FORM OF SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of , 1998 (this "Supplemental
Indenture"), among EMCOR Group, Inc, a Delaware corporation (the "Issuer") and
State Street Bank and Trust Company, a Massachusetts Trust Company, as trustee
(the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer and the Trustee are parties to an Indenture dated as of
, 1998 (as amended, supplemented or otherwise modified from time to time,
the "Indenture");
WHEREAS, the Board of Directors of the Issuer has adopted a Board
Resolution authorizing the Issuer to issue $115,000,000 in aggregate principal
amount of % Convertible Subordinated Notes due 2005 in the form attached hereto
as Exhibit A (the "Notes"), which Notes shall constitute a series of Securities
under the Indenture; and
WHEREAS, the Issuer has requested the Trustee and the Trustee has agreed to
join in the execution of this Supplemental Indenture in accordance with the
terms of Section 8.1 of the Indenture and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the promises and mutual agreements
herein contained, the Issuer and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the Holders from time to time of the Notes as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Definitions Incorporated by Reference. Unless
otherwise defined herein, the use of the terms and expressions herein is in
accordance with the definitions, uses and constructions contained in the
Indenture and the form of Note attached hereto as Exhibit A and incorporated
herein by reference.
SECTION 1.2. Amendments to Article One of the Indenture. Article One of the
Indenture is hereby amended in respect of the Notes and only in respect of the
Notes, by adding thereto, and replacing where applicable, or by amending the
following definitions in their appropriate alphabetical order:
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"Capital Stock" means, with respect to any corporation, any and all shares,
interests, rights to purchase (other than convertible or exchangeable
indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Cash" means such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
"Change of Control" means the occurrence of any of the following events:
(i) any merger or consolidation of the Issuer with or into any person or any
sale, transfer or other conveyance, whether direct or indirect, of all or
substantially all of the assets of the Issuer, on a consolidated basis, in one
transaction or a series of related transactions, if, immediately after giving
effect to such transaction or series of related transactions, any "person" or
"group" is or becomes the "beneficial owner," directly or indirectly, of more
than 50% of the total voting power in the aggregate normally entitled to vote in
the election of directors, managers, or trustees, as applicable, of the
transferee or surviving entity, (ii) when any "person" or "group" is or becomes
the "beneficial owner," directly or indirectly, of more than 50% of the total
voting power in the aggregate normally entitled to vote in the election of
directors of the Issuer, (iii) when, during any period of 12 consecutive months
after the Issue Date, individuals who at the beginning of any such 12-month
period constituted the Board of Directors of the Issuer (together with any new
directors whose election by such Board or whose nomination for election by the
stockholders of the Issuer was approved by a vote of a majority of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the Issuer
then in office, (iv) a sale or disposition, whether directly or indirectly, by
the Issuer of all or substantially all of its assets, or (v) the pro rata
distribution by the Issuer to its stockholders of substantially all of its
assets.
For purposes of this definition of "Change of Control," (i) the terms
"person" and "group" shall have the meaning used for purposes of Rules 13d-3 and
13d-5 of the Exchange Act as in effect on the Issue Date, whether or not
applicable; and (ii) the term "beneficial owner" shall have the meaning used in
Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Issue Date,
whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time or upon the occurrence of certain events.
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"Common Stock" means the Issuer's common stock, par value $0.01 per share,
or as such stock may be reconstituted from time to time.
"Conversion Price" shall have the meaning set forth in Section 14.4.
"Conversion Shares" shall have the meaning set forth in Section 14.5(k).
"Date of Conversion" shall have the meaning set forth in Section 14.2.
"Distribution Date" shall have the meaning set forth in Section 14.5(k).
"Indebtedness" is hereby amended by adding the words "surety bond" in
clause (ii) thereof between the words "banker's acceptance" and "or", and by
adding a comma after the word "acceptance" therein.
"Interest Payment Date" means the stated due date of an installment of
interest on the Securities. With respect to the Notes, interest is payable
semi-annually on __________ and ________ of each year, commencing on __________,
1998.
"Issue Date" means the date on which the Notes are originally issued and
authenticated under the Indenture.
"Last Sale Price" shall have the meaning set forth in Section 14.3.
"Notice of Default" shall mean a written notice as set forth in Section
5.1(d) or 5.1(g) of the Indenture, as amended by Sections 2.3(b) and (c) hereof.
"Repurchase Date" shall have the meaning set forth in Section 15.1.
"Repurchase Offer" shall have the meaning set forth in Section 15.1.
"Repurchase Offer Period" shall have the meaning set forth in Section
15.1(b).
"Repurchase Price" shall have the meaning set forth in Section 15.1.
"Repurchase Put Date" shall have the meaning set forth in Section
15.1(f)(v).
4 "Stated Maturity" when used with respect to any Note, means [_____ __],
2005.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on the New York Stock
Exchange.
ARTICLE TWO
TERMS AND ISSUANCE OF THE NOTES
Section 2.1. Form of Notes; Incorporation of Terms. The Notes shall
initially be issued in global form, in denominations of $1,000 and integral
multiples thereof, substantially in the form of Exhibit A attached hereto. The
terms of such Notes are herein incorporated by reference and are part of this
Supplemental Indenture.
Section 2.2. Issue of Notes. A series of Securities which shall be
designated the "___% Convertible Subordinated Notes due 2005" shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of the Indenture
and this Supplemental Indenture (including the form of Note set forth as Exhibit
A hereto).
Upon receipt of an Issuer Order, the Trustee shall authenticate Securities
for original issue in the aggregate principal amount of $100,000,000 and such
additional principal amount, if any, as shall be determined from time to time
pursuant to the next sentence of this Section 2.2. Upon receipt by the Trustee
of an Officers' Certificate stating that Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation (the "Underwriter") has elected to purchase from the Issuer a
specified aggregate principal amount of additional Securities (the aggregate of
all such additional Securities not to exceed $15,000,000) pursuant to Section 2
of the Underwriting Agreement dated [_______, 1998] between the Issuer and the
Underwriter, the Trustee shall authenticate and deliver such specified aggregate
principal amount of additional Securities to or upon the written order of the
Issuer as set forth in such Officers' Certificate. Each such Officers'
Certificate must be received by the Trustee not later than [ ], and in any event
at least two full Business Days prior to the proposed date for delivery of such
additional Securities. The aggregate principal amount of Notes of the series
created hereby which may be authenticated and delivered under the Indenture
shall not, except as permitted by the provisions of the Indenture, exceed
$115,000,000.
Section 2.3. Amendments. Solely as it relates to the
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Notes, the Indenture is hereby amended as follows. The Indenture is not amended
as it relates to any other series of Securities to be issued thereunder.
(a) Section 5.1(a) is hereby amended by inserting the words "or
acceleration" after the word "declaration". Section 5.1(a) is further
amended to add after the word "otherwise" the following language:
"including, without limitation, default in the payment of the Repurchase
Price on the Repurchase Date in accordance with Article Fifteen, whether or
not such payment is prohibited by Article Thirteen".
(b) Section 5.1(d) is hereby amended by inserting after the word "remedied"
the following language: "and stating that such notice is a `Notice of
Default' hereunder,".
(c) Section 5.1(g) is hereby amended by inserting the number "$15,000,000"
in place of the number "$25,000,000" and by inserting the number "30" in
place of the number "20".
(d) Section 5.1(h) is hereby renumbered as Section 5.1(j).
(e) A new Section 5.1(h) is hereby added immediately following Section
5.1(g) and shall read as follows: "the failure by the Issuer to perform any
conversion of the Securities required under this Indenture, and the
continuance of such failure for a period of 30 days, whether or not such
payment or conversion is prohibited by Article Thirteen; or".
(f) Section 5.1(i) is hereby added immediately following Section 5.1(h) and
shall read as follows: "final unsatisfied judgments not covered by
insurance (including self-insurance), or the issuance of any warrant of
attachment against any portion of the property or assets of the Issuer or
any of its Subsidiaries, aggregating in excess of $15,000,000 at any one
time shall have been rendered against the Issuer or any of its Subsidiaries
and not have been stayed, bonded or discharged for a period (during which
execution shall not be effectively stayed) of 60 days (or, in the case of
any such final judgment which provides for payment over time, which shall
so remain unstayed, unbonded or undischarged beyond any applicable payment
date provided therein); or"
(g) The following paragraph is hereby inserted immediately following
Section 5.1(j):
"Notwithstanding the 60-day period and notice requirement contained in
Section 5.1(d) above, with respect to a default under Article Fifteen, the
60-day period referred to in Section 5.1(d) shall be deemed to have begun as of
the date the
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notice of Repurchase Offer is required to be sent under Section 15.1(f), so long
as the Trustee or Holders of at least 25% in principal amount of the outstanding
Securities thereafter give the Notice of Default referred to in Section 5.1(d)
to the Issuer and, if applicable, the Trustee; provided, however, that if the
breach or default is a result of a default in the payment when due of the
Repurchase Price on the Repurchase Date, such Event of Default shall be deemed,
for purposes of this Section 5.1, to arise no later than on the Repurchase
Date."
(h) The final paragraph of Section 5.1 is hereby amended and restated in
its entirety as follows:
"Except with respect to an Event of Default pursuant to Section 5.1 (a),
(b), (c) or (h), the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a paying agent or any Securityholder."
(i) Section 5.8 is hereby amended and restated in its entirety as follows
"SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.8 being hereby defined to be the events specified
in clauses (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) of Section 5.1,
not including periods of grace, if any, provided for therein and irrespective of
the giving of the written notice specified in said clause (d) or (g) but in the
case of any default of the character specified in said clause (d) or (g) no such
notice to Securityholders shall be given until at least 60 days after the giving
of written notice thereof to the Issuer pursuant to said clause (d) or (g), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Securities, or in
the payment or satisfaction of any sinking fund or other purchase obligation,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers or both, of the Trustee in good faith determines that
the withholding of such notice is in the best interests of the Securityholders."
(j) Sections 10.1 (b) and 10.1 (c) are hereby deleted in their entirety.
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(k) The following Article Fourteen, captioned "ARTICLE FOURTEEN CONVERSION
OF SECURITIES", is hereby added to the Indenture immediately following
Article Thirteen thereof:
"SECTION 14.1. Conversion Privilege. Subject to and upon compliance with
the provisions of this Article Fourteen, at the option of the Holder thereof,
any Security may at any time be converted, in whole, or in part in multiples of
$1,000 principal amount, into fully paid and non-assessable shares of Common
Stock issuable upon conversion of the Securities, at the Conversion Price in
effect at the Date of Conversion, until and including, but not after the close
of business on the Stated Maturity, or unless such Security or some portion
thereof shall have been called for redemption or delivered for repurchase prior
to such date and no default is made in making due provision for the payment of
the redemption price in accordance with the terms of this Indenture, in which
case, with respect to such Security or portion thereof as has been so called for
redemption or delivered for repurchase, such Security or portion thereof may be
so converted until and including, but not after, the close of business on the
Business Day prior to the Redemption Date or Repurchase Date, as applicable, for
such Security, unless the Issuer subsequently fails to pay the applicable
Redemption Price or Repurchase Price, as the case may be.
SECTION 14.2. Exercise of Conversion Privilege. In order to exercise the
conversion privilege, the Holder of any Security to be converted shall surrender
such Security to the Issuer at any time during usual business hours at its
office or agency maintained for the purpose as provided in this Indenture,
accompanied by a fully executed written notice, in substantially the form set
forth on the reverse of the Security, that the Holder elects to convert such
Security or a stated portion thereof constituting a multiple of $1,000 principal
amount, and, if such Security is surrendered for conversion during the period
between the close of business on any record date and the opening of business on
the next following Interest Payment Date and has not been called for redemption
on a Redemption Date which occurs within such period, accompanied also by
payment to the Issuer of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of the Security being surrendered
for conversion, notwithstanding such conversion; provided, however, that no such
payment shall be required with respect to interest payable on [____________],
2001. The Holder of any Security at the close of business on a record date will
be entitled to receive the interest payable on such Security on the
corresponding Interest Payment Date notwithstanding the conversion thereof after
such record date. The interest payment with respect to a Note called for
redemption on a date during the period from the close of business on or after
any record date to the close of business on the Business Day following the
corresponding Interest Payment Date will be payable on the
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corresponding Interest Payment Date to the registered Holder at the close of
business on that record date (notwithstanding the conversion of such Note before
the corresponding Interest Payment Date), and a Holder who elects to convert
need not include funds equal to the interest paid. Such notice of conversion
shall also state the name or names (with address) in which the certificate or
certificates for shares of Common Stock shall be issued. Securities surrendered
for conversion shall (if reasonably required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer duly executed by, the Holder or his
attorney duly authorized in writing. As promptly as practicable after the
receipt of such notice and the surrender of such Security as aforesaid, the
Issuer shall, subject to the provisions of Section 14.9 hereof, issue and
deliver at such office or agency to such Holder, or on his written order, a
certificate or certificates for the number of full shares of Common Stock
issuable on such conversion of Securities in accordance with the provisions of
this Article Fourteen and Cash, as provided in Section 14.3 hereof, in respect
of any fraction of a share of Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date (herein called the "Date of
Conversion") on which such Security shall have been surrendered as aforesaid,
and the person or persons in whose name or names any certificate or certificates
for shares of Common Stock shall be issuable upon such conversion shall be
deemed to have become on the Date of Conversion the holder or holders of record
of the shares represented thereby; provided, however, that any such surrender on
any date when the stock transfer books of the Issuer shall be closed shall cause
the person or persons in whose name or names the certificate or certificates for
such shares are to be issued to be deemed to have become the record holder or
holders thereof for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open, but such conversion
shall nevertheless be at the Conversion Price in effect at the close of business
on the date when such Security shall have been so surrendered with the
conversion notice. In the case of conversion of a portion, but less than all, of
a Security, the Issuer shall as promptly as practicable execute, and the Trustee
shall authenticate and deliver to the Holder thereof, at the expense of the
Issuer, a Security or Securities in the aggregate principal amount of the
unconverted portion of the Security surrendered. Except as otherwise expressly
provided in this Indenture, no payment or adjustment shall be made for interest
accrued on any Security (or portion thereof) converted or for dividends or
distributions on any Common Stock issued upon conversion of any Security.
SECTION 14.3. Fractional Interest. No fractions of shares or scrip
representing fractions of shares shall be issued upon conversion of Securities.
If more than one Security shall
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be surrendered for conversion at one time by the same holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities so surrendered. If any
fraction of a share of Common Stock would, except for the foregoing provisions
of this Section 14.3, be issuable on the conversion of any Security or
Securities, the Issuer shall make payment in lieu thereof in an amount of Cash
equal to the value of such fraction computed on the basis of the last sale price
of the Common Stock as quoted on the Nasdaq National Market (or if not quoted
thereon, then on the principal national securities exchange on which the Common
Stock is listed or admitted to trading) at the close of business on the Date of
Conversion or if no such sale takes place on such day, the last sale price for
such day shall be the average of the closing bid and asked prices regular way on
the Nasdaq National Market (or if not quoted thereon, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading)
for such day (any such last sale price being hereinafter referred to as the
"Last Sale Price"). If on such Trading Day the Common Stock is not quoted by any
such organization, the fair value of such Common Stock on such day, as
reasonably determined in good faith by the Board of Directors of the Issuer,
shall be used.
SECTION 14.4. Conversion Price. The price per share of Common Stock
issuable upon conversion of the Securities shall initially be $____ (or $____ in
principal amount of Securities for each such share of Common Stock) (the
"Conversion Price").
SECTION 14.5. Adjustment of Conversion Price. The Conversion Price shall be
subject to adjustment from time to time as follows:
(a) In case the Issuer shall (1) make or pay a dividend (or other
distribution) in shares of Common Stock on any class of Capital Stock of the
Issuer, (2) subdivide its outstanding shares of Common Stock into a greater
number of shares or (3) combine or reclassify its outstanding shares of Common
Stock into a smaller number of shares, the Conversion Price in effect
immediately prior to such action shall be adjusted so that the Holder of any
Security thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock that he would have owned immediately following
such action had such Security been converted immediately prior thereto. An
adjustment made pursuant to this subsection (a) shall become effective
immediately, except as provided in subsection (i) below, after the record date
in the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision or combination.
(b) In case the Issuer shall issue rights, options or warrants to all or
substantially all holders of Common Stock
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entitling them to subscribe for or purchase shares of Common Stock at a price
per share less than the then current market price per share of the Common Stock
(as determined pursuant to subsection (f) below) on the record date mentioned
below, the Conversion Price shall be adjusted to a price, computed to the
nearest cent, so that the same shall equal the price determined by multiplying:
(i) the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by a fraction, of which
(ii) the numerator shall be (A) the number of shares of Common Stock
outstanding on the date of issuance of such rights, options or warrants,
immediately prior to such issuance, plus (B) the number of shares which the
aggregate offering price of the total number of shares so offered for
subscription or purchase would purchase at such current market price
(determined by multiplying such total number of shares by the exercise
price of such rights, options or warrants and dividing the product so
obtained by such current market price), and of which
(iii) the denominator shall be (A) the number of shares of Common
Stock outstanding on the date of issuance of such rights, options or
warrants, immediately prior to such issuance, plus (B) the number of
additional shares of Common Stock which are so offered for subscription or
purchase.
Such adjustment shall become effective immediately, except as provided in
subsection (i) below, after the record date for the determination of holders
entitled to receive such rights, options or warrants; provided, however, that if
any such rights, options or warrants issued by the Issuer as described in this
subsection (b) are only exercisable upon the occurrence of certain triggering
events relating to control and provided for in shareholder rights plans, then
the Conversion Price will not be adjusted as provided in this subsection (b)
until such triggering events occur.
(c) In case the Issuer or any Subsidiary of the Issuer shall distribute to
all or substantially holders of Common Stock, any of its assets, evidences of
indebtedness, cash or other assets or shares of Capital Stock other than Common
Stock (including securities, but other than (x) dividends or distributions
exclusively in cash or (y) any dividend or distribution for which an adjustment
is required to be made in accordance with subsection (a) or (b) above), then in
each such case the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction of which the
numerator shall be the then current market
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price per share of the Common Stock (determined as provided in subsection (f)
below) on the record date mentioned below less the then fair market value (as
reasonably determined in good faith by the Board of Directors of the Issuer) of
the portion of the assets so distributed applicable to one share of Common
Stock, and of which the denominator shall be such current market price per share
of the Common Stock. Such adjustment shall become effective immediately, except
as provided in subsection (i) below, after the record date for the determination
of stockholders entitled to receive such distribution. Notwithstanding the
foregoing, in the event that the fair market value of the assets, evidences of
indebtedness or other securities so distributed applicable to one share of
Common Stock equals or exceeds such current market price per share of Common
Stock, or such current market price exceeds such fair market value by less than
$0.10 per share, the Conversion Price shall not be adjusted pursuant to this
subsection (c) and, to the extent applicable, the provisions of subsection (k)
shall apply to such distribution.
(d) In case the Issuer or any Subsidiary of the Issuer shall make any
distribution consisting exclusively of cash (excluding any cash portion of
distributions for which an adjustment is required to be made in accordance with
(c) above, or cash distributed upon a merger or consolidation to which Section
14.6 applies) to all or substantially all holders of Common Stock in an
aggregate amount that, combined together with (i) all other such all-cash
distributions made within the then preceding 12 months in respect of which no
adjustment has been made and (ii) any cash and the fair market value of other
consideration paid or payable in respect of any tender or exchange offer by the
Issuer or any of its Subsidiaries for Common Stock concluded within the
preceding 12 months in respect of which no adjustment has been made, exceeds 15%
of the Issuer's market capitalization (defined as being the product of the then
current market price of the Common Stock (determined as provided in subsection
(f) below) times the number of shares of Common Stock then outstanding) on the
record date of such distribution, then in each such case the Conversion Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the then current
market price per share of the Common Stock on such record date less the amount
of the cash so distributed applicable to one share of Common Stock, and of which
the denominator shall be such current market price per share of the Common
Stock. Such adjustment shall become effective immediately, except as provided in
subsection (h) below, after the record date for the determination of
stockholders entitled to receive such distribution. Notwithstanding the
foregoing, in the event that the cash so distributed applicable to one share of
Common Stock equals or exceeds such current market price per share of Common
Stock, or
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such current market price exceeds such amount of cash by less than $0.10 per
share, the Conversion Price shall not be adjusted pursuant to this subsection
(d), and, to the extent applicable, the provisions of subsection (k) shall apply
to such distribution.
(e) In case there shall be completed a tender or exchange offer made by the
Issuer or any Subsidiary of the Issuer for all or any portion of the Common
Stock (any such tender or exchange offer being referred to as an "Offer") that
involves an aggregate consideration having a fair market value as of the
expiration of such Offer (the "Expiration Time") that, together with (i) any
cash and the fair market value of any other consideration payable in respect of
any other Offer, as of the expiration of such other Offer, expiring within the
12 months preceding the expiration of such Offer and in respect for which no
Conversion Price adjustment pursuant to this subsection (e) has been made and
(ii) the aggregate amount of any all-cash distributions referred to in
subsection (d) of this Section 14.5 to all holders of Common Stock within the 12
months preceding the expiration of such Offer for which no conversion price
adjustment pursuant to such subsection (d) has been made, exceeds 15% of the
product of the then current market price per share (determined as provided in
subsection (f) below) of the Common Stock on the Expiration Time times the
number of shares of Common Stock outstanding (including any tendered shares) on
the Expiration Time, the Conversion Price shall be reduced by multiplying such
Conversion Price in effect immediately prior to the Expiration Time by a
fraction of which the numerator shall be (i) the product of the then current
market price per share (determined as provided in subsection (f) below) of the
Common Stock on the Expiration Time times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time minus (ii)
the fair market value of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of the Offer)
of all shares validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted being referred to as the "Purchased Shares") and the
denominator shall be the product of (i) such current market price per share on
the Expiration Time times (ii) such number of outstanding shares on the
Expiration Time less the number of Purchased Shares, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Time.
For purposes of this subsection (e), the fair market value of any
consideration with respect to an Offer shall be reasonably determined in good
faith by the Board of Directors of the Issuer and described in a Board
Resolution.
(f) For the purpose of any computation under subsections (b), (c), (d) and
(e) above, the current market price per share of Common Stock on any date shall
be deemed to be the average of
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the Last Sale Prices of a share of Common Stock for the five consecutive Trading
Days selected by the Issuer commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the date in question and the date before
the " 'ex' date," with respect to the issuance, distribution or Offer requiring
such computation. If on any such Trading Day the Common Stock is not quoted by
any organization referred to in the definition of Last Sale Price in Section
14.3 hereof, the fair value of the Common Stock on such day, as reasonably
determined in good faith by the Board of Directors of the Issuer, shall be used.
For purposes of this paragraph, the term " 'ex' date," when used with respect to
any issuance, distribution or payments with respect to an Offer, means the first
date on which the Common Stock trades regular way on the New York Stock Exchange
(or if not listed or admitted to trading thereon, then on the principal national
securities exchange on which the Common Stock is listed or admitted to trading)
without the right to receive such issuance, distribution or Offer.
(g) In addition to the foregoing adjustments in subsections (a), (b), (c),
(d) and (e) above, the Issuer will be permitted to make such reductions in the
Conversion Price as it considers to be advisable in order that any event treated
for Federal income tax purposes as a dividend of stock or stock rights will not
be taxable to the holders of the shares of Common Stock.
(h) In the event the Issuer elects to make such a reduction in the
Conversion Price, the Issuer will comply with the requirements of Rule 14e-1 of
the Exchange Act and any other Federal and state laws and regulations thereunder
if and to the extent that such laws and regulations are applicable in connection
with the reduction of the Conversion Price of the Notes; provided that any
provisions of this Indenture which conflict with such laws shall be deemed to be
superseded by the provisions of such laws.
(i) In any case in which this Section 14.5 shall require that an adjustment
(including by reason of the last sentence of subsection (a) or (c) above) be
made immediately following a record date, the Issuer may elect to defer the
effectiveness of such adjustment (but in no event until a date later than the
effective time of the event giving rise to such adjustment), in which case the
Issuer shall, with respect to any Security converted after such record date and
on and before such adjustment shall have become effective (i) defer paying any
Cash payment pursuant to Section 14.3 hereof or issuing to the Holder of such
Security the number of shares of Common Stock and other Capital Stock of the
Issuer (or other assets or securities) issuable upon such conversion in excess
of the number of shares of Common Stock and other Capital Stock of the Issuer
issuable thereupon only on the basis of the Conversion Price prior to
adjustment, and (ii) not later than five Business Days after such
14
adjustment shall have become effective, pay to such Holder the appropriate Cash
payment pursuant to Section 14.3 hereof and issue to such Holder the additional
shares of Common Stock and other Capital Stock of the Issuer (or other assets or
securities) issuable on such conversion.
(j) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1.0% of the
Conversion Price; provided, that any adjustments which by reason of this
subsection (j) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
Fourteen shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
Whenever the Conversion Price is adjusted as herein provided, the Issuer
shall promptly (i) file with the Trustee and each conversion agent an Officers'
Certificate setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment, which
certificate shall be conclusive evidence of the correctness of such adjustment,
and (ii) mail or cause to be mailed a notice of such adjustment to each holder
of Securities at his address as the same appears on the registry books of the
Issuer.
(k) In the event that the Issuer distributes rights (including rights to
distributions referred to by paragraphs (c) and (d) of this Section 14.5 to the
extent this paragraph (k) applies thereto) or warrants (other than those
referred to in subsection (b) above) pro rata to holders of Common Stock, so
long as any such rights or warrants have not expired or been redeemed by the
Issuer, the Issuer shall make proper provision so that the Holder of any Note
surrendered for conversion will be entitled to receive upon such conversion, in
addition to the shares of Common Stock issuable upon such conversion (the
"Conversion Shares"), a number of rights or warrants to be determined as
follows: (i) if such conversion occurs on or prior to the date for the
distribution to the holders of rights or warrants of separate certificates
evidencing such rights or warrants (the "Distribution Date"), the same number of
rights or warrants to which a holder of a number of shares of Common Stock equal
to the number of Conversion Shares is entitled at the time of such conversion in
accordance with the terms and provisions of and applicable to the rights or
warrants, and (ii) if such conversion occurs after such Distribution Date, the
same number of rights or warrants to which a holder of the number of shares of
Common Stock into which the principal amount of such Note so converted was
convertible immediately prior to such Distribution Date would have been entitled
on such Distribution Date in accordance with the terms and provisions of and
applicable to the rights or warrants.
15
SECTION 14.6. Continuation of Conversion Privilege in Case of
Reclassification, Change, Merger, Consolidation or Sale of Assets. If any of the
following shall occur, namely: (a) any reclassification or change of outstanding
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), (b) any
consolidation or merger of the Issuer with or into any other Person, or the
merger of any other Person with or into the Issuer (other than a merger which
does not result in any reclassification, change, conversion, exchange or
cancellation of outstanding shares of Common Stock) or (c) any sale, transfer or
conveyance of all or substantially all of the assets of the Issuer (computed on
a consolidated basis), then the Issuer, or such successor or purchasing entity,
as the case may be, shall, as a condition precedent to such reclassification,
change, consolidation, merger, sale or conveyance, execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security then
outstanding shall have the right to convert such Security only into the kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such reclassification, change, consolidation, merger, sale,
transfer or conveyance by a holder of the number of shares of Common Stock
issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, sale, transfer or conveyance
assuming such holder of Common Stock of the Issuer failed to exercise his rights
of an election, if any, as to the kind or amount of securities, cash and other
property receivable upon such reclassification, change, consolidation, merger,
sale, transfer or conveyance (provided, that if the kind or amount of
securities, cash, and other property receivable upon such reclassification,
change, consolidation, merger, sale, transfer or conveyance is not the same for
each share of Common Stock of the Issuer held immediately prior to such
reclassification, change, consolidation, merger, sale, transfer or conveyance in
respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section 14.6 the kind and
amount of securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, sale, transfer or conveyance by
each non-electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares). Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article Fourteen. If,
in the case of any such consolidation, merger, sale or conveyance, securities
and property (including cash) receivable thereupon by a holder of shares of
Common Stock includes shares of stock or other securities and property
(including cash) of a corporation other than the successor or purchasing
corporation, as the case may be, in such consolidation, merger, sale or
conveyance, then
16
such supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Securities as the Board of Directors of the Issuer shall reasonably
consider necessary by reason of the foregoing. The provisions of this Section
14.6 shall similarly apply to successive consolidations, mergers, sales or
conveyances.
Notice of the execution of each such supplemental indenture shall be mailed
to each Holder of Securities at his address as the same appears on the registry
books of the Issuer.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, sale or conveyance or to any
adjustment to be made with respect thereto, but, subject to the provisions of
Article Ten hereof, may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, the Officers'
Certificate (which the Issuer shall be obligated to file with the Trustee prior
to the execution of any such supplemental indenture) with respect thereto.
SECTION 14.7. Notice of Certain Events. In case:
(a) the Issuer shall declare a dividend (or any other distribution) payable
to the holders of Common Stock (other than cash dividends);
(b) the Issuer shall authorize the granting to the holders of Common Stock
of rights, warrants or options to subscribe for or purchase any shares of stock
of any class or of any other rights;
(c) the Issuer shall authorize any reclassification or change of the Common
Stock (including a subdivision or combination of its outstanding shares of
Common Stock), or any consolidation or merger to which the Issuer is a party and
for which approval of any stockholders of the Issuer is required, or the sale or
conveyance of all or substantially all the property or business of the Issuer;
(d) there shall be proposed any voluntary or involuntary dissolution,
liquidation or winding-up of the Issuer; or
(e) the Issuer or any of its Subsidiaries shall complete an Offer;
17
then, the Issuer shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Securities as provided in Section 3.2 hereof,
and shall cause to be mailed to each Holder of Securities, at his address as it
shall appear on the registry books of the Issuer, at least 20 days before the
date hereinafter specified (or the earlier of the dates hereinafter specified,
in the event that more than one date is specified), a notice stating the date on
which (1) a record is expected to be taken for the purpose of such dividend,
distribution, rights, warrants or options or Offer, or if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, rights, warrants or options or to participate in
such Offer are to be determined, or (2) such reclassification, change,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding-up
is expected to become effective and the date, if any is to be fixed, as of which
it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, change, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding-up.
SECTION 14.8. Taxes on Conversion. The Issuer will pay any and all
documentary, stamp or similar taxes payable to the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
the issue or delivery of shares of Common Stock on conversion of Securities
pursuant thereto; provided, however, that the Issuer shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Common Stock in a name other than that of the
Holder of the Securities to be converted and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Issuer the amount of any such tax or has established, to the satisfaction of
the Issuer, that such tax has been paid. The Issuer extends no protection with
respect to any other taxes imposed in connection with conversion of Securities.
SECTION 14.9. Issuer to Provide Stock. The Issuer shall reserve, free from
preemptive rights, out of its authorized but unissued shares, sufficient shares
to provide for the conversion of the Securities from time to time as such
Securities are presented for conversion, provided, that nothing contained herein
shall be construed to preclude the Issuer from satisfying its obligations in
respect of the conversion of Securities by delivery of repurchased shares of
Common Stock which are held in the treasury of the Issuer.
If any shares of Common Stock to be reserved for the purpose of conversion
of Securities hereunder require registration with or approval of any
governmental authority under any Federal or state law before such shares may be
validly issued or delivered
18
upon conversion, then the Issuer covenants that it will in good faith and as
expeditiously as possible use its best efforts to secure such registration or
approval, as the case may be, provided, however, that nothing in this Section
14.9 shall be deemed to limit in any way the obligations of the Issuer provided
in this Article Fourteen.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Issuer will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Issuer may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Issuer covenants that all shares of Common Stock which may be issued
upon conversion of Securities will upon issue be fully paid and non-assessable
by the Issuer and free of preemptive rights.
SECTION 14.10. Disclaimer of Responsibility for Certain Matters. Neither
the Trustee nor any agent of the Trustee shall at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Conversion Price, or with respect to the
Officers' Certificate referred to in Section 14.5 hereof, or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any agent of the Trustee shall be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property (including cash), which
may at any time be issued or delivered upon the conversion of any Security; and
neither the Trustee nor any conversion agent makes any representation with
respect thereto. Neither the Trustee nor any agent of the Trustee shall be
responsible for any failure of the Issuer to issue, register the transfer of or
deliver any shares of Common Stock or stock certificates or other securities or
property (including cash) upon the surrender of any Security for the purpose of
conversion or, subject to Article Fourteen hereof, to comply with any of the
covenants of the Issuer contained in this Article Fourteen.
SECTION 14.11. Return of Funds Deposited for Redemption of Converted
Securities. Any funds which at any time shall have been deposited by the Issuer
or on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of and interest on any of the Securities and which shall
not be required for such purposes because of the conversion of such Securities,
as provided in this Article Fourteen, shall after
19
such conversion be repaid to the Issuer by the Trustee or such other paying
agent."
(l) The following Article Fifteen, captioned "ARTICLE FIFTEEN RIGHT TO
REQUIRE REPURCHASE UPON A CHANGE OF CONTROL", is hereby added to the
Indenture immediately following Article Fourteen thereof:
"SECTION 15.1. Repurchase of Securities at Option of the Holder Upon a
Change of Control. In the event that a Change of Control occurs, the Issuer
shall be required to commence an irrevocable and unconditional offer to purchase
all outstanding Securities (a "Repurchase Offer"), and each Holder shall have
the right, at such Holder's option, subject to the terms and conditions of this
Indenture, to require the Issuer to repurchase all or any part of such Holder's
Securities (provided, that the principal amount of such Securities must be
$1,000 or an integral multiple thereof) on the date (the "Repurchase Date") that
is no later than 45 Business Days after the occurrence of such Change of
Control, at a cash price (the "Repurchase Price") equal to 100% of the principal
amount thereof, together with accrued and unpaid interest to (but excluding) the
Repurchase Date.
The Issuer shall comply with the following procedures set forth in this
Section 15.1 with respect to any such Repurchase Offer:
(a) the Repurchase Offer shall commence within 25 Business Days following a
Change of Control;
(b) the Repurchase Offer shall remain open for 20 Business Days following
its commencement (the "Repurchase Offer Period"). If required by applicable law,
the Repurchase Date and the Repurchase Offer Period may be extended as so
required; however, if so extended, it shall nevertheless constitute an Event of
Default if the Repurchase Date does not occur within 60 Business Days of the
Change of Control;
(c) upon the expiration of a Repurchase Offer, the Issuer shall purchase
all Securities tendered in response to the Repurchase Offer;
(d) if the Repurchase Date is on or after an interest payment record date
and on or before the related Interest Payment Date, any accrued interest will be
paid to the Person in whose name a Security is registered at the close of
business on such record date, and no additional interest will be payable to
Holders who tender Securities pursuant to the Repurchase Offer;
20
(e) the Issuer shall provide the Trustee with notice of the Repurchase
Offer at least 5 Business Days before the commencement of any Repurchase Offer;
and
(f) on or before the commencement of any Repurchase Offer, the Issuer or
the Trustee (upon the request and at the expense of the Issuer) shall send, by
first-class mail, a notice to each of the Holders, which (to the extent
consistent with this Indenture) shall govern the terms of the Repurchase Offer
and shall state:
(i) that the Repurchase Offer is being made pursuant to such notice
and this Section 15.1 and that all Securities, or portions thereof,
tendered will be accepted for payment;
(ii) the Repurchase Price (including the amount of accrued and unpaid
interest, if any), the Repurchase Date and the Repurchase Put Date (as
defined in subsection (v) below);
(iii) that any Security, or portion thereof, not tendered or accepted
for payment will continue to accrue interest, if any;
(iv) that, unless the Issuer defaults in depositing Cash with the
Trustee in accordance with the last paragraph of this clause (b) or such
payment is prevented pursuant to Article Thirteen, any Security, or portion
thereof, accepted for payment pursuant to the Repurchase Offer shall cease
to accrue interest after the Repurchase Date;
(v) that Holders electing to have a Security, or portion thereof,
purchased pursuant to a Repurchase Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Security completed, to the paying agent (which may not
for purposes of this Section 15.1, notwithstanding anything in this
Indenture to the contrary, be the Issuer or any Affiliate of the Issuer) at
the address specified in the notice prior to the close of business on the
earlier of (a) the third Business Day prior to the Repurchase Date and (b)
the third Business Day following the expiration of the Repurchase Offer
(such earlier date being the "Repurchase Put Date");
(vi) that Holders will be entitled to withdraw their election, in
whole or in part, if the paying agent (which may not for purposes of this
Section 15.1, notwithstanding anything in this Indenture to the contrary,
be the Issuer or any Affiliate of the Issuer) receives, up to the close of
business on the Repurchase Put Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Securities the
21
Holder is withdrawing and a statement that such Holder is withdrawing his
election to have such principal amount of Securities purchased; and
(vii) a brief description of the events resulting in such Change of
Control.
Any such Repurchase Offer shall comply with all applicable provisions of
Federal and state laws, including those regulating tender offers, if applicable,
and any provisions of this Indenture which conflict with such laws shall be
deemed to be superseded by the provisions of such laws.
On or before the Repurchase Date, the Issuer shall (i) accept for payment
Securities or portions thereof properly tendered pursuant to the Repurchase
Offer on or before the Repurchase Put Date, (ii) deposit with the paying agent
Cash sufficient to pay the Repurchase Price (together with accrued and unpaid
interest, if any) of all Securities or portions thereof so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate listing the Securities or portions thereof being purchased by the
Issuer. The paying agent shall promptly mail to Holders of Securities so
accepted payment in an amount equal to the Repurchase Price (together with
accrued and unpaid interest, if any), and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security or Securities
equal in principal amount to any unpurchased portion of the Securities
surrendered. Any Securities not so accepted shall be promptly mailed or
delivered by the Issuer to the Holder thereof. The Issuer will publicly announce
the results of the Repurchase Offer on or as soon as practicable after the
Repurchase Date."
ARTICLE THREE
MISCELLANEOUS
3.01. The Trustee. The recitals contained herein shall be taken as the
statements of the Issuer, and the Trustee shall not assume responsibility for,
or be liable in respect of, the correctness thereof. The Trustee makes no
representation as to, and shall not be liable or responsible for, the validity
or sufficiency of this Supplemental Indenture.
3.02. Limited Effect. Except as amended or modified hereby in respect of
the Notes, all of the provisions, covenants, terms and conditions of the
Indenture are ratified and confirmed, and shall remain in full force. In case of
a conflict between any provision of the Indenture and any provision hereof, the
provision of this Supplemental Indenture shall govern.
3.03. Counterparts. This Supplemental Indenture may be executed by one or
more parties hereto on any number of separate
22
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
3.04. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO BE A
CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
23
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
EMCOR GROUP, INC. as Issuer
Attest:____________________ By:___________________________
Title: Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
Attest:____________________ By:___________________________
Title: Title:
1
EXHIBIT A
[FORM OF NOTE]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS REGISTERED GLOBAL 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.
EMCOR GROUP, INC.
[___]% Convertible Subordinated Note due 2005
No. [ ]
CUSIP No. [ ]
Issue Date: [_______, 1998]
EMCOR Group, Inc., a Delaware Corporation (the "Issuer"), promises to pay
to CEDE & CO. or its registered assigns, the principal amount of
($ )] on [_______, 2005]. This Note shall not bear interest except
as specified on the other side of this Note. Additional provisions of this Note
are set forth on the other side of this Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its facsimile corporate seal.
EMCOR GROUP, INC., as Issuer
By:___________________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
Dated: [_______, 0000] XXXXX XXXXXX BANK AND TRUST COMPANY,
as Trustee
By:___________________________
Authorized Signatory
[FORM OF REVERSE SIDE OF NOTE]
[___%] Convertible Subordinated Note due 2005
1. Interest. Commencing [________, 1998], interest on this Note will accrue
at the rate of [____]% per annum and will be payable in cash semiannually on
each [____] and [____], commencing [DATE], to Holders of record on the close of
business on the immediately preceding [____] and [____]; provided that if the
principal amount hereof or any portion of such principal amount is not paid when
due, then in each such case the overdue amount shall bear interest at the rate
of [____]% per annum, compounded semiannually (to the extent that the payment of
such interest shall be legally enforceable), which interest shall accrue from
the date such overdue amount was due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand.
2. Method of Payment. Subject to the terms and conditions of the Indenture,
payments in respect of the Notes shall be made at the office or agency of the
Issuer maintained for that purpose in the City and State of New York. The Issuer
will pay cash amounts in money of the United States that at the time of payment
is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, State Street Bank and Trust
Company (the "Trustee"), will act as paying agent and registrar. The Issuer may
appoint and change any paying agent or registrar without notice, other than
notice to the Trustee. The Issuer or any of its Subsidiaries or any of their
Affiliates may act as paying agent or registrar.
4. Indenture. The Issuer issued the Notes under an Indenture, dated as of
[March 1], 1998, between the Issuer and the Trustee, as supplemented by a First
Supplemental Indenture, dated as of [March 1], 1998 (collectively, the
"Indenture"). The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act of 1939"). Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all such terms, and Holders are referred to
the Indenture and the Trust Indenture Act of 1939 for a statement of those
terms.
The Notes are general unsecured obligations of the Issuer, limited to $115
million aggregate principal amount.
5. Redemption at the Option of the Issuer. No sinking fund is provided for
the Notes. The Notes will not be subject to redemption prior to [___________],
2001. On or after [___________], 2001, the Notes will be subject to redemption
at the option of the Issuer, in whole or in part, in accordance with the
provisions of the Indenture, at any time and from time to time, upon not less
than 30 nor more than 60 days' notice, at the
2
Redemption Price (expressed as a percentage of principal amount) set forth below
with respect to the indicated Redemption Date, in each case, plus any accrued
but unpaid interest to (but excluding) the Redemption Date:
If redeemed during
the 12-month period
beginning: Redemption Price
------------------- ----------------
[_______, ____] 10_.__%
[_______, ____] 10_.__%
[_______, ____] and thereafter 10_.__%
6. Notice of Redemption. Notice of redemption will be sent 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 the Holder's registered address, in
accordance with the provisions of the Indenture. If money sufficient to pay the
Redemption Price of all Notes to be redeemed on the Redemption Date, together
with accrued interest thereon to the Redemption Date, is deposited with the
Trustee or any paying agent prior to or on the Redemption Date, on and after
such date interest shall cease to accrue on such Notes or portions thereof.
7. Denominations; Transfer; Exchange. The Notes are in registered form,
without coupons, in denominations of $1,000 of principal amount 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 and fees required by law or permitted by the Indenture. The Issuer
shall not be required to exchange or register a transfer of (a) any Notes for a
period of 15 days next preceding the first mailing or publication of notice of
redemption of Notes to be redeemed, (b) any Notes selected, called or being
called for redemption, in whole or in part, except, in the case of any Note to
be redeemed in part, the portion thereof not so to be redeemed or (c) any Note
if the Holder thereof has exercised its right, if any, to require the Issuer to
repurchase such Note in whole or in part, except the portion of such Note not
required to be repurchased.
8. Persons Deemed Owners. The registered Holder of this Note may be treated
as the owner of this Note for all purposes.
9. Unclaimed Money. The Trustee and each paying agent shall each return to
the Issuer upon written request any money held by them for the payment of any
amount with respect to the Notes that remains unclaimed for two years. After
return to the
3
Issuer, Holders entitled to the money must look to the Issuer for payment as
general creditors unless an applicable abandoned property law designates another
person.
10. Amendment; Waiver. Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Notes may be amended with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Notes at the time outstanding and (ii) certain defaults or noncompliance
with certain provisions may be waived with the written consent of the Holders of
a majority in aggregate principal amount of the Notes at the time outstanding.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Holder, the Issuer and the Trustee may amend the Indenture or the Notes to
cure any ambiguity, defect or inconsistency, or to comply with Article Nine of
the Indenture, or to make any change that does not adversely affect the rights
of any Holder of Notes.
11. Conversion Rights. Subject to the provisions of the Indenture, the
Holders have the right to convert the principal amount of the Notes into fully
paid and nonassessable shares of Common Stock of the Issuer at the initial
Conversion Price per share of Common Stock of $___ (or ($___ in principal amount
of Notes for each such share of Common Stock), or at the adjusted Conversion
Price then in effect, if adjustment has been made as provided in the Indenture,
upon surrender of the Notes to the Issuer, together with a fully executed notice
in substantially the form attached hereto and, if required by the Indenture, an
amount equal to accrued interest payable on such Notes.
12. Subordination. Payment of principal, premium, if any, and interest on
the Notes is subordinated, in the manner and to the extent set forth in the
Indenture, to the prior payment in full of all Senior Indebtedness.
13. Repurchase at Option of Holder Upon a Change of Control. If there is a
Change of Control, the Issuer shall be required to offer to purchase on the
Repurchase Date all outstanding Notes at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the
Repurchase Date. Holders of Notes will receive a Repurchase Offer from the
Issuer prior to any related Repurchase Date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
appearing below.
14. Successors. When a successor assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor will be released
from those obligations (except with respect to any obligations that arise from
or as a result of such transaction).
4
15. Defaults and Remedies. If an Event of Default occurs and is continuing
(other than an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization), then in every such case, unless the principal of
all of the Notes shall have already become due and payable, either the Trustee
or the Holders of not less than 25% in aggregate principal amount of the Notes
then outstanding, by notice in writing to the Issuer (and to the Trustee, if
given by the Holders), may declare the principal of all of the Notes and the
interest, if any, accrued thereon to be due and payable immediately; provided,
however, that the Holders of a majority in aggregate principal amount of the
Notes then outstanding, by notice in writing to the Issuer and the Trustee, may
rescind and annul such declaration and its consequences if all defaults under
such Indenture are cured or waived.
No Holder of Notes then outstanding may institute any suit, action or
proceeding with respect to, or otherwise attempt to enforce, such Indenture,
unless (i) such Holder previously shall have given to the Trustee written notice
of default and of the continuance thereof, (ii) the Holders of not less than 25%
in aggregate principal amount of the Notes then outstanding shall have made
written request to the Trustee to institute such suit, action or proceeding and
shall have offered to the Trustee such reasonable indemnity as it may require
with respect thereto and (iii) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; provided that, the right of any
Holder of any Note to receive payment of the principal of, premium, if any, or
interest, if any, on such Note, on or after the respective due dates, or to
institute suit for the enforcement of any such payment shall not be impaired or
affected without the consent of such Holder. The Holders of a majority in
aggregate principal amount of the Notes 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 the Trustee with respect
to the Notes, provided that the Trustee may decline to follow such direction if
the Trustee determines that such action or proceeding is unlawful or would
involve the Trustee in personal liability.
The Issuer is required to furnish to the Trustee annually a certificate as
to compliance by the Issuer with all conditions and covenants under the
Indenture.
16. Trustee Dealings with the Issuer. Subject to certain limitations
imposed by the Trust Indenture Act of 1939, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with and collect obligations owed to it by the
5
Issuer or its Affiliates and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Trustee.
17. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of each Issuer shall not have any liability for any
obligations of such Issuer under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Note, each Holder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Notes.
18. Authentication. This Note shall not be valid until an authorized
signatory of the Trustee manually signs the Trustee's Certificate of
Authentication on the other side of this Note.
19. Abbreviations. Customary abbreviations may be used in the name of a
Holder of Notes 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 Gift to Minors Act).
20. GOVERNING LAW. THIS NOTE AND THE INDENTURE SHALL BE DEEMED TO BE A
CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Issuer will furnish to any Holder of Notes upon written request and
without charge a copy of the Indenture. Requests may be made to: EMCOR Group,
Inc., 000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000, Attention of
Corporate Secretary.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to
Article Fifteen of the Indenture, check the box: /__/
If you want to elect to have only part of this Note purchased by the Issuer
pursuant to Article Fifteen of the Indenture, state the amount you want to be
purchased: $
Date:______________ Signature:_______________________________
(Sign exactly as your name appears
on the other side of this Note)
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FORM OF ASSIGNMENT
I or we assign this Note to
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
and irrevocably appoint ________ agent to transfer this Note on the books of the
Issuer. The agent may substitute another to act for him.
Date: Signed:
(Sign exactly as name appears
on the other side of this Note)
Signature Guarantee.*
__________________________________
*Participant in a recognized Signature Guarantee Medallion Program (or other
signature acceptable to the Trustee).
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FORM OF CONVERSION NOTICE
To: EMCOR Group, Inc.
$100,000,000
__% Convertible Subordinated Notes due 2005
The undersigned owner of this Note hereby: (i) irrevocably exercises the
option to convert this Note, or the portion hereof below designated, for shares
of Common Stock of EMCOR Group, Inc. in accordance with the terms of this
Indenture referred to in this Note and (ii) directs that such shares of Common
Stock deliverable upon the conversion, together with any check in payment for
fractional shares and any Note(s) representing any unconverted principal amount
hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares are to be delivered
registered in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto. Any amount required to
be paid by the undersigned on account of interest accompanies this Note.
Dated _____________
Signature
Fill in for registration of shares if to be delivered, and of Notes if to
be issued, otherwise than to and in the name of the registered holder.
Social Security or other
Taxpayer Identifying Number
(Name)
(Street Address)
(City, State and Zip Code)
(Please print name and address)
Principal amount to be
converted: (if less than all)
$
Signature Guarantee.*
__________________________
*Participant in a recognized Signature Guarantee Medallion Program (or other
signature acceptable to the Trustee).
