EXHIBIT 33
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
1994 Exchangeable Floating Rate Debenture
due July 15, 2001
$__________ No. _______
Dated: ___________
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC., a Delaware corporation (the "Company"),
for value received hereby promises to pay to the holder of this debenture named
on the signature page hereof, or its registered assigns, the principal sum
specified above, on July 15, 2001, in such coin or currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debts, and to pay interest thereon, computed on the principal
balance outstanding from the date hereof until paid in full, on the dates and in
the amounts specified in Section 2 below.
1. THE DEBENTURES.
This Debenture is one of a duly authorized issue of securities of the
Company designated as its Exchangeable Floating Rate Debentures due July 15,
2001, and limited in authorized aggregate principal amount to $127,670,000 (the
"Debentures"). The entire authorized amount of Debentures is being issued and
sold in the first instance to ▇▇▇▇▇▇ Management Investment Corporation, a
Delaware corporation ("LMIC"). In acquiring, holding and transferring the
Debentures, LMIC is acting as agent on behalf of the Company and is acquiring,
holding and transferring the Debentures in its capacity as such pursuant to the
terms of the 1994 Management Equity Investment Plan (the "Plan") of the
Company's parent corporation, The ▇▇▇▇▇▇ Group Inc. ("Parent"), a body corporate
pursuant to the laws of British Columbia. LMIC is acquiring, holding and
transferring the Debentures subject to the right of employees of the Company's
direct and indirect U.S. subsidiaries designated as participants under the Plan
(the "Participants"), to purchase the Debentures from LMIC, upon the terms and
subject to the satisfaction of certain conditions specified in the separate
Investment Option Agreements dated as of June 15, 1994 among the Company, LMIC
and the Participants named therein (the "Investment Option Agreements") and the
Purchase Agreement dated as of June 15, 1994, among the Company, LMIC and the
Participant named therein (the "Purchase Agreement"). Unless otherwise
indicated herein, capitalized terms used in this Debenture shall have the
meanings assigned to them in the Plan.
2. INTEREST.
Interest on this Debenture shall be payable quarterly in arrears on
the last day of March, June, September and December, at a rate of interest which
is equal to the "Prime Rate" for U.S. dollar loans as announced from time to
time by Wachovia Bank of
Georgia, N.A. Notwithstanding the foregoing, so long as this Debenture is held
by LMIC, such interest rate shall be adjusted upwards or downwards, as
appropriate, from time to time, so that the interest payments received by LMIC
are equal to the interest payments then payable by LMIC with respect to the
third-party debt incurred by LMIC in connection with the acquisition of the
Debentures.
3. REDEMPTION.
(a) MANDATORY REDEMPTION. So long as this Debenture is held by LMIC,
upon the occurrence of an Event of Default (as defined in Section 12 hereof),
the Company shall redeem this and all other Debentures held by LMIC twenty (20)
business days after the occurrence of such Event of Default.
(b) REDEMPTION UPON FORFEITURE. In the event a Participant's rights
under an Investment Option Agreement or Purchase Agreement are forfeited in
whole or in part as a result of the Participant's termination of employment with
the Company and its subsidiaries, the Company may at any time thereafter redeem
the portion of the Debentures with respect to which the Participant's rights are
forfeited.
(c) REDEMPTION OF DEBENTURE HELD BY A PARTICIPANT. So long as this
Debenture is held by a Participant (i) at any time upon any determination by the
Company to redeem the principal amount of this Debenture or (ii) upon the
occurrence of an Event of Default, the Company shall (A) by first class mail, or
by hand delivery, give written notice (within 5 business days after the
occurrence of an Event of Default in the case of a redemption pursuant to clause
(ii)) to the Participant specifying the principal amount of this Debenture to be
redeemed and the date fixed for such redemption, which date shall be 15 business
days following the date of such notice; and (B) redeem the principal amount of
this Debenture at par, together with any accrued and unpaid interest.
4. EXCHANGE.
All or any portion of the principal amount of this Debenture may be
exchanged by or on behalf of a Participant, and only a Participant (except as
provided in Section 16 of this Debenture), upon the terms and subject to the
conditions specified herein, in the Exchange Acknowledgment of Parent dated June
15, 1994 (the "Exchange Acknowledgment"), and in the Investment Option Agreement
or Purchase Agreement to which such Participant is a party into Convertible
Preferred Shares of Parent, at an initial exchange price for Convertible
Preferred Shares equal to $300.40 principal amount of Debentures per Convertible
Preferred Share. The exchange price for Convertible Preferred Shares will be
subject to adjustment in order to prevent any dilution or enlargement of the
exchange privilege and exchange applicable to this Debenture. No adjustments
shall be made for accrued interest on the exchange of any principal amount of
Debentures or for dividends or distributions on the issuance of any Convertible
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Preferred Shares upon conversion. In order to exchange any principal amount of
Debentures for Convertible Preferred Shares of Parent: (a) a Participant must
deliver (i) an exercise notice specifying such Participant's intention to
purchase the principal amount of Debenture specified therein pursuant to the
exercise of an Option and have the Debenture so purchased immediately exchanged
on such Participant's behalf into Convertible Preferred Shares in accordance
with the terms hereof and thereof, or (ii) an exchange notice specifying such
Participant's intention to exchange a principal amount of Debenture previously
purchased by the Participant pursuant to a Purchase Agreement and specified
therein for Convertible Preferred Shares of Parent in accordance with the terms
hereof and thereof; (b) the Debentures shall be surrendered to the Company at
its designated office set forth in Section 9; and (c) if required by the
Company, appropriate endorsements or transfer documents shall be furnished to
the Company. In the event of exchange of this Debenture in part only, a new
Debenture for the unexchanged portion hereof will be issued in the name of the
holder of this Debenture upon the cancellation hereof.
5. RECLASSIFICATIONS, MERGERS, SALE OF ASSETS, ETC.
In case of any reclassification or change of outstanding Convertible
Preferred Shares of Parent (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination), or in case of any consolidation or merger of the
Parent with or into another corporation (other than a consolidation or merger in
which the Parent is the continuing corporation and which does not result in any
reclassification or change of outstanding Convertible Preferred Shares), or in
case of any sale, lease or conveyance of the property of the Parent as an
entirety or substantially as a entirety, the holders of the Debentures then
outstanding shall have the right thereafter to convert such Debentures into the
kind and amount of shares and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale, lease or conveyance by a
holder of the number of Convertible Preferred Shares of the Parent for which
such Debentures could have been exchanged immediately prior to such
reclassification, change, consolidation, merger, sale, lease or conveyance
(assuming such holder of Convertible Preferred Shares failed to exercise any
rights of election and received per share the kind and amount of shares and
other securities and property received per share by a plurality of non-electing
shares). Thereafter the kind and amount of shares and other securities and
property receivable upon exchange of any Debentures shall be subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 5. The provisions of this Section 5
shall similarly apply to successive reclassification, changes, consolidation,
mergers, sales, leases or conveyances. The provisions of this Section 5 shall
not apply if waived by the affirmative vote at a meeting called for that
purpose, or by the written consent with or without a meeting, of the holders of
at least two-thirds of the principal amount of Debentures then outstanding.
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6. PRIOR NOTICE OF CERTAIN EVENTS. In case:
(a) the Parent shall declare a dividend (or any other
distribution) on its Convertible Preferred Shares (other than cash
dividends and dividends payable in Convertible Preferred Shares); or
(b) the Parent shall authorize the granting to the holders of
its Convertible Preferred Shares of rights or warrants to subscribe
for or purchase any shares of any class or of any other rights or
warrants; or
(c) of any reclassification of the Convertible Preferred Shares
of the Parent (other than a subdivision or combination of the
outstanding Convertible Preferred Shares, or a change in par value, or
from par value to no par value, or from no par value to par value), or
of any consolidation or merger to which the Parent is a party for
which approval of any shareholders of the Parent is required, or of
the sale, lease or conveyance of all or substantially all of the
assets of the Parent; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Parent;
then the Company shall mail or cause to be mailed to each holder of Debentures
at such holder's last address appearing on the registration books of the
Company, as promptly as possible but in any event at least 15 days prior to the
applicable date hereinafter specified (or the last date upon which a holder of
Debentures may retroactively exchange such Debentures with effect at or prior to
such other date, if the Company shall make effective provision for and notify
holders of such retroactive exchange), a notice stating (i) 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
Convertible Preferred Shares of record to be entitled to such dividend,
distribution, rights or warrants are to be determined, or (ii) the date on which
such reclassification, consolidation, merger, sale, lease, conveyance,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Convertible Preferred Shares of
record shall be entitled to exchange their Convertible Preferred Shares for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, lease, conveyance, dissolution, liquidation or
winding up.
7. LIMITED REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) COMMON SHARES AND CONVERTIBLE PREFERRED SHARES RESERVED FOR
ISSUANCE. A total of 425,000 Convertible Preferred Shares of the Parent have
been duly authorized and reserved solely for issuance upon the exercise by the
Participants of their rights to convert Debentures into Convertible Preferred
Shares of Parent and, a total of
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4,250,000 Common Shares of Parent have been duly authorized and reserved,
including treasury shares, solely for issuance upon the exercise by the
Participants of their rights to convert Convertible Preferred Shares into Common
Shares all in accordance with the terms of the Plan.
(b) DEBENTURES. The Debentures, when issued and sold by the Company to
LMIC, will be duly authorized, issued and delivered, and will be the legal,
valid and binding obligations of the Company, free and clear of any lien,
security interest, or option (except for any Option evidenced by an Investment
Option Agreement and the purchase obligation evidenced by the Purchase
Agreement) with respect thereto or any other charge or encumbrance.
8. NO SUBORDINATION.
The obligations of the Company under this Debenture shall rank PARI
PASSU with the other obligations of the Company except for obligations which are
expressly subordinated to the obligations of the Company under this Debenture.
9. MAINTENANCE OF OFFICE.
▇▇▇▇▇▇ Group Inc., as agent for the Company, will maintain an office
in the United States of America, where Debentures may be presented or
surrendered for payment or exchanged, registration of transfer or exchange, and
where notices or demands to or upon the Company in respect of Debentures may be
served. The initial office of such agent shall be located at Suite ▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company or such agent
will give prompt written notice to the registered holders of the Debentures of
any change in the location of such office or agency.
The Company or its agent will maintain a register at such office or agency
in which the Company shall provide for the registration of the Debentures and of
transfers of the Debentures. Prior to due presentment of any Debentures for
registration of transfer, the Company and any agent of the Company may treat the
person in whose name such Debenture is registered as the owner of such Debenture
for the purpose of receiving payment of principal and interest on such Debenture
and for all other purposes whatsoever.
At the option of the holder, Debentures may be exchanged for other
Debentures of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Debentures at such office or agency. Whenever any
Debentures are so surrendered for exchange, the Company shall execute and
deliver the Debentures which the holder making the exchange is entitled to
receive.
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If this Debenture has been mutilated, lost, destroyed or wrongfully taken,
the Company will issue a replacement Debenture, provided that the requirements
of Section 8 of the Uniform Commercial Code are met. If required by the
Company, the holder of this Debenture will deliver an indemnity bond sufficient
in the judgment of the Company to protect the Company or any agent from any loss
which any of them may incur if this Debenture is replaced. The Company will
charge the holder for any expense incurred by it in replacing this Debenture.
All Debentures issued upon any replacement or upon any registration of
transfer or exchange of the Debentures shall be the valid obligations of the
Company, evidencing the same debt and entitled to the same benefits as the
Debentures surrendered upon such replacement or registration of transfer or
exchange as the case may be.
10. MERGERS AND CONSOLIDATION.
The Company shall not consolidate with or merge into, or transfer all
or substantially all of its assets to another corporation unless (a) the
transaction is approved by the Board of Directors of the Company, and (b) the
successor corporation assumes, by written agreement, all the obligations of the
Company under the Debentures, the Investment Option Agreements and the Purchase
Agreement. Thereafter all such obligations of the predecessor corporation shall
terminate.
11. AMENDMENT AND WAIVER.
The provisions of the Debentures may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it (including acts or omissions which otherwise would give the
holders of the Debentures the right to accelerate the maturity thereof), only if
the Company has obtained the written consent of the holders of a majority of the
aggregate principal amount of all of the Debentures at the time outstanding;
PROVIDED, HOWEVER, that no such action or omission shall change (a) the exchange
price for Convertible Preferred Shares, other than to prevent dilution or
enlargement of the exchange privilege, (b) the rate at which interest accrues on
any Debentures or the times at which such interest becomes payable (in the
absence of acceleration of the maturity thereof), or (c) any provision relating
to the scheduled payments of principal of the amount of principal to be paid on
any Debenture (in the absence of acceleration of the maturity thereof), without
the unanimous written consent of the holders of 100% in principal amount of all
of the Debentures then outstanding; PROVIDED, FURTHER, that no consent of any
person other than the Participants shall be required to be obtained in order to
amend any provision relating to the exchange of any Debenture. Without the
consent of any holder of a Debenture, the Company may amend the provisions of
the Debentures to cure any ambiguity, omission, defect of inconsistency or to
make any change that does not materially adversely affect the rights of such
holder.
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12. EVENTS OF DEFAULT; ACCELERATION.
If any of the following events shall occur and be continuing (each an
"Event of Default"):
(a) The Company defaults in the payment of any installments of
interest on any Debenture when the same becomes due and payable, and such
default shall remain unremedied for a period of five days; or
(b) The Company defaults in the payment of any installment of
principal on any Debenture when the same becomes due and payable at
maturity, upon redemption, or otherwise; or
(c) The Company fails to perform or observe any other term, covenant
or agreement contained in the Debentures on its part to be performed or
observed, and any such failure shall remain unremedied for 30 days after
written notice thereof shall have been given to the Company by the holders
of a majority of the aggregate principal amount of the Debentures then
outstanding; or
(d) The Company pursuant to or within the meaning of any Bankruptcy
Law (as defined below);
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian (as defined
below) of it or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its creditors;
or
(e) A court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case,
and such order or decree shall continue for a period of 60 days
undismissed, discharged or unbonded.
(ii) appoints a Custodian of the Company or for all or
substantially all of the Company's property and such order or decrees
shall continue for a period of 60 days undismissed, undischarged or
unbonded, or
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(iii) orders the liquidation of the Company, and such order
remains unstayed and in effect for a period of 60 days undismissed,
undischarged or unbonded;
then the holders of a majority of the aggregate principal amount of the
Debentures then outstanding may, by a notice in writing to the Company, declare
the unpaid principal of, and accrued interest on, the Debentures to be
immediately due and payable and thereupon the unpaid principal of, and accrued
interest on, the Debentures shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Company, and the holders of the Debentures may exercise
all other remedies available to them hereunder, or under applicable law;
PROVIDED, HOWEVER, in the case of an Event of Default arising under Section
12(d) or 12(e) above, acceleration of the Debentures shall occur automatically
and all amounts owing under the Debentures shall be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived by the Company.
For the purposes of this Section 12, the term "Bankruptcy Law" shall mean
Title 11 U.S. Code or any similar Federal or state law for the relief of
debtors, and the term "Custodian" shall mean any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Notwithstanding any of the foregoing provisions of this Section 12, the
holders of a majority of the aggregate principal amount of the Debentures then
outstanding, may waive an existing default or Event of Default and its
consequences, except for any Event of Default pursuant to Sections 12(d) or
12(e) hereof the waiver of which requires the consent of the holders of 100% of
the outstanding Debentures, at any time prior to the commencement of any remedy.
When a default or an Event of Default is waived, it is cured and stops
continuing.
13. NO WAIVER; REMEDIES.
No failure on the part of the holder of this Debenture to exercise,
and no delay in exercising, any right under this Debenture, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
14. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or shareholder, as such, of the Company
or the Parent shall have any liability for any obligations of the Company under
the Debentures, the Investment Option Agreements or the Purchase Agreements.
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15. GOVERNING LAW.
This Debenture shall be construed in accordance with and be governed
by the laws of the State of New York.
16. RESTRICTIONS ON TRANSFER.
This Debenture shall not be sold, pledged, assigned, hypothecated or
otherwise transferred by the holder of this Debenture except in accordance with
the next sentence. The Debenture may be pledged or assigned by LMIC and, upon
purchase of this Debenture by a Participant pursuant to the Purchase Agreement,
this Debenture may be pledged as security to a lending institution for the
purpose of financing the purchase price of such Debenture, subject to compliance
with applicable securities laws and delivery to the Company of a legal opinion
satisfactory to the Company with respect to such compliance.
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
By:
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Title:
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▇▇▇▇▇▇ MANAGEMENT INVESTMENT CORPORATION
The "holder"
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