent,
(b) surrender the Note to a Conversion Agent, (c) furnish appropriate
endorsements and transfer documents if required by a Registrar or a Conversion
Agent, and (d) pay any transfer or similar tax, if required. Interest accrued to
but excluding December 6, 2001 shall be paid on any Note called for redemption
and surrendered for conversion on or before the close of business on the
Business Day immediately preceding December 6, 2001 (with interest accrued from
and including December 1, 2001 to but excluding December 6, 2001 being paid to
the Holder surrendering such Note for conversion). 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 in whose name
such Note was registered at the close of business on such record date. In such
event, unless the Note has been called for redemption, such Note, when
surrendered for conversion, 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. If the Company defaults in the
payment of interest payable on such interest payment date, the Company shall
promptly repay such funds to such Holder. 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
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converted only if the Change in Control Purchase Notice is withdrawn in
accordance with the terms of the Indenture.
9. Conversion Arrangement on Call for Redemption
Any Notes called for redemption, unless surrendered for conversion
before the close of business on the Redemption Date, may be deemed to be
purchased from the Holders of such Notes 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 Notes from the Holders, to convert
them into Common Stock of the Company and to make payment for such Notes 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
in relation thereto 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.
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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 an existing default or
Event of Default and its consequence or compliance with any provision of the
Indenture or the Notes 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, 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 (except in certain
circumstances specified in the Indenture) be released from those obligations.
16. Defaults and Remedies
An Event of Default is: default for 30 days in payment of any interest
on any Notes; default in payment of any principal (including, without
limitation, any premium, if any) on the Notes when due (whether at maturity,
upon redemption, on a Change of Control Purchase Date, or otherwise); 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 or any Significant
Subsidiary; and the acceleration of certain other indebtedness of the Company or
any Significant Subsidiary. If an Event of Default (other than as a result of
certain events of bankruptcy, insolvency or reorganization of the Company or any
Significant Subsidiary) 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 of the Company or any
Significant Subsidiary, 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.
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17. Trustee Dealings With the Company
LaSalle National Bank, 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 all of the Notes have been delivered to the Trustee for cancellation
(subject to certain exceptions provided in the Indenture) or all the Notes not
theretofore delivered to the Trustee for cancellation have become due and
payable or will become due and payable at their Final Maturity Date within one
year or are to be called for redemption within one year, all on the terms and
conditions provided in the Indenture, and if the Company deposits with the
Trustee or a Paying Agent cash in an amount sufficient to pay the principal of
and interest on the Notes to the date of such deposit (in the case of Notes
which have become due and payable) or to the Final Maturity Date or the
Redemption Date, as the case may be, the Company will be discharged from the
Indenture except for certain provisions 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 terms defined in the Indenture and used in this Note but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
22. Indenture to Control; Governing Law
In the case of any conflict between the provisions of this Note and the
Indenture, the provisions of the Indenture shall control. This Note shall be
governed by, and construed in accordance with, the laws of the State of New
York.
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The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to: xxxxxxxx.xxx
Corporation (doing business as Xxxxxx.xxx), 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Chief Financial Officer.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
------------------------------------
Date:
--------------------- -----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
* Signature guaranteed by:
------------------------------------------------------
By:
-----------------------------------------------------------------------------
----------
* The signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP);
or (iv) such other guaranty program acceptable to the Trustee.
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CONVERSION NOTICE
To convert this Note into Common Stock of the Company, check the box:
[ ]
To convert only part of this Note, state the principal amount to be
converted (must be $1,000 or a multiple of $1,000): $_____________
If you want the stock certificate made out in another person's name,
fill in the form below:
--------------------------------------------------------------------------------
(Insert other person's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type other person's name, address and zip code)
Your Signature:
------------------------------------
Date:
--------------------- -----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
* Signature guaranteed by:
------------------------------------------------------
By:
-----------------------------------------------------------------------------
----------
* The signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP);
or (iv) such other guaranty program acceptable to the Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased, in whole or in part,
by the Company pursuant to Section 3.8 of the Indenture, check the following
box: [ ]
If you want to have only part of this Note purchased by the Company,
state the principal amount you want to be purchased (must be $1,000 or a
multiple of $1,000): $_____________
Your Signature:
------------------------------------
Date:
--------------------- -----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
* Signature guaranteed by:
------------------------------------------------------
By:
-----------------------------------------------------------------------------
----------
* The signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP);
or (iv) such other guaranty program acceptable to the Trustee.
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SCHEDULE OF EXCHANGES OF NOTES(4)
The following exchanges, redemptions, repurchases or conversions of a
part of this global Note have been made:
Principal amount of Signature of
Amount of decrease Amount of increase this global Note Authorized
in principal amount in principal amount following such Signatory of
Date of Transaction of this global Note of this global Note decrease or increase Securities Custodian
------------------- ------------------- ------------------- -------------------- --------------------
----------
(4) This schedule should be included only if the Security is a global Security.
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
TRANSFER RESTRICTED SECURITIES(5)
Re: 7 1/4% Convertible Subordinated Notes Due December 1, 2003 (the
"Notes") of xxxxxxxx.xxx Corporation (doing business as Xxxxxx.xxx)
This certificate relates to $________________ principal amount of Notes
owned in (check applicable box)
[ ] book-entry or [ ] definitive form by _____________________ (the
"Transferor").
The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Notes.
In connection with such request and in respect of each such
Note, the Transferor does hereby certify that the Transferor is
familiar with transfer restrictions relating to the Notes as provided
in Section 2.12 of the Indenture dated as of November 23, 1998 between
xxxxxxxx.xxx Corporation (doing business as Xxxxxx.xxx) and LaSalle
National Bank (the "Indenture"), and the transfer of such Note is being
made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act") (check
applicable box) or the transfer or exchange, as the case may be, of
such Note does not require registration under the Securities Act
because (check applicable box):
[ ] Such Note is being transferred pursuant to an effective
registration statement under the Securities Act.
[ ] Such Note is being acquired for the Transferor's own account,
without transfer.
[ ] Such Note is being transferred to the Company or a Subsidiary (as
defined in the Indenture) of the Company.
[ ] Such Note is being transferred to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as defined in
Rule 144A or any successor provision thereto ("Rule 144A") under the
Securities Act) that is purchasing for its own account or for the
account of a "qualified institutional buyer", in each case to whom
notice has been given that the transfer is being made in reliance on
such Rule 144A, and in each case in reliance on Rule 144A.
----------
(5) This certificate should only be included if this Security is a Transfer
Restricted Security.
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[ ] Such Note is being transferred pursuant to and in compliance
with an exemption from the registration requirements under the
Securities Act in accordance with Rule 144 (or any successor thereto)
("Rule 144") under the Securities Act.
Such Note is being transferred pursuant to and in compliance
with an exemption from the registration requirements of the Securities
Act (other than an exemption referred to above) and as a result of
which such Note will, upon such transfer, cease to be a "restricted
security" within the meaning of Rule 144 under the Securities Act.
The Transferor acknowledges and agrees that, if the transferee
will hold any such Notes in the form of beneficial interests in a
global Note which is a "restricted security" within the meaning of Rule
144 under the Securities Act, then such transfer can only be made
pursuant to Rule 144A under the Securities Act and such transferee must
be a "qualified institutional buyer" (as defined in Rule 144A).
_________________________________________
(Insert Name of Transferor)
By:______________________________________
Date:_____________________________
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