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EXHIBIT 4.3
EXECUTION COPY
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF JANUARY 2, 1998
TO
INDENTURE
DATED AS OF DECEMBER 19, 0000
XXXXXXX
XXXXXXXXXXX XXXXXX XXXXXXXX, XXX.
XXX
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK
AS TRUSTEE
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5.25% CONVERTIBLE SUBORDINATED DEBENTURES
DUE 2002
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SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of January 2, 1998
between Alternative Living Services, Inc., a Delaware corporation (the
"Company"), and United States Trust Company of New York, a New York State
banking corporation (the "Trustee"), to that certain Indenture, dated as of
December 19, 1997, between the Company and the Trustee (the "Indenture").
WHEREAS, the parties hereto have entered into the Indenture
which provides for the issuance by the Company of the individual series of
securities thereunder, upon the Company and Trustee entering into a supplemental
indenture to the Indenture authorizing such series; and
WHEREAS, the Company wishes to issue its second series of
securities thereunder, designated its 5.25% Convertible Subordinated Debentures
Due 2002 (the "Debentures"); and
WHEREAS, all acts necessary to constitute this Second
Supplemental Indenture as a valid, binding and legal obligation of the Company
have been done and performed.
NOW, THEREFORE, witnesseth that, in consideration of the
premises and of the covenants contained herein, it is hereby agreed as follows:
ARTICLE ONE
The Terms of the Debentures
In accordance with Sections 2.01 and 2.02 of the Indenture,
the Company will issue a Global Debenture in the aggregate principal amount of
$18,750,000. Each Debenture shall be substantially in the following form:
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ALTERNATIVE LIVING SERVICES, INC.
5.25% Convertible Subordinated Debenture Due 2002
ALTERNATIVE LIVING SERVICES, INC., a Delaware corporation,
promises to pay to
S P E C I M E N
or registered assigns, the principal sum of 18,750,000 Dollars, on December 15,
2002
Cusip 02145K AB3
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Additional provisions of this Security are set forth on the
other side of this Security.
Dated: January 2, 1998
ALTERNATIVE LIVING SERVICES, INC.
By:
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Xxxxxxx X. Xxxxx
Chief Executive Officer and Director
By:
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Xxxx Xxxxxxxx
Vice President, Assistant Secretary and Controller
[SEAL]
CERTIFICATE OF AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee, certifies that this is one of the
Securities referred to in the within
mentioned Indenture.
By:
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Authorized Signatory
[SEAL]
Dated: January 2, 1998
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UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THIS
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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.
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ALTERNATIVE LIVING SERVICES, INC.
5.25% Convertible Subordinated Debenture Due 2002
1. Interest. Alternative Living Services, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Security at the rate per annum shown above. The Company will pay interest
semiannually on June 15 and December 15 of each year beginning June 15, 1998.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from December 19, 1997;
provided that, if there is no existing Default in the payment of interest, and
if this Security is authenticated between a record date referred to on the face
hereof and the next succeeding interest payment date, interest shall accrue from
such interest payment date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders of the Securities at the close of business on the June 1 or December 1
next preceding the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal and interest by its check payable in such money. It may mail an
interest check to a Holder's registered address.
The final installment of principal of and premium, if any, on
this Security shall be payable only upon surrender of this Security at the
office or agency of the Trustee in the Borough of Manhattan, City and State of
New York. Payments of principal of and premium, if any, and interest on this
Security shall be made at the office or agency of the Trustee maintained in the
Borough of Manhattan, City and State of New York or, in the case of any such
payments other than the final payment of principal and premium, if any, at the
Company's option, by check mailed to the Person entitled thereto at such
Person's address last appearing on the Company's register.
3. Registrar and Agents. Initially, United States Trust
Company of New York will act as Registrar, Paying Agent, Conversion Agent and
agent for service of notices and demands. The Company may change any Registrar,
co-registrar, Paying Agent, Conversion Agent and agent for service of notices
and demands without notice. The Company or any of its Subsidiaries may act as
Paying Agent or Conversion Agent. The address of United States Trust Company of
New York is 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
4. Indenture; Limitations. The Company issued the Securities
under an Indenture dated as of December 19, 1997 (the "Indenture") between the
Company and United States Trust Company of New York (the "Trustee"). Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code " 77aaa-77bbbb) as in effect on the date of the Indenture. The
Securities are
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subject to all such terms, and the Holders of the Securities are referred to the
Indenture and said Act for a statement of them.
The Securities are general unsecured obligations of the
Company limited to $18,750,000 aggregate principal amount. The Indenture imposes
certain limitations on the ability of the Company to, among other things, make
payments in respect of its Capital Stock, merge or consolidate with any other
Person and sell, lease, transfer or otherwise dispose of its properties or
assets.
The Securities shall be deemed to be of the same series as the
$125,000,000 principal amount of 5.25% Convertible Subordinated Debentures Due
2002 issued by the Company on December 19, 1997 pursuant to that certain
Supplemental Indenture dated as of December 19, 1997.
5. Redemption by the Company. Subject to Section 7 herein, the
Company may redeem the Securities, in whole or from time to time in part, at its
option at any time on or after December 31, 2000, at a redemption price equal to
100% of the principal amount thereof, plus accrued interest to the redemption
date.
6. Notice of Redemption. Notice of redemption will be mailed
at least 30 days, but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 principal amount may be redeemed in part, but
only in whole multiples thereof. On and after the Redemption Date interest
ceases to accrue on Securities or portions of them called for redemption.
7. Conversion. A Holder of a Security may convert such
Security into shares of common stock of the Company commencing 180 days after
December 19, 1997 and thereafter at any time prior to maturity, subject to the
following provisions of this Section 7. If the Security is called for
redemption, the Holder may convert it at any time before the close of business
on the date fixed for such redemption. The initial conversion price is $28.75
per share, subject to adjustment in certain events. In the event the holder of
this Security seeks to convert all or any portion of this Security into Common
Stock at a time when the Company does not have sufficient authorized shares of
Common Stock to satisfy such conversion, such conversion shall not be permitted,
in which event the holder will have the right to require the Company to
repurchase this Security for an amount payable in cash equal to the principal
amount of this Security plus accrued interest. The Company has agreed to seek
stockholder approval at its 1998 Annual Meeting of Stockholders of an amendment
to its Restated Certificate of Incorporation ("Certificate") increasing the
number of authorized shares of Common Stock to an amount at least sufficient to
permit the conversion of all the Securities. Until such date as the Company's
Certificate has been so amended, the Company will not (i) exercise its right to
voluntarily redeem the Debentures pursuant to Section 5 hereof or (ii) issue
additional shares of Common Stock or securities convertible into or exchangeable
for Common Stock except for (A) employee stock options to acquire Common Stock
granted under the Company's existing stock option plans and
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(B) shares of Common Stock issuable upon conversion of any Security or Other
Debentures or upon the exercise of stock options.
To convert a Security, a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the Security to the
Conversion Agent, (3) furnish appropriate endorsements and transfer documents if
required by the Registrar or Conversion Agent and (4) pay any transfer or
similar tax if required. No payment or adjustment is to be made on conversion
for interest accrued hereon or for dividends on shares of common stock issued on
conversion; provided, however, that if a Security is surrendered for conversion
after the record date for a payment of interest and on or before the interest
payment date, then, notwithstanding such conversion, the interest falling due to
such interest payment date will be paid to the Person in whose name the Security
is registered at the close of business on such record date and any Security
surrendered for conversion during the period from the close of business on any
regular record payment date to the opening of business on the corresponding
interest payment date must be accompanied by payment of an amount equal to the
interest payable on such interest payment date. A Holder may convert a portion
of a Security if the portion is $1,000 principal amount or an integral multiple
thereof.
To determine the number of shares issuable upon conversion of
a Security, divide the principal amount to be converted by the conversion price
in effect on the conversion date. The Company will deliver a check for any
fractional share.
If the Company is a party to a consolidation or merger or a
transfer or lease of all or substantially all of its assets, the right to
convert a Security into shares of common stock may be changed into a right to
convert it into securities, cash or other assets of the Company or another
Person.
8. Subordination. This Security is subordinated to all Senior
Indebtedness of the Company. To the extent and in the manner provided in the
Indenture, Senior Indebtedness must be paid before any payment may be made to
any Holders of Securities. Any Securityholder by accepting this Security agrees
to the subordination and authorizes the Trustee to give it effect.
In addition to all other rights of Senior Indebtedness
described in the Indenture, the Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any term of any
instrument relating to the Senior Indebtedness or extension or renewal of the
Senior Indebtedness.
This Security shall rank pari passu with the Company's 7%
Convertible Subordinated Debentures due 2004 and 6.75% Convertible Subordinated
Debentures due 2006 (collectively, the "Other Debentures").
9. Denominations, Transfer, Exchange. This Security is one of
a duly authorized issue of Securities of the Company designated as its 5.25%
Convertible Subordinated Debentures due 2002 limited in aggregate principal
amount to $143,750,000 (including the $125,000,000
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principal amount of 5.25% Convertible Subordinated Debentures due 2002 issued on
December 19, 1997). The Securities are in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. A
Holder may register the transfer of or exchange Securities 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
register the transfer of or exchange any Securities selected for redemption or
register the transfer of or exchange any Securities for a period of 15 days
before a selection of Securities to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Security
may be treated as its owner for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest on any Securities remains unclaimed for three years, the Trustee and
the Paying Agent will pay the money back to the Company at its request. After
that, Holders may look only to the Company for payment.
12. Discharge Prior to Redemption or Maturity. The Indenture
will be discharged and canceled except for certain sections thereof upon payment
of all the Securities, or upon the irrevocable deposit with the Trustee of funds
or U.S. Government Obligations maturing on or before such payment date or
Redemption Date, sufficient to pay principal, premium, if any, and interest on
such payment or redemption.
13. Amendment and Waiver. Subject to certain exceptions,
without notice to the Holders of the Securities, the Indenture or the Securities
may be amended with the consent of the Holders of at least a majority in
principal amount of the Securities then outstanding and any existing default or
compliance with any provision may be waived with the consent of the Holders of a
majority in principal amount of the Securities then outstanding. Without the
consent of or notice to any Securityholder, the Company may amend the Indenture
or the Securities to, among other things, provide for uncertificated Securities,
to establish another series of securities as permitted by the Indenture, to cure
any ambiguity, defect or inconsistency or make any other change that does not
adversely affect the rights of any Securityholder.
14. Successors. When a successor assumes all the obligations
of its predecessor under the Securities and the Indenture, the predecessor will
be released from those obligations.
15. Defaults and Remedies. If an Event of Default, as defined
in the Indenture, occurs and is continuing, the Trustee or the Holders of a
majority in principal amount of Securities may declare all the Securities to be
due and payable immediately in the manner and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it, subject to the provisions of the TIA, before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in principal amount of the Securities then outstanding may direct the
Trustee in its exercise of any trust or power with
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respect to the Securities. The Company is required to file periodic reports with
the Trustee as to the absence of any Default or Event of Default.
16. Trustee Dealings with the Company. United States Trust
Company of New York, the Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not Trustee.
17. No Recourse Against Others. No stockholder, director,
officer or incorporator, as such, past, present or future, of the Company or any
successor corporation or trust shall have any liability for any obligation of
the Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of, such obligations or their creation. Each Holder of a
Security by accepting a Security waives and releases all such liability. This
waiver and release are part of the consideration for the issuance of the
Securities.
18. Authentication. This Security shall not be valid until the
Trustee or an authenticating agent appointed by the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations. Customary abbreviations may be used in the
name of a Securityholder or an assignee, such as: TEN COM (=tenants in common),
TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. IT ALSO WILL FURNISH THE
TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO: ALTERNATIVE
LIVING SERVICES, INC., 000 XXXXX XXXXXXXXXX XXXX, XXXXX 000, XXXXXXXXXX,
XXXXXXXXX 00000, ATTENTION: CHIEF FINANCIAL OFFICER.
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ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and have
your signature guaranteed:
For value received, I or we assign and transfer this Security to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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agent to transfer this
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Security on the books of the Company. The agent may substitute another to act
for him.
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Date:
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Your signature:
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(Sign exactly as your name appears on the other
side of this Security)
Signature Guarantee:
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CONVERSION NOTICE
To convert this Security into shares of common stock of the Company, check the
box:
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To convert only part of this Security, state the principal amount to be
converted (which must be a minimum of $1,000 or any multiple thereof):
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$
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If you want the Security certificate, if any, made out in another person's name,
fill in the form below:
(INSERT OTHER PERSON'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
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(Print or type other person's name, address and zip code)
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Date:--------------------------------------------------------------------------
Your signature:----------------------------------------------------------------
(Sign exactly as your name appears on the other
side of this Security)
Signature Guaranteed By:
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date first written
above.
ALTERNATIVE LIVING SERVICES, INC.
By:
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Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
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Authorized Signatory
