EXHIBIT T3C-2
PRG-XXXXXXX INTERNATIONAL, INC.
10% Senior Convertible Notes
due 2011
---------------------------------------------------------
INDENTURE
Dated as of _________ __, 2006
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U.S. BANK NATIONAL ASSOCIATION,
TRUSTEE
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CROSS REFERENCE TABLE*
TIA Section .......................................................................... Indenture Section
310(a)(1)............................................................................. 7.09
(a)(2)................................................................................ 7.09
(a)(3)................................................................................ N.A.
(a)(4)................................................................................ N.A.
(b)................................................................................... 7.08; 7.10
(c)................................................................................... N.A.
311(a)................................................................................ 7.13
(b)................................................................................... 7.13
(c)................................................................................... N.A.
312(a)................................................................................ 2.05
(b)................................................................................... 11.03
(c)................................................................................... 11.03
313(a)................................................................................ 7.14
(b)(1)................................................................................ N.A.
(b)(2)................................................................................ 7.14
(c)................................................................................... 11.02
(d)................................................................................... 7.14
314(a)................................................................................ 4.02; 4.03; 11.02
(b)................................................................................... N.A.
(c)(1)................................................................................ 11.04
(c)(2)................................................................................ 11.04
(c)(3)................................................................................ N.A.
(d)................................................................................... N.A.
(e)................................................................................... 11.05
(f)................................................................................... N.A.
315(a)................................................................................ 7.01
(b)................................................................................... 7.15; 11.02
(c)................................................................................... 7.01
(d)................................................................................... 7.01
(e)................................................................................... 6.12
316(a) (last sentence)................................................................ 2.08
(a)(1)(A)............................................................................. 6.05
(a)(1)(B)............................................................................. 6.04
(a)(2)................................................................................ N.A.
(b)................................................................................... 6.07
317(a)(1)............................................................................. 6.08
(a)(2)................................................................................ 6.09
(b)................................................................................... 2.04
318(a)................................................................................ 11.01
N.A. means Not Applicable
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* Note: This Cross Reference Table shall not, for any purpose be deemed to be
part of the Indenture.
TABLE OF CONTENTS
Page
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Article 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................................ 1
Section 1.01 Definitions.............................................................................. 1
Section 1.02 Other Definitions........................................................................ 10
Section 1.03 Incorporation by Reference of Trust Indenture Act........................................ 11
Section 1.04 Rules of Construction.................................................................... 12
Section 1.05 Acts of Holders.......................................................................... 12
Article 2 THE NOTES.............................................................................................. 13
Section 2.01 Title, Form and Dating................................................................... 13
Section 2.02 Execution and Authentication............................................................. 15
Section 2.03 Registrar and Paying Agent............................................................... 15
Section 2.04 Paying Agent to Hold Money and Notes in Trust............................................ 16
Section 2.05 Noteholder Lists......................................................................... 16
Section 2.06 Transfer and Exchange.................................................................... 16
Section 2.07 Replacement Notes........................................................................ 17
Section 2.08 Outstanding Notes; Determinations of Holders' Action..................................... 18
Section 2.09 Temporary Notes.......................................................................... 18
Section 2.10 Cancellation............................................................................. 19
Section 2.11 Persons Deemed Owners.................................................................... 19
Section 2.12 Global Notes............................................................................. 19
Section 2.13 CUSIP Numbers............................................................................ 22
Section 2.14 Defaulted Interest....................................................................... 23
Section 2.15 Designation.............................................................................. 23
Article 3 REDEMPTION AND PURCHASES............................................................................... 23
Section 3.01 Optional Redemption...................................................................... 23
Section 3.02 Notice of Trustee........................................................................ 24
Section 3.03 Selection of Notes to be Redeemed........................................................ 24
Section 3.04 Notice of Redemption..................................................................... 24
Section 3.05 Effect of Notice of Redemption........................................................... 25
Section 3.06 Deposit of Redemption Price.............................................................. 25
Section 3.07 Notes Redeemed in Part................................................................... 25
Section 3.08 Repurchase of Notes at Option of the Holder upon Change in Control....................... 26
Section 3.09 Effect of Change in Control Repurchase Notice............................................ 29
Section 3.10 Deposit of Change in Control Repurchase Price............................................ 30
Section 3.11 Notes Purchased in Part.................................................................. 30
Section 3.12 Covenant to Comply with Securities Laws.................................................. 31
Section 3.13 Repayment to the Company................................................................. 31
i
Article 4 COVENANTS.............................................................................................. 31
Section 4.01 Payment of Principal, Premium, Interest on the Notes..................................... 31
Section 4.02 SEC and Other Reports.................................................................... 32
Section 4.03 Compliance Certificate................................................................... 32
Section 4.04 Further Instruments and Acts............................................................. 32
Section 4.05 Maintenance of Office or Agency.......................................................... 32
Section 4.06 Taxes.................................................................................... 33
Article 5 SUCCESSOR CORPORATION.................................................................................. 33
Section 5.01 When Company May Merge or Transfer Assets................................................ 33
Article 6 DEFAULTS AND REMEDIES.................................................................................. 34
Section 6.01 Events of Default........................................................................ 34
Section 6.02 Acceleration............................................................................. 36
Section 6.03 Other Remedies........................................................................... 36
Section 6.04 Waiver of Past Defaults.................................................................. 36
Section 6.05 Control by Majority...................................................................... 37
Section 6.06 Limitation on Suits...................................................................... 37
Section 6.07 Rights of Holders to Receive Payment..................................................... 37
Section 6.08 Collection Suit by Trustee............................................................... 38
Section 6.09 Trustee May File Proofs of Claim......................................................... 38
Section 6.10 Priorities............................................................................... 38
Section 6.11 Distributions to Senior Secured Creditors Following Substantive Consolidation or Other
Similar Remedies........................................................................ 39
Section 6.12 Undertaking for Costs.................................................................... 39
Section 6.13 Waiver of Stay, Extension or Usury Laws.................................................. 39
Article 7 TRUSTEE................................................................................................ 40
Section 7.01 Duties and Responsibilities of the Trustee; During Default; Prior to Default............. 40
Section 7.02 Certain Rights of the Trustee............................................................ 41
Section 7.03 Trustee Not Responsible for Recitals, Disposition of Notes or Application of Proceeds
Thereof ................................................................................ 43
Section 7.04 Trustee and Agents May Hold Notes; Collections, etc...................................... 43
Section 7.05 Moneys Held by Trustee................................................................... 43
Section 7.06 Compensation and Indemnification of Trustee and Its Prior Claim.......................... 43
Section 7.07 Right of Trustee to Rely on Officers' Certificate, etc................................... 44
Section 7.08 Conflicting Interests.................................................................... 44
Section 7.09 Persons Eligible for Appointment as Trustee.............................................. 44
Section 7.10 Resignation and Removal; Appointment of Successor Trustee................................ 44
Section 7.11 Acceptance of Appointment by Successor Trustee........................................... 45
Section 7.12 Merger, Conversion, Consolidation or Succession to Business of Trustee................... 46
Section 7.13 Preferential Collection of Claims Against the Company.................................... 46
Section 7.14 Reports by the Trustee................................................................... 46
Section 7.15 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances............. 47
Article 8 DISCHARGE OF INDENTURE................................................................................. 47
Section 8.01 Discharge of Liability on Notes.......................................................... 47
Section 8.02 Repayment of the Company................................................................. 47
Article 9 AMENDMENTS............................................................................................. 48
Section 9.01 Without Consent of Holders............................................................... 48
Section 9.02 With Consent of Holders.................................................................. 48
Section 9.03 Compliance with Trust Indenture Act...................................................... 49
Section 9.04 Revocation and Effect of Consents, Xxxxxxx and Actions................................... 49
Section 9.05 Notation on or Exchange of Notes......................................................... 49
Section 9.06 Trustee to Sign Supplemental Indentures.................................................. 49
Section 9.07 Effect of Supplemental Indentures........................................................ 50
Article 10 CONVERSION............................................................................................ 50
Section 10.01 Conversion Rights and Initial Price...................................................... 50
Section 10.02 Exercise of Conversion Right............................................................. 50
Section 10.03 Fractions of Shares...................................................................... 51
Section 10.04 Adjustment of Conversion Price........................................................... 51
Section 10.05 Notice of Adjustments of Conversion Price................................................ 60
Section 10.06 Notice Prior to Certain Actions.......................................................... 60
Section 10.07 Company to Reserve Series B Preferred Stock and Common Stock............................. 61
Section 10.08 Taxes on Conversions..................................................................... 62
Section 10.09 Covenant as to Series B Preferred Stock.................................................. 62
Section 10.10 Cancellation of Converted Notes.......................................................... 63
Section 10.11 Effect of Reclassification, Consolidation, Merger or Sale................................ 63
Section 10.12 Adjustment for Other Distributions....................................................... 64
Section 10.13 Responsibility of Trustee for Conversion Provisions...................................... 65
Article 11 MISCELLANEOUS......................................................................................... 65
Section 11.01 Trust Indenture Act Controls............................................................. 65
Section 11.02 Notices.................................................................................. 65
Section 11.03 Communication by Holders with Other Holders.............................................. 66
Section 11.04 Certificate and Opinion as to Conditions Precedent....................................... 66
Section 11.05 Statements Required in Certificate or Opinion............................................ 67
Section 11.06 Withholding.............................................................................. 67
Section 11.07 Separability Clause...................................................................... 67
Section 11.08 Rules by Trustee, Paying Agent and Registrar............................................. 67
Section 11.09 Legal Holidays........................................................................... 67
Section 11.10 Governing Law............................................................................ 68
Section 11.11 No Recourse Against Others............................................................... 68
Section 11.12 Successors............................................................................... 68
Section 11.13 Multiple Originals....................................................................... 68
EXHIBITS
Exhibit A-1 Form of Face of Global Note
Exhibit A-2 Form of Certificated Note
Exhibit B-1 Option of Holder to Elect Purchase
INDENTURE dated as of ___________, 2006 between PRG-XXXXXXX
INTERNATIONAL, INC., a corporation duly organized and existing under the laws of
the State of Georgia, having its principal office at 000 Xxxxxxxx Xxxxxxx, XXX
000, Xxxxxxx, XX 00000-0000 (the "COMPANY") and U.S. Bank National Association,
as trustee hereunder (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 10%
Senior Convertible Notes due 2011 (each a "NOTE" and collectively, the "NOTES")
of substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Notes, when the Notes are executed
by the Company and authenticated and delivered hereunder, the valid obligations
of the Company, and to make this Indenture a valid agreement of the Company, in
accordance with their and its terms, have been done. Further, all things
necessary to: (i) duly authorize the issuance of Series B Preferred Stock of the
Company upon the conversion of the Note and (ii) duly reserve for issuance of
the number of shares of Series B Preferred Stock have been done. In addition,
the Company anticipates that on or before the occurrence of the New Conversion
Rights Date, all things necessary to duly authorize and duly reserve the Common
Stock issuable upon such conversion will have been done.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended, that are required to
be a part of and to govern indentures qualified under the Trust Indenture Act of
1939, as amended.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
Article 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(3) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"ADDITIONAL NOTES" means additional Notes (other than the Initial
Notes) issued under the Indenture in accordance with Sections 2.02, 2.14 and
4.01 hereof, as part of the same series as the Initial Notes.
"AFFILIATE" of any specified person means any other person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For purposes of this definition, "control"
when used with respect to any specified person means the power to direct or
cause the direction of 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.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Note or any beneficial interest therein, the
rules and procedures of the Depositary for such Note, in each case to the extent
applicable to such transaction and as in effect from time to time.
"B CONVERSION DATE" means August 15, 2006.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any duly authorized committee of such board.
"BOARD RESOLUTION" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant Secretary
of the Company to be in full force and effect on the date of such certification,
shall have been delivered to the Trustee.
"BUSINESS DAY" means each day of the year other than a Saturday or a
Sunday on which banking institutions are not required or authorized to close in
the City of New York or the city in which the Corporate Trust Office is located.
"CAPITAL LEASE OBLIGATION" means, at the time any determination is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet prepared in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be prepaid by the lessee without payment of a
penalty.
"CAPITAL STOCK" of any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"CASH EQUIVALENTS" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or instrumentality
of the United States government (provided that the full faith and credit
of the United States is pledged in support of those securities) having
maturities of not more than 360 days from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any lender party to the Credit Agreement or
with any domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thomson Bank Watch Rating of "B" or better at the
time of acquisition;
(4) repurchase obligations for underlying securities of the
types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3)
above;
(5) commercial paper having at the time of acquisition one of
the two highest ratings obtainable from Xxxxx'x Investors Service, Inc. or
Standard & Poor's Rating Service and, in each case, maturing within nine
months after the date of acquisition;
(6) securities issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of
acquisition thereof and at the time of acquisition thereof, having one of
the two highest ratings obtainable from either Standard & Poor's Rating
Services or Xxxxx'x Investors Service, Inc.;
(7) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1) through
(6) of this definition; and
(8) local currencies held by the Company or any of its
Restricted Subsidiaries, from time to time in the ordinary course of
business and consistent with past practice.
"COMMON STOCK" means the Common Stock, without par value, of the
Company authorized at the date of this instrument as originally executed or any
stock of any class of Capital Stock of a successor to the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of such
successor to the Company.
"COMPANY" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture, and, thereafter, "Company" shall mean
such successor. The foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by any two Officers.
"CONVERTIBLE NOTES" means the Company's 10.0% Senior Convertible
Notes due 2011.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee
at which at any time its corporate trust business shall be administered, which
office at the date hereof is located at U.S. Bank National Association, 000
Xxxxxxxxxx Xxxxx Xxxxxxx XX, Xxxxx 000, Xxxxxxx, XX 00000, Attention: Xxxx X.
Xxxxxxxxx, or such other address as the Trustee may designate from time to time
by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as a successor Trustee
may designate from time to time by notice to the Holders and the Company).
"CREDIT AGREEMENT" means the Credit Agreement, dated as of the Issue
Date, as amended, restated, supplemented or otherwise modified from time to
time, by and among PRG-Xxxxxxx USA, Inc., as borrower, PRG and certain
Subsidiaries, as guarantors, and Ableco Finance LLC, as lender and agent
thereunder.
"CREDIT FACILITIES" means, one or more debt facilities (including,
without limitation, the Credit Agreement), indentures or commercial paper
facilities, in each case, with banks or other institutional lenders or a trustee
providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables) or letters
of credit or issuances of notes, in each case, as amended, restated, modified,
renewed, refunded, replaced (whether upon or after termination or otherwise),
substituted or refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time.
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.08 hereof. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture will be the
maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.
"DOLLAR" or "U.S.$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Restricted Subsidiaries in existence on the Issue Date.
"EXISTING NOTES" means the Company's existing 4 3/4% Convertible
Subordinated Notes due 2006.
"FAIR MARKET VALUE" means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not involving distress
or necessity of either party, determined in good faith by the Board of Directors
of the Company (unless otherwise provided in this Indenture).
"GAAP" means United States generally accepted accounting principles
as in effect from time to time.
"GLOBAL NOTES" means Notes that are in the form of the Notes
attached hereto as Exhibit A-1.
"GUARANTEE" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, contingent or otherwise, in any manner (including, without
limitation, letters of credit and reimbursement agreements in respect thereof),
of all or any part of any Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any specified Person,
the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements,
interest rate collar agreements and other agreements or arrangements
designated for the purpose of fixing, hedging or swapping interest rate
risk;
(2) other agreements or arrangements designed to manage
interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates or commodity
prices.
"HOLDER" or "Noteholder" means a person in whose name a Note is
registered on the Registrar's books.
"INDEBTEDNESS" means, with respect to any Person, without
duplication:
(1) all indebtedness, obligations and other liabilities,
contingent or otherwise, of such Person for borrowed money (including
overdrafts) or for the deferred purchase price of property or services, if
and to the extent such obligations, liabilities or
indebtedness would appear as a liability of such person on a balance sheet
prepared in accordance with GAAP, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of business,
but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit and
acceptances issued under letter of credit facilities, acceptance
facilities or other similar facilities;
(2) all obligations of such Person evidenced by bonds, credit
or loan agreements, notes, debentures or other similar instruments;
(3) indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such person (even if the rights and remedies of the
seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), if and to the extent such
Obligations would appear as a liability of such Person on a balance sheet
prepared in accordance with GAAP, but excluding trade payables arising in
the ordinary course of business;
(4) all obligations and liabilities, contingent or otherwise,
in respect of Capital Lease Obligations of such Person;
(5) all Hedging Obligations of such Person;
(6) all indebtedness referred to in (but not excluded from)
the preceding clauses (1) through (5) of other persons and all dividends
of other persons, the payment of which is secured by (or for which the
holder of such indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien or with respect to property
(including, without limitation, accounts and contract rights) owned by
such person, even though such person has not assumed or become liable for
the payment of such indebtedness (the amount of such obligation being
deemed to be the lesser of the value of such property or asset or the
amount of the obligation so secured);
(7) all guarantees by such Person of indebtedness referred to
in this definition or of any other Person; and
(8) any and all refinancings, replacements, deferrals,
renewals, extensions and refundings of or amendments, modifications or
supplements to, any indebtedness, obligation or liability of the kind
described in clauses (1) through (7) above.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof, including the provisions of
the TIA that are deemed to be a part hereof.
"INITIAL NOTES" means the first $60,000,000 aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"INSTITUTIONAL ACCREDITED INVESTOR" shall mean an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D under the Securities Act.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment
of interest on the Notes.
"INTEREST RATE" means 10% per annum.
"ISSUE DATE" of any Note means the date on which the Note was
originally issued or deemed issued as set forth on the face of the Note.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
given to secure Indebtedness, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction with respect to any such lien, security interest).
"NEW CONVERSION RIGHTS DATE" means the first date on which both (1)
the Registration Statement has been declared effective and (2) the Company's
common shareholders have approved an increase in the aggregate authorized shares
of the Company's common stock in an amount of at least 140 million shares
(subject to adjustment for any stock split, dividend, reclassification or other
change in the number of outstanding shares of the Company's common stock).
"NON-CONVERTIBLE NOTES" means the Company's 11.0% Senior Notes due
2011.
"NON-RECOURSE DEBT" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness),
(b) is directly or indirectly liable as a guarantor or otherwise, or (c)
constitutes the lender;
(2) no default with respect to which (including any rights
that the holders of the Indebtedness may have to take enforcement action
against an Unrestricted Subsidiary) would permit upon notice, lapse of
time or both any holder of any other Indebtedness of the Company or any of
its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be accelerated or
payable prior to its Stated Maturity; and
(3) as to which (a) the explicit terms provide that there is
no recourse against any assets of the Company or any of its Restricted
Subsidiaries or (b) the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries.
"NOTES" has the meaning ascribed to it in the first paragraph under
the caption "Recitals of the Company". The Initial Notes and any Additional
Notes subsequently issued under this Indenture will be treated as a single class
for all purposes under this Indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase, and, unless the context
otherwise requires, all references to Notes shall include the Initial Notes and
any Additional Notes..
"OFFICER" means the Chairman of the Board, the Vice Chairman, the
Chief Executive Officer, the President, any Executive Vice President, any Senior
Vice President, any Vice President, the Treasurer or the Secretary or any
Assistant Treasurer or Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 11.04 and 11.05, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.03 shall be signed by the principal
executive Officer, the principal financial Officer or the principal accounting
Officer of the Company but need not contain the information specified in
Sections 11.04 and 11.05.
"OPINION OF COUNSEL" means a written opinion containing the
information specified in Sections 11.04 and 11.05, from legal counsel who is
reasonably acceptable to the Trustee. 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, unincorporated organization, or government or any agency or political
subdivision thereof, including any subdivision or ongoing business of any such
entity or substantially all of the assets of any such entity, subdivision or
business.
"PRINCIPAL" of a Note means the principal amount due on the Stated
Maturity of the principal payment of such Note as set forth on the face of the
Note.
"REDEMPTION DATE" or "REDEMPTION DATE" means the date specified for
redemption of the Notes in accordance with the terms of the Notes and this
Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE" shall have the meaning set
forth in paragraph 5 on the reverse side of the Notes.
"REGISTRATION RIGHTS AGREEMENT" means that certain Registration
Rights Agreement, dated as of the Issue Date, by and among the Company and
certain holders listed in Exhibit A thereto.
"REGISTRATION STATEMENT" means the registration statement required
to be filed pursuant to the Registration Rights Agreement.
"REGULAR RECORD DATE" means, with respect to the interest payable on
any Interest Payment Date, the close of business on March 1 or September 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
10080230.2
10080230-2
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject.
"RIGHTS PLAN" means the Shareholder Protection Rights Agreement
between the Company and First Union National Bank, as rights agent, dated as of
August 9, 2000, as the same may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the United States Securities Act of 1933 (or
any successor statute), as amended from time to time.
"SERIES A PREFERRED STOCK" means the Company's Senior Series A
Convertible Participating Preferred Stock.
"SERIES B PREFERRED STOCK" means the Company's Senior Series B
Convertible Participating Preferred Stock.
"SIGNIFICANT SUBSIDIARY" means a Subsidiary of the Company,
including its Subsidiaries, which meets any of the following conditions:
(1) the Company's and its other Subsidiaries' investments in and
advances to the Subsidiary exceed 10 percent of the total assets of the
Company and its Subsidiaries consolidated as of the end of any two of the
three most recently completed fiscal years; or
(2) the Company's and its other Subsidiaries' proportionate share
of the total assets of the Subsidiary exceeds 10 percent of the total
assets of the Company and its Subsidiaries consolidated as of the end of
any two of the three most recently completed fiscal years; or
(3) the Company's and its other Subsidiaries' equity in the income
from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of the Subsidiary
exceeds 10 percent of such income of the Company and its Subsidiaries
consolidated as of the end of any two of the three most recently completed
fiscal years.
"STATED MATURITY", means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which the
payment of interest or principal was scheduled to be paid in the documentation
governing such Indebtedness as of the date of this Indenture, and will not
include any contingent obligations to repay, redeem or repurchase any such
interest or principal prior to the date originally scheduled for the payment
thereof.
"SUBSIDIARY" means (i) a corporation, a majority of whose Capital
Stock with voting power, under ordinary circumstances, to elect directors is, at
the date of determination, directly or indirectly owned by the Company, by one
or more Subsidiaries of the Company or by the Company and one or more
Subsidiaries of the Company, (ii) a partnership in which the Company or a
Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a Subsidiary of the Company or the Company
and one or more Subsidiaries of the Company, directly or indirectly, at the date
of determination, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or other
governing body of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date
of this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"TOTAL ASSETS" means the total consolidated assets of the Company
and its Restricted Subsidiaries, as shown on the most recent internal balance
sheet of the Company prepared on a consolidated basis (excluding Unrestricted
Subsidiaries of the Company) in accordance with GAAP.
"TRADING DAY" means a day during which trading in the Common Stock
generally occurs on the New York Stock Exchange or, if the Common Stock is not
listed on the New York Stock Exchange, on the principal other national or
regional securities exchange on which the Common Stock is then listed or, if the
Common Stock is not listed on a national or regional securities exchange, on the
National Association of Notes Dealers Automated Quotation System or, if the
Common Stock is not quoted on the National Association of Securities Dealers
Automated Quotation System, on the principal other market on which the Common
Stock is then traded.
"TRUSTEE" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"UNITED STATES" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction (its "possessions" including Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands).
Section 1.02 Other Definitions.
Defined in
Term Section
---------------------------------------- -----------
"ACT"................................... 1.05(a)
"AGENT MEMBERS"......................... 2.12(f)
"AUTHENTICATION ORDER".................. 2.02
Defined in
Term Section
---------------------------------------- -----------
"BANKRUPTCY LAW"........................ 6.01
"CHANGE IN CONTROL"..................... 3.09(b)
"CHANGE IN CONTROL REPURCHASE DATE"..... 3.09(a)
"CHANGE IN CONTROL REPURCHASE NOTICE"... 3.09(d)
"CHANGE IN CONTROL REPURCHASE PRICE".... 3.09(a)
"COMMISSIONS"........................... 1.03
"CUSTODIAN"............................. 6.01
"DEPOSITARY"............................ 2.01(a)
"DTC"................................... 2.01(a)
"EVENT OF DEFAULT"...................... 6.01
"EXCHANGE ACT".......................... 3.09(b)(i)
"INCUR"................................. 4.09(a)
"INDENTURE NOTE HOLDER"................. 1.03
"INDENTURE TO BE QUALIFIED"............. 1.03
"INDENTURE TRUSTEE"..................... 1.03
"LEGAL HOLIDAY"......................... 10.08
"LEGEND"................................ 2.06(f)
"NOTICE OF DEFAULT"..................... 6.01
"OBLIGOR"............................... 1.03
"OPTIONAL REDEMPTION PRICE"............. 3.01
"PAYING AGENT".......................... 2.03
"PURCHASE DATE"......................... 3.14
"PURCHASE DATE"......................... 3.14
"REGISTRAR"............................. 2.03
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE NOTES" means the Notes.
"INDENTURE NOTE HOLDER" means a Noteholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture Notes means the Company.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.04 Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect as of the date hereof;
(c) "or" is not exclusive;
(d) "including" means including, without limitation; and
(e) words in the singular include the plural, and words in the
plural include the singular.
Section 1.05 Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by their agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "ACT" of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
The ownership of Notes shall be proved by the register for the Notes
or by a certificate of the Registrar.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a resolution of the Board of Directors, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for purposes of determining whether Holders of the requisite proportion
of outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
Article 2
THE NOTES
Section 2.01 Title, Form and Dating. The aggregate Principal Amount
of Notes that may be authenticated and delivered under this Indenture is
initially limited to [$60,000,000 plus an aggregate amount of up to $38,000,000
Additional Notes paid as interest on the Notes](1), except for Notes
authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 2.06, 2.07, 2.09, or 9.05.
Other than as set forth in the preceding sentence, the Company shall not issue
any Notes under the Indenture.
The Notes and the Trustee's certificate of authentication to be
borne by such Notes shall be substantially in the form annexed hereto as
Exhibits A-1 and A-2, which are incorporated in and made apart of this
Indenture. The terms and provisions contained in the form of Note shall
constitute, and are hereby expressly made, a part of this Indenture and to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, or to conform to usage.
(a) Global Notes and Certificated Notes. Notes offered and
exchanged for Existing Notes on the Issue Date shall be issued, initially in the
form of a Global Note in registered form, which shall be deposited with the
Trustee at its Corporate Trust Office, as custodian for, and registered in the
name of, The Depository Trust Company ("DTC") or the nominee thereof (such
depositary, or any successor thereto, and any such nominee being
(1) Total aggregate amount to be issued will be determined at closing.
hereinafter referred to as the "DEPOSITARY"), duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary as hereinafter
provided.
Notes issued pursuant to Section 2.12 hereof in exchange for
interests in Global Notes shall be issued in the form of Certificated Notes in
registered form, substantially in the form of Exhibit A-2 attached hereto.
(b) Global Notes in General. Each Global Note shall represent
such of the outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and conversions.
Any adjustment of the aggregate principal amount of a Global Note to
reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.12 hereof and
shall be made on the records of the Trustee and the Depositary.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply
only to Global Notes deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(c), authenticate and deliver initially one or more Global
Notes that (a) shall be registered in the name of the Depositary, (b) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS
OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF."
Section 2.02 Execution and Authentication. The Notes shall be
executed on behalf of the Company by any Officer, under its corporate seal
impressed or reproduced thereon. The signature of the Officer on the Notes may
be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at the time of the execution of the Notes the proper Officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Notes or did not hold such offices at the date of authentication of such
Notes.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer or other
representative, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and delivered
hereunder.
The Company may, subject to Article 4 and the terms of this
Indenture and applicable law, issue Additional Notes under this Indenture. The
Trustee will, upon receipt of a written order of the Company signed by at least
one Officer (an "AUTHENTICATION ORDER"), authenticate Additional Notes for
original issue that may be validly issued under this Indenture from time to time
to represent interest and automatically deemed interest paid pursuant to
paragraph 1 of the Notes. The aggregate principal amount of Notes outstanding at
any time may not exceed the aggregate principal amount of Notes authorized for
issuance by the Company pursuant to one or more Authentication Orders, except as
provided in Section 2.07 hereof.
The Notes shall be issued only in registered form without coupons.
Section 2.03 Registrar and Paying Agent. The Company shall maintain
an office or agency where Notes may be presented for registration of transfer or
for exchange ("REGISTRAR"), an office or agency where Notes maybe presented for
purchase or payment ("PAYING AGENT") and an office or agency where Notes may be
presented for conversion ("CONVERSION AGENT"). The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company may have
one or more co-registrars, one or more additional paying agents and one or more
additional conversion agents. The term Paying Agent includes any additional
paying agent, including any named pursuant to Section 4.05. The term Conversion
Agent includes any additional conversion agent, including any named pursuant to
Section 4.05.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent, Conversion Agent or co-registrar (other than the
Trustee). 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 such agent. If the Company fails to maintain a Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.06. The
Company or any Subsidiary or an Affiliate of either of them may act as Paying
Agent, Conversion Agent, Registrar or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Notes.
Section 2.04 Paying Agent to Hold Money and Notes in Trust. Except
as otherwise provided herein, on or prior to each due date of payments in
respect of any Note, the Company shall deposit with the Paying Agent a sum of
money (in immediately available funds if deposited on the due date) sufficient
to make such payments when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of Noteholders or the Trustee all money held
by the Paying Agent for the making of payments in respect of the Notes and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, the Paying Agent shall,
upon the written request of the Trustee, forthwith pay to the Trustee all money
so held in trust. If the Company, a Subsidiary or an Affiliate of either of them
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
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 to account for any
funds disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money.
Section 2.05 Noteholder 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 Noteholders. If the Trustee is not the Registrar,
the Company shall cause to be furnished to the Trustee at least semi-annually,
on January 1 and July 1, a listing of Noteholders dated within 13 days of the
date on which the list is furnished 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 Noteholders.
Section 2.06 Transfer and Exchange. (a) Subject to Section 2.12
hereof, upon surrender for registration of transfer of any Note, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Noteholder or such Noteholder's attorney duly authorized in writing, at the
office or agency of the Company designated as Registrar or co-registrar pursuant
to Section 2.03, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Notes of any authorized denomination or denominations, of a like
aggregate principal amount. The Company shall not charge a service charge for
any registration of transfer or exchange, but the Company may require payment of
a sum sufficient to pay all taxes, assessments or other governmental charges
that may be imposed in connection with the transfer or exchange of the Notes
from the Noteholder requesting such transfer or exchange.
At the option of the Holder, Notes may be exchanged for other Notes
of any authorized denomination or denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged, together with a written
instrument of transfer satisfactory to the Registrar duly executed by the
Noteholder or such Noteholder's attorney duly authorized in writing, at such
office or agency. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Holder making the exchange is entitled to receive.
The Company shall not be required to make, and the Registrar need
not register, transfers or exchanges of Notes selected for redemption (except,
in the case of Notes to be redeemed in part, the portion thereof not to be
redeemed) or any Notes in respect of which a Change in Control Repurchase Notice
(as defined in Section 3.09(d)) has been given and not withdrawn by the Holder
thereof in accordance with the terms of this Indenture (except, in the case of
Notes to be purchased in part, the portion thereof not to be purchased) or any
Notes for a period of 15 days before the mailing of a notice of redemption of
Notes to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so
long as a Global Note remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Note, in whole or in part, shall be made only
in accordance with Section 2.12 and this Section 2.06(b). Transfers of a Global
Note shall be limited to transfers of such Global Note in whole, or in part, to
nominees of the Depositary or to a successor of the Depositary or such
successor's nominee.
(c) Successive registrations and registrations of transfers
and exchanges as aforesaid may be made from time to time as desired, and each
such registration shall be noted on the register for the Notes.
(d) Any Registrar appointed pursuant to Section 2.03 hereof
shall provide to the Trustee such information as the Trustee may reasonably
require in connection with the delivery by such Registrar of Notes upon transfer
or exchange of Notes.
(e) No Registrar shall be required to make registrations of
transfer or exchange of Notes during any periods designated in the text of the
Notes or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
Section 2.07 Replacement Notes. If (a) any mutilated Note is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Note, and there
is delivered to the Company and the Trustee such Note or indemnity as may be
required by them, in each case in their respective sole judgment, to save each
of them harmless, then, in the absence of notice to the Company or any
Responsible Officer of the Trustee that such Note has been acquired by a bona
fide purchaser, the Company shall execute and upon receipt of a Company Request
the Trustee shall authenticate and deliver, in exchange for any such mutilated
Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, or is about to be purchased or
redeemed by the Company pursuant to Article 3 hereof, the Company in its
discretion may, instead of issuing a new Note, pay or purchase such Note, as the
case may be.
Upon the issuance of any new Notes under this Section 2.07, 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 expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 2.07 in lieu
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.08 Outstanding Notes; Determinations of Holders' Action.
Notes outstanding at any time are all the Notes authenticated by the Trustee
except for those cancelled by it or delivered to it for cancellation, those paid
pursuant to Section 2.07 and those described in this Section 2.08 as not
outstanding. A Note does not cease to be outstanding because the Company or an
Affiliate thereof holds the Note; provided, however, that in determining whether
the Holders of the requisite principal amount of the outstanding Notes have
given or concurred in any request, demand, authorization, direction, notice,
consent or waiver hereunder, Notes owned by the Company or any other obligor
upon the Notes or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Subject to the foregoing, only Notes outstanding at the time of such
determination shall be considered in any such determination (including, without
limitation, determinations pursuant to Articles 6 and 9).
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date or on the Business Day following the Change in Control
Repurchase Date, or on Stated Maturity, money or securities, if permitted
hereunder, sufficient to pay Notes payable on that date, then immediately after
such Redemption Date, Change in Control Repurchase Date or Stated Maturity, as
the case may be, such Notes shall cease to be outstanding and interest on such
Notes shall cease to accrue; provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor reasonably satisfactory to the Trustee has been made.
If a Note is converted in accordance with Article 10, then from and
after the time of conversion on the conversion date, such Note shall cease to be
outstanding and interest shall cease to accrue on such Note.
Section 2.09 Temporary Notes. Pending the preparation of definitive
Notes, the Company may execute, and upon receipt of a Company Order the Trustee
shall authenticate
and deliver, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as conclusively
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 2.03, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
Section 2.10 Cancellation. All Notes surrendered for payment,
purchase by the Company pursuant to Article 3, conversion, redemption or
registration of transfer or exchange shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
the Trustee. The Company may at any time deliver to the Trustee for cancellation
any Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee. The Company may not issue new Notes to
replace Notes it has paid or delivered to the Trustee for cancellation or that
any Holder has converted pursuant to Article 10. No Notes shall be authenticated
in lieu of or in exchange for any Notes cancelled as provided in this Section
2.10, except as expressly permitted by this Indenture. All cancelled Notes held
by the Trustee shall be destroyed by the Trustee and the Trustee shall, upon
request, deliver a certificate of destruction to the Company.
Section 2.11 Persons Deemed Owners. Prior to due presentment of a
Note for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of the Note or the payment of any Redemption Price or Change in
Control Repurchase Price in respect thereof, and interest thereon, for the
purpose of conversion and for all other purposes whatsoever, whether or not such
Note be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 2.12 Global Notes. (a) Notwithstanding any other provisions
of this Indenture or the Notes, (A) transfers of a Global Note, in whole or in
part, shall be made only in accordance with Section 2.06 and Section 2.12(a)(i),
(B) transfer of a beneficial interest in a Global Note for a Certificated Note
shall comply with Section 2.06 and Section 2.12(a)(ii), and (C) transfers of a
Certificated Note shall comply with Section 2.06 and Sections 2.12(a)(iii) and
(iv).
(i) Transfer of Global Note. A Global Note may not be
transferred, in whole or in part, to any Person other than the Depositary
or a nominee or
any successor thereof, and no such transfer to any such other Person may
be registered; provided that this clause shall not prohibit any transfer
of a Note that is issued in exchange for a Global Note but is not itself a
Global Note. No transfer of a Note to any Person shall be effective under
this Indenture or the Notes unless and until such Note has been registered
in the name of such Person. Nothing in this Section 2.12(a)(i) shall
prohibit or render ineffective any transfer of a beneficial interest in a
Global Note effected in accordance with the other provisions of this
Section 2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a
Global Note for a Certificated Note. A beneficial interest in a Global
Note may not be exchanged for a Certificated Note except upon satisfaction
of the requirements set forth below. Upon receipt by the Trustee of a
transfer of a beneficial interest in a Global Note (which transfer shall
be made to a Holder that is acquiring a minimum of $100,000 aggregate
principal amount of Notes) in accordance with Applicable Procedures for a
Certificated Note in the form satisfactory to the Trustee, together with
written instructions to the Trustee to make, or direct the Registrar to
make, an adjustment on its books and records with respect to such Global
Note to reflect a decrease in the aggregate principal amount of the Notes
represented by the Global Note, such instructions to contain information
regarding the Depositary account to be credited with such decrease, then
the Trustee shall cause, or direct the Registrar to cause, in accordance
with the standing instructions and procedures existing between the
Depositary and the Registrar, the aggregate principal amount of Notes
represented by the Global Note to be decreased by the aggregate principal
amount of the Certificated Note to be issued, shall issue such
Certificated Note and shall debit or cause to be debited to the account of
the Person specified in such instructions a beneficial interest in the
Global Note equal to the principal amount of the Certificated Note so
issued.
(iii) Transfer and Exchange of Certificated Notes. When
Certificated Notes are presented to the Registrar with a request:
(A) to register the transfer of such Certificated Notes;
or
(B) to exchange such Certificated Notes for an equal
principal amount of Certificated Notes of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Certificated Notes surrendered for transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form reasonably
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
(iv) Restrictions on Transfer of a Certificated Note for a
Beneficial Interest in a Global Note. A Certificated Note may not be
exchanged for a beneficial interest in a Global Note except upon
satisfaction of the requirements set forth below in connection with
certain transfers of such Notes.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied
by appropriate instruments of transfer, in form reasonably satisfactory to the
Trustee, together with written instructions directing the Trustee to make, or to
direct the Registrar to make, an adjustment on its books and records with
respect to such Global Note to reflect an increase in the aggregate principal
amount of the Notes represented by the Global Note, such instructions to contain
information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the
Registrar to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the aggregate principal
amount of Notes represented by the Global Note to be increased by the aggregate
principal amount of the Certificated Note to be exchanged, and shall credit or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the Global Note equal to the principal amount of the
Certificated Note so cancelled. If no Global Notes are then outstanding the
Company shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Global Note in the
appropriate principal amount.
(b) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among DTC participants,
members or beneficial owners in any Global Note) other than to require delivery
of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof. The Trustee shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the aforementioned opinion of counsel or registration statement.
(c) As used in the preceding paragraph of this Section 2.12,
the term "transfer" encompasses any sale, pledge, transfer, hypothecation or
other disposition of any Note.
(d) The provisions of clauses (i), (ii), (iii) and (iv) below
shall apply only to Global Notes:
(i) Notwithstanding any other provisions of this
Indenture or the Notes, except as provided in Section 2.12(a)(i), a Global
Note shall not be exchanged in whole or in part for a Note registered in
the name of any Person other than the Depositary or one or more nominees
thereof, provided that a Global Note may be exchanged for Notes registered
in the names of any person designated by the Depositary in the event that
(A) the Depositary has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Note or such Depositary is no
longer eligible or in good standing under the Exchange Act or any other
applicable Statute or regulation to continue as Depository for the Global
Notes, and a successor Depositary is not appointed by the Company within
90 days after the Company receives notice or becomes aware of their
ineligibility or (B) an Event of Default has occurred and is continuing
with respect to the Notes. Any Global Note exchanged pursuant to clause
(A) above shall be so exchanged in whole and not in part, and any Global
Note exchanged pursuant to clause (B) above may be exchanged in whole or
from time to time in part as directed by the Depositary. Any Note issued
in exchange for a Global Note or any
portion thereof shall be a Global Note; provided that any such Note so
issued that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global Note.
(ii) Notes issued in exchange for a Global Note or any
portion thereof shall be issued in definitive, fully registered form,
without interest coupons, shall have an aggregate principal amount equal
to that of such Global Note or portion thereof to be so exchanged, shall
be registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear the applicable legends provided
for herein. Any Global Note to be exchanged in whole shall be surrendered
by the Depositary to the Trustee, as Registrar. With regard to any Global
Note to be exchanged in part, either such Global Note shall be so
surrendered for exchange or, if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Note, the principal
amount thereof shall be reduced, by an amount equal to the portion thereof
to be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the Trustee
shall authenticate and deliver the Note issuable on such exchange to or
upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the
registered Holder may grant proxies and otherwise authorize any Person,
including Agent Members (as defined below) and persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(iv) In the event of the occurrence of any of the events
specified in clause (i) above, the Company will promptly make available to
the Trustee a reasonable supply of Certificated Notes in definitive, fully
registered form, without interest coupons.
(v) Neither any members of, or participants in, the
Depositary (collectively, the "AGENT MEMBERS") nor any other Persons on
whose behalf Agent Members may act shall have any rights under this
Indenture with respect to any Global Note registered in the name of the
Depositary or any nominee thereof, or under any such Global Note, and the
Depositary or such nominee, as the case may be, 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 Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by
the Depositary or such nominee, as the case may be, or impair, as between
the Depositary, its Agent Members and any other person on whose behalf an
Agent Member may act, the operation of customary practices of such Persons
governing the exercise of the rights of a Holder of any Note.
Section 2.13 CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers and, if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the CUSIP numbers.
Section 2.14 Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, it will pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest plus (to the extent lawful) any interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date. A
special record date, as used in this Section 2.14 with respect to the payment of
any defaulted interest, shall mean the 15th day next preceding the date fixed by
the Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before the subsequent special record date, the
Company shall mail to each Holder and to the Trustee a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest to be paid.
Notwithstanding anything else in this Indenture or any Note to the
contrary, the Company shall pay all interest in cash, and not in Additional
Notes, after the Notes become due and payable, whether due to (a) acceleration
of the Notes pursuant to Section 6.02, or (b) the scheduled maturity of the
Notes.
Section 2.15 Designation. The Indebtedness evidenced by the Notes is
hereby irrevocably designated as "senior indebtedness" or such other term
denoting seniority for the purposes of any other existing or future Indebtedness
of the Company which the Company makes subordinate to any senior (or such other
term denoting seniority) Indebtedness of the Company.
Article 3
REDEMPTION AND PURCHASES
Section 3.01 Optional Redemption. The Notes are not redeemable
unless both of the following have occurred: (i) payment in full by the Company
of the Non-Convertible Notes including without limitation, accrued but unpaid
interest, pre-payment penalties, fees or other expenses due thereunder and (ii)
the New Conversion Rights Date (the conditions described in clauses (i) and
(ii), the "OPTIONAL REDEMPTION CONDITIONS"). On and after the first date on
which the Optional Redemption Conditions have occurred, the Company may, at its
option, redeem the Notes at any time and from time to time (subject to the
provisions of Section 3.02 hereof regarding prior notice to the Trustee), on any
date prior to Stated Maturity, upon notice as set forth in Section 3.04, at a
redemption price of $1,000 per $1,000 principal amount of Notes (the "OPTIONAL
REDEMPTION PRICE"), plus any interest accrued but not paid prior to (but not
including) the Optional Redemption Date.
Unless the Company defaults in the payment of the Redemption Price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
Any redemption pursuant to this Section 3.01 shall be made pursuant
to the provisions of Sections 3.02 through 3.07 hereof.
Section 3.02 Notice of Trustee. If the Company elects to redeem
Notes pursuant to the redemption provisions of Section 3.01 hereof, it shall
notify the Trustee at least 30 days prior but not more than 60 days prior to the
Redemption Date of such intended Redemption Date, the principal amount of Notes
to be redeemed and the CUSIP numbers of the Notes to be redeemed. In addition,
the Company shall furnish the Trustee with an Officer's Certificate certifying
that all conditions precedent to any such redemption have been satisfied in
full.
Section 3.03 Selection of Notes to be Redeemed. If fewer than all
the Notes are to be redeemed, the Trustee shall select the particular Notes to
be redeemed from the outstanding Notes by a method that complies with the
requirements of any exchange on which the Notes are listed, or, if the Notes are
not listed on an exchange, by lot. Notes and portions thereof that the Trustee
selects shall be in principal amounts equal to $1,000 (excluding Additional
Notes) or any whole multiple thereof.
If any Note selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Note so selected, the converted portion of such Note shall be deemed to be the
portion selected for redemption (provided, however, that the Holder of such Note
so converted and deemed redeemed shall not be entitled to any additional
interest payment as a result of such deemed redemption than such Holder would
have otherwise been entitled to receive upon conversion of such Note). Notes
which have been converted during a selection of Notes to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and the Registrar in
writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion of
the principal amount of such Notes which has been or is to be redeemed.
Section 3.04 Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 11.02 hereof to the Holders of Notes to
be redeemed. Subject to Section 3.04 hereof, such notice shall be given not less
than 30 nor more than 60 days prior to the Redemption Date for redemption
pursuant to Section 3.01.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price and interest accrued and unpaid to,
but not including, the Redemption Date, if any;
(c) if fewer than all the outstanding Notes are to be
redeemed, the aggregate principal amount of Notes to be redeemed and the
aggregate principal amount of Notes which will be outstanding after such partial
redemption;
(d) that on the Redemption Date the Redemption Price and
interest accrued and unpaid to, but not including, the Redemption Date, if any,
will become due and payable upon each such Note to be redeemed, and that
interest thereon shall cease to accrue on and after such date;
(e) the Conversion Price, the date on which the right to
convert the principal of the Notes to be redeemed will terminate and the places
where such Notes may be surrendered for conversion;
(f) the place or places where such Notes are to be surrendered
for payment of the Redemption Price and accrued and unpaid interest, if any; and
(g) the CUSIP number of the Notes.
The notice given shall specify the last date on which exchanges or
transfers of Notes may be made pursuant to Section 2.06 hereof.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company.
Section 3.05 Effect of Notice of Redemption. Notice of redemption
having been given as provided in Section 3.04 hereof, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued and unpaid interest)
such Notes shall cease to bear interest. Upon surrender of any such Note for
redemption in accordance with such notice, such Note shall be paid by the
Company at the Redemption Price plus accrued and unpaid interest, if any, to,
but not including, the Redemption Date; provided, however, that the installments
of interest on Notes whose Stated Maturity is prior to or on the Redemption Date
shall be payable to the Holders of such Notes, or one or more predecessor Notes,
registered as such on the relevant Record Date according to their terms and the
provisions of Section 2.01 hereof.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the Interest Rate.
Section 3.06 Deposit of Redemption Price. Prior to or on any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent an amount of money sufficient to pay the Redemption Price of all the Notes
to be redeemed on that Redemption Date, other than any Notes called for
redemption on that date which have been converted prior to the date of such
deposit, and accrued and unpaid interest, if any, on such Notes.
Section 3.07 Notes Redeemed in Part. Any Note which is to be
redeemed only in part shall be surrendered at an office or agency of the Company
designated for that
purpose pursuant to Section 4.05 hereof (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or the Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Note without service charge, a new Note or Notes of any authorized denomination
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Note so surrendered.
Section 3.08 Repurchase of Notes at Option of the Holder upon Change
in Control. (a) If there shall have occurred a Change in Control, all or any
portion of the Notes of any Holder equal to $1,000 or a whole multiple of
$1,000, not previously called for redemption, shall be repurchased by the
Company, at the option of such Holder, at a repurchase price equal to 100% of
the principal amount of the Notes to be repurchased, together with interest
accrued and unpaid to, but excluding, the repurchase date (the "CHANGE IN
CONTROL REPURCHASE PRICE"), on the date (the "CHANGE IN CONTROL REPURCHASE
DATE") that is 45 days (or if that 45th day is not a Business Day, the next
succeeding Business Day) after the Change in Control Repurchase Notice;
provided, however, that installments of interest on Notes whose Stated Maturity
is prior to or on the Change in Control Repurchase Date shall be payable to the
Holders of such Notes, or one or more predecessor Notes, registered as such on
the relevant Regular Record Date according to their terms.
(b) Whenever in this Indenture (including Sections 2.01,
6.01(a) and 6.07 hereof) or Exhibit A-1 annexed hereto there is a reference, in
any context, to the principal of any Note as of any time, such reference shall
be deemed to include reference to the Change in Control Repurchase Price payable
in respect to such Note to the extent that such Change in Control Repurchase
Price is, was or would be so payable at such time, and express mention of the
Change in Control Repurchase Price in any provision of this Indenture shall not
be construed as excluding the Change in Control Repurchase Price in those
provisions of this Indenture when such express mention is not made.
A "CHANGE IN CONTROL" of the Company shall be deemed to have
occurred at such time after the original issuance of Notes as any of the
following events shall occur:
(i) the acquisition by any person, including any
syndicate or group deemed to be a "person" under Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), of
beneficial ownership, directly or indirectly, through a purchase, merger
or other acquisition transaction or series of transactions, of shares of
the Capital Stock of the Company entitling that person to exercise 50% or
more of the total voting power of all shares of such Capital Stock
entitled to vote generally in elections of directors, other than any
acquisition by the Company, any of its Subsidiaries or any employee
benefit plans of the Company; or
(ii) any consolidation or merger of the Company with or
into any other person, any merger of another person into the Company, or
any conveyance, transfer, sale, lease or other disposition of all or
substantially all of the Company's properties and assets to another
person, other than:
(A) any transaction (1) that does not result in
any reclassification, conversion, exchange or cancellation of
outstanding shares of the Capital Stock of the Company and (2)
pursuant to which holders of the Capital Stock of the Company
immediately prior to the transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total voting
power of all shares of the Capital Stock of the Company entitled to
vote generally in the election of directors of the continuing or
surviving person immediately after the transaction; or
(B) any merger solely for the purpose of changing
the Company's jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding shares of
(1) Series B Preferred Stock solely into shares of a series of
preferred stock of the surviving entity having the same
designations, rights and privileges with respect to such surviving
entity as the Series B Preferred Stock has with respect to the
Company, (2) Series A Preferred Stock solely into shares of a series
of preferred stock of the surviving entity having the same
designations, rights and privileges with respect to such surviving
entity as the Series A Preferred Stock has with respect to the
Company, or (3) Common Stock solely into shares of a series of
common stock of the surviving entity;
(iii) during any consecutive two-year period,
individuals who at the beginning of that two-year period constituted the
Board of Directors (together with any new directors whose election to the
Board of Directors, or whose nomination for election by the shareholders
of the Company, was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such period
or whose election or nomination for election were previously so approved)
cease for any reason to constitute a majority of the Board of Directors
then in office; or
(iv) the Company is liquidated or dissolved or a
resolution is passed by the Company's stockholders approving a plan of
liquidation or dissolution of the Company other than in a transaction
which complies with the provisions described in Article 5 of the
Indenture.
Beneficial ownership shall be determined in accordance with Rule
13d-3 promulgated by the SEC under the Exchange Act. The term "person" shall
include any syndicate or group that would be deemed to be a "person" under
Section 13(d)(3) of the Exchange Act.
(c) Unless the Company shall have theretofore called for
redemption all of the outstanding Notes, prior to or on the 30th day after the
occurrence of a Change in Control, the Company, or, at the written request and
expense of the Company prior to or on the 30th day after such occurrence, the
Trustee, shall give to all Noteholders, in the manner provided in Section 11.02
hereof, notice of the occurrence of the Change in Control and of the repurchase
right set forth herein arising as a result thereof. The Company shall also
deliver a copy of such notice of a repurchase right to the Trustee. The notice
shall include a form of Change in Control Repurchase Notice (as defined in
Section 3.08(d)) to be completed by the Noteholder and shall state:
(i) briefly, the events causing a Change in Control and
the date of such Change in Control;
(ii) the date by which the Change in Control Repurchase
Notice pursuant to this Section 3.08 must be given;
(iii) the Change in Control Repurchase Date;
(iv) the Change in Control Repurchase Price;
(v) the name and address of the Paying Agent and the
Conversion Agent;
(vi) the Conversion Price and any adjustments thereto;
(vii) that Notes as to which a Change in Control
Repurchase Notice has been given may be converted pursuant to Article 10
hereof only if the Change in Control Purchase Notice has been withdrawn in
accordance with the terms of this indenture;
(viii) that Notes must be surrendered to the Paying
Agent to collect payment;
(ix) that the Change in Control Repurchase Price for any
Note as to which a Change in Control Repurchase Notice has been duly given
and not withdrawn will be paid promptly following the later of the Change
in Control Repurchase Date and the time of surrender of such Note as
described in (viii) above;
(x) briefly, the procedures the Holder must follow to
exercise rights under this Section 3.08;
(xi) briefly, the conversion rights of the Notes;
(xii) the procedures for withdrawing a Change in Control
Repurchase Notice;
(xiii) that, unless the Company defaults in making
payment of such Redemption Price, interest on Notes called for redemption
will cease to accrue on and after the Redemption Date; and
(xiv) the CUSIP number of the Notes.
(d) A Holder may exercise its rights specified in Section
3.08(a) hereof upon delivery of a written notice of purchase (a "CHANGE IN
CONTROL REPURCHASE NOTICE") to the Paying Agent at any time prior to the close
of business on the Change in Control Repurchase Date, stating:
(i) the certificate number of the Note which the Holder
will deliver to be purchased;
(ii) the portion of the principal amount of the Note
which the Holder will deliver to be purchased; and
(iii) that such Note shall be purchased pursuant to the
terms and conditions specified in paragraph 6 on the reverse side of the
Notes.
The delivery of such Note to the Paying Agent prior to, on or after
the Change in Control Repurchase Date (together with all necessary endorsements)
at the offices of the Paying Agent shall be a condition to the receipt by the
Holder of the Change in Control Repurchase Price therefor; provided, however,
that such Change in Control Repurchase Price shall be so paid pursuant to this
Section 3.08 only if the Note so delivered to the Paying Agent shall conform in
all respects to the description thereof set forth in the related Change in
Control Repurchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Note. Provisions of this Indenture that apply to
the purchase of all of a Note also apply to the purchase of such portion of such
Note.
Any purchase by the Company contemplated pursuant to the provisions
of this Section 3.08 shall be consummated by the delivery of the consideration
to be received by the Holder promptly following the later of the Change in
Control Repurchase Date and the time of delivery of the Note to the Paying Agent
in accordance with this Section 3.08.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change in Control Repurchase Notice
contemplated by this Section 3.08(d) shall have the right to withdraw such
Change in Control Repurchase Notice at any time prior to the close of business
on the Change in Control Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.09.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Change in Control Repurchase Notice or written withdrawal thereof.
Section 3.09 Effect of Change in Control Repurchase Notice. Upon
receipt by the Paying Agent of the Change in Control Repurchase Notice specified
in Section 3.08(d), the Holder of the Note in respect of which such Change in
Control Repurchase Notice was given shall (unless such Change in Control
Repurchase Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Change in Control Repurchase Price
with respect to such Note. Such Change in Control Repurchase Price shall be paid
to such Holder, subject to receipt of consideration for the Notes and/or Notes
from the Holders by the Paying Agent, promptly following the later of (x) the
Change in Control Repurchase Date with respect to such Note (provided the
conditions in Section 3.08(d) have been satisfied) and (y) the time of delivery
of such Note to the Paying Agent by the Holder thereof in the manner required by
Section 3.08(d). Notes in respect of which a Change in Control Repurchase
Notice, has been given by the Holder thereof may not be converted pursuant to
Article 10 hereof on or after the date of the delivery of such Change in Control
Repurchase
Notice unless such Change in Control Repurchase Notice has first been validly
withdrawn as specified in the following two paragraphs.
A Change in Control Repurchase Notice may be withdrawn by means of
written notice of withdrawal delivered to the office of the Paying Agent in
accordance with the Change in Control Repurchase Notice at any time prior to the
close of business on the Change in Control Repurchase Date specifying:
(a) the certificate number of the Note in respect of which
such notice of withdrawal is being submitted,
(b) the principal amount of the Note with respect to which
such notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note which remains
subject to the original Change in Control Repurchase Notice and which has been
or will be delivered for purchase by the Company.
There shall be no repurchase of any Notes pursuant to Section 3.08
if there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such Notes, of the required Change in Control Repurchase Notice)
and is continuing an Event of Default (other than a default in the payment of
the Change in Control Repurchase Price with respect to such Notes). The Paying
Agent will promptly return to the respective Holders thereof any Notes (x) with
respect to which a Change in Control Repurchase Notice has been withdrawn
incompliance with this Indenture, or (y) held by it during the continuance of an
Event of Default (other than a default in the payment of the Change in Control
Repurchase Price with respect to such Notes) in which case, upon such return,
the Change in Control Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.
Section 3.10 Deposit of Change in Control Repurchase Price. Prior to
11:00 a.m. (New York City time) on the Change in Control Repurchase Date the
Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an
amount of money (in immediately available funds if deposited on such Business
Day) sufficient to pay the aggregate Change in Control Repurchase Price of all
the Notes or portions thereof which are to be purchased as of the Change in
Control Repurchase Date.
Section 3.11 Notes Purchased in Part. Any Note which is to be
purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Xxxxxx's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Note, without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Note so surrendered which is not purchased.
Section 3.12 Covenant to Comply with Securities Laws . In connection
with any offer to purchase or repurchase Notes under Section 3.08 hereof
(provided that such offer or purchase constitutes an "issuer tender offer" for
purposes of Rule 13e-4 (which term, as used herein, includes any successor
provision thereto) under the Exchange Act at the time of such offer or
purchase), the Company shall (i) comply with Rule 13e-4, Rule 14e-1 and any
other tender offer rules under the Exchange Act which may then be applicable,
(ii) file the related Schedule TO (or any successor schedule, form or report) or
any other schedule required under the Exchange Act, and (iii) otherwise comply
with all federal and state securities laws so as to permit the rights and
obligations under Section 3.08 to be exercised in the time and in the manner
specified in Section 3.08.
Section 3.13 Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash held by them for the payment of the
Change in Control Repurchase Price; provided, however, that to the extent that
the aggregate amount of cash deposited by the Company pursuant to Section 3.11
exceeds the aggregate Change in Control Repurchase Price of the Notes or
portions thereof which the Company is obligated to purchase as of the Change in
Control Repurchase Date then promptly after the Business Day following the
Change in Control Repurchase Date the Trustee shall return any such excess to
the Company together with interest or dividends, if any, thereon.
Article 4
COVENANTS
Section 4.01 Payment of Principal, Premium, Interest on the Notes.
The Company will duly and punctually pay the principal of and premium, if any,
and interest at the Interest Rate in accordance with the terms of the Notes and
this Indenture. The Company will, at its option, either (i) deposit or cause to
be deposited with the Trustee as directed by the Trustee, no later than 11:00
a.m., New York City time on the day of the Stated Maturity of any interest
installment or principal payment of any Note, all payments so due or (ii) cause
to be executed and authenticated such Additional Notes in the principal amount
sufficient to pay the Stated Maturity of any interest installment or principal
payment of any Note in accordance with Section 2.02 hereof and deliver such
Additional Notes to each Holder of record (or to the Trustee or the
authenticating agent in custody for such Person). Principal amount, Redemption
Price, Change in Control Repurchase Price and cash interest shall be considered
paid on the applicable date due if at 11:00 a.m., New York City time on such
date (or, in the case of a Change in Control Repurchase Price on the Business
Day following the applicable Change in Control Repurchase Date, if applicable)
the Trustee or the Paying Agent holds, in accordance with this Indenture, money
or Notes, if permitted hereunder, sufficient to pay all such amounts then due.
The Company shall, to the extent permitted by law, pay cash interest
on overdue amounts at the rate per annum set forth in paragraph 1 on the reverse
side of the Notes, compounded semi-annually, which interest shall accrue from
the date such overdue amount was originally due to the date payment of such
amount, including interest thereon, has been made or duly provided for. All such
overdue interest shall be payable on demand.
Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
Section 4.02 SEC and Other Reports. The Company shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. If at any time the Company is not
subject to Section 13 or 15(d) of the Exchange Act, such reports shall be
provided at the times the Company would have been required to provide reports
had it continued to have been subject to such reporting requirements. The
Company also shall comply with the other provisions of TIA Section 314(a).
The Company's reporting obligations under this Section 4.02 will be
satisfied in the event the Company files such information with the SEC and it is
publicly available electronically through the SEC's XXXXX filing system.
Section 4.03 Compliance Certificate. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, 2006) an Officers'
Certificate, stating whether or not to the knowledge of the signers thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 4.04 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 4.05 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, the City of New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer, exchange, purchase, redemption or conversion and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The office of U.S. Bank National Association, located
in the Borough of Manhattan, the City of New York, shall initially be such
office or agency for all of the aforesaid purposes. The Company shall give
prompt written notice to the Trustee of the location, and of any change in the
location, of any such office or agency (other than a change in the location of
the office of the Trustee). If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section 10.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in the Borough of Manhattan, the City of New York, for such
purposes.
Section 4.06 Taxes. The Company will pay, and will cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders.
Article 5
SUCCESSOR CORPORATION
Section 5.01 When Company May Merge or Transfer Assets. The Company
shall not consolidate, merge or amalgamate with or into any other person or
convey, transfer or lease its properties and assets of the Company and its
Restricted Subsidiaries taken as a whole substantially as an entirety to any
person, unless:
(a) either (i) the Company shall be the continuing corporation
or (ii) the person (if other than the Company) formed by such consolidation or
into which the Company is merged or amalgamated or the person which acquires by
conveyance, transfer or lease the properties and assets of the Company
substantially as an entirety (A) shall be organized and validly existing under
the laws of the United States or any State thereof or the District of Columbia
and (B) shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to the Trustee,
all of the obligations of the Company under the Notes and this Indenture;
(b) at the time of such transaction, no Event of Default and
no event which, after notice or lapse of time, would become an Event of Default,
shall have happened and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, amalgamation, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture, comply with this Article 5 and that all conditions
precedent herein provided for relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of the properties and assets of one or more Subsidiaries
(other than to the Company or another Subsidiary), which, if such assets were
owned by the Company, would constitute all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
The successor person formed by such consolidation or into which the
Company is merged or the successor person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease, the Company shall be discharged from all obligations and
covenants under this Indenture and the Notes. Subject to Section 9.06, the
Company, the Trustee and the successor person shall enter into a supplemental
indenture to evidence the succession and substitution of such successor person
and such discharge and release of the Company.
Article 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. An "EVENT OF DEFAULT" occurs if:
(a) the Company fails to pay when due the principal of or
premium, if any, on any of the Notes at maturity, upon redemption or exercise of
a repurchase right or otherwise;
(b) the Company fails to pay an installment of interest
(including Registration Delay Payments (as that term is defined in the
Registration Rights Agreement), if any) on any of the Notes that continues for
30 days after the date when due;
(c) the Company fails to deliver shares of Series B Preferred
Stock or Common Stock, as applicable, together with cash in lieu of fractional
shares, if any, when such shares are required to be delivered for conversion of
a Note and such failure continues for 10 days after such delivery date;
(d) the Company fails to perform or observe any other term,
covenant or agreement contained in the Notes or this Indenture and the
Non-Convertible Notes and the Non-Convertible Notes indenture for a period of 30
days after receipt by the Company of a Notice of Default (as defined in this
Section 6.01);
(e) the Company fails to give or cause the Trustee to give all
Noteholders notice of the occurrence of a Change in Control in accordance with
the provisions of Section 3.08(c) hereof;
(f) one or more defaults in the payment of principal of or
premium, if any, on any of the Company's or the Company's Subsidiaries'
Indebtedness aggregating $5.0 million or more, when the same becomes due and
payable at the scheduled maturity thereof, and such default or defaults shall
have continued after any applicable grace period and shall not have been cured
or waived within a 30-day period after the date of a notice of default or any of
the Company's or the Company's Subsidiaries' Indebtedness aggregating $5.0
million or more shall have been accelerated or otherwise declared due and
payable, or required to be prepaid or repurchased (other than by regularly
scheduled required prepayment) prior to the scheduled maturity thereof and such
acceleration is not rescinded or annulled within a 30-day period after the date
of such acceleration;
(g) there is rendered against the Company or any of its
Subsidiaries one or more final unsatisfied judgments not covered by insurance
aggregating in excess of $5.0 million, which are not stayed, bonded or
discharged within 60 days;
(h) the Company, or any Significant Subsidiary, or any
Subsidiaries of the Company which in the aggregate would constitute a
Significant Subsidiary pursuant to or under or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief
against it in an involuntary case or proceeding or the commencement of any
case against it;
(iii) consents to the appointment of a Custodian of it
or for any substantial part of its property;
(iv) makes a general assignment for the benefit of its
creditors;
(v) files a petition in bankruptcy or answer or consent
seeking reorganization or relief; or
(vi) consents to the filing of such a petition or the
appointment of or taking possession by a Custodian; or
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any Significant
Subsidiary or any Subsidiaries of the Company which in the aggregate would
constitute a Significant Subsidiary in an involuntary case or proceeding,
or adjudicates the Company or any Significant Subsidiary or any
Subsidiaries of the Company which in the aggregate would constitute a
Significant Subsidiary insolvent or bankrupt;
(ii) appoints a Custodian of the Company or any
Significant Subsidiary or any Subsidiaries of the Company which in the
aggregate would constitute a Significant Subsidiary or for any substantial
part of its or their properties; or
(iii) orders the winding up or liquidation of the
Company or any Significant Subsidiary or any Subsidiaries of the Company
which in the aggregate would constitute a Significant Subsidiary; and the
order or decree remains unstayed and in effect for 60 days.
"BANKRUPTCY LAW" means Title 11, United States Code, or any similar
federal or state law for the relief of debtors.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
A Default under clauses (d), (f) or (g) 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 Notes at the time outstanding notify the
Company and the Trustee, of the Default and the
Company does not cure such Default (and such Default is not waived) within the
time specified in clause (c) or (f) above after actual receipt of such notice.
Any such notice must specify the Default, demand that it be remedied and state
that such notice is a "NOTICE OF DEFAULT".
The Company will deliver to the Trustee, within five Business Days
of becoming aware of the occurrence of an Event of Default, written notice
thereof. In addition, the Company shall deliver to the Trustee, within 30 days
after it becomes aware of the occurrence thereof, written notice of any event
which with the lapse of time and the giving of notice would become an Event of
Default under clause (d), (f) or (g) above, its status and what action the
Company is taking or proposes to take with respect thereto.
Section 6.02 Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(h) or (i)) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the Notes at the time outstanding by notice to the
Company and the Trustee, may declare the Notes due and payable at their
principal amount together with accrued interest. Upon a declaration of
acceleration, such principal and accrued and unpaid interest to the date of
payment shall be immediately due and payable.
If an Event of Default specified in Section 6.01(h) or (i) above
occurs and is continuing, then the principal and the interest on all the Notes
shall become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Noteholders.
The Holders of a majority in aggregate principal amount of the Notes
at the time outstanding, by notice to the Trustee (and without notice to any
other Noteholder) may rescind or annul an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of the
principal and any accrued cash interest that have become due solely as a result
of acceleration and if all amounts due to the Trustee under Section 7.06 have
been paid. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
Section 6.03 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the principal, the premium, if any, and any accrued cash interest on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Notes or produce any of the Notes in the proceeding. A delay
or omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of, or acquiescence in, the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Notes at the time outstanding, by notice to
the Trustee (and without notice to any other Noteholder), may waive an existing
Default and its consequences except (1) an Event of Default described in Section
6.01(a) or (b), (2) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Noteholder affected or (3) a Default which constitutes a failure to convert any
Note in accordance with Article 10. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right. This Section 6.04 shall be in lieu of Section
316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section 6.05 Control by Majority. The Holders of a majority in
aggregate principal amount of the Notes at the time outstanding through their
written consent may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other
Noteholders or would involve the Trustee in personal liability unless the
Trustee is offered indemnity reasonably satisfactory to it against loss,
liability or expense. This Section 6.05 shall be in lieu of Section 316(a)1(A)
of the TIA and such Section 316(a)1(A) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
Section 6.06 Limitation on Suits. A Noteholder may not pursue any
remedy with respect to this Indenture or the Notes unless:
(a) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(b) the Holders of at least 25% in aggregate principal amount
of the Notes at the time outstanding make a written request to the Trustee to
pursue the remedy;
(c) such Holder or Holders offer to the Trustee reasonable
security or indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request within 60
days after receipt of such notice, request and offer of security or indemnity;
and
(e) the Holders of a majority in aggregate principal amount of
the Notes at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Noteholder may not use this Indenture to prejudice the rights of
any other Noteholder or to obtain a preference or priority over any other
Noteholder.
Section 6.07 Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the principal amount, premium, if any, plus Redemption Price, Change
in Control Repurchase Price or any accrued cash interest in respect of the Notes
held by such Holder, on or after the respective due dates expressed in the Notes
or any Redemption Date and to convert the Notes in accordance with Article 10 or
to bring suit for the enforcement of any such payment on or after such
respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of such Holder.
Section 6.08 Collection Suit by Trustee. If an Event of Default
described in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount owing with respect to the Notes and the amounts
provided for in Section 7.06.
Section 6.09 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal amount, Redemption Price, Change in
Control Repurchase Price or any accrued cash interest in respect of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any such amount) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the
principal amount, Redemption Price, Change in Control Repurchase Price or any
accrued cash interest and to file such 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 or any other amounts due the Trustee under
Section 7.06) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money in the following order:
(a) to the Trustee for amounts due under Section 7.06;
(b) to Noteholders for amounts due and unpaid on the Notes for
the principal amount, Redemption Price, Change in Control Purchase Price or any
accrued cash interest as the case may be, ratably, without preference or
priority of any kind, according to such amounts due and payable on the Notes;
and
(c) the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment
to Noteholders pursuant to this Section 6.11. At least 15 days before such
record date, the Trustee shall mail to each Noteholder and the Company a notice
that states the record date, the payment date and the amount to be paid.
Section 6.11 Distributions to Senior Secured Creditors Following
Substantive Consolidation or Other Similar Remedies. In the event that a court
of competent jurisdiction either under the United States Bankruptcy Code or
applicable law enters (i) an order in any bankruptcy case of PRG and/or any of
its Subsidiaries providing for: (A) substantive consolidation of PRG with some
of all of its Subsidiaries, in whole in part, (B) the substantive consolidation
of some or all of the assets and liabilities of any of PRG's Subsidiaries with
PRG's bankruptcy estate, or (C) piercing the corporate veil between the Company
and any of its Subsidiaries (a "Substantive Consolidation Order"), then,
notwithstanding any effect of such Substantive Consolidation Order that would
otherwise apply, the Holders of the Notes hereby agree that:
(a) The assets of any of the Subsidiaries (or the value or any
proceeds realized therefrom) that are substantively consolidated with the
bankruptcy estate of PRG shall be available to be applied first to the payment
and satisfaction of the Subsidiaries' obligations and the obligations of PRG to
the senior secured lenders under the Credit Facilities in the same manner and to
the same extent as would have been the case had any Substantive Consolidation
Order not been entered; and
(b) The value of the common stock of any of the Subsidiaries
that are substantively consolidated with the bankruptcy estate of PRG shall be
available to be applied first to the payment and satisfaction of the liens on
the stock of the Subsidiaries granted to the senior secured lenders by PRG under
the Credit Facilities in the same manner and to the same extent as would have
been the case had any Substantive Consolidation Order not been entered.
Section 6.12 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 (other than the Trustee) 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 and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in aggregate principal amount of the
Notes at the time outstanding. This Section 6.11 shall be in lieu of Section
315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
Section 6.13 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal amount,
Redemption Price, Change in Control Repurchase Price or any accrued cash
interest in
respect of Notes, or any interest on such amounts, as contemplated herein, or
which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
TRUSTEE
Section 7.01 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. The Trustee, prior to the occurrence of an Event of
Default hereunder and after the curing or waiving of all such Events of Default
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case an Event of Default
hereunder has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all such Events of Default which may have
occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any
such statements, certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 6.05 relating to the time, method
and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 7.01 are in furtherance of and
subject to Sections 315 and 316 of the TIA.
Section 7.02 Certain Rights of the Trustee. In furtherance of and
subject to the TIA and subject to Section 7.01:
(a) the Trustee may rely, and shall be protected in acting or
refraining from acting upon, any resolution, Officers' Certificate, Company
Request, Company Order, or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, note, coupon,
Note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the secretary or an assistant secretary of the
Company;
(c) the Trustee may consult with counsel of its selection and
any advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture in accordance with the
request, order or direction of any of the Noteholders pursuant to the provisions
of this Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all such Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing to do so by the
Holders of not less than a majority in aggregate principal amount of the Notes
then outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or liabilities as
a condition to proceeding; the reasonable expenses of every such investigation
shall be paid by the Company or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder;
(h) The Trustee's immunities and protections from liability
and its rights to compensation and indemnification in connection with the
performance of its duties under this Indenture shall extend to the Trustee's
officers, directors, agents and employees and its services as Paying Agent,
Registrar or any other role assumed by the Trustee hereunder or to which it has
been appointed. Such immunities and protections and right to indemnification,
together with the Trustee's right to compensation, shall survive the Trustee's
resignation or removal and the final payment of the Notes;
(i) The Trustee is not required to give any bond or surety
with respect to the performance of its duties or the exercise of its powers
under this Indenture; and
(j) The Trustee shall not be deemed to have knowledge of any
Default or Event of Default hereunder except (i) during any period it is serving
as Paying Agent for the Notes, any Event of Default pursuant to Sections 6.01
(a), (b), (c) or (d), or (ii) any Default or Event of Default of which a
Responsible Officer shall have received written notification. All notices or
other instruments required by this Indenture to be delivered to the Trustee
must, in order to be effective, be in writing and delivered to the principal
corporate trust office of the Trustee, and in the absence of such notice so
delivered to the Trustee may conclusively assume there is no default except as
aforesaid.
(k) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty.
(l) The Trustee shall have no responsibility for any
information in any offering memorandum or other disclosure material distributed
with respect to the Notes, and the Trustee shall have no responsibility for
compliance with any state or federal securities laws in connection with the
Notes.
(m) The Trustee shall have no responsibility for any
registration, filing, recording, re-registration or re-recording of this
Indenture or any other document or instrument executed in connection with this
Indenture and the issuance of the Notes including, without limitation, any
financing statements or continuation statements with respect thereto.
(n) The Trustee shall not in any event be responsible for
ensuring that the rate of interest due and payable on the Notes under this
Indenture does not exceed the highest legal rate of interest permissible under
federal or state law applicable thereto.
Section 7.03 Trustee Not Responsible for Recitals, Disposition of
Notes or Application of Proceeds Thereof. The recitals contained herein and in
the Notes, except the Trustee's certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Notes. The Trustee shall not
be accountable for the use or application by the Company of any of the Notes or
of the proceeds thereof.
Section 7.04 Trustee and Agents May Hold Notes; Collections, etc.
The Trustee or any agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Notes with the same rights it
would have if it were not the Trustee or such agent and, subject to Sections
7.08 and 7.13, if operative, may otherwise deal with the Company and receive,
collect, hold and retain collections from the Company with the same rights it
would have if it were not the Trustee or such agent.
Section 7.05 Moneys Held by Trustee. Subject to the provisions of
Section 8.02 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Company or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
Section 7.06 Compensation and Indemnification of Trustee and Its
Prior Claim. The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) to be agreed to in writing by the Trustee and the Company, and
the Company covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including (i) the reasonable compensation and
the expenses and disbursements of one counsel and of all agents and other
persons not regularly in its employ and (ii) interest at the prime rate on any
disbursements and advances made by the Trustee and not paid by the Company
within 5 days after receipt of an invoice for such disbursement or advance)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify the Trustee and
each predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the costs
and expenses of defending itself against or investigating any claim of liability
in the premises. The obligations of the Company under this Section 7.06 to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional Indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
Indebtedness shall be a senior claim to that of the Notes upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the Holders of particular Notes, and the Notes are hereby
effectively subordinated to such senior claim to such extent. The provisions of
this Section 7.06 shall survive the termination of this Indenture and the
resignation or removal of the Trustee. When
the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 6.01 or in connection with Article 6 hereof, the
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for services in connection therewith are to constitute expenses of
administration under any bankruptcy law.
Section 7.07 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 7.01 and 7.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee.
Section 7.08 Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the TIA, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the TIA.
Section 7.09 Persons Eligible for Appointment as Trustee. The
Trustee shall at all times be a corporation or banking association having a
combined capital and surplus of at least $10,000,000. If such corporation or
banking association files reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section 7.09, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so filed. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.09, the Trustee shall resign immediately in the manner and with the
effect specified in Section 7.10.
Section 7.10 Resignation and Removal; Appointment of Successor
Trustee.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Notes by giving written notice of resignation to the Company and by mailing
notice thereof by first-class mail to the Holders of Notes at their last
addresses as they shall appear on the Note register. Upon receiving such notice
of resignation, the Company shall promptly appoint a successor trustee or
trustees by written instrument in duplicate, executed by authority of the Board
of Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Noteholder who has been a bona fide Holder of a Note for at
least six months may, subject to the provisions of Section 7.11, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 7.08 with respect to any Notes after written request therefor
by the Company or by any Noteholder who has been a bona fide Holder of a
Note for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall fail to resign
after written request therefor by the Company or by any Noteholder; or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of
the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation; or
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 7.11, any Noteholder who has been a bona
fide Holder of a Note for at least six months may on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee. If no successor trustee
shall have been appointed and have accepted appointment within 30 days after a
notice of removal has been given, the removed trustee may petition a court of
competent jurisdiction for the appointment of a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Notes at the time outstanding may at any time remove the Trustee and appoint
a successor trustee by delivering to the Trustee so removed, to the successor
trustee so appointed and to the Company the evidence provided for in Section
1.05 of the action in that regard taken by the Noteholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section 7.10 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.
Section 7.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 7.10 shall execute and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee hereunder; but, nevertheless, on the written
request of the Company or of the successor trustee, upon payment of its charges
then unpaid, the trustee ceasing to act shall pay over to the successor trustee
all moneys at the time held by it hereunder and shall execute and deliver an
instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.06.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09.
Upon acceptance of appointment by any successor trustee as provided
in this Section 7.11, the Company shall mail notice thereof by first class mail
to the Holders of Notes at their last addresses as they shall appear in the
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 7.10. If the Company fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation or banking association into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
banking association succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation or banking association shall be qualified under
the provisions of Section 7.08 and eligible under the provisions of Section
7.09, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such Notes
so authenticated; and, in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificate shall have the full force and
effect that this Indenture provides for the certificate of authentication of the
Trustee; provided, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 7.13 Preferential Collection of Claims Against the Company.
The Trustee shall comply with the provisions of Section 311 of the TIA.
Section 7.14 Reports by the Trustee. (a) The Trustee shall transmit
to Holders and other persons such reports concerning the Trustee and its actions
under this Indenture, but only as may be required pursuant to the TIA, on or
before July 15 in each year that such report is required, such reports to be
dated as of the immediately preceding May 15.
(b) A copy of each such report shall, at the time of such
transmission to Noteholders, be furnished to the Company and be filed by the
Trustee with each stock exchange
upon which the Notes are listed and also with the SEC. The Company agrees to
notify the Trustee when and as the Notes become admitted to trading on any
national securities exchange.
Section 7.15 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall transmit to the Noteholders, as the
names and addresses of such Holders appear on the Note register, notice by mail
of all Events of Default which have occurred and which the Trustee has received
notice of or is required to take notice of pursuant to Section 7.02 (j), such
notice to be transmitted within 90 days after the occurrence thereof, unless
such defaults shall have been cured before the giving of such notice; provided
that, except in the case of an Event of Default in the payment of the principal
of, interest on, or other similar obligation with respect to, any of the Notes,
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 trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the best interests of the Noteholders.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01 Discharge of Liability on Notes. When the Company
delivers to the Trustee all outstanding Notes (other than Notes replaced
pursuant to Section 2.07) for cancellation, this Indenture shall, subject to
Section 7.06, cease to be of further effect. In addition, when (i) all
outstanding Notes will become due and payable within 60 days of their Stated
Maturity or (ii) all outstanding Notes are scheduled for redemption within 60
days and, in each case, the Company deposits with the Trustee cash or Cash
Equivalents sufficient to pay all amounts due and owing on all outstanding Notes
(other than Notes replaced pursuant to Section 2.07) for the purpose of making
such principal or redemption payment, and if in any case the Company pays all
other sums payable hereunder by the Company, then (1) after such time but prior
to the Stated Maturity Date or Redemption Date, as applicable, the Company shall
be irrevocably released from its obligations under any covenant or obligation
contained in Sections 3.08, 2.14, 4.02 through 4.14, Section 5.01 and Section
6.01(c), (d), (e), (f), (g) and (i) of this Indenture and (2) from and after the
Stated Maturity Date or Redemption Date, as applicable, this Indenture shall,
subject to Section 7.06, cease to be of further effect. The Trustee shall join
in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and Opinion of Counsel and at the cost
and expense of the Company.
Section 8.02 Repayment of the Company. The Trustee and the Paying
Agent shall return to the Company upon written request any money or securities
held by them for the payment of any amount with respect to the Notes that
remains unclaimed for two years, subject to applicable unclaimed property law.
After return to the Company, Holders entitled to the money or securities must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person and the Trustee and the Paying
Agent shall have no further liability to the Noteholders with respect to such
money or securities for that period commencing after the return thereof.
ARTICLE 9
AMENDMENTS
Section 9.01 Without Consent of Holders. The Company and the Trustee
may amend this Indenture or the Notes without the consent of any Noteholder for
the purposes of, among other things:
(a) adding to the Company's covenants for the benefit of the
Holders;
(b) surrendering any right or power conferred upon the
Company;
(c) providing for conversion rights of Holders if any
reclassification or change of Series B Preferred Stock or Common Stock or any
consolidation, merger or sale of all or substantially all of the Company's
assets occurs;
(d) reducing the Conversion Price, provided that the reduction
will not adversely affect the interests of Holders in any material respect;
(e) complying with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(f) curing any ambiguity, omission, inconsistency or
correcting or supplementing any defective provision contained in this Indenture;
(g) complying with Article 5; or
(h) adding or modifying any other provisions which the Company
and the Trustee may deem necessary or desirable and which will not adversely
affect the interests of the Holders.
Section 9.02 With Consent of Holders. With the written consent of
the Holders of at least a majority in aggregate principal amount of the Notes at
the time outstanding, including consents obtained in connection with a purchase
of or tender offer or exchange offer for the Notes, or by the adoption of a
resolution at a meeting of Holders at which a quorum is present by at least a
majority in aggregate principal amount of the Notes represented at the meeting,
the Company and the Trustee may modify and amend this Indenture or the Notes and
noncompliance by the Company may be waived. However, without the consent of each
Noteholder affected, an amendment to this Indenture or the Notes may not:
(a) change the maturity of the principal of or any installment
of interest on any Note (including any payment of Registration Delay Payments
(as that term is defined in the Registration Rights Agreement), if any);
(b) reduce the principal amount of, or premium, if any, or
interest on (including any payment of Registration Delay Payments any Note;
(c) reduce the Interest Rate or interest (including
Registration Delay Payments (as that term is defined in the Registration Rights
Agreement), if any)) on any Note;
(d) change the currency of payment of principal of, premium,
if any, or interest of any Note;
(e) impair the right to institute suit for the enforcement of
any payment on or with respect to, or conversion of, any Note; or
(f) reduce the percentage in aggregate principal amount of
Notes outstanding necessary to modify or amend this Indenture or to waive any
past default.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
Section 9.03 Compliance with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA.
Section 9.04 Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, waiver or other action by Holders becomes effective, a
consent thereto by a Holder of a Note hereunder is a continuing consent by the
Holder and every subsequent Holder of that Note or portion of the Note that
evidences the same obligation as the consenting Holder's Note, even if notation
of the consent, waiver or action is not made on the Note. However, any such
Holder or subsequent Holder may revoke the consent, waiver or action as to such
Holder's Note or portion of the Note if the Trustee receives the notice of
revocation before the date the amendment, waiver or action becomes effective.
After an amendment, waiver or action becomes effective, it shall bind every
Noteholder.
Section 9.05 Notation on or Exchange of Notes. Notes authenticated
and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Notes so modified as to
conform, in the opinion of the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for outstanding Notes.
Section 9.06 Trustee to Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment contained therein does not, in the good faith opinion of the
Trustee, adversely affect the rights, duties, liabilities, protections,
privileges, indemnities or immunities of the Trustee. If it does, the Trustee
may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall be entitled to receive, and (subject to
the provisions of Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture and complies with the TIA.
Section 9.07 Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE 10
CONVERSION
Section 10.01 Conversion Rights and Initial Price. The Notes are
convertible, at the option of the holder prior to maturity, from and after the
earlier of (i) the New Conversion Rights Date, or (ii) the B Conversion Date as
set forth below:
(a) In the event that the B Conversion Date has occurred but
not the New Conversion Rights Date, the Notes shall only convertible into duly
authorized, fully paid and non-assessable shares of the Series B Preferred
stock, and holders of the Notes may convert any outstanding Notes, or portions
thereof, into the Series B Preferred Stock, at a conversion rate of that shall
be 2.083 shares of Series B Preferred Stock per $1,000 principal amount of
Notes. The shares of Series B Preferred Stock will be issuable only by
certificate in definitive form to any such holder;
(b) From and after the New Conversion Rights Date, the Notes
shall be convertible only into duly authorized, fully paid and non-assessable
shares of Common Stock at an initial conversion price of $0.65 per share of
common stock. The initial conversion price provides an initial conversion rate
of 1538.462 shares of Common Stock per $1,000 principal amount of Notes (subject
to adjustment as set forth in Section 10.04 below). Except as described
hereinafter, no payment or other adjustment will be made on conversion of any
Notes for interest accrued thereon or for dividends on Common Stock.
Section 10.02 Exercise of Conversion Right. To exercise the
conversion right, the Holder of any Note to be converted shall surrender such
Note duly endorsed or assigned to the Company or in blank, at the office of any
Conversion Agent, accompanied by a duly signed conversion notice substantially
in the form attached to the Note to the Company stating that the Holder elects
to convert such Note or, if less than the entire principal amount thereof is to
be converted, the portion thereof to be converted.
Notes surrendered for conversion during the period from the close of
business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date shall be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Company of an amount equal
to the interest to be received on such Interest Payment Date on the principal
amount of Notes being surrendered for conversion. No such payment shall be
required upon surrender for conversion if the Notes so surrendered have been
called for redemption with a Redemption Date that occurs during the period from
the close of business on any Regular Record Date to the close of business on the
third Business Day after the Interest Payment Date next succeeding such Regular
Record Date.
Notes shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Notes for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Notes as Holders shall cease, and the Person or Persons entitled
to receive the Series B Preferred Stock or Common Stock, as the case may be,
issuable upon conversion shall be treated for all purposes as the record holder
or holders of such Series B Preferred Stock or Common Stock at such time. As
promptly as practicable on or after the conversion date, the Company shall cause
to be issued and delivered to such Conversion Agent a certificate or
certificates for the number of full shares of Series B Preferred Stock or Common
Stock issuable upon conversion, together with payment in lieu of any fraction of
a share as provided in Section 10.03 hereof.
In the case of any Note which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Note or
Notes of authorized denominations in aggregate principal amount equal to the
unconverted portion of the principal amount of such Notes.
If shares of Series B Preferred Stock or Common Stock, as the case
may be, to be issued upon conversion of a Restricted Note, or securities to be
issued upon conversion of a Restricted Note in part only, are to be registered
in a name other than that of the Holder of such Restricted Note, such Holder
must deliver to the Conversion Agent a certificate in substantially the form set
forth in the form of Note set forth in Exhibit A annexed hereto, dated the date
of surrender of such Restricted Note and signed by such Holder, as to compliance
with the restrictions on transfer applicable to such Restricted Note. Neither
the Trustee nor any Conversion Agent, Registrar or Transfer Agent shall be
required to register in a name other than that of the Holder shares of Series B
Preferred Stock, Common Stock or Notes issued upon conversion of any such
Restricted Note not so accompanied by a properly completed certificate.
The Company hereby initially appoints the Trustee as the Conversion
Agent.
Section 10.03 Fractions of Shares. No fractional shares of Series B
Preferred Stock or Common Stock, as the case may be, shall be issued upon
conversion of any Note or Notes. If more than one Note shall be surrendered for
conversion at one time by the same Holder, the number of full shares which shall
be issued upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof) so
surrendered. Instead of any fractional share of Series B Preferred Stock or
Common Stock, as the Case may be, which would otherwise be issued upon
conversion of any Note or Notes (or specified portions thereof), the Company
shall pay a cash adjustment in respect of such fraction (calculated to the
nearest one-100th of a share) in an amount equal to the same fraction of the
Conversion Price at the time of such payment.
Section 10.04 Adjustment of Conversion Price. The Conversion Price
shall be subject to adjustments, calculated by the Company, from time to time as
follows:
(a) In case the Company shall hereafter pay a dividend or make
a distribution to all holders of the outstanding Common Stock in shares of
Common Stock, the Conversion Price in effect at the opening of business on the
date following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction:
(i) the numerator of which shall be the number of shares
of Common Stock outstanding at the close of business on the Record Date
(as defined in Section 10.4(g)) fixed for such determination, and
(ii) the denominator of which shall be the sum of such
number of shares and the total number of shares constituting such dividend
or other distribution.
Such reduction shall become effective immediately after the opening of business
on the day following the Record Date. If any dividend or distribution of the
type described in this Section 10.04(a) is declared but not so paid or made, the
Conversion Price shall again be adjusted to the Conversion Price which would
then be in effect if such dividend or distribution had not been declared.
(b) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and
conversely, in case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective.
(c) In case the Company shall issue rights, options or
warrants (other than pursuant to the Rights Plan) and other than any rights,
options or warrants referred to in Section 10.04(d) to all holders of its
outstanding shares of Common Stock entitling them 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 lower of the
Current Market Price (as defined in Section 10.04(g)) or the Conversion Price
then in effect (the "APPLICABLE PRICE") on the Record Date fixed for the
determination of stockholders entitled to receive such rights, options or
warrants, the Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect at the
opening of business on the date after such Record Date by a fraction:
(i) the numerator of which shall be the number of shares
of Common Stock outstanding at the close of business on the Record Date
plus the number of shares which the aggregate offering price of the total
number of shares so offered for subscription or purchase (or the aggregate
conversion price of the convertible securities so offered) would purchase
at the Applicable Price, and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding on the close of business on the Record
Date plus the total number of additional shares of Common Stock so offered
for subscription or purchase (or into which the convertible securities so
offered are convertible).
Such adjustment shall become effective immediately after the opening of business
on the day following the Record Date fixed for determination of stockholders
entitled to receive such rights, options or warrants. To the extent that shares
of Common Stock (or securities convertible into Common Stock) are not delivered
pursuant to such rights, options or warrants, upon the expiration or termination
of such rights, options or warrants the Conversion Price shall be readjusted to
the Conversion Price which would then be in effect had the adjustments made upon
the issuance of such rights, options or warrants been made on the basis of the
delivery of only the number of shares of Common Stock (or securities convertible
into Common Stock) actually delivered. In the event that such rights, options or
warrants are not so issued, the Conversion Price shall again be adjusted to be
the Conversion Price which would then be in effect if such date fixed for the
determination of stockholders entitled to receive such rights, options or
warrants had not been fixed. In determining whether any rights, options or
warrants entitle the holders to subscribe for or purchase shares of Common Stock
at less than the Applicable Price, and in determining the aggregate offering
price of such shares of Common Stock, there shall be taken into account any
consideration received for such rights, options or warrants, the value of such
consideration if other than cash, to be determined by the Board of Directors.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock shares of any class of Capital
Stock of the Company or the Capital Stock of any Subsidiary of the Company
(other than any dividends or distributions to which Section 10.04(a) applies) or
evidences of its Indebtedness or other assets, including securities, but
excluding (i) any rights, options or warrants referred to in Section 10.04(c),
(ii) any dividends or distributions in connection with a reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance to which Section 10.11 hereof applies and (iii) dividends and
distributions paid exclusively in cash (the securities described in foregoing
clauses (i), (ii) and (iii) hereinafter in this Section 10.04(d) called the
"EXCLUDED SECURITIES"), then, in each such case, subject to the second
succeeding paragraph of this Section 10.04(d), the Conversion Price shall be
adjusted so that the same shall be equal to the price determined by multiplying
the Conversion Price in effect immediately prior to the close of business on the
Record Date (as defined in Section 10.04(g)) with respect to such distribution
by a fraction:
(i) the numerator of which shall be the Applicable Price
on such date less the Fair Market Value on such date of the portion of the
securities so distributed (other than excluded securities) applicable to
one share of Common Stock (determined on the basis of the number of shares
of the Common Stock outstanding on the Record Date), and
(ii) the denominator of which shall be such Applicable
Price.
Such reduction shall become effective immediately prior to the opening of
business on the day following the Record Date. However, in the event that the
then Fair Market Value of the portion of the securities so distributed (other
than excluded securities) applicable to one share of
Common Stock is equal to or greater than the Applicable Price on the Record Date
or , in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder shall have the right to receive upon conversion of a Note (or
any portion thereof) the amount of securities so distributed (other than
excluded securities) such Holder would have received had such Holder converted
such Note (or portion thereof) immediately prior to such Record Date. In the
event that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such dividend or distribution had not been declared.
If the Board of Directors determines the Fair Market Value of any
distribution for purposes of this Section 10.04(d) by reference to the actual or
when issued trading market for any securities comprising all or part of such
distribution (other than excluded securities), it must in doing so consider the
prices in such market over the same period (the "REFERENCE PERIOD") used in
computing the Current Market Price pursuant to Section 10.04(g) to the extent
possible, unless the Board of Directors in a Board Resolution determines in good
faith that determining the Fair Market Value during the Reference Period would
not be in the best interest of the Holder.
Rights, options or warrants distributed by the Company to all
holders of Common Stock entitling the holders thereof to subscribe for or
purchase shares of the Company's Capital Stock (either initially or under
certain circumstances), which rights, options or warrants, until the occurrence
of a specified event or events ("TRIGGER EVENT"):
(i) are deemed to be transferred with such shares of
Common Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of
Common Stock,
shall be deemed not to have been distributed for purposes of this
Section 10.04(d) (and no adjustment to the Conversion Price under this Section
10.04(d) will be required) until the occurrence of the earliest Trigger Event.
If such right or warrant is subject to subsequent events, upon the occurrence of
which such right or warrant shall become exercisable to purchase different
securities, evidences of Indebtedness or other assets or entitle the holder to
purchase a different number or amount of the foregoing or to purchase any of the
foregoing at a different purchase price, then the occurrence of each such event
shall be deemed to be the date of issuance and record date with respect to a new
right or warrant (and a termination or expiration of the existing right or
warrant without exercise by the holder thereof). In addition, in the event of
any distribution (or deemed distribution) of rights, options or warrants, or any
Trigger Event or other event (of the type described in the preceding sentence)
with respect thereto, that resulted in an adjustment to the Conversion Price
under this Section 10.04(d):
(iv) in the case of any such rights, options or warrants
which shall all have been redeemed or repurchased without exercise by any
holders thereof, the Conversion Price shall be readjusted upon such final
redemption or repurchase to give
effect to such distribution or Trigger Event, as the case may be, as
though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder of Common Stock with respect to such
rights or warrant (assuming such holder had retained such rights, options
or warrants), made to all holders of Common Stock as of the date of such
redemption or repurchase, and
(v) in the case of such rights, options or warrants all
of which shall have expired or been terminated without exercise, the
Conversion Price shall be readjusted as if such rights, options and
warrants had never been issued.
For purposes of this Section 10.04(d) and Sections 10.04(a),
10.04(b) and 10.04(c), any dividend or distribution to which this Section
10.04(d) is applicable that also includes shares of Common Stock, a subdivision
or combination of Common Stock to which Section 10.04(b) applies, or rights,
options or warrants to subscribe for or purchase shares of Common Stock to which
Section 10.04(c) applies (or any combination thereof), shall be deemed instead
to be:
(vi) a dividend or distribution of the evidences of
Indebtedness, assets, shares of Capital Stock, rights, options or warrants
other than such shares of Common Stock, such subdivision or combination or
such rights, options or warrants to which Sections 10.04(a), 10.04(b) and
10.04(c) apply, respectively (and any Conversion Price reduction required
by this Section 10.04(d) with respect to such dividend or distribution
shall then be made), immediately followed by
(vii) a dividend or distribution of such shares of
Common Stock, such subdivision or combination or such rights, options or
warrants (and any further Conversion Price reduction required by Sections
10.04(a), 10.04(b) and 10.04(c) with respect to such dividend or
distribution shall then be made), except:
(A) the Record Date of such dividend or
distribution shall be substituted as (x) "the date fixed for the
determination of stockholders entitled to receive such dividend or
other distribution", "Record Date fixed for such determinations" and
"Record Date" within the meaning of Section 10.04(a), (y) "the day
upon which such subdivision becomes effective" and "the day upon
which such combination becomes effective" within the meaning of
Section 10.04(b), and (z) as "the date fixed for the determination
of stockholders entitled to receive such rights, options or
warrants", "the Record Date fixed for the determination of the
stockholders entitled to receive such rights, options or warrants"
and such "Record Date" within the meaning of Section 10.04(c), and
(B) any shares of Common Stock included in such
dividend or distribution shall not be deemed "outstanding at the
close of business on the date fixed for such determination" within
the meaning of Section 10.04(a) and any reduction or increase in the
number of shares of Common Stock resulting from such subdivision or
combination shall be disregarded in connection with such dividend or
distribution.
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash that is
distributed upon a reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance to which Section 10.11 hereof
applies or as part of a distribution referred to in Section 10.04(d) hereof), in
an aggregate amount that, combined together with: (1) the aggregate amount of
any other such distributions to all holders of Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such distribution,
and in respect of which no adjustment pursuant to this Section 10.04(e) has been
made, and (2) the aggregate of any cash plus the Fair Market Value of
consideration payable in respect of any tender offer or exchange offer by the
Company or any of its Subsidiaries for all or any portion of the Common Stock
concluded within the 12 months preceding the date of such distribution, and in
respect of which no adjustment pursuant to Section 10.04(f) hereof has been
made, exceeds 10% of the product of the Applicable Price on the Record Date
with respect to such distribution times the number of shares of Common Stock
outstanding on such date, then and in each such case, immediately after the
close of business on such 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 the close of business on such Record Date by a
fraction:
(i) the numerator of which shall be equal to the lower
of the Applicable Price on the Record Date less an amount equal to the
quotient of (x) the excess of such combined amount over such 10% and (y)
the number of shares of Common Stock outstanding on the Record Date, and
(ii) the denominator of which shall be equal to the
Applicable Price on such date.
However, in the event that the then Fair Market Value of the portion of the
securities so distributed (other than excluded securities) applicable to one
share of Common Stock is equal to or greater than the Applicable Price on the
Record Date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Holder shall have the right to receive upon conversion of a
Note (or any portion thereof) the amount of cash such Holder would have received
had such Holder converted such Note (or portion thereof) immediately prior to
such Record Date. In the event that such dividend or distribution is not so paid
or made, the Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such dividend or distribution had not been
declared.
(f) In case a tender offer or exchange offer made by the
Company or any of its Subsidiaries for all or any portion of the Common Stock
shall expire and such tender offer or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders (based on the
acceptance (up to any maximum specified in the terms of the tender offer or
exchange offer) of Purchased Shares (as defined below)) of an aggregate
consideration having a Fair Market Value that combined together with:
(i) the aggregate of the cash plus the Fair Market
Value, as of the expiration of such tender offer or exchange offer, of
consideration payable in respect of any other tender offers or exchange
offers, by the Company or any of its Subsidiaries for all or any portion
of the Common Stock expiring within the 12 months preceding the
expiration of such tender offer or exchange offer and in respect of which
no adjustment pursuant to this Section 10.04(f) has been made, and
(ii) the aggregate amount of any distributions to all
holders of the Company's Common Stock made exclusively in cash within 12
months preceding the expiration of such tender offer or exchange offer and
in respect of which no adjustment pursuant to Section 10.04(e) has been
made, exceeds 10% of the product of the Applicable Price as of the last
time (the "EXPIRATION TIME") tenders or exchanges could have been made
pursuant to such tender offer or exchange offer (as it may be amended)
times the number of shares of Common Stock outstanding (including any
tendered shares or exchanged shares) on the Expiration Time, then, and in
each such case, immediately prior to the opening of business on the day
after the date of the Expiration Time, the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to close of business on
the date of the Expiration Time by a fraction:
(A) the numerator of which shall be the number of
shares of Common Stock outstanding (including any tendered or
exchanged shares) at the Expiration Time multiplied by the
Applicable Price on the Trading Day next succeeding the Expiration
Time, and
(B) the denominator shall be the sum of (x) 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 tender offer or exchange offer) of all shares
validly tendered or exchanged 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) on the Expiration Time and the Applicable Price on the
Trading Day next succeeding the Expiration Time.
Such reduction (if any) shall become effective immediately prior to the opening
of business on the day following the Expiration Time. In the event that the
Company is obligated to purchase shares pursuant to any such tender offer or
exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such tender offer or exchange offer had not been made. If the
application of this Section 10.04(f) to any tender offer or exchange offer would
result in an increase in the Conversion Price, no adjustment shall be made for
such tender offer or exchange offer under this Section 10.04(f).
(g) For purposes of this Section 10.04, the following terms
shall have the meanings indicated:
(i) "CURRENT MARKET PRICE" shall mean the average of the
daily Closing Prices per share of Common Stock for the ten consecutive
Trading Days immediately prior to the date in question; provided, however,
that if:
(A) the "ex" date (as hereinafter defined) for any
event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Price
pursuant to Section 10.04(a), (b), (c), (d), (e) or (f) occurs
during such ten consecutive Trading Days, the Closing Price for each
Trading Day prior to the "ex" date for such other event shall be
adjusted by multiplying such Closing Price by the same fraction by
which the Conversion Price is so required to be adjusted as a result
of such other event;
(B) the "ex" date for any event (other than the
issuance or distribution requiring such computation) that requires
an adjustment to the Conversion Price pursuant to Section 10.04(a),
(b), (c), (d), (e) or (f) occurs on or after the "ex" date for the
issuance or distribution requiring such computation and prior to the
day in question, the Closing Price for each Trading Day on and after
the "ex" date for such other event shall be adjusted by multiplying
such Closing Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of such
other event; and
(C) the "ex" date for the issuance or distribution
requiring such computation is prior to the day in question, after
taking into account any adjustment required pursuant to clause (i)
or (ii) of this proviso, the Closing Price for each Trading Day on
or after such "ex" date shall be adjusted by adding thereto the
amount of any cash and the Fair Market Value, whose determination
shall be conclusive and set forth in a Board Resolution) of the
evidences of indebtedness, shares of Capital Stock or assets being
distributed applicable to one share of Common Stock as of the close
of business on the day before such "ex" date.
For purposes of any computation under Section 10.04(f), the Current Market
Price of the Common Stock on any date shall be deemed to be the average of
the daily Closing Prices per share of Common Stock for such day and the
next two succeeding Trading Days; provided, however, that if the "ex" date
for any event (other than the tender offer requiring such computation)
that requires an adjustment to the Conversion Price pursuant to Section
10.04(a), (b), (c), (d), (e) or (f) occurs on or after the Expiration Time
for the tender or exchange offer requiring such computation and prior to
the day in question, the Closing Price for each Trading Day on and after
the "ex" date for such other event shall be adjusted by multiplying such
Closing Price by the reciprocal of the fraction by which the Conversion
Price is so required to be adjusted as a result of such other event. For
purposes of this paragraph, the term "ex" date, when used:
(D) with respect to any issuance or distribution,
means the first date on which the Common Stock trades regular way on
the relevant exchange or in the relevant market from which the
Closing Price was obtained without the right to receive such
issuance or distribution;
(E) with respect to any subdivision or combination
of shares of Common Stock, means the first date on which the Common
Stock trades
regular way on such exchange or in such market after the time at
which such subdivision or combination becomes effective, and
(F) with respect to any tender or exchange offer,
means the first date on which the Common Stock trades regular way on
such exchange or in such market after the Expiration Time of such
offer.
Notwithstanding the foregoing, whenever successive adjustments to the
Conversion Price are called for pursuant to this Section 10.04, such
adjustments shall be made to the Current Market Price as may be necessary
or appropriate to effectuate the intent of this Section 10.04 and to avoid
unjust or inequitable results as determined in good faith by the Board of
Directors.
(ii) "RECORD DATE" shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders
of Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of stockholders entitled
to receive such cash, securities or other property (whether such date is
fixed by the Board of Directors or by statute, contract or otherwise).
(h) The Company may make such reductions in the Conversion
Price, in addition to those required by Section 10.04(a), (b), (c), (d), (e) or
(f), as the Board of Directors considers to be advisable to avoid or diminish
any income tax to holders of Common Stock (including any securities convertible
into shares of Common Stock) or rights to purchase Common Stock resulting from
any dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes.
To the extent permitted by applicable law, 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 and the reduction is irrevocable during the period
and the Board of Directors determines in good faith that such reduction would be
in the best interests of the Company, which determination shall be conclusive
and set forth in a Board Resolution. Whenever the Conversion Price is reduced
pursuant to the preceding sentence, the Company shall mail to the Trustee and
each Holder at the address of such Holder as it appears in the Register a notice
of the reduction at least 15 days prior to the date the reduced Conversion Price
takes effect, and such notice shall state the reduced Conversion Price and the
period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the Conversion Price then in effect; provided, however, that any adjustments
which by reason of this Section 10.04(i) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article 10 shall be made by the Company and 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 change in the par value or no par value
of the Common Stock.
(j) In any case in which this Section 10.04 provides that an
adjustment shall become effective immediately after a Record Date for an event,
the Company may defer until the occurrence of such event (i) issuing to the
Holder of any Note converted after such Record Date and before the occurrence of
such event the additional shares of Series B Preferred Stock issuable upon such
conversion by reason of the adjustment required by such event over and above the
Series B Preferred Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such holder any amount in cash in lieu of any
fraction pursuant to Section 10.03 hereof.
(k) For purposes of this Section 10.04, the number of shares
of Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company.
(l) If the distribution date for the rights provided in the
Rights Plan occurs prior to the date a Note is converted, the Holder of the Note
who converts such Note after the distribution date is not entitled to receive
the rights that would otherwise be attached (but for the date of conversion) to
the shares of Common Stock received upon such conversion; provided, however,
that an adjustment shall be made to the Conversion Price pursuant to Section
10.04(b) as if the rights were being distributed to the common stockholders of
the Company immediately prior to such conversion. If such an adjustment is made
and the rights are later redeemed, invalidated or terminated, then a
corresponding reversing adjustment shall be made to the Conversion Price, on an
equitable basis, to take account of such event.
Section 10.05 Notice of Adjustments of Conversion Price. Whenever
the Conversion Price is adjusted as herein provided (other than in the case of
an adjustment pursuant to the second paragraph of Section 10.04(h) for which the
notice required by such paragraph has been provided), the Company shall promptly
file with the Trustee and any Conversion Agent other than the Trustee an
Officers' Certificate setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based. Promptly after
delivery of such Officers' Certificate, the Company shall prepare a notice
stating that the Conversion Price has been adjusted and setting forth the
adjusted Conversion Price and the date on which each adjustment becomes
effective, and shall mail such notice to each Holder at the address of such
Holder as it appears in the Register within 20 days of the effective date of
such adjustment. Failure to deliver such notice shall not effect the legality or
validity of any such adjustment.
Section 10.06 Notice Prior to Certain Actions. In case at any time
after the date hereof:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
capital surplus or its consolidated retained earnings;
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or purchase any
shares of Capital Stock of
any class (or of securities convertible into shares of Capital Stock of any
class) or of any other rights;
(c) there shall occur any reclassification of the Common Stock
of the Company (other than a subdivision or combination of its outstanding
Common Stock, a change in par value, a change from par value to no par value or
a change from no par value to par value), or any merger, consolidation,
statutory share exchange or combination to which the Company is a party and for
which approval of any shareholders of the Company is required, or the sale,
transfer or conveyance of all or substantially all of the assets of the Company;
or
(d) there shall occur the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Notes pursuant to Section 4.05 hereof, and shall cause
to be provided to the Trustee and all Holders in accordance with Section 11.02
hereof, at least 20 days (or 10 days in any case specified in clause (a) or (b)
above) prior to the applicable record or effective date hereinafter specified, a
notice stating:
(i) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights, options or warrants, 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,
options or warrants are to be determined, or
(ii) the date on which such reclassification, merger,
consolidation, statutory share exchange, combination, sale, transfer,
conveyance, dissolution, liquidation or winding up is expected to become
effective, and the date 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, cash or other property deliverable upon such
reclassification, merger, consolidation, statutory share exchange, sale,
transfer, dissolution, liquidation or winding up.
Neither the failure to give such notice nor any defect therein shall
affect the legality or validity of the proceedings or actions described in
clauses (a) through (d) of this Section 10.06.
Section 10.07 Company to Reserve Series B Preferred Stock and Common
Stock.
(a) The Company shall at all times use its best efforts to
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Series B Preferred Stock and Common Stock, for the purpose of
effecting the conversion of Notes and the Series B Preferred Stock, (i) 130%
of the full number of shares of fully paid and nonassessable Series B Preferred
stock then issuable upon the conversion of all Notes outstanding and (ii) 130%
of the full number of shares of fully paid and nonassessable Common stock then
issuable upon conversion of all shares of Series B Preferred Stock into which
the Notes are then convertible or, after the New Rights Conversion Date, the
Common Stock into which the Notes are then convertible (collectively, the
"REQUIRED RESERVE AMOUNT"). The initial number of shares of
Series B Preferred Stock and Common Stock reserved for conversions of the Notes
and Series B Preferred Stock and each increase in the number of shares so
reserved shall be allocated pro rata among the Holders based on the principal
amount of the Notes held by each Holder on the Issue Date or increase in the
number of reserved shares, as the case may be (the "AUTHORIZED SHARE
ALLOCATION"). In the event that a Holder shall sell or otherwise transfer any of
such Xxxxxx's interests in any Notes, each transferee shall be allocated a pro
rata portion of such Xxxxxx's Authorized Share Allocation. Any shares of Series
B Preferred Stock and Common Stock reserved and allocated to any Person which
ceases to hold any Notes shall be allocated to the remaining Holders of such
Notes, pro rata based on the Principal Amount of the Notes then held by such
Holders.
(b) Insufficient Authorized Shares. If at any time while any
of the Notes remain outstanding the Company does not have a sufficient number of
authorized and unreserved shares of Series B Preferred Stock and Common Stock to
satisfy its obligation to reserve for issuance upon conversion of the Notes and
the Series B Preferred Stock at least a number of shares of Series B Preferred
Stock and Common Stock equal to the Required Reserve Amount (an "AUTHORIZED
SHARE FAILURE"), then the Company shall immediately take all action necessary to
increase the Company's authorized shares of Series B Preferred Stock or Common
Stock, as the case may be, to an amount sufficient to allow the Company to
reserve the Required Reserve Amount for the outstanding Notes and Series B
Preferred Stock. Without limiting the generality of the foregoing sentence, as
soon as practicable after the date of the occurrence of an Authorized Share
Failure, but in no event later than 60 days after the occurrence of such
Authorized Share Failure, the Company shall hold a meeting of its shareholders
for the approval of an increase in the number of authorized shares of Common
Stock or Series B Preferred stock, as the case may be. In connection with such
meeting, the Company shall provide each shareholder with a proxy statement and
shall use its best efforts to solicit its shareholders' approval of such
increase in authorized shares of Series B Preferred Stock or Common Stock and to
cause its board of directors to recommend to the shareholders that they approve
such proposal.
Section 10.08 Taxes on Conversions. Except as provided in the next
sentence, the Company will pay any and all taxes (other than taxes on income)
and duties that may be payable in respect of the issue or delivery of shares of
Series B Preferred Stock on conversion of Notes pursuant hereto. A Holder
delivering a Note for conversion shall be liable for and will be required to pay
any tax or duty which may be payable in respect of any transfer involved in the
issue and delivery of shares of Series B Preferred Stock in a name other than
that of the Holder of the Note or Notes to be converted, and no such issue or
delivery shall be made unless the Person requesting such issue has paid to the
Company the amount of any such tax or duty, or has established to the
satisfaction of the Company that such tax or duty has been paid.
Section 10.09 Covenant as to Series B Preferred Stock. The Company
covenants that all shares of Series B Preferred Stock which may be issued upon
conversion of Notes and all shares of Common Stock which may be issued upon
conversion of such shares of Series B Common Stock will upon issue be fully paid
and nonassessable and, except as provided in Section 10.08, the Company will pay
all taxes, liens and charges with respect to the issue thereof.
Section 10.10 Cancellation of Converted Notes. All Notes delivered
for conversion shall be delivered to the Trustee to be canceled by or at the
direction of the Trustee, which shall dispose of the same as provided in Section
2.10.
Section 10.11 Effect of Reclassification, Consolidation, Merger or
Sale. If any of following events occur, namely:
(a) any reclassification or change of the outstanding shares
of Common Stock (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 merger, consolidation, statutory share exchange or
combination of the Company with another corporation as a result of which holders
of Common Stock shall be entitled to receive stock, securities or other property
or assets (including cash) with respect to or in exchange for such Common Stock
or
(c) any sale or conveyance of the properties and assets of the
Company as, or substantially as, an entirety to any other corporation as a
result of which holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Common Stock,
the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with
the TIA as in force at the date of execution of such supplemental indenture if
such supplemental indenture is then required to so comply) providing that such
Note shall be convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash) which such Holder would have
been entitled to receive upon such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance had
such Notes been converted into Series B Preferred Stock immediately prior to
such reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance assuming such holder of Series B Preferred Stock
did not exercise its rights of election, if any, as to the kind or amount of
securities, cash or other property receivable upon such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance (provided that, if the kind or amount of securities, cash or other
property receivable upon such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance is not the same for
each share of Series B Preferred Stock in respect of which such rights of
election shall not have been exercised ("NON-ELECTING SHARE"), then for the
purposes of this Section 10.11 the kind and amount of securities, cash or other
property receivable upon such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance for 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 10. If, in the case of any such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, the stock or other securities and assets
receivable thereupon by a holder of shares of Series B Preferred Stock includes
shares of stock or other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance, then
such supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Notes as the Board of Directors shall reasonably consider necessary by
reason of the foregoing, including to the extent practicable the provisions
providing for the repurchase rights set forth in Section 3.09 hereof.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the Register, within 20 days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section 10.11 shall similarly apply to
successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.
If this Section 10.11 applies to any event or occurrence, Section
10.04 hereof shall not apply.
Section 10.12 Adjustment for Other Distributions. If, after the
Issue Date of the Notes, the Company pays a dividend or makes a distribution to
all holders of its Common Stock consisting of Capital Stock of any class or
series, or similar Equity Interests, of or relating to a Subsidiary or other
business unit of the Company, the Conversion Price shall be adjusted in
accordance with the formula:
P' = P x 1/(1 + F/M)
where:
P' = the adjusted Conversion Price.
P = the current Conversion Price.
M = the average of the Post-Distribution Prices of the Common Stock
for the 10 Trading Days commencing on and including the fifth Trading Day after
the date on which "ex-dividend trading" commences for such dividend or
distribution on the principal United States exchange or market which such
securities are then listed or quoted (the "EX-DIVIDEND DATE").
F = the Fair Market Value of the securities distributed in respect
of each share of Common Stock shall mean the number of securities distributed in
respect of each share of Common Stock multiplied by the average of the
Post-Distribution Prices of those securities distributed for the 10 Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend Date.
"POST-DISTRIBUTION PRICE" of Capital Stock or any similar equity
interest on any date means the closing per unit sale price (or, if no closing
sale price is reported, the average of the bid and ask prices or, if more than
one in either case, the average of the average bid and the average ask prices)
on such date for trading of such units on a "when issued" basis without due
bills (or similar concept) as reported in the composite transactions for the
principal United States
securities exchange or market on which such Capital Stock or equity interest is
traded or, if the Capital Stock or equity interest, as the case may be, is not
listed on a United States national or regional securities exchange or market, as
reported by the National Association of Securities Dealers Automated Quotation
System or by the National Quotation Bureau Incorporated; provided that if on any
date such units have not traded on a "when issued" basis, the Post-Distribution
Price shall be the closing per unit sale price (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices) on such date
for trading of such units on a "regular way" basis without due bills (or similar
concept) as reported in the composite transactions for the principal United
States securities exchange on which such Capital Stock or equity interest is
traded or, if the Capital Stock or equity interest, as the case may be, is not
listed on a United States national or regional securities exchange, as reported
by the National Association of Securities Dealers Automated Quotation System or
by the National Quotation Bureau Incorporated. In the absence of such quotation,
the Company shall be entitled to determine the Post-Distribution Price on the
basis of such quotations, which reflect the post-distribution value of the
Capital Stock or Equity Interests as it considers appropriate.
Section 10.13 Responsibility of Trustee for Conversion Provisions.
The Trustee, subject to the provisions of Section 7.01 hereof, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Notes to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature or intent of
any such adjustments 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, subject to the provisions of Section 7.01 hereof, nor
any Conversion Agent shall be accountable with respect to the validity or value
(of the kind or amount) of any Series B Preferred Stock, or of any other
securities or property, which may at any time be issued or delivered upon the
conversion of any Note; and it or they do not make any representation with
respect thereto. Neither the Trustee, subject to the provisions of Section 7.01
hereof, nor any Conversion Agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
stock or share certificates or other securities or property upon the surrender
of any Note for the purpose of conversion; and the Trustee, subject to the
provisions of Section 7.01 hereof, and any Conversion Agent shall not be
responsible or liable for any failure of the Company to comply with any of the
covenants of the Company contained in this Article.
Article 11
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 11.02 Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class
mail, postage prepaid, addressed as follows or transmitted by facsimile
transmission (confirmed by guaranteed overnight courier) to the following
facsimile numbers:
if to the Company:
PRG-Xxxxxxx International, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx XxXxxxxx, Xx., Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
if to the Trustee:
U.S. Bank National Association
000 Xxxxxxxxxx Xxxxx Xxxxxxx XX
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, CCTS
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
The Company or the Trustee by notice given to the other in the
manner provided above may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication given to a Noteholder shall be mailed to
the Noteholder, by first-class mail, postage prepaid, at the Noteholder's
address as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not received by the addressee.
If the Company mails a notice or communication to the Noteholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
Section 11.03 Communication by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar, the Paying Agent, the Conversion Agent and
anyone else shall have the protection of TIA Section 312(c).
Section 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.05 Statements Required in Certificate or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(a) a statement that each person making such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such Officers' Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable such person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement that, in the opinion of such person, such
covenant or condition has been complied with.
Section 11.06 Withholding. The Company's obligations under this
Indenture and the Notes, and any Noteholder's right to receive any amounts
thereunder (including Additional Notes, Series B Preferred Stock and Common
Stock), shall be subject to all applicable withholding and reporting
requirements imposed by any governmental authority with respect thereto.
Notwithstanding the foregoing, each Noteholder shall have sole and exclusive
responsibility for the satisfaction and payment of any tax obligations imposed
on it by any governmental authority, including income, withholding and other tax
obligations.
Section 11.07 Separability Clause. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.08 Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Noteholders. The
Registrar, the Conversion Agent and the Paying Agent may make reasonable rules
for their functions.
Section 11.09 Legal Holidays. A "LEGAL HOLIDAY" is any day other
than a Business Day. If any specified date (including a date for giving notice
or making a payment or a purchase) is a Legal Holiday, the action shall be taken
on the next succeeding day that is not a Legal Holiday, and, if the action to be
taken on such date is a payment in respect of the Notes, no interest, if any,
shall accrue for the intervening period.
Section 11.10 Governing Law. THIS INDENTURE AND THE NOTES WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
Section 11.11 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Notes or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Noteholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
Section 11.12 Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
Section 11.13 Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date first
above written.
PRG-XXXXXXX INTERNATIONAL, INC.
By:
--------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Authorized Representative
EXHIBIT A-1
[FORM OF FACE OF GLOBAL NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
A-1-1
PRG-XXXXXXX INTERNATIONAL, INC.
10% Senior Convertible Notes due 2011
CUSIP NO. [ ]
No.: 1
Issue Date: [ ], 2006
PRG-XXXXXXX INTERNATIONAL, INC. a Georgia corporation, promises to pay to
Cede & Co. or registered assigns, the principal sum of [_______________] DOLLARS
($[_____________]) on [ ], 2011.
This Note shall bear interest as specified on the other side of this Note.
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.
Dated: [ ], 2011 PRG-XXXXXXX INTERNATIONAL, INC.
By:
--------------------------------------
Name:
Title:
[SEAL]
Attest:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies that this
is one of the Notes referred to
in the within-mentioned Indenture (as
defined on the other side of this Note).
By:
-------------------------------------
Authorized Signatory
Dated:
----------------------------------
[FORM OF REVERSE SIDE OF NOTE]
10% Senior Convertible Notes due 2011
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture unless otherwise indicated.
1. Interest.
The Company promises to pay interest at the Interest Rate, at the
Company's option, in cash or Additional Notes on the principal amount of this
Note. The Company will pay cash interest semi-annually in arrears on March 15
and September 15 of each year (each an "INTEREST PAYMENT DATE"), beginning on
September 15, 2006, to Holders of record at the close of business on the
preceding March 1 or September 1 (whether or not a business day) (each a
"REGULAR RECORD DATE"), as the case may be, immediately preceding such Interest
Payment Date. Interest on the Notes will accrue from the most recent date to
which interest has been paid or duly provided or, if no interest has been paid,
from the Issue Date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. The Company shall pay interest on overdue principal, or if
shares of Series B Preferred Stock or Common Stock, as the case may be (or cash
in lieu of fractional shares) in respect of a conversion of this Note in
accordance with the terms of Article 10 of the Indenture are not delivered when
due, at the rate borne by the Notes, and it shall pay interest in cash on
overdue installments of interest at the same rate to the extent lawful. All such
overdue interest shall be payable on demand. The Company shall promptly cause to
be executed and authenticated any Additional Notes issued in payment of interest
in accordance with Section 2.02 of the Indenture and deliver such Additional
Notes to each Holder of record (or the Trustee or the authenticating agent in
custody of such Persons).
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of the principal of, premium, if any, and cash interest
on this Note and in respect of Redemption Prices and Change in Control
Repurchase Prices to Holders who surrender Notes to a Paying Agent to collect
such payments in respect of the Notes, . provided that at the option of the
Company, payment of interest may be made by Additional Notes. The Company 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. However, the Company may
make such cash payments by check payable in such money. A Holder with an
aggregate principal amount of Notes in excess of $5,000,000 will be paid by wire
transfer in immediately available funds at the written election of such Xxxxxx
received by the Paying Agent and containing all relevant information necessary
to make such wire transfer. Any such election shall remain in full force and
effect unless rescinded or otherwise modified in writing. Any payment required
to be made on any day that is not a Business Day will be made on the next
succeeding Business Day.
3. Paying Agent, Conversion Agent and Registrar.
Initially, U.S. Bank National Association (the "TRUSTEE"), will act as
Paying Agent, Conversion Agent and Registrar. The Company may appoint and change
any Paying
Agent, Conversion Agent, Registrar or co-registrar without notice, other than
notice to the Trustee except that the Company will maintain at least one Paying
Agent in the State of New York, City of New York, Borough of Manhattan, which
shall initially be an office or agency of the Trustee. The Company or any of its
Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion
Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of [________],
2006 (the "INDENTURE"), between the Company and the Trustee. 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, as in effect from
time to time (the "TIA"). 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 Noteholders are referred to the Indenture and the TIA for a
statement of those terms.
The Notes are general, senior unsecured obligations of the Company
initially limited to [$60,000,000 aggregate principal amount plus an aggregate
amount of up to $38,000,000 Additional Notes] paid as interest on the Notes
(subject to Section 2.07 of the Indenture and the Issuer's right to reopen the
series of Notes pursuant Section 2.02 of the Indenture).
5. Optional Redemption.
This Note may be redeemed in whole or in part upon not less than 30 nor
more than 60 days' notice, at any time and from time to time prior to the Stated
Maturity, at the option of the Company at the redemption price of $1,000 per
$1,000 principal amount of Notes, plus any interest accrued but not paid prior
to (but not including) the Optional Redemption Date, if both of the following
have occurred: (i) payment in full by the Company of the Non-Convertible Notes
including without limitation, accrued but unpaid interest, pre-payment
penalties, fees or other expenses due thereunder and (ii) the New Conversion
Rights Date.
Unless the Company defaults in the payment of the Redemption Price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable Redemption Date.
If fewer than all the Notes are to be redeemed, the Trustee shall select
the particular Notes to be redeemed from the outstanding Notes by the methods as
provided in the Indenture. If any Note selected for partial redemption is
converted in part before termination of the conversion right with respect to the
portion of the Note so selected, the converted portion of such Note shall be
deemed to be the portion selected for redemption (provided, however, that the
Holder of such Note so converted and deemed redeemed shall not be entitled to
any additional interest payment as a result of such deemed redemption than such
Holder would have otherwise been entitled to receive upon conversion of such
Note). Notes which have been converted during a selection of Notes to be
redeemed may be treated by the Trustee as outstanding for the purpose of such
selection.
On and after the Redemption Date, interest ceases to accrue on Notes or
portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price and accrued and unpaid interest.
Notice of redemption will be given by the Company to the Holders as
provided in the Indenture.
6. Repurchase by the Company at the Option of the Holder.
If a Change in Control occurs, the Holder, at the Holder's option, shall
have the right, in accordance with the provisions of the Indenture, to require
the Company to repurchase the Notes at the Change in Control Repurchase Price in
cash, plus any interest accrued and unpaid to, but excluding, the Change in
Control Repurchase Date.
No fractional shares of Series B Preferred Stock or Common Stock, as the
case may be, will be issued upon repurchase of any Notes. Instead of any
fractional share of Series B Preferred Stock or Common Stock which would
otherwise be issued upon conversion of such Notes, the Company shall pay a cash
adjustment as provided in the Indenture.
A Change in Control Repurchase Notice will be given by the Company to the
Holders as provided in the Indenture. To exercise a repurchase right, a Holder
must deliver to the Trustee a written notice as provided in the Indenture.
Holders have the right to withdraw any Change in Control Repurchase Notice
by delivering to the Paying Agent a written notice of withdrawal in accordance
with the provisions of the Indenture.
7. Notice of Redemption.
Notice of an optional redemption will be mailed 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. If money sufficient to pay the
Redemption Price of all Notes (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent prior to or on the Redemption
Date, immediately after such Redemption Date interest ceases to accrue on such
Notes or portions thereof.
8. Conversion.
This Note is convertible, at the option of the holder prior to maturity,
from and after the earlier of (i) the New Conversion Rights Date, or (ii) the B
Conversion Date: (a) in the event that the B Conversion Date has occurred but
not the New Conversion Rights Date, this Note shall only convertible into duly
authorized, fully paid and non-assessable shares of the Series B Preferred
Stock, and holders of this Note may convert any outstanding Note, or portions
thereof, into the Series B Preferred Stock, at a conversion rate of that shall
be 2.083 shares of Series B Preferred Stock per $1,000 principal amount of Notes
(such shares of Series B Preferred Stock will be issuable only by certificate in
definitive form to any such holder); (b) from and after the New Conversion
Rights Date, this Note shall be convertible only into duly authorized, fully
paid and non-assessable shares of Common Stock at an initial conversion price of
$0.65 per
share of Common Stock (such initial conversion price provides an initial
conversion rate of 1538.462 shares of Common Stock per $1,000 principal amount
of Notes, subject to adjustment under the terms of the Indenture. The Company
shall pay a cash adjustment as provided in the Indenture in lieu of any
fractional share of Series B Preferred Stock or Common Stock. Except as
described in the Indenture, no payment or other adjustment will be made on
conversion of any Notes for interest accrued thereon or for dividends on Common
Stock. A Note in respect of which a Holder has delivered a Change in Control
Repurchase Notice exercising the option of such Holder to require the Company to
purchase such Note may be converted only if such notice of exercise is withdrawn
in accordance with the terms of the Indenture.
To convert a Note, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (2) surrender the Note
to the Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by the Conversion Agent, the Company or the Trustee and
(4) pay any transfer or similar tax, if required.
8. Denominations; Transfer; Exchange.
The Notes are in fully registered form without coupons. A Holder may
transfer 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 Registrar need not transfer or exchange any Notes selected
for redemption (except, in the case of a Note to be redeemed in part, the
portion of the Note not to be redeemed) or any Notes in respect of which a
Change in Control Repurchase Notice or Option of Holder to Elect Purchase has
been given and not withdrawn (except, in the case of a Note to be purchased in
part, the portion of the Note not to be purchased) or any Notes for a period of
15 days before the mailing of a notice of redemption of Notes to be redeemed.
9. Persons Deemed Owners.
The registered Holder of this Note may be treated as the owner of this
Note for all purposes.
10. Unclaimed Money or Notes.
The Trustee and the Paying Agent shall return to the Company upon written
request any money or Notes held by them for the payment of any amount with
respect to the Notes that remains unclaimed for two years, subject to applicable
unclaimed property law. After return to the Company, Holders entitled to the
money or Notes must look to the Company for payment as general creditors unless
an applicable abandoned property law designates another person.
11. 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 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 Noteholder, the Company and
the Trustee may amend the Indenture or the Notes to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
to provide for uncertificated Notes in addition to or in place of certificated
Notes or to make any change that does not adversely affect the rights of any
Noteholder, or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA.
12. Defaults and Remedies.
Under the Indenture, Events of Default include (1) the Company fails to
pay when due the principal of or premium, if any, on any of the Notes at
maturity, upon redemption or exercise of a repurchase right or otherwise; (2)
the Company fails to pay an installment of interest (including Registration
Delay Payments, as that term is defined in the Registration Rights Agreement, if
any) on any of the Notes that continues for 30 days after the date when due; (3)
the Company fails to deliver shares of Series B Preferred Stock or Common Stock,
as applicable, together with cash in lieu of fractional shares, if any, when
such shares or cash are required to be delivered for conversion of a Note and
such failure continues for 10 days after such delivery date; (4) the Company
fails to perform or observe any other term, covenant or agreement contained in
the Notes or the Indenture for a period of 30 days after written notice of such
failure, requiring the Company to remedy the same, shall have been given to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding; (5) the
Company fails to give or cause the Trustee to give all Noteholders notice of the
occurrence of a Change in Control in accordance with the provisions of the
Indenture; (6) (A) one or more defaults in the payment of principal of or
premium, if any, on any of the Company's or the Company's Subsidiaries'
Indebtedness aggregating $5.0 million or more, when the same becomes due and
payable at the scheduled maturity thereof, and such default or defaults shall
have continued after any applicable grace period and shall not have been cured
or waived within a 30-day period after the date of such default or (B) any of
the Company's or the Company's Subsidiaries' Indebtedness aggregating $5.0
million or more shall have been accelerated or otherwise declared due and
payable, or required to be prepaid or repurchased (other than by regularly
scheduled required prepayment) prior to the scheduled maturity thereof and such
acceleration is not rescinded or annulled within a 30-day period after the date
of such acceleration; (7) if unsatisfied judgements not covered by insurance
aggregating in excess of $5.0 million rendered against the Company or any of its
Affiliates and not stayed, bonded or discharged within 60 days; and (8) certain
events of bankruptcy, insolvency or reorganization with respect to the Company
or any Significant Subsidiary or any Subsidiaries of the Company which in the
aggregate would constitute a Significant Subsidiary. If an Event of Default
(other than an Event of Default specified in clause (h) or (i) of Section 6.01
of the Indenture) occurs and is continuing, the Trustee, or the Holders of at
least 25% in aggregate principal amount of the Notes at the time outstanding,
may declare all the Notes to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the Notes
becoming due and payable immediately upon the occurrence of such Events of
Default.
Noteholders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may refuse to enforce the Indenture or the
Note sunless it receives
reasonable indemnity or security. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default (except a Default in
payment of amounts specified in clause (1) or (2) above) if it determines that
withholding notice is in their interests.
13. Designation.
The Indebtedness evidenced by this Note is hereby irrevocably designated
as "senior indebtedness" or such other term denoting seniority for the purposes
of any other existing or future Indebtedness of the Company which the Company
makes subordinate to any senior (or such other term denoting seniority)
Indebtedness of the Company.
14. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, 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 Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
15. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the 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 Noteholder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
16. 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.
17. Abbreviations.
Customary abbreviations may be used in the name of a Noteholder 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).
18. GOVERNING LAW.
THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
----------------
The Company will furnish to any Noteholder upon written request and without
charge a copy of the Indenture which has in it the text of this Note in larger
type. Requests may be made to:
PRG-Xxxxxxx International, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-5986
Attention: Chief Financial Officer
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Note, fill in the form below: To convert this Note into Series B Preferred Stock, check this box
[ ]
To convert this Note into Common Stock, check this box
[ ]
To convert only part of this Note, state the principal
amount to be converted (which must be $1,000 or an
integral multiple of $1,000 (except in the case of
Additional Notes paid in interest on this Note which may
be in other amounts)):
$---------------------
I or we assign and transfer this Note to If you want the stock certificate made out in another person's name, fill in
the form below
--------------------------------------------
--------------------------------------------
(Insert assignee's social sec. or tax ID no.)
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
(Insert other person's social security or tax ID number)
(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.
--------------------------------------------
--------------------------------------------
--------------------------------------------
(Print or type other person's name, address and zip code)
-------------------------------------------- --------------------------------------------
Date: Your Signature:
(Sign exactly as your name appears on the other side of this Note)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 3.15 of the Indenture, check the appropriate box below:
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 3.15 of the Indenture, state the amount you elect to
have purchased:
$---------------
Date: _______________
Your Signature:
--------------------------------------------------
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
------------------------------------------
Signature Guarantee*: -----------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-1-1
EXHIBIT A-2
[FORM OF CERTIFICATED NOTE]
A-2-1
PRG-XXXXXXX INTERNATIONAL, INC.
10% Senior Convertible Notes due 2011
CUSIP NO. [ ]
No.:
Issue Date:
PRG-XXXXXXX INTERNATIONAL, INC., a Georgia corporation, promises to pay to
Cede & Co. or registered assigns, the principal sum of [___________] DOLLARS
($[__________]) on [ ], 2011.
This Note shall bear interest as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side of this
Note.
Dated: [ ], 2011 PRG-XXXXXXX INTERNATIONAL, INC.
By:
--------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION, as
Trustee,
certifies that this is one of
the Notes referred to in the
within-mentioned Indenture (as
defined on the other
side of this Note).
By:
-----------------------------------------
Authorized Signatory
Dated:
--------------------------------------
[Text of Reverse Side of Note]
Use Exhibit A-1 Text
EXHIBIT B
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Sections 3.08 of the Indenture, check the appropriate box below:
If you want to elect to have only part of the Note purchased by the
Company pursuant to Sections 3.08 of the Indenture, state the amount you elect
to have purchased:
$---------------
Date: _______________
Your Signature:
---------------------------
(Sign exactly as your name appears on the
face of this Note)
Tax Identification No.:
-------------------
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
D-1-1
