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EXHIBIT 4.8
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XXXXX ADVERTISING COMPANY
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of August 10, 1999
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Supplement to Indenture dated as of August 10, 1999
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TABLE OF CONTENTS
Page
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ARTICLE 1
CREATION OF THE NOTES
1.1 Designation of Series.............................................2
1.2 Form of Notes.....................................................2
1.3 Limit on Amount of Series.........................................2
1.4 Interest..........................................................2
1.5 Certificate of Authentication.....................................2
1.6 No Sinking Fund...................................................2
1.7 Issuance in Global Form...........................................3
1.8 Discharge of Indenture; Defeasance................................3
1.9 Other Terms of Notes..............................................3
ARTICLE 2
CONVERSION OF NOTES
2.1 Conversion Privilege..............................................3
2.2 Conversion Rate...................................................4
2.3 Exercise of Conversion Privilege..................................4
2.4 Fractions of Common Stock Shares..................................5
2.5 Adjustment of Conversion Rate.....................................5
2.6 Notice of Adjustments of Conversion Rate.........................11
2.7 Notice of Certain Corporate Action...............................12
2.8 Company to Reserve Common Stock..................................13
2.9 Taxes on Conversions.............................................13
2.10 Covenant as to Common Stock......................................13
2.11 Cancellation of Converted Securities.............................13
2.12 Provisions in Case of Consolidation, Merger or Sale of Assets....13
2.13 Right of Holders to Convert......................................14
ARTICLE 3
REDEMPTION OF NOTES
3.1 Optional Redemption by the Company...............................15
3.2 Applicability of Article.........................................15
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ARTICLE 4
REPURCHASE OF NOTES AT THE OPTION OF THE HOLDERS UPON A CHANGE
OF CONTROL
4.1 Repurchase at Option of Holders upon Change of Control.............15
4.2 Certain Definitions................................................18
ARTICLE 5
EVENTS OF DEFAULT
5.1 Additional Events of Default.......................................20
ARTICLE 6
AMENDMENTS, SUPPLEMENTS AND WAIVERS
6.1 With Consent of Holders............................................20
ARTICLE 7
MISCELLANEOUS
7.1 Application of First Supplemental Indenture........................21
7.2 Effective Date.....................................................21
7.3 Counterparts.......................................................21
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FIRST SUPPLEMENTAL INDENTURE, dated as of August 10, 1999 by and
between XXXXX ADVERTISING COMPANY, a Delaware corporation, as issuer (the
"Company"), and STATE STREET BANK AND TRUST COMPANY, a trust company organized
under the laws of the Commonwealth of Massachusetts, as Trustee under the
Indenture (as hereinafter defined) (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee have as of August 10, 1999 entered
into an Indenture (the "Indenture", all capitalized terms used and not otherwise
defined herein shall have the meanings set forth in the Indenture) providing for
the issuance by the Company of Securities from time to time;
WHEREAS, no Securities have been issued under the Indenture and there
do not currently exist any Holders;
WHEREAS, the Company desires to issue one Series of Securities under
the Indenture, and has duly authorized the creation and issuance of such
securities and the execution and delivery of this First Supplemental Indenture
to modify the Indenture and provide certain additional provisions as hereinafter
described;
WHEREAS, the Company and the Trustee deem it advisable to enter into
this First Supplemental Indenture for the purposes of establishing the terms of
such Series of Securities;
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been authorized by a Board Resolution;
WHEREAS, concurrent with the execution hereof, the Company has
delivered a Board Resolution and an Officers' Certificate and has caused its
counsel to deliver to the Trustee an Opinion of Counsel or a reliance letter
upon an Opinion of Counsel; and
WHEREAS, all things necessary to make this First Supplemental Indenture
a valid agreement of the Company in accordance with its terms have been done,
and the execution and delivery thereof have been in all respects duly authorized
by the parties hereto.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Notes (as hereinafter defined), as
follows:
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ARTICLE 1
CREATION OF THE NOTES
1.1 DESIGNATION OF SERIES.
Pursuant to the terms hereof and Sections 2.1 and 2.2 of the Indenture,
the Company hereby creates a Series of Securities designated as the "5.25%
Convertible Notes due 2006" (the "Notes"), which Notes shall be deemed
"Securities" for all purposes under the Indenture.
1.2 FORM OF NOTES.
The definitive form of the Notes shall be substantially in the form set
forth in Exhibit A attached hereto, which is incorporated herein and made part
hereof. The Stated Maturity of the Notes shall be September 15, 2006.
1.3 LIMIT ON AMOUNT OF SERIES.
The Notes shall not exceed U.S.$287,500,000 in aggregate principal
amount, and may, upon the execution and delivery of this First Supplemental
Indenture or from time to time thereafter, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes upon a Company Order and delivery of an
Officers' Certificate and Opinion of Counsel as contemplated by Section 2.3 of
the Indenture.
1.4 INTEREST.
The Notes shall bear interest at a rate of 5.25% per annum, payable
semi-annually. The Interest Payment Dates for the Notes shall be March 15 and
September 15 of each year, commencing September 15, 1999, with interest payable
in Dollars to Holders in whose names the Notes are registered at the close of
business on March 1 or September 1 of each year (each, a "Record Date"), or, if
such Record Date is not a Business Day, at the close of business of the
immediately succeeding Business Day.
1.5 CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication to be borne on the Notes
shall be substantially as provided in the Form of Note attached hereto as
Exhibit A.
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1.6 NO SINKING FUND.
No sinking fund will be provided with respect to the Notes.
1.7 ISSUANCE IN GLOBAL FORM.
The Notes shall be issued as one or more Global Securities,
representing the aggregate principal amount of the Notes, and shall be deposited
with the Trustee as custodian for the Depositary. The Notes shall be registered
in the name of Cede & Co., or other nominee of the Depositary.
1.8 DISCHARGE OF INDENTURE; DEFEASANCE.
The Notes shall not be subject to the provisions of Article 9 of the
Indenture.
1.9 OTHER TERMS OF NOTES.
The other terms of the Notes shall be as expressly set forth in
Articles 2, 3, 4, 5, 6 and 7 hereof and Exhibit A hereto.
The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this First Supplemental Indenture as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE 2
CONVERSION OF NOTES
2.1 CONVERSION PRIVILEGE.
Subject to and upon compliance with the provisions of this Article 2,
at the option of the Holder thereof, any Note or any portion of the principal
amount thereof which is $1,000 or an integral multiple of $1,000, and which has
not previously been redeemed pursuant to Article 3 hereof or repurchased
pursuant to Article 4 hereof, may be converted into fully paid and nonassessable
shares of Class A common stock of the Company, $0.001 par value per share (the
"Common Stock"), at the conversion rate, determined as hereinafter provided, in
effect at the time of conversion. Such conversion right shall commence on the
date of original issuance of the Notes, and shall expire at the close of
business on the Business Day immediately preceding the Stated Maturity. In case
a Note or portion thereof is called for redemption, such conversion right in
respect of the Note or portion so called shall expire at the close of business
on the Business Day immediately preceding the Redemption Date, unless the
Company defaults in making the payment due upon redemption. A Note in respect of
which a Holder has delivered a Repurchase
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Notice pursuant to Section 4.1 hereof may be converted only if such notice is
withdrawn in accordance with the terms of such section, unless the Company
defaults in the payment of the Change of Control Repurchase Price.
2.2 CONVERSION RATE.
The rate at which shares of Common Stock shall be delivered upon
conversion (the "Conversion Rate") shall be initially 21.6216 shares of Common
Stock for each $1,000 principal amount of Notes. The Conversion Rate shall be
adjusted in certain instances as provided in Section 2.5 hereof. All
calculations under this Article 2 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be.
2.3 EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any Note
to be converted shall surrender such Note, duly endorsed or assigned to the
Company or in blank, at the Corporate Trust Office of the Trustee, located at
000 Xxxxxxxx Xx., Xxxxxx, XX 00000, Attn: Corporate Trust/Global Investors
Services, or the offices of an Affiliate of the Trustee located at 00 Xxxxxxxx,
Xxx Xxxx, XX 00000, Attn: Corporate Trust Window/Concourse Level, in the Borough
of Manhattan, The City of New York, accompanied by a duly signed and completed
written notice to the Company at the Corporate Trust Office that the Holder
elects to convert such Note. Notes surrendered for conversion during the period
from the close of business on any Record Date immediately preceding any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(except in the case of Notes or portions thereof which have been called for
redemption or in respect of which a Repurchase Notice delivered by the Holder
has not been withdrawn, the conversion rights of which would terminate during
the period between such Record Date and the close of business on such Interest
Payment Date) be accompanied by payment in immediately available funds or other
funds acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of Notes being surrendered
for conversion. No payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Notes surrendered for conversion from the
Interest Payment Date preceding the day of conversion, or on account of any
dividends on the Common Stock issued upon conversion. In addition, Holders shall
not be entitled to receive any dividends payable to holders of Common Stock as
of any record date before the close of business on the conversion 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
Common Stock issuable upon conversion shall be treated for all purposes as the
record holder or holders of such Common Stock at such time. As promptly as
practicable on or after the conversion date, the Company shall issue and shall
deliver to the Trustee at its Corporate Trust Office a certificate or
certificates for the number of full shares of Common Stock issuable upon
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conversion, together with payment in lieu of any fraction of a share thereof, as
provided in Section 2.4 hereof, and the Trustee shall forward such certificate
or certificates at the addresses set forth in the written notices sent to the
Company by the Holders electing to convert their Notes.
2.4 FRACTIONS OF COMMON STOCK SHARES.
No fractional shares of Common Stock shall be issued upon conversion of
the 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 issuable upon
conversion thereof shall be computed on the basis of the principal amount of the
Notes so surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Note or Notes, the Company
shall pay a cash adjustment in respect of such fraction in an amount equal to
the same fraction of the Market Price (determined by the Company in accordance
with the following paragraph) per share of Common Stock.
For purposes of this Section 2.4, "Market Price" means the Sale Price
(as defined below) of the Common Stock on the date of conversion of the Notes
or, if such date is not a Trading Day (as defined below), then on the last
Trading Day prior to such date. The "Sale Price" of the Common Stock on any date
means the closing per share 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 average ask prices) on such date as reported in
the composite transactions for the principal United States securities exchange
on which the Common Stock is traded or, if the Common Stock is not listed on a
United States national or regional stock exchange, as reported by the Nasdaq
National Market. "Trading Day" means, in respect of any securities exchange or
securities market, each Monday, Tuesday, Wednesday, Thursday and Friday, other
than any day on which securities are not traded on the applicable securities
exchange or in the applicable securities market.
2.5 ADJUSTMENT OF CONVERSION RATE.
(1) In case at any time after the date of the issuance of the Notes,
the Company shall pay or make a dividend or other distribution to the Common
Stock payable in shares of its Common Stock, the Conversion Rate in effect at
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by dividing such Conversion Rate by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this paragraph (1), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the
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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.
(2) Subject to paragraph 9 of this Section 2.5, in case at any time
after the date of the issuance of the Notes, the Company shall issue rights,
options or warrants to all holders of its Common Stock (other than any rights,
options or warrants that by their terms will also be issued to any Holder upon
conversion of a Note into Common Stock without any action required by the
Company or any other person) entitling them to subscribe for or purchase shares
of Common Stock at a price per share less than the then current market price per
share (determined as provided in paragraph (9) of this Section 2.5) of the
Common Stock on the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the Conversion Rate in effect at the opening of business on
the day following the date fixed for such determination shall be increased by
dividing such Conversion Rate by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
current market price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), 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 issue any rights, options or warrants in respect of shares of Common
Stock held in the treasury of the Company.
(3) In case at any time after the date of the issuance of the Notes,
outstanding shares of Common Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Rate in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall
be proportionately increased, and, conversely, in case outstanding shares of
Common Stock shall be combined into a smaller number of shares of Common Stock,
the Conversion Rate in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be proportionately
reduced, 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.
(4) In case at any time after the date of the issuance of the Notes,
the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock, shares of any class of its capital stock, evidences of its
indebtedness or other assets (including securities, but excluding
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any rights, options or warrants referred to in paragraph (2) of this Section
2.5, any dividend or distribution paid exclusively in cash, any dividend or
distribution referred to in paragraph (1) of this Section 2.5 and distributions
upon a merger or consolidation to which Section 2.12 applies), the Conversion
Rate shall be adjusted so that the same shall equal the price determined by
dividing the Conversion Rate in effect immediately prior to the close of
business on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in paragraph (9) of this
Section 2.5) of the Common Stock on the date fixed for such determination less
the then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution filed with
the Trustee) of the portion of the assets, shares of capital stock or evidences
of indebtedness so distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following the date fixed for the determination of stockholders
entitled to receive such distribution. If the Board of Directors determines the
fair market value of any distribution for purposes of this paragraph (4) by
reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider the prices in such
market over the same period used in computing the current market price per share
pursuant to paragraph (9) of this Section 2.5.
(5) In case at any time after the date of the issuance of the Notes,
the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock cash (excluding any cash that is distributed upon a merger or
consolidation to which Section 2.12 applies or as part of a distribution
referred to in paragraph (4) of this Section 2.5) in an aggregate amount that,
combined together with:
(A) the aggregate amount of any other distributions to all
holders of its 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 paragraph (5) has been
made, and
(B) the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee)
of consideration payable in respect of any tender 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 payment of such
distribution and in respect of which no adjustment pursuant to
paragraph (6) of this Section 2.5 has been made,
(the amount of such cash distribution together with the amounts described in
clauses (A) and (B) above being referred to herein as the "Aggregate Cash
Distribution Amount") exceeds 10% of the product of (I) the current market price
per share (determined as provided in paragraph (9) of
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this Section 2.5) of the Common Stock on the date for the determination of
holders of shares of Common Stock entitled to receive such distribution, times
(II) the number of shares of Common Stock outstanding on such date (the amount
by which the Aggregate Cash Distribution Amount exceeds 10% of the product of
the amounts described in clauses (I) and (II) above being referred to herein as
the "Excess Amount"), then, and in each such case, immediately after the close
of business on such date for determination, the Conversion Rate shall be
increased in accordance with the following formula:
M - (EA/O)
AC = CR/ ----------
M
Where:
AC = the adjusted Conversion Rate.
CR = the Conversion Rate in effect immediately prior to the close of business on
the date fixed for determination of the stockholders entitled to receive the
distribution.
M = the current market price per share (determined as provided in paragraph (9)
of this Section 2.5) of the Common Stock on the date fixed for determination of
the stockholders entitled to receive the distribution.
EA = the Excess Amount.
O = the number of shares of Common Stock outstanding on the date fixed for
determination of the stockholders entitled to receive the distribution.
(6) In case at any time after the date of the issuance of the Notes, a
tender offer made by the Company or any Subsidiary for all or any portion of the
Common Stock shall expire and such tender 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) of Purchased Shares
(as defined below)) of an aggregate consideration having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee) that combined
together with:
(A) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee),
as of the expiration of such tender offer, of consideration payable in
respect of any other tender offer, by the Company or any Subsidiary for
all or any portion of the Common Stock expiring within the 12 months
preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to this paragraph (6) has been made, and
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(B) 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 and in respect of which
no adjustment pursuant to paragraph (5) of this Section 2.5 has been
made,
exceeds 10% of the product of (I) the current market price per share of the
Common Stock (determined as provided in paragraph (9) of this Section 2.5) as of
the last time (the "Expiration Time") tenders could have been made pursuant to
such tender offer (as it may be amended), times (II) the number of shares of
Common Stock outstanding (including any tendered 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 Rate shall be reduced
in accordance with the following formula:
(M x O) - C
AC = CR/ ------------
M x (O - TS)
Where:
AC = the adjusted Conversion Rate.
CR = the Conversion Rate immediately prior to close of business on the date of
the Expiration Time.
M = the current market price per share of the Common Stock (determined as
provided in paragraph (9) of this Section 2.5) on the date of the Expiration
Time.
O = the number of shares of Common Stock outstanding (including any tendered
shares) on the Expiration Time.
C = the amount of cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Trustee) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender offer) of Purchased Shares (as defined below).
TS = the number of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted up to any such maximum, being
referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than
Common Stock (other than any reclassification upon a consolidation or merger to
which Section 2.12 applies) shall be deemed to involve (a) a distribution of
such securities other than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be
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"the date fixed for the determination of stockholders entitled to receive such
distribution" and "the date fixed for such determination" within the meaning of
paragraph (4) of this Section 2.5), and (b) a subdivision or combination, as the
case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section 2.5).
(8) In case at any time after the date of the issuance of the Notes,
the Company shall issue rights or warrants to all holders of the Common Stock
entitling the holders thereof to subscribe for or purchase shares of Common
Stock (either initially or under certain circumstances), which rights or
warrants (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, in each case in clauses (i) through (iii) until the occurrence of
a specified event or events ("Trigger Event"), shall for purposes of this
Section 2.5 not be deemed issued or distributed until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants shall be deemed to
have been distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under this Section 2.5. If any such rights or
warrants, including any such existing rights or warrants distributed prior to
the date of this Indenture are subject to subsequent events, upon the occurrence
of each of which such rights or warrants shall become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the
occurrence of each such event shall be deemed to be such date of issuance and
record date with respect to new rights or warrants (and a termination or
expiration of the existing rights or warrants without exercise by the holder
thereof). In addition, in the event of any distribution (or deemed distribution)
of rights or warrants, or any Trigger Event with respect thereto, that was
counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Rate under this Section 2.5 was made, (1) in the
case of any such rights or warrant which shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Rate 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 or holders of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to all holders
of Common Stock as of the date of such redemption or repurchase, and (2) in the
case of such rights or warrants which shall have expired or been terminated
without exercise by any holders thereof, the Conversion Rate shall be readjusted
as if such rights and warrants had not been issued.
(9) For the purpose of any computation under paragraphs (2), (4), (5)
or (6) of this Section 2.5, the current market price per share of Common Stock
on any date shall be deemed to be the average of the daily Sale Prices (as
defined in Section 2.4 hereof) of the Common Stock
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for the five consecutive Trading Days (as defined in Section 2.4 hereof)
selected by the Company commencing not more than ten Trading Days before, and
ending not later than the earlier of, the day in question and the day before the
"ex" date with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "ex" date, when used with
respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way in the applicable securities market or on the
applicable securities exchange without the right to receive such issuance or
distribution.
(10) No adjustment in the Conversion Rate shall be required unless such
adjustment (plus any adjustments not previously made by reason of this paragraph
(10)) would require an increase or decrease of at least 1.0% in such rate;
provided, however, that any adjustments which by reason of this paragraph (10)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this paragraph (10) shall be
made to the nearest whole cent.
(11) The Company may make such increases in the Conversion Rate, in
addition to those required by this Section 2.5, as it considers to be advisable
in order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons. The Company shall have the
power to resolve any ambiguity or correct any error in this paragraph (11) and
its actions in so doing shall be final and conclusive.
(12) To the extent permitted by applicable law, the Company from time
to time may increase the Conversion Rate by any amount for any period of time if
the period is at least 20 days, the increase is irrevocable during such period,
and the Board of Directors shall have made a determination that such increase
would be in the best interests of the Company, which determination shall be
conclusive. Whenever the Conversion Rate is increased pursuant to the preceding
sentence, the Company shall give notice of the increase to the Holders in the
manner provided for in Section 10.2 of the Indenture at least 15 days prior to
the date the increased Conversion Rate takes effect, and such notice shall state
the increased Conversion Rate and the period during which it will be in effect.
(13) In the event that this Article 2 requires adjustments to the
Conversion Rate under more than one of Sections 2.5(1), 2.5(2), 2.5(4) or 2.5(5)
hereof, and the record dates for the distributions giving rise to such
adjustments shall occur on the same date, then such adjustments shall be made by
applying, first, the provisions of Section 2.5(4), second, the provisions of
Section 2.5(5), third, the provisions of Section 2.5(1) and, fourth, the
provisions of Section 2.5(2). After an adjustment to the Conversion Rate under
this Article 2, any subsequent event requiring an adjustment under this Article
2 shall cause an adjustment to the Conversion Rate as so adjusted. Whenever
successive adjustments to the Conversion Rate are called for pursuant to this
Article 2, such adjustments shall be made to the provisions of Section 2.5(9)
hereof as may
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be necessary or appropriate to effectuate the intent of this Article 2 and to
avoid unjust or inequitable results as determined in good faith by the Board of
Directors.
2.6 NOTICE OF ADJUSTMENTS OF CONVERSION RATE.
Whenever the Conversion Rate is adjusted as herein provided: (a) the
Company shall compute the adjusted Conversion Rate in accordance with Section
2.5 hereof and shall prepare an Officers' Certificate, one of the signatories of
which shall be the Treasurer or Chief Financial Officer of the Company, setting
forth the adjusted Conversion Rate (certified by the Company's independent
public accountants or other certified public accountant) and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee at each office or agency
maintained for the purpose of conversion of Securities pursuant to Section 2.3
hereof; and (b) a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall forthwith be required, and as
soon as practicable after it is required, such notice shall be given by the
Company to the Trustee and all Holders in the manner provided for in Section
10.2 of the Indenture. The Trustee shall not be deemed to have notice of any
change in the Conversion Rate unless and until it receives the Officers'
Certificate provided for in the foregoing clause (a) setting forth such change.
2.7 NOTICE OF CERTAIN CORPORATE ACTION.
In case: (a) the Company shall declare a dividend or make any other
distribution that would require any adjustment pursuant to Section 2.5 hereof;
or (b) the Company shall authorize the granting to the holders of its Common
Stock of rights or warrants to subscribe for or purchase any shares of capital
stock of any class or of any other rights; or (c) of any reclassification of the
Common Stock of the Company, or of any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the Company is
required or that is otherwise subject to Section 2.12 hereof, or of the
conveyance, lease, sale or transfer of all or substantially all of the assets of
the Company; or (d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; then the Company shall cause to be filed at each
office or agency maintained for the purpose of conversion of Securities pursuant
to Section 2.4 hereof, and shall cause to be mailed to all Holders at their last
addresses as they shall appear in the register for the Securities, at least 20
days prior to the applicable record or effective date hereinafter specified, a
notice (which notice shall also be sent by release to Reuters Economic Services
and Bloomberg Business News as set forth in Section 10.2 of the Indenture)
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights 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 or warrants are to be determined, or (y) the
date on which such reclassification, consolidation, merger, share exchange,
conveyance, lease, sale, transfer, 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
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16
reclassification, consolidation, merger, share exchange, conveyance, lease,
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 described in clauses (a) through (d) of this Section 2.7. If at
the time the Trustee shall not be the conversion agent, a copy of such notice
shall also forthwith be filed by the Company with the Trustee. The Company shall
cause to be filed at the Corporate Trust Office and each office or agency
maintained for the purpose of conversion of Notes pursuant to Section 2.4 of the
Indenture, and shall cause to be provided to all Holders in accordance with
Section 10.2 of the Indenture, notice of any tender offer by the Company or any
Subsidiary for all or any portion of the Common Stock at or about the time that
such notice of tender offer is provided to the public generally.
2.8 COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Notes, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Notes.
2.9 TAXES ON CONVERSIONS.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of Notes
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common 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 and until the Person requesting such issue has paid to the Company the
amount of any such tax, or has established to the satisfaction of the Company
that such tax has been paid.
2.10 COVENANT AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Notes will upon issue be fully paid and nonassessable
and, except as provided in Section 2.9 hereof, the Company will pay all taxes,
liens and charges with respect to the issue thereof.
The Company will endeavor promptly to comply with all Federal and state
securities laws regulating the issuance and delivery of shares of Common Stock
upon conversion of Notes, if any, and will use its best efforts to list or cause
to have quoted all such shares of Common Stock on each United States national
securities exchange or over-the-counter or other domestic market on which the
Common Stock is then listed or quoted.
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2.11 CANCELLATION OF CONVERTED SECURITIES.
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 2.12 of the Indenture.
2.12 PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS.
In case of any merger, amalgamation, arrangement or consolidation of
the Company with or into any other Person, any merger of another Person into the
Company (other than a merger, amalgamation, arrangement or consolidation which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company) or any conveyance, lease,
sale or transfer of all or substantially all of the assets of the Company, the
Person formed by or resulting from such merger, amalgamation, arrangement or
consolidation or which acquires such assets, as the case may be, shall execute
and deliver to the Trustee a supplemental indenture providing (in addition to
matters, if any, required by Section 5.1 of the Indenture) that the Holder of
each Note then outstanding shall have the right thereafter, during the period
such Note shall be convertible as specified in Section 2.1 hereof, to convert
such Note only into the kind and amount of securities, cash and other property
receivable upon such merger, amalgamation, arrangement, consolidation,
conveyance, lease, sale or transfer by a holder of the number of shares of
Common Stock of the Company into which such Note might have been converted
immediately prior to such merger, amalgamation, arrangement, consolidation,
conveyance, lease, sale or transfer, assuming such holder of Common Stock of the
Company (i) is not a Person with which the Company consolidated or into which
the Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("Constituent Person"), or an Affiliate of
a Constituent Person and (ii) failed to exercise its rights of election, if any,
as to the kind or amount of Notes, cash and other property receivable upon such
merger, amalgamation, arrangement, consolidation, conveyance, lease, sale or
transfer (provided that if the kind or amount of Notes, cash and other property
receivable upon such merger, amalgamation, arrangement, consolidation,
conveyance, lease, sale or transfer is not the same for each share of Common
Stock of the Company held immediately prior to such merger, amalgamation,
arrangement, consolidation, conveyance, lease, sale or transfer by other than a
Constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("Non-Electing Share"), then for the
purpose of this Section 2.12 the kind and amount of securities, cash and other
property receivable upon such merger, amalgamation, arrangement, consolidation,
conveyance, lease, sale or transfer by each non-electing share shall be deemed
to be the kind and amount so receivable per share by a plurality of the
non-electing shares). Such supplemental indenture shall provide for adjustments
which, for events subsequent to the effective date of such supplemental
indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 2. The foregoing provisions of this
Section 2.12 shall similarly apply to successive mergers, amalgamations,
arrangements, consolidations, conveyances, leases, sales or transfers. The
Company shall cause
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notice of the execution of such supplemental indenture to be given to each
Holder in the manner provided for in Section 10.2 of the Indenture.
2.13 RIGHT OF HOLDERS TO CONVERT.
The limitations set forth in Section 6.6 of the Indenture shall not
apply to the right of a Holder to bring a suit for the enforcement of such
Holder's right to convert Notes pursuant to this Article 2.
ARTICLE 3
REDEMPTION OF NOTES
Pursuant to Section 2.2(7) of the Indenture, so long as any of the
Notes are outstanding, the following provisions shall be applicable to the
Notes:
3.1 OPTIONAL REDEMPTION BY THE COMPANY.
At any time on or after September 18, 2002, and prior to the Stated
Maturity, the Notes may be redeemed at the option of the Company, in whole or in
part, upon notice as set forth in Section 3.3 of the Indenture, at the following
redemption prices (expressed as a percentage of principal amount), in each case,
together with accrued interest to the Redemption Date:
Redemption
Redemption Date Price:
------------------------------ ----------
from 9/18/2002 until 9/14/2003 103.00%
from 9/15/2003 until 9/14/2004 102.25%
from 9/15/2004 until 9/14/2005 101.50%
from 9/15/2005 until 9/14/2006 100.75%
on 9/15/2006 100.00%
3.2 APPLICABILITY OF ARTICLE.
Redemption of the Notes at the election of the Company or otherwise, as
permitted or required by any provision of the Notes or this First Supplemental
Indenture, shall be made in accordance with such provision, Article 3 of the
Indenture and this Article 3.
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ARTICLE 4
REPURCHASE OF NOTES AT THE OPTION
OF THE HOLDERS UPON A CHANGE OF CONTROL
Pursuant to Section 2.2(8) of the Indenture, so long as any of the
Notes are outstanding, the following provisions shall be applicable to the
Notes:
4.1 REPURCHASE AT OPTION OF HOLDERS UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control (the date of
such occurrence, the "Change of Control Date"), the Company shall notify the
Holders of the Notes in writing of such occurrence in accordance with paragraph
(b) below, and shall make an offer to purchase (a "Change of Control Offer"),
and shall purchase, on a Business Day (a "Change of Control Purchase Date") not
more than 60 nor less than 30 days following the Change of Control Date all of
the then outstanding Notes validly tendered at a purchase price in cash equal to
100% of the principal amount thereof plus accrued interest, if any, to the
Change of Control Purchase Date (the "Change of Control Purchase Price").
(b) Notice of a Change of Control Offer (a "Change of Control
Notice") shall be sent, by first-class mail, postage prepaid, by the Company not
later than the 30th day after the Change of Control Date to the Holders of the
Notes at their last registered addresses with a copy to the Trustee and the
Paying Agent (and shall also be given by release made to Reuters Economic
Services and Bloomberg Business News as provided in Section 10.2 of the
Indenture). The Change of Control Offer shall remain open from the time of
delivery of the Change of Control Notice for at least 20 Business Days and until
5:00 p.m., New York City time, on the Business Day prior to the Change of
Control Purchase Date. The Change of Control Notice, which shall govern the
terms of the Change of Control Offer, shall include such disclosures as are
required by law and shall state:
(i) that the Change of Control Offer is being made
pursuant to this Section 4.1 and that any portion of the
principal amount of Notes that is equal to $1,000 or an
integral multiple thereof, validly tendered into the Change of
Control Offer and not withdrawn, will be accepted for payment;
(ii) the cash purchase price (including the amount of
accrued interest, if any) for each Note, the Change of Control
Purchase Date and the date on which the Change of Control
Offer expires;
(iii) that any Note not tendered for payment will
continue to accrue interest in accordance with the terms
thereof;
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(iv) that, unless the Company shall default in the
payment of the purchase price, any Note accepted for payment
of the Change of Control Purchase Price pursuant to the Change
of Control Offer shall cease to accrue interest after the
Change of Control Purchase Date;
(v) that Holders electing to have Notes purchased
pursuant to a Change of Control Offer will be required to
surrender their Notes to the Paying Agent at the address (in
the Borough of Manhattan, The City of New York) specified in
the Change of Control Notice prior to 5:00 p.m., New York City
time, on the Business Day prior to the Change of Control
Purchase Date and must complete any form of letter of
transmittal proposed by the Company and reasonably acceptable
to the Trustee and the Paying Agent;
(vi) that Holders of Notes will be entitled to
withdraw their election if the Paying Agent receives, not
later than 5:00 p.m., New York City time, on the Business Day
prior to the Change of Control Purchase Date, a facsimile
transmission or letter setting forth the name of the Holder,
the principal amount of Notes the Holder delivered for
purchase, the Note certificate number (if any) and a statement
that such Holder is withdrawing its election to have such
Notes purchased;
(vii) that Holders whose Notes are purchased only in
part will be issued Notes equal in principal amount to the
unpurchased portion of the Notes surrendered;
(viii) the instructions that Holders must follow in
order to tender their Notes; and
(ix) information concerning the business of the
Company, the most recent annual and quarterly reports of the
Company filed with the SEC pursuant to the Exchange Act (or,
if the Company is not then permitted to file any such reports
with the SEC, the comparable reports prepared pursuant to
Section 4.2 of the Indenture), a description of material
developments in the Company's business, information with
respect to pro forma historical financial information after
giving effect to such Change of Control and such other
information concerning the circumstances and relevant facts
regarding such Change of Control Offer as would be material to
a Holder of Notes in connection with the decision of such
Holder as to whether or not it should tender Notes pursuant to
the Change of Control Offer.
(c) To exercise a repurchase right pursuant to this Section
4.1, a Holder shall deliver to the Trustee a written notice (a "Repurchase
Notice") of such Holder's exercise of such right, in accordance with the terms
and conditions set forth in the Change of Control Notice. Upon receipt by the
Trustee of a Repurchase Notice, the Holder of the Note in respect of which
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such Repurchase Notice was given shall (unless such Repurchase Notice is
withdrawn) thereafter be entitled to receive solely the Change of Control
Purchase Price with respect to such Note. Notes in respect of which a Repurchase
Notice has been given by the Holder thereof may not be converted into shares of
Common Stock on or after the date of the delivery of such Repurchase Notice,
unless such Repurchase Notice has first been validly withdrawn as set forth in
the foregoing paragraph (b)(vi), unless the Company has defaulted in the payment
of the Change of Control Purchase Price.
(d) On the Change of Control Purchase Date, the Company shall
(i) accept for payment Notes or portions thereof validly tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent (no later than
10:00 A.M. EST on the Change of Control Purchase Date) money, in immediately
available funds, sufficient to pay the purchase price of all Notes or portions
thereof so tendered and accepted and (iii) deliver to the Trustee the Notes so
accepted together with an Officers' Certificate setting forth the Notes or
portions thereof tendered to and accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to the Holders of Notes so accepted payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Note equal in principal
amount to any unpurchased portion to the Notes surrendered; provided that each
such new Note shall be issued in an original principal amount in denominations
of $1,000 and integral multiples thereof. Any Notes not validly tendered and not
accepted by the Company shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company will publicly announce the results of the Change
of Control Offer not later than the first Business Day following the Change of
Control Purchase Date.
(e) In the event that a Change of Control occurs and the
holders of Notes exercise their right to require the Company to purchase Notes,
if such purchase constitutes a "tender offer" for purposes of Rule 14e-1 under
the Exchange Act at that time, the Company will comply with the requirements of
Rule 14e-1 as then in effect with respect to such repurchase.
4.2 CERTAIN DEFINITIONS.
For purposes of this Article 4:
(1) the term "Change of Control" means the occurrence of any of the
following events:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), excluding Permitted
Holders, is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a person or group
shall be deemed to have "beneficial ownership" of all securities that
such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time, upon the
happening of an event or
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otherwise), directly or indirectly, of more than 35% of the
total voting power of all Voting Stock of the Company;
provided, however, that the Permitted Holders (i)
"beneficially own" (as so defined) a lower percentage of such
total voting power with respect to the Voting Stock than such
other person or "group" and (ii) do not have the right or
ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of
the Company;
(b) the Company consolidates with, or merges with or into,
another person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any
person, or any person consolidates with, or merges with or into, the
Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is converted into or exchanged
for cash, securities or other property, other than any such transaction
where (i) the outstanding Voting Stock of the Company is converted into
or exchanged for Voting Stock (other than Disqualified Capital Stock)
of the surviving or transferee corporation, and (ii) immediately after
such transaction no "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), excluding Permitted
Holders, is the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a person or group shall be deemed
to have "beneficial ownership" of all securities that such person or
group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time, upon the happening of an
event or otherwise), directly or indirectly, of more than 50% of the
total voting power of all Voting Stock of the surviving or transferee
corporation;
(c) at any time during any consecutive two-year period,
individuals who at the beginning of such period constituted the board
of directors of the Company (together with any new directors whose
election by such board of directors or whose nomination for election by
the stockholders of the Company was approved by a vote of at least
66-2/3% of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of the board of directors of the Company then in office; or
(d) the Company is liquidated or dissolved or adopts a plan of
liquidation;
(2) the term "Permitted Holders" means:
(a) any of Xxxxxxx Xxxxxxx, Xxxxxxx X. Xxxxx, III, Xxxxx X.
Xxxxxx, Xx., members of their immediate families or any lineal
descendant of any of those persons and the immediate families of any
lineal descendant of those persons;
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(b) any trust, to the extent it is for the benefit of any of
the persons listed under (a) above; or
(c) any person, entity or group of persons controlled by any
of the persons listed under (a) or (b) above; and
(3) the term "Voting Stock" means, with respect to any Person,
securities of any class or classes of Capital Stock in such Person entitling the
holders thereof to vote under ordinary circumstances in the election of members
of the board of directors or other governing body of such Person.
(4) the term "Disqualified Capital Stock" means any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the Stated Maturity of the
Notes, for cash or securities constituting Indebtedness.
ARTICLE 5
EVENTS OF DEFAULT
5.1 ADDITIONAL EVENTS OF DEFAULT.
Pursuant to Sections 2.2 (18) and 6.1(8) of the Indenture, so long as
any of the Notes are outstanding, the following shall be an Event of Default
with respect to the Notes, in addition to the Events of Default contained in
Section 6.1 of the Indenture:
(1) The Company fails to give a Change of Control Notice in accordance
with Section 4.1(b) hereof, or defaults in the payment of the Change of Control
Purchase Price.
(2) The Company fails to convert any portion of the principal amount of
a Note following the exercise by the Holder of such Note of the right to convert
such Note into Common Stock pursuant to and in accordance with Article 2 hereof.
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ARTICLE 6
AMENDMENTS, SUPPLEMENTS AND WAIVERS
6.1 WITH CONSENT OF HOLDERS
Pursuant to Sections 2.2 (and subject to Section 8.4) of the Indenture,
so long as any of the Notes are outstanding, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.4 of the Indenture, may not (in addition to the events
described in paragraphs (1) through (9) of the Indenture):
(1) make any change that impairs or adversely affects the right to
convert any Security into Common Stock;
(2) impair or adversely affect the right of a Holder to institute suit
for the enforcement of any payment with respect to, or conversion of, the Notes;
(3) make any change that adversely affects the right to require the
Company to repurchase the Notes upon a Change of Control pursuant to and in
accordance with Article 4 hereof; or
(4) reduce or impair or adversely affect the right of a Holder to
receive the redemption prices set forth in Section 3.1 hereof or the Change of
Control Purchase Price.
ARTICLE 7
MISCELLANEOUS
7.1 APPLICATION OF FIRST SUPPLEMENTAL INDENTURE.
Each and every term and condition contained in the First Supplemental
Indenture that modifies, amends or supplements the terms and conditions of the
Indenture shall apply only to the Notes created hereby and not to any future
series of Notes established under the Indenture. Except as specifically amended
and supplemented by, or to the extent inconsistent with, this First Supplemental
Indenture, the Indenture shall remain in full force and effect and is hereby
ratified and confirmed.
7.2 EFFECTIVE DATE.
This First Supplemental Indenture shall be effective as of the date
first above written and upon the execution and delivery hereof by each of the
parties hereto.
7.3 COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first above written.
XXXXX ADVERTISING COMPANY
By:
-------------------------------------
Name:
Title:
Attest:
------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-------------------------------------
Name:
Title:
Attest:
------------------------------
Name:
Title:
-00-
00
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On the ___ day of _____________, ____, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is the _______________ of ________________________________, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by authority
of the Board of Directors.
-----------------------------------
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK )
On the ___ day of _____________, ____, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is the _______________ of ________________________________, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by authority
of the Board of Directors.
-----------------------------------
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EXHIBIT A
[FORM OF FACE OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
XXXXX ADVERTISING COMPANY
5 1/4% Convertible Note due 2006
No.__________ $_____________
CUSIP No. __________________
XXXXX ADVERTISING COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter defined), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of $__________ (________________ Dollars) on September 15, 2006,
and to pay interest thereon from August 10, 1999 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on March 15 and September 15 in each year, commencing September
15, 1999, at the rate of 5 1/4% per annum, until the principal hereof is paid or
made available for payment.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Note is registered at the close of business on the
regular record date for such interest, which shall be the 1st of March or 1st of
September, as the case may be, next preceding such Interest Payment Date or, if
such record date is not a Business Day, at the close of business of the
immediately succeeding Business Day. A "Business Day" shall mean any day other
than a Saturday, Sunday,
28
a federally recognized holiday or a day on which banking institutions are not
authorized or required by law or executive order to be open in the State of New
York or the Commonwealth of Massachusetts. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such regular record date and shall be paid to the Person in whose name this Note
is registered at the close of business on a subsequent special record date,
which date shall be the fifteenth day next preceding the date fixed by the
Company for the payment of defaulted interest or the next succeeding Business
Day if such date is not a Business Day. At least 15 days before the special
record date, the Company shall mail or cause to be mailed to each
Securityholder, with a copy to the Trustee, a notice that states the special
record date, the payment date, and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
Payments of principal of and interest on this Note and any additional
payments due hereunder shall be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
State of New York, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the register for the Notes maintained by the Registrar.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof or an authenticating agent
appointed by the Company, by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and delivered under its corporate seal.
Dated:
XXXXX ADVERTISING COMPANY
By:
-------------------------------
Name:
Title:
Attest:
--------------------
This is one of the Securities of the Series designated therein referred
to in the within-mentioned Indenture.
Dated:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-------------------------------
Authorized Signatory
Attest:
--------------------
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[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of August 10, 1999 (as supplemented by a
First Supplemental Indenture, dated as of August 10, 1999, the "Indenture"),
between the Company and State Street Bank and Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof as "5 1/4% Convertible Notes due
2006", limited in aggregate principal amount to $287,500,000. All terms used in
this Note which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
The Notes are subject to redemption, at the election of the Company, at
any time on or after September 18, 2002, as a whole or in part, upon not less
than 30 nor more than 60 days' notice to the Holders (in the manner provided for
in the Indenture) prior to the Redemption Date at the following redemption
prices (expressed as percentages of the principal amount):
Redemption
Redemption Date Price:
------------------ ----------
from 9/18 2002 until 9/14 2003 103.00%
from 9/15 2003 until 9/14 2004 102.25%
from 9/15 2004 until 9/14 2005 101.50%
from 9/15 2005 until 9/14 2006 100.75%
on 9/15 2006 100.00%
together in each case of any such redemption with accrued interest to the
Redemption Date; provided, however, that interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Notes, of record at the close of business on the relevant record dates
referred to on the face hereof, all as provided in the Indenture.
No sinking fund is provided for the Notes.
Subject to and upon compliance with the provisions of the Indenture,
any Note (or any portion of the principal amount thereof which is $1,000 or an
integral multiple of $1,000) which has not previously been redeemed or
repurchased, is convertible at the option of the Holder thereof, at any time
following the original issue date of the Notes and on or before the close of
business on the Business Day immediately preceding the Stated Maturity into
fully paid and nonassessable shares of Class A common stock of the Company,
$0.001 par value per share (the "Common Stock"), at an initial conversion rate
(calculated to the nearest 1/100 of a share) of
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31
_______ shares of Common Stock for each $1,000 principal amount of Note, or at
the current adjusted conversion rate if an adjustment has been made as provided
in the Indenture. In case the Notes or a portion thereof are called for
redemption, such conversion right in respect of the Notes or portion so called
shall expire at the close of business on the Business Day immediately preceding
the Redemption Date, unless the Company defaults in making the payment due upon
redemption. A Note or portion thereof in respect of which the Holder has
delivered a Repurchase Notice may be converted only if such notice is withdrawn
in accordance with the terms of the Indenture, unless the Company has defaulted
in the payment of the Change of Control Purchase Price. To convert this Note the
Holder must (1) surrender this Note, duly endorsed or assigned to the Company or
in blank, provided that if such surrender shall be made during the period from
the close of business on any regular record date immediately preceding any
Interest Payment Date to the opening of business on such Interest Payment Date
(except in the case of Notes or portion thereof which have been called for
redemption or in respect of which a Repurchase Notice delivered by the Holder
has not been withdrawn, the conversion rights with respect to which would
terminate during the period between such record date and the close of business
on such Interest Payment Date), it shall also be accompanied by payment in
immediately available funds or other funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of the Note being surrendered for conversion, and (2) complete
and manually sign the conversion notice. No payment or adjustment shall be made
upon any conversion on account of any interest accrued hereon from the Interest
Payment Date immediately preceding the day of conversion, or on account of any
dividends on the Common Stock issued on conversion hereof. In addition, the
Holders shall not be entitled to receive any dividends payable to holders of
Common Stock as of any record date before the close of business on the
conversion date. No fractional shares will be issued on conversion, but instead
of any fractional interest (calculated to the nearest 1/100th of a share) the
Company shall pay a cash adjustment as provided in the Indenture.
The Indenture provides that in the event of any merger, amalgamation,
arrangement or consolidation to which the Company is a party (other than one
that does not result in any reclassification, conversion, exchange or
cancellation of the Common Stock) or any conveyance, lease, sale or transfer of
all or substantially all of the assets of the Company, the Indenture shall be
amended, without the consent of any Holders of Notes, so that this Note, if then
outstanding, will be convertible thereafter, during the period this Note shall
be convertible as specified above, only into the kind and amount of securities,
cash and other property receivable upon such merger, amalgamation, arrangement,
consolidation, conveyance, lease, sale or transfer by a holder of the number of
shares of Common Stock of the Company into which this Note could have been
converted immediately prior to such merger, amalgamation, arrangement,
consolidation, conveyance, lease, sale or transfer (assuming such holder of
Common Stock is not a Constituent Person or an Affiliate of a Constituent
Person, failed to exercise any rights of election and received per share the
kind and amount received per share by a plurality of Non-Electing Shares). No
adjustment in the Conversion Rate shall be made until such adjustment would
require an increase or decrease of at least one percent of such rate, provided
that any adjustment that would
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32
otherwise be made will be carried forward and taken into account in the
computation of any subsequent adjustment.
Subject to and upon compliance with the provisions of the Indenture,
upon the occurrence of a Change of Control, the Company shall notify the Holders
of the Notes of such occurrence by delivering a Change of Control Notice, shall
make a Change of Control Offer and shall purchase, on a Business Day not more
than 60 nor less than 30 days following the Change of Control Date (a "Change of
Control Purchase Date") all of the then outstanding Notes validly tendered at a
purchase price in cash equal to 100% of the principal amount thereof plus
accrued interest, if any, to the Change of Control Purchase Date (the "Change of
Control Purchase Price"). The Change of Control Offer shall remain open from the
time of delivery of the Change of Control Notice for at least 20 Business Days
and until 5:00 p.m., New York City time, on the Business Day prior to the Change
of Control Purchase Date. To exercise its repurchase right, a Holder shall
deliver to the Trustee a Repurchase Notice, in accordance with the terms and
conditions set forth in the Change of Control Notice. Upon receipt by the
Trustee of a Repurchase Notice, the Holder of the Note in respect of which such
Repurchase Notice was given shall (unless such Repurchase Notice is withdrawn)
thereafter be entitled to receive solely the Change of Control Purchase Price
with respect to such Note and, unless the Company has defaulted in the payment
of the Change of Control Purchase Price, any Note accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date. Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives notice of such withdrawal not later than
5:00 p.m., New York City time, on the Business Day prior to the Change of
Control Purchase Date. Notes in respect of which a Repurchase Notice has been
given by the Holder thereof may not be converted into shares of Common Stock on
or after the date of the delivery of such Repurchase Notice, unless such
Repurchase Notice has first been validly withdrawn in the manner provided for in
the Indenture, unless the Company has defaulted in the payment of the Change of
Control Purchase Price. Holders electing to have Notes purchased pursuant to a
Change of Control Offer will be required to surrender their Notes to the Paying
Agent at the address (in the Borough of Manhattan, The City of New York)
specified in the Change of Control Notice prior to 5:00 p.m., New York City
time, on the Business Day prior to the Change of Control Purchase Date and must
complete any form of letter of transmittal proposed by the Company and
reasonably acceptable to the Trustee and the Paying Agent. Any portion of the
principal amount of Notes that is equal to $1,000 or an integral multiple
thereof, validly tendered into the Change of Control Offer and not withdrawn,
will be accepted for payment.
In the event of redemption, repurchase or conversion of this Note in
part only, a new Note or Notes for the unredeemed, unrepurchased or unconverted
portion hereof will be issued in the name of the Holder hereof upon the
cancellation thereof.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
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33
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Notes at the time outstanding. The
Indenture also contains provisions permitting the Holders of no less than a
majority in principal amount of the Notes at the time outstanding, on behalf of
the Holders of all the Notes, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note or such other Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default, the Holders of not less
than 25% in principal amount of the outstanding Notes shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
the outstanding Notes a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or interest hereon on or after the respective due dates
expressed herein or for the enforcement of the right to convert this Note as
provided in the Indenture.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rate, and in the coin or currency, herein prescribed or to
convert this Note as provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable on the security register
maintained by the Registrar, upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the principal
of and any interest on this Note are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing, and
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34
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees by the Registrar.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to recover
any tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name Note is registered, as the owner thereof for all
purposes, whether or not such Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
A director, officer, employee, stockholder or incorporator, as such, of
the Company shall not have any liability (except in the case of bad faith or
willful misconduct) 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 creations. Each Holder by accepting a Note waives and
releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
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35
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - Uniform Gifts to Minors Act
Additional abbreviations may also be used though not in the above list.
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36
ELECTION OF HOLDER TO REQUIRE REPURCHASE
UPON A CHANGE OF CONTROL
(1) Pursuant to Article 4 of the First Supplemental Indenture dated
August ___, 1999 to the Indenture, the undersigned hereby acknowledges receipt
of a notice from the Company of a Change of Control Offer and requests and
instructs the Company to repurchase this Note, or the portion hereof (which is
$1,000 in principal amount or an integral multiple of $1,000) below designated,
as of the Change of Control Purchase Date pursuant to the terms and conditions
specified in such Article 4.
(2) The undersigned hereby directs the Trustee or the Company to pay to
the undersigned an amount in cash equal to 100% of the principal amount to be
repurchased (as set forth below), plus interest accrued to the Change of Control
Purchase Date, as provided in the Indenture.
(3) The undersigned elects (check one):
( ) to withdraw this notice with respect to the following Notes:
Principal amount:
Certificate numbers:
( ) to receive cash in respect of the entire Change of Control Purchase
Price with respect to the Notes that are subject to this notice.
Notice: If the Holder fails to make an election, the Holder shall be deemed to
have elected to receive cash in respect of the entire Change of Control Purchase
Price for all Notes subject to this notice.
Dated
----------------
--------------------------------
--------------------------------
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange
Act of 1934.
-----------------------------------------
Signature Guaranteed
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37
Security certificate number:
Principal amount to be repurchased
(if less than all): $
-----------------
Remaining principal amount after repurchase:
$
-------------------
--------------------------------
Social Security or Other Taxpayer
Identification Number
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38
CONVERSION NOTICE
The undersigned Holder of this Note hereby irrevocably exercises the
option to convert this Note, or any portion of the principal amount hereof
(which is $1,000 in principal amount or an integral multiple of $1,000), below
designated, into shares of Class A common stock of Xxxxx Advertising Company,
$0.001 par value per share (the "Common Stock"), in accordance with the terms of
the Indenture referred to in this Note, and directs that such shares, together
with a check in payment for any fractional share and any Notes representing any
unconverted principal amount hereof, be issued and delivered to and be
registered in the name of the undersigned unless a different name has been
indicated below. If shares of Common Stock or any portion of this Note not
converted are to be registered in the name of a Person other than the
undersigned, (a) the undersigned will pay all transfer taxes payable with
respect thereto and (b) signature(s) must be guaranteed by an Eligible Guarantor
Institution with membership in an approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange Act of 1934.
Dated:
-------------------
------------------------------------
------------------------------------
Signature(s)
If shares or Notes are to be registered in the name of a Person other than the
Holder, please print such Person's name and address:
----------------------------------
Name
----------------------------------
Address
----------------------------------
Social Security or Other Taxpayer
Identification Number
----------------------------------
[Signature Guaranteed]
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39
If only a portion of the Notes is to be converted, please indicate:
1. Principal amount to be converted:
$ ------------
2. Principal amount and denomination of Notes representing unconverted
principal amount to be issued:
$ ------------
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40
FORM OF ASSIGNMENT
For value received ________________ hereby sell(s), assign(s) and
transfer(s) unto ________________ [also insert social security or other
identifying number of assignee] the within Note, and hereby irrevocably
constitutes and appoints ____________________ as attorney to transfer the said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:
-----------------------
-------------------------------------------
-------------------------------------------
Signature(s)
Signature(s) must be guaranteed by an
Eligible Guarantor Institution with
membership in an approved signature
guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
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