EXHIBIT 4.1
INFINITY, INC.
7% SUBORDINATED CONVERTIBLE NOTES DUE 2007
____________________________
INDENTURE
Dated as of April 22, 2002
____________________________
____________________________
Wilmington Trust Company
Trustee
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE ........ 1
SECTION 1.01. DEFINITIONS ....................................... 1
SECTION 1.02. OTHER DEFINITIONS ................................. 6
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT ............................................. 6
SECTION 1.04. RULES OF CONSTRUCTION ............................. 6
ARTICLE 2 THE NOTES ......................................... 7
SECTION 2.01. FORM AND DATING ................................... 7
SECTION 2.02. EXECUTION AND AUTHENTICATION ...................... 7
SECTION 2.03. REGISTRAR AND PAYING AGENT ........................ 8
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST ............... 8
SECTION 2.05. HOLDER LISTS ...................................... 9
SECTION 2.06. TRANSFER AND EXCHANGE ............................. 9
SECTION 2.07. REPLACEMENT NOTES ................................. 13
SECTION 2.08. OUTSTANDING NOTES ................................. 13
SECTION 2.09. TREASURY NOTES .................................... 13
SECTION 2.10. TEMPORARY NOTES ................................... 13
SECTION 2.11. CANCELLATION ...................................... 14
SECTION 2.12. DEFAULTED INTEREST ................................ 14
SECTION 2.13. LIQUIDATED DAMAGES ................................ 14
ARTICLE 3 REDEMPTION AND PREPAYMENT ......................... 14
SECTION 3.01. NOTICES TO TRUSTEE ................................ 14
SECTION 3.02. NOTICE OF REDEMPTION .............................. 14
SECTION 3.03. EFFECT OF NOTICE OF REDEMPTION .................... 15
SECTION 3.04. DEPOSIT OF REDEMPTION PRICE ....................... 15
SECTION 3.05. OPTIONAL REDEMPTION ............................... 15
SECTION 3.06. MANDATORY REDEMPTION .............................. 16
ARTICLE 4 COVENANTS ......................................... 16
SECTION 4.01. PAYMENT OF NOTES .................................. 16
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY ................... 16
SECTION 4.03. REPORTS ........................................... 17
SECTION 4.04. COMPLIANCE CERTIFICATE ............................ 17
SECTION 4.05. TAXES ............................................. 18
SECTION 4.06. STAY, EXTENSION AND USURY LAWS .................... 18
SECTION 4.07. INSPECTION OF PROPERTY, BOOKS AND RECORDS ......... 18
SECTION 4.08. MAINTENANCE OF PROPERTY ........................... 18
SECTION 4.09. PAYMENT OF OBLIGATIONS ............................ 19
SECTION 4.10. COMPLIANCE WITH LAWS; TAXES ....................... 19
SECTION 4.11. TRANSACTIONS WITH AFFILIATES ...................... 19
SECTION 4.12. MAINTENANCE OF INSURANCE .......................... 19
SECTION 4.13. ACTIONS REQUIRING APPROVAL ........................ 19
SECTION 4.14. CORPORATE EXISTENCE ............................... 19
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL ........ 20
SECTION 4.16. PAYMENTS FOR CONSENT .............................. 21
ARTICLE 5 SUCCESSORS ........................................ 21
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS .......... 21
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED ................. 21
ARTICLE 6 DEFAULTS AND REMEDIES ............................. 22
SECTION 6.01. EVENTS OF DEFAULT ................................. 22
SECTION 6.02. ACCELERATION ...................................... 23
SECTION 6.03. OTHER REMEDIES .................................... 23
SECTION 6.04. WAIVER OF PAST DEFAULTS ........................... 23
SECTION 6.05. CONTROL BY MAJORITY ............................... 23
SECTION 6.06. LIMITATION ON SUITS ............................... 24
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE A PAYMENT ... 24
SECTION 6.08. COLLECTION SUIT BY TRUSTEE ........................ 24
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM .................. 24
SECTION 6.10. PRIORITIES ........................................ 25
SECTION 6.11. UNDERTAKING FOR COSTS ............................. 25
ARTICLE 7 TRUSTEE ........................................... 25
SECTION 7.01. DUTIES OF TRUSTEE ................................. 25
SECTION 7.02. RIGHTS OF TRUSTEE ................................. 26
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE ...................... 27
SECTION 7.04. TRUSTEE'S DISCLAIMER .............................. 27
SECTION 7.05. NOTICE OF DEFAULTS ................................ 27
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES ........ 27
SECTION 7.07. COMPENSATION AND INDEMNITY ........................ 27
SECTION 7.08. REPLACEMENT OF TRUSTEE ............................ 28
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. ................. 29
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION ..................... 29
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY . 29
ARTICLE 8 CONVERSION ........................................ 29
SECTION 8.01. RIGHT OF CONVERSION ............................... 29
SECTION 8.02. ADJUSTMENTS TO CONVERSION PRICE AND THE NUMBER
OF COMMON SHARES ................................ 30
SECTION 8.03. CONVERSION PROCEDURES ............................. 32
SECTION 8.04. RESERVATION OF SHARES; TRANSFER TAXES; ETC. ....... 33
SECTION 8.05. RESPONSIBILITY OF TRUSTEE ......................... 34
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER .................. 34
SECTION 9.01. CONSENT OF HOLDERS OF NOTES ....................... 34
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES .................. 35
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT ............... 36
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS ................. 36
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES .................. 36
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. .................. 36
ARTICLE 10 SUBORDINATION ..................................... 36
SECTION 10.01. AGREEMENT TO SUBORDINATE .......................... 36
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY .............. 37
SECTION 10.03. WHEN DISTRIBUTION MUST BE PAID OVER ............... 37
SECTION 10.04. NOTICE BY COMPANY ................................. 37
SECTION 10.05. SUBROGATION ....................................... 37
SECTION 10.06. RELATIVE RIGHTS ................................... 38
SECTION 10.07. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY ...... 38
SECTION 10.08. DISTRIBUTION OR NOTICE TO REPRESENTATIVE .......... 38
SECTION 10.09. RIGHTS OF TRUSTEE AND PAYING AGENT ................ 38
SECTION 10.10. AUTHORIZATION TO EFFECT SUBORDINATION ............. 39
ARTICLE 11 MISCELLANEOUS ..................................... 39
SECTION 11.01. TRUST INDENTURE ACT CONTROLS ...................... 39
SECTION 11.02. NOTICES ........................................... 39
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES ............................... 40
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. 40
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION...... 40
SECTION 11.06. RULES BY TRUSTEE AND AGENTS ....................... 41
SECTION 11.07. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL.. 41
SECTION 11.08. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS ..... 41
SECTION 11.09. SUCCESSORS ........................................ 41
SECTION 11.10. SEVERABILITY ...................................... 41
SECTION 11.11. COUNTERPART ORIGINALS ............................. 42
SECTION 11.12. TABLE OF CONTENTS, HEADINGS, ETC. ................. 42
EXHIBITS
Exhibit A FORMS OF NOTES
Exhibit B FORM OF CERTIFICATE OF TRANSFER
INDENTURE dated as of April 22, 2002, between Infinity, Inc., a Colorado
corporation (the "Company"), and Wilmington Trust Company, as trustee a
Delaware banking corporation (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 7%
Subordinated Convertible Notes due 2007 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS
"Additional Notes" means Notes issued in payment of interest and/or
Liquidated Damages and, in the case of Notes bearing the Restricted Legend
shall bear the Restricted Legend and in the case of Notes bearing the Resale
Legend, shall bear the Resale Legend.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Registrar or any Paying Agent.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary that apply to such transfer or exchange.
"Authorized Stock Issuance" means the issuance of (i) up to 417,200
shares of Common Stock upon exercise of options currently outstanding under
the Company's Stock Option Plan (1992), its 1999 Stock Option Plan, its 2000
Stock Option Plan, its 2001 Stock Option Plan and its 2002 Stock Option Plan,
(ii) up to 200,000 additional options to Company employees, officers,
directors and consultants during any 12 month period during the term hereof
under stock option plans approved by stockholders of the Company at exercise
prices at least equal at the time of grant to the Current Market Price, (iii)
Common Stock upon exercise of the options granted pursuant to clause (ii)
above, and (iv) up to 50,000 shares of Capital Stock of the Company at any
time after the Issue Date to non-Affiliates in connection with bona-fide
acquisition transactions provided that the consideration per share in such
transaction is at least the Current Market Price at the time of issuance; and,
provided further, that any repricings by the Company of options outstanding
from time to time or reissuance, upon expiration or surrender, of such options
shall be deemed new issuances for purposes of clauses (i) and (ii) hereof.
"Bankruptcy Law" means Title 11, U.S. Code or any similar foreign, United
States federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company, or any
authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock,
including, without limitation, with respect to partnerships, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, such partnership.
"Change of Control" means (i) any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act) becoming the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of shares
representing more than 15% of the combined voting power of the then
outstanding voting securities of the Company other than any such holding by
the Company; (ii) approval by stockholders of the Company of any plan or
proposal for the liquidation, dissolution or winding up of the Company; (iii)
the Company (A) consolidating with or merging into any other corporation or
any other corporation merging into the Company, and in the case of any such
transaction, the outstanding common stock of the Company being changed or
exchanged into or for other assets or securities as a result, unless the
stockholders of the Company immediately before such transaction own, directly
or indirectly immediately following such transaction, more than 50% of the
combined voting power of the outstanding voting securities of the corporation
resulting from such transaction in substantially the same proportion as their
ownership of such voting power immediately before such transaction or (B)
conveying, transferring or leasing all or substantially all of its assets to
any person; (iv) any time Continuing Directors ceasing to constitute a
majority of the Board of Directors of the Company (or, if applicable, a
successor corporation to the Company); or (v) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ceasing to serve
as Chief Executive Officer of the Company with principal day-to-day
responsibility for the overall operations of the Company or, together with any
person or entity controlled by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ceasing to own at least
250,000 shares of capital stock of the Company, as adjusted to reflect any
stock splits, reverse stock splits, recapitalizations or similar events.
"Common Shares" means shares of Common Stock.
"Common Stock" means the common stock of the Company, par value $.0001
per share, or any other class of stock resulting from successive changes or
reclassifications of such common stock.
"Company" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and
thereafter means such successor.
"Company Stock Transfer Agent" means Computershare Trust Company or any
successor transfer agent appointed by the Company from time to time.
"Continuing Director" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of the Board of
Directors on the Issue Date or (ii) was nominated for election or elected to
such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election.
"Conversion Notice" means a notice in the form of Exhibit C hereto.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which
the Trustee may give notice to the Company.
"Current Market Price" means (i) the closing sale price or the last
reported sale price of the Common Stock quoted on the Nasdaq Stock Market or
on any exchange on which the Common Stock is listed or (ii) the average of the
closing bid and asked prices of the Common Stock for the five trading days
prior to the date of determination of Current Market Price quoted in the
Over-The-Counter Market Summary, whichever is applicable, in each case, as
published in the Eastern Edition of The Wall Street Journal.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Sections 2.02 and 2.06 hereof, in
the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, DTC and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this Indenture.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, as in effect from time to time.
"Global Note" means the Note in the form of Exhibit A hereto bearing the
Global Note Legend and, so long as so required by Section 2.06 hereof, the
Restricted Legend and/or the Resale Legend, as the case may be, and deposited
with or on behalf of, and registered in the name of, the Depositary or its
nominee that will be issued in a denomination equal to the outstanding
principal amount of the Original Notes transferred or converted pursuant to
Section 2.06(e).
"Global Note Legend" means the legend set forth in Section 2.06(g)(i),
which is required to be placed on all Global Notes issued under this
Indenture.
"Global Note Reduction Notice" means a notice in customary form
reasonably acceptable to the Company and the Trustee.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Indebtedness of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness for the payment
thereof or to protect such obligee against loss in respect thereof (in whole
or in part).
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person in respect of letters of
credit or other similar instruments (or reimbursement obligations with respect
thereto), except letters of credit or other similar instruments issued to
secure payment of Trade Payables in the ordinary course of business, (iv) all
obligations of such Person to pay the deferred purchase price of property or
services, except Trade Payables, (v) all obligations of such Person as lessee
under capitalized leases, (vi) all Indebtedness of another Person secured by a
Lien on any asset owned by such Person, whether or not such Indebtedness is
assumed by such Person and (vii) all Indebtedness of another Person Guaranteed
by such Person.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds a beneficial interest in
the Global Note through a Participant.
"Investment Majority" means a majority in aggregate principal amount of
the then outstanding Notes.
"Investment Supermajority" means 75% or more of the aggregate principal
of the then outstanding Notes.
"Issue Date" means April 22, 2002.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is
a Legal Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Liquidated Damages" means all liquidated damages then owing pursuant to
Section 1.2(b)(ii) of the Registration Rights Agreement.
"Note Custodian" means the Trustee, as custodian for the Depositary with
respect to the Global Notes, or any successor entity thereto.
"Notes" has the meaning assigned to it in the preamble to this Indenture,
and shall include Additional Notes, if any.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary usually would allow Assistant Secretary as second
signer or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.05 hereof.
"Original Notes" means Notes bearing the Restricted Legend.
"Participant" means, with respect to the Depositary, a Person who has an
account with the Depositary.
"Permitted Junior Securities" means Equity Interests in the Company or
debt securities that are subordinated to all Senior Debt (and any debt
securities issued in exchange for Senior Debt) to substantially the same
extent as, or to a greater extent than, the Notes are subordinated to Senior
Debt pursuant to the Indenture.
"Purchase Agreement" means the Purchase Agreement, dated as of April 18,
2002 among the Company and certain purchasers of its Notes, as such agreement
may be amended, modified or supplemented from time to time.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of April 22, 2002 by and among the Company and the other parties
named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"Registration Statement" means the registration statement of the Company
filed by the Company pursuant to Rule 415 of the Securities Act with respect
to Notes held by Holders of beneficial interests in the Restricted Global Note
bearing the Restricted Legend, pursuant to the Registration Rights Agreement.
"Resale Legend" means the legend set forth in Section 2.06(g)(iii).
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Debt.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Global Note" means a Global Note required to bear the
Restricted Legend or the Resale Legend, as the case may be.
"Restricted Legend" means the legend set forth in Section 2.06(g)(ii).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means the principal of, premium, if any, interest on
(including any interest accruing after the filing of a petition by or against
Company under any Bankruptcy Law, whether or not allowed as a claim after such
filing in any proceeding under such Bankruptcy Law), and any other fee, cost,
expense or payment due pursuant to, any of the following, whether outstanding
on the date hereof or hereafter incurred, created: (a) all Indebtedness of
Company for money borrowed that is evidenced by notes, debentures, bonds or
other securities; (b) all Indebtedness of Company due and owing with respect
to letters of credit (including, but not limited to, reimbursement obligations
with respect thereto); (c) all Indebtedness or other obligations of Company
due and owing with respect to interest rate and currency swap agreements, cap,
floor and collar agreements, currency spot and forward contracts and other
similar agreements and arrangements; (d) all Indebtedness consisting of
commitment or standby fees due and payable to lending institutions with
respect to credit facilities or letters of credit available to Company; (e)
all Obligations of Company under leases required or permitted to be
capitalized under generally accepted accounting principles; (f) all
obligations of Company evidenced by a note or similar instrument or written
agreement given in connection with the acquisition of any business properties
or assets, including securities; (g) all Indebtedness or Obligations of others
of the kinds described in any of the preceding clauses (a), (b), (c), (d), (e)
or (f) assumed by or guaranteed in any manner by Company or in effect
guaranteed (directly or indirectly) by Company through an agreement to
purchase, contingent or otherwise, and all obligations of Company under any
such guarantee or other arrangements; (g) all renewals, extensions,
refundings, deferrals, amendments or modifications of Indebtedness or
Obligations of the kinds described in any of the preceding clauses (a), (b),
(c), (d), (e), (f) or (g) unless in the cas of any particular indebtedness,
obligation, renewal, extension, refunding, amendment, modification or
supplement, the instrument or other document creating or evidencing the same
or the assumption or guarantee of the same expressly provides that such
indebtedness, renewal, extension, refunding, amendment, modification or
supplement is subordinate to, or is not senior to, or is pari passu with, the
Notes; provided, however, that Senior Debt shall not include (i) any
Indebtedness of any kind of Company to any Affiliate of Company, (ii)
Indebtedness for Trade Payables or constituting the deferred purchase price of
assets or services incurred in the ordinary course of business, (iii) the
Notes, (iv) any Indebtedness incurred after the date of original issuance of
the Original Notes for which the instrument creating or evidencing the same or
the assumption or guarantee thereof (or related agreements or documents to
which Company is a party) does not expressly provide that such Senior Debt
shall be "Senior Debt" or (v) any Indebtedness which is convertible into
capital stock of Company or its Affiliates.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other group performing similar functions are at the time directly
or indirectly owned by such Person.
"TIA" means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 (15 U.S.C. Secs. 77aaa-77bbbb), as it may be
amended from time to time.
"Trade Payables" means accounts payable or any other Indebtedness or
monetary obligations to trade creditors created or assumed by the Company or
any of its Subsidiaries in the ordinary course of business in connection with
the obtaining of materials or services.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Global Note" means a Global Note not required to bear the
Restricted Legend or Resale Legend.
SECTION 1.02. OTHER DEFINITIONS
Term Defined in Section
---- ------------------
"Affiliate Transaction" ....................... 4.11
"Authentication Order" ........................ 2.02
"Change of Control Offer" ..................... 4.15
"Change of Control Payment" ................... 4.15
"Change of Control Payment Date" .............. 4.15
"Conversion Amount" ........................... 8.01
"Conversion Price" ............................ 8.01
"DTC" ......................................... 2.03
"Event of Default" ............................ 6.01
"Paying Agent" ................................ 2.03
"Registrar" ................................... 2.03
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and any successor obligor upon
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act or
Exchange Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage, including, but not limited to, the Restricted Legend,
the Resale Legend and/or the Global Note Legend, as the case may be. The
Company shall provide all such notations, legends or endorsements to the
Trustee in writing. Each Note shall be dated the date of its authentication
in accordance with Section 2.02. The Notes shall be in denominations of
$1,000 and integral multiples thereof except that Additional Notes may be in
other denominations.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially
in the form of Exhibit A attached hereto, including the Global Note Legend
thereon and, in the case of Restricted Global Notes, shall bear the Restricted
Legend or Resale Legend, as the case may be. Notes issued in definitive form
shall be substantially in the form of Exhibit A attached hereto, but without
the Global Note Legend thereon; provided, however, that until such time as any
Definitive Note is no longer required to bear the Restricted Legend or the
Resale Legend, as the case may be, pursuant to Section 2.06 hereof, such
Definitive Note shall bear the Restricted Legend or Resale Legend, as the case
may be. Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time reflected by
adjustments to the records of the Trustee and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges, transfers,
redemptions and the issuance of Additional Notes. Record of the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented by a Global Note shall be made by the Trustee or the Registrar, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof with respect to transfers
and exchanges and in accordance with an Authentication Order delivered by the
Company with respect to the issuance of Additional Notes.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes on behalf of the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by an
Officer (an "Authentication Order"), authenticate Original Notes bearing the
Restricted Legend and, if such Notes are Global Notes, the Global Legend, for
original issue up to the aggregate principal amount stated in paragraph 4 of
the Notes. Thereafter and from time to time upon receipt of a supplemental
Authentication Order, the Trustee shall notify the DTC of an increase in the
amount of a Global Note and record the amount of any increase in the aggregate
principal amount of the Restricted Global Note to reflect the issuance of any
Additional Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed $12,540,000 plus the amount of any Additional Notes except
as provided in Section 2.07 hereof.
As promptly as possible after the date of effectiveness of the
Registration Statement, the Company shall issue (upon receipt of an
Authentication Order in accordance with Section 2.02 and an Officers'
Certificate certifying that the Registration Statement is effective and
directing the Trustee to authenticate and deliver Notes not bearing the
Restricted Legend but bearing the Resale Legend), and the Trustee shall
authenticate (i) one or more Global Notes bearing the Resale Legend in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes held by such Holders and (ii) the
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the Global Note bearing the Resale Legend. Concurrently
with the authentication of such Notes, the Trustee shall cause the aggregate
principal amount of the Global Notes bearing the Restricted Legend to be
reduced by the aggregate principal amount of the Global Note bearing the
Resale Legend, and, upon delivery by a Holder of Definitive Notes bearing the
Restricted Legend to the Trustee for exchange, the Company shall execute and
the Trustee shall authenticate and deliver to such Holders Definitive Notes in
the appropriate principal amount bearing the Resale Legend.
The Trustee (at the expense of the Company) may appoint an authenticating
agent reasonably acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
an Agent to deal with Holders, the Company or an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange as well as the issuance of Additional Notes. The Company may appoint
one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing
of the name and address of any Agent not a party to this Indenture. If the
Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages to be paid in cash, if any, or
interest on the Notes, and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the
money. Upon any Event of Default, the Trustee shall serve as Paying Agent and
Registrar for the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Sec. 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Sec. 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes (which, until no
longer required pursuant to Section 2.06 hereof, shall bear the Restricted
Legend or Resale Legend, as the case may be, upon exchange of the Restricted
Global Note but not otherwise) if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act
as Depositary or that it is no longer a clearing agency registered under the
Exchange Act or an Event of Default has occurred and, in any such case, a
successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should
be exchanged for Definitive Notes and delivers a written notice to such effect
to the Trustee. Upon the occurrence of either of the preceding events in (i)
or (ii) above, Definitive Notes shall be issued in such names and
denominations as the Depositary shall instruct the Trustee. Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections
2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for,
or in lieu of, a Global Note or any portion thereof, pursuant to this Section
2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in
the form of, and shall be, a Global Note. A Global Note may not be exchanged
for another Note other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (d) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Subject to Section 2.06(c)
beneficial interests in any Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in a Global Note. No
written orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.06(b) other than
as provided in Section 2.06(c).
(c) Transfer or Exchange of Interests in the Restricted Global Notes
for Interests in the Unrestricted Global Note. Initially, the Notes shall be
represented by a Restricted Global Note bearing the Restricted Legend. Upon
the effectiveness of the Registration Statement, beneficial interests in the
Restricted Global Note held by a Holder may be exchanged for interests in an
Restricted Global Note bearing the Resale Legend and thereafter may be
transferred to a transferee who takes delivery in the form of a beneficial
interest in the Unrestricted Global Note or a Definitive Note not bearing the
Restricted Legend or the Resale Legend only if the transferor first delivers
to the Trustee and the Company a written certificate in substantially the form
attached hereto as Exhibit B. After delivery of such certificate, such
transfer shall be effected through the Depositary in accordance with the
provisions of this Indenture and the Applicable Procedures.
(d) Transfer or Exchange of Beneficial Interests in Global Notes for
Definitive Notes and Conversion of Beneficial Interests in Global Notes. If
any holder of a beneficial interest in a Global Note proposes to (i) exchange
such beneficial interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Definitive
Note, or (ii) convert all or any portion of such beneficial interest in the
Global Note pursuant to Article 8, then upon delivery of a Global Note
Reduction Notice by the Company to the Trustee, and compliance by the Company
and Holder with Article 8 hereof, the Trustee shall cause the aggregate
principal amount of the appropriate Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and in the case of clause (i) above, upon
compliance by such with the provisions of Section 2.06(c), if applicable the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount and in the case of clause (ii) above the Company shall issue
the Common Shares issuable upon such conversion as provided in Article 8. Any
Definitive Note issued in exchange for a beneficial interest pursuant to
clause (ii) above shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant.
(e) Transfer and Exchange of Original Notes and Definitive Notes for
Beneficial Interests in Global Notes. A Holder of Original Notes or a
Definitive Note may exchange such Note for a beneficial interest in the
Restricted Global Note bearing the Restricted Legend or transfer such
Definitive Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Global Note at any time; provided, however, that in
connection with the transfer of a Definitive Note bearing the Restricted
Legend or a beneficial interest in a Restricted Global Note to a transferee
who is to receive a Definitive Note not bearing the Restricted Legend or a
beneficial interest in a Restricted Global Note bearing the Resale Legend or
the Unrestricted Global Note, the transferor shall comply with the provisions
of Section 2.06(c). Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Definitive Note and adjust
the applicable Global Notes as provided in Section 2.06(h).
(f) Transfer and Exchange of Definitive Notes for Definitive Notes;
Conversion of Definitive Notes.
(i) Upon request by a Holder of Original Notes or Definitive
Notes and such Holder's compliance with the provisions of this Section 2.06(f)
(and Section 2.06(c), if applicable), the Registrar shall register the
transfer, exchange or conversion of Definitive Notes and the conversion or
exchange of Original Notes for Definitive Notes. Prior to such registration
of transfer, exchange or conversion, the requesting Holder shall present or
surrender to the Registrar the Original Note or Definitive Note duly endorsed
or accompanied by a written instruction of transfer or conversion in form
satisfactory to the Company and Registrar duly executed by such Holder or by
his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents, opinions and
information, as applicable, required pursuant to the following provisions of
this Section 2.06. A Holder of Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of a Definitive Note.
(ii) The Company shall issue the shares issuable upon conversion
pursuant to Article 8, and if such conversion was a conversion in part, cause
the Registrar to issue a new Definitive Note in the face amount of the
unconverted portion of the Definitive Note converted in part registered in
such name or names and in such authorized denomination or denominations as the
holder of such Note shall have instructed the Registrar through instructions
in the conversion notice.
(g) Legends.
(i) Each Global Note shall bear a legend on its face in
substantially the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) 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 SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY
PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGEABLE IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
(ii) Except as otherwise provided in Section 2.06(g)(iii), each
Restricted Global Note or Definitive Note issued in exchange of a beneficial
interest in a Restricted Global Note, as the case may be, shall bear a legend
on its face substantially in the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
NOT A U.S. PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT) (AN "IAI"), (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF
RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS
NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE HOLDER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE), (E) TO AN IAI THAT, PRIOR
TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
REGISTRATION OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE,
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST
▇▇▇▇▇▇ IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR ANY
INTEREST HEREIN WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE
TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(iii) Each Restricted Global Note or Definitive Note issued in
exchange of a Definitive Note bearing the Restricted Legend or beneficial
interests in the Restricted Global Note bearing the Restricted Legend, in each
case after the Registration Statement is declared effective, shall bear a
legend on its face substantially in the following form:
THIS NOTE AS AMENDED MAY NOT BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT (A) TO THE COMPANY OR
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
THE PLAN OF DISTRIBUTION SET FORTH IN THE COMPANY'S REGISTRATION
STATEMENT ON FORM S-__ (FILE NO. ___________), AS IT MAY BE AMENDED
AND UPON DELIVERY BY THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE
OF A CERTIFICATE SUBSTANTIALLY IN THE FORM OF EXHIBIT B TO THE
INDENTURE, WHICH FORM IS AVAILABLE FROM THE TRUSTEE, (D) PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS. AS USED HEREIN, THE TERMS "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT.
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or converted or a particular Global Note has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a Definitive Note or such
beneficial interests have been converted, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an adjustment
shall be made in the records of the Trustee by the Trustee to reflect such
reduction. At such time as a beneficial interest in a Restricted Global Note
bearing the Resale Legend or a beneficial interest in the Restricted Global
Note bearing the Resale Legend is exchanged for a beneficial interest in the
Unrestricted Global Note, the principal amount of the appropriate Restricted
Global Note shall be reduced accordingly and the principal amount of the
Restricted Global Note bearing the Resale Legend or the Unrestricted Global
Note, as the case may be, shall be increased accordingly and in each case
adjustment shall be made in the records of the Trustee by the Trustee to
reflect such increase and reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's delivery of an Authentication Order or at
the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes shall
be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or exchange.
(v) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company or any agent of any of
them may deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of principal
of and interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company or any agent of any of them shall be
affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note. If required by
the Trustee or the Company, an indemnity bond must be supplied by the Holder
that is sufficient in the reasonable judgment of the Trustee and the Company
to protect the Company, the Trustee, any Agent and any authenticating agent
from any loss that any of them may suffer if a Note is replaced. The Company
and the Trustee may charge for their reasonable expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by
the Trustee in accordance with the conversion provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee receives an
Officers' Certificate stating that such Notes are owned by the Company or by
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the Company
may prepare and the Trustee, upon receipt of an Authentication Order, shall
authenticate temporary Notes. Temporary Notes shall be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange, conversion
or payment. The Trustee and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, conversion, payment, replacement or
cancellation and shall destroy cancelled Notes (subject to the record
retention requirement of the Exchange Act). Certification of the destruction
of all cancelled Notes shall be delivered to the Company. The Company may not
issue new Notes to replace Notes that it has paid or that have been delivered
to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on
a subsequent special record date, in each case at the rate provided in the
Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. The Company shall fix or cause to be
fixed each such special record date and payment date, provided that no such
special record date shall be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed
to Holders a notice that states the special record date, the related payment
date and the amount of such interest to be paid.
SECTION 2.13. LIQUIDATED DAMAGES.
If at any time, as a result of a lapse in the effectiveness of the Shelf
Registration (as defined in the Registration Rights Agreement) while the
Company has any obligation to maintain its effectiveness and as a result
thereof the Company shall be required to pay Liquidated Damages pursuant to
the Registration Rights Agreement, the Company shall deliver to the Trustee
within two (2) business days thereof an Officers' Certificate stating (i) the
nature of the event giving rise to the obligation to pay Liquidated Damages
(ii) whether the Company has elected to pay the Liquidated Damages owing in
(A) cash, or (B) Additional Notes in integral multiples of $1,000, with any
residual amounts owing payable in cash, and the amount of Liquidated Damages
to be paid in cash for $1,000 in aggregate principal amount of Notes
outstanding and the amount of Additional Notes to be authenticated in lieu of
cash payments; (iii) the amount of Liquidated Damages payable per $1,000
aggregate principal amount of Notes; and (iv) the date(s) on which such
Liquidated Damages are due under the Registration Rights Agreement. Within
five (5) Business Days of such payment obligation accruing, the Company (or,
at the written request, on behalf of and at the expense of the Company, the
Trustee) shall provide to the Holders notice setting forth the information
described in the previous sentence.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem the Notes pursuant to the optional
redemption provisions of Section 3.05 hereof, it shall furnish to the Trustee,
at least 45 days (unless a shorter period shall be satisfactory to the
Trustee) but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which
the redemption shall occur, (ii) the redemption date and (iii) the redemption
price.
SECTION 3.02. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(e) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue and all
conversion rights terminate on and after the redemption date;
(f) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(g) the CUSIP number of the Notes to be redeemed and a statement
that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that
the Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
SECTION 3.03. EFFECT OF NOTICE OF REDEMPTION.
Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price and; provided that the redemption
price is paid shall no longer be convertible pursuant to Article 8 hereof
after the close of business one Business Day prior to the Redemption Date. A
notice of redemption may not be conditional.
SECTION 3.04. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company
upon its written request any money deposited with the Trustee or the Paying
Agent by the Company in excess of the amounts necessary to pay the redemption
price of, and accrued interest on, all Notes to be redeemed.
If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest
not paid on such unpaid principal, in each case at the rate provided in the
Notes and in Section 4.01 hereof.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Notes.
If a Note is redeemed on or after the interest payment record date but on or
prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at
the close of business on such record date.
SECTION 3.05. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Section 3.05, the
Company shall not have the option to redeem the Notes pursuant to this Section
3.05 prior to April 22, 2004. Thereafter, subject to the right of conversion
pursuant to Article 8, the Company shall have the option to redeem the Notes,
in whole but not in part, at the redemption prices (expressed as percentages
of principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the applicable redemption date, if
redeemed during the twelve-month period beginning on April 22, of the years
indicated below:
Year Percentage
---- ----------
2004 104.2%
2005 102.8%
2006 and thereafter 101.4%
(b) At any time after April 22, 2003 subject to the Holder's
right of conversion pursuant to Section 8.01, the Company shall have the
option to redeem the Notes in whole but not in part at a price equal to the
principal amount outstanding thereof plus interest and accrued and unpaid
Liquidated Damages thereon, if any; provided that the Current Market Price of
the Common Stock for the twenty consecutive trading days immediately
proceeding the day notice of redemption is given exceeded 200% of the
Conversion Price (disregarding any adjustment to the Conversion Price
occurring after such trading days). If the Company exercises this right of
optional redemption it shall deliver an Officers' Certificate to the Trustee
setting forth this calculation and stating that such condition has been
complied with.
(c) Any redemption pursuant to this Section 3.05 shall be made
pursuant to the provisions of Section 3.01 through 3.04 hereof.
SECTION 3.06. MANDATORY REDEMPTION.
Except as provided in Section 4.15, the Company shall not be required to
make mandatory redemption payments with respect to the Notes.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes payable, in the case interest, at the
discretion of the Company in (A) cash, or (B) Additional Notes in integral
multiples of $1,000 (only with respect to interest), with any residual amounts
owing payable in cash, on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall, except as otherwise provided
herein, be considered paid on the date due if the Paying Agent, holds as of
10:00 a.m. Eastern Time on the due date (i) money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due, or residual amounts on
interest that is paid in Additional Notes and (ii) Additional Notes sufficient
to pay interest then due. The Company shall pay all Liquidated Damages (in
cash or Additional Notes in accordance with Section 2.13), if any, in the same
manner on the dates and in the amounts set forth in the Registration Rights
Agreement.
If the Company elects to pay interest in the form of Additional Notes,
the Company shall deliver to the Trustee at least five (5) Business Days prior
to the relevant interest payment date, an Officers' Certificate stating (i)
that the Company has elected to pay interest in the form of Additional Notes
in integral multiples of $1,000, with any residual amounts owing payable in
cash, and the amount of interest to be paid in cash for $1,000 in aggregate
principal amount of Notes outstanding and the amount of Additional Notes to be
authenticated in lieu of cash payments; (ii) the amount of interest payable
per $1,000 aggregate principal amount of Notes; and (iii) the date(s) on which
such interest is due. At least two (2) Business Days prior to such interest
payment date, the Company (or, at the written request, on behalf of and at the
expense of the Company, the Trustee) shall provide to the Holders notice
setting forth the information described in the previous sentence.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal, including without
limitation that overdue by virtue of an acceleration pursuant to Section 6.02,
at the rate equal to 6% per annum in excess of the then applicable interest
rate on the Notes to the extent lawful; and it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03.
SECTION 4.03. REPORTS.
Whether or not required by the rules and regulations of the SEC, so long
as any Notes are outstanding, the Company shall furnish to the Holders of
Notes (i) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
the Company were required to file such forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required to
file such reports, in each case, within the time periods specified in the
SEC's rules and regulations. In addition, whether or not required by the
rules and regulations of the SEC, the Company shall file a copy of all such
information and reports with the SEC for public availability within the time
periods specified in the SEC's rules and regulations (unless the SEC will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company shall at all
times comply with TIA Sec. 314(a).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year and within 45 days after the end of each of
the first three fiscal quarters, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year or fiscal quarter, as the case may be, has been made
under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, the Notes and the Registration Rights
Agreement (the "Applicable Agreement"), and further stating, as to each such
Officer signing such certificate, that to the best of his or her knowledge the
Company has kept, observed, performed and fulfilled each and every covenant
contained in the Applicable Agreement and is not in default in the performance
or observance of any of the terms, provisions and conditions thereof (or, if a
Default or Event of Default or other breach shall have occurred, describing
all such Defaults or Events of Default or other breaches of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event
has occurred and remains in existence by reason of which payments on account
of the principal of or interest, if any, on the Notes or the payment of
Liquidated Damages is prohibited or if such event has occurred, a description
of the event and what action the Company is taking or proposes to take with
respect thereto.
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03(a) above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to
believe that the Company has violated any provisions of Article 4 or Article 5
hereof or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, (i) within three Business Days after any
Officer becoming aware of any Default or Event of Default, an Officers'
Certificate of the Chief Financial Officer or Chief Accounting Officer
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto, (ii) within two Business Days
after any officer of the Company obtains knowledge of any material adverse
event or circumstance affecting the Company or any of its Subsidiaries, a
certificate of the Chief Financial Officer or the Chief Accounting Officer of
the Company setting forth the details thereof and the action which the Company
is taking for proposes to take with respect thereto, (iii) promptly following
receipt thereof, any letters, correspondence or other communication furnished
to the Company by its independent public accountants that comment on the
accounting practices of the Company, (iv) promptly after transmission thereof,
copies of any communication from the Company to its stockholders as a group,
directors or the financial community at large and any registration statements
or reports which the Company or any of its Subsidiaries shall have filed with
any governmental, administrative or regulatory agencies or authorities, and
(v) with reasonable promptness, such other information and data with respect
to the Company and any of its Subsidiaries as Trustee may from time to time
reasonably request.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such
law has been enacted.
SECTION 4.07. INSPECTION OF PROPERTY, BOOKS AND RECORDS.
The Company shall, and shall cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions in relation to its respective
business and activities and shall, upon reasonable notice and during normal
business hours, permit representatives of Trustee at the Company's expense
and/or Indirect Participant at such Indirect Participant's expense, to visit
and inspect any of its or its Subsidiaries' properties, to examine and make
abstracts from any of its or its Subsidiaries' books and records and to
discuss its or its Subsidiaries' affairs, finances and accounts with its or
its Subsidiaries' officers, employees and independent public accountants.
SECTION 4.08. MAINTENANCE OF PROPERTY.
The Company shall, and shall cause each of its Subsidiaries to, keep all
property useful and necessary in its business in good and safe working order
and condition, ordinary wear and tear excepted; provided, however, that
nothing in this Section 4.08 shall prevent the Company from discontinuing the
operation or maintenance of any of such property if such discontinuance is, as
determined in the good faith judgment of the Board of Directors, desirable in
the conduct of its business or the business of any of its Subsidiaries.
SECTION 4.09. PAYMENT OF OBLIGATIONS.
The Company shall, and shall cause each of its Subsidiaries to, pay and
discharge at or before maturity, all of its material Obligations, liabilities
and Indebtedness, including, without limitation, tax liabilities, except where
the same may be contested in good faith by appropriate proceedings diligently
prosecuted, and shall, and shall cause each of its Subsidiaries to, maintain,
in accordance with GAAP, appropriate reserves for the accrual of any of the
same. The Company shall pay any and all taxes, assessments, levies, penalties
or similar charges imposed on each Holder or Indirect Participant as a result
of the original issuance or transfer of the Note, except for taxes assessed
upon the net income or assets of such Person, and the Company agrees to
indemnify and hold such Person harmless with respect to the foregoing, and to
repay to such Person on demand the amount thereof, and until paid by the
Company such amount shall be added and deemed part of the principal amount of
the Note.
SECTION 4.10. COMPLIANCE WITH LAWS; TAXES.
(a) The Company shall, and shall cause each of its Subsidiaries
to, comply in all material respects with all applicable laws, ordinances,
statutes, rules, regulations and requirements of governmental, administrative
or regulatory agencies or authorities, except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings
diligently prosecuted.
(b) From and after the date hereof, the Company shall pay prior
to delinquency all taxes, assessments, and governmental levies except as
contested in good faith by appropriate proceedings.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries to,
enter into any transaction with an Affiliate including any transaction for the
purchase, sale or exchange of property or the rendering of any service to or
by any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless
(a) such Affiliate Transaction is in the ordinary course and pursuant to the
reasonable requirements of the Company or the relevant Subsidiary's business,
(b) such Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Subsidiary than those that would have been obtained in
a comparable transaction by the Company or such Subsidiary with an unrelated
Person and (c) the Company delivers to the Trustee an Officers' Certificate
certifying that such Affiliate Transaction complies with clauses (a) and (b)
above and that such Affiliate Transaction has been approved by a majority of
the disinterested members of the Board of Directors.
SECTION 4.12. MAINTENANCE OF INSURANCE.
The Company shall, and shall cause each of its Subsidiaries to, maintain
insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as may be required by
applicable law and such other insurance to such extent and against such
hazards and liabilities as is comparable in amount and coverage as is
reasonable and customary.
SECTION 4.13. ACTIONS REQUIRING APPROVAL.
During the first two years from the date hereof, with respect to the
events described in clauses (a) through (c) of this Section 4.13, and at any
time after the date hereof with respect to the events described in clauses (d)
through (f) of this Section 4.13, the Company shall not without the consent of
an Investment Majority: (a) take a record of the holders of its shares of
Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the
financial statements included in the Company's public filings; provided,
however, the foregoing shall not require a consent for a stock dividend or
stock split; (b) effect any reorganization, recapitalization or
reclassification of its Common Stock or its other capital stock; (c) apply any
property or assets to the purchase, acquisition, redemption or retirement of
any of its Common Stock or its other capital stock; (d) effect any
reorganization, consolidation, merger or sale, transfer, lease or other
disposition (including without limitation a disposition by way of dividend)
of a majority of the property, assets, stock or business of the Company; (e)
effect a dissolution, liquidation or winding up of the Company; or (f) create,
issue, assume or otherwise incur Indebtedness which would result in the
Company having outstanding Indebtedness (exclusive of Indebtedness outstanding
under this Indenture, under the Indenture of the Company dated December 21,
2001, and secured Indebtedness of the Company outstanding as of the date
hereof; and refinancings thereof not in excess of the amounts refinanced or on
terms less favorable to the Company than those of the Indebtedness being
refinanced) in excess of $20 million.
SECTION 4.14. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Subsidiary, and (ii) all material permits, trademarks, trade names,
intellectual property rights, consents, approvals, authorizations, leases and
contracts necessary to carry on its business as presently or proposed to be
conducted; provided, however, that the Company and its Subsidiaries shall not
be required to preserve any such right, franchise, permit, license, trademark,
trade name, intellectual property right, consent, approval, authorization,
lease or contract or the legal existence of any of its Subsidiaries, if the
Board of Directors of the Company shall determine in its good faith judgment
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole.
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company
shall make an offer (a "Change of Control Offer") to each Holder to repurchase
all or any part (equal to $1,000 or an integral multiple thereof) of each
Holder's Notes at a purchase price equal to (i) the percentage of the
principal amount thereof then applicable to redemptions pursuant to Section
3.05, if after April 22, 2004, or 101% of the principal amount thereof
otherwise, plus (ii) accrued and unpaid interest and Liquidated Damages
thereon, if any, to the date of purchase (in either case, the "Change of
Control Payment"). Within 10 days following any Change of Control, the
Company shall mail a notice to each Holder stating: (1) that the Change of
Control Offer is being made being made pursuant to this Section 4.15 and that
all Notes tendered will be accepted for payment; (2) the purchase price and
the purchase date, which shall be no later than 30 business days from the date
such notice is mailed (the "Change of Control Payment Date"); (3) that any
Note not tendered will continue to accrue interest; (4) that, unless the
Company defaults in the payment of the Change of Control Payment, all Notes as
to which the Change of Control Offer was accepted shall cease to accrue
interest after the Change of Control Payment Date; (5) that Holders electing
to have any Notes purchased pursuant to a Change of Control Offer will be
required to surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Notes completed, to the Paying Agent at
the address specified in the notice or transfer by book-entry transfer to a
Paying Agent specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment Date; (6) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day
preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such ▇▇▇▇▇▇ is
withdrawing his election to have the Notes purchased; (7) that Holders whose
Notes are being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered; and (8)
that conversion rights will terminate with respect to any Note tendered for
purchase so long as the Change of Control Payment is made. The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of Notes in
connection with a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to
the extent lawful, (1) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with
the Paying Agent an amount equal to the Change of Control Payment in respect
of all Notes or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail
to each Holder of Notes so tendered payment in an amount equal to the purchase
price for the Notes, and the Trustee shall promptly authenticate and mail (or
cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered by such
Holder, if any.
(c) Notwithstanding anything to the contrary in this Section
4.15, the Company shall not be required to make a Change of Control Offer upon
a Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in this Section 4.15 and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
SECTION 4.16. PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder or beneficial holder of any Notes
for or as an inducement to any consent, waiver or amendment of any of the
terms or provisions of the Indenture or the Notes unless such consideration is
offered to be paid or is paid to all Holders of the Notes that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving corporation) or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, another corporation, Person or
entity unless (i) the Company is the surviving corporation or the entity or
the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state thereof
or the District of Columbia, (ii) the entity or Person formed by or surviving
any such consolidation or merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the Company
pursuant to a supplemental indenture under the Notes and this Indenture in a
form reasonably satisfactory to the Trustee and delivers the documentation
required by Section 9.06 hereof, (iii) immediately after such transaction, no
Default or Event of Default exists and (iv) consummation of such consolidation
or merger will not otherwise involve a breach of this Indenture, including
without limitation Section 4.13 hereof.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
properties or other assets of the Company in accordance with Section 5.01
hereof, the successor corporation formed by such consolidation or into or with
which the Company is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition,
the provisions of this Indenture referring to the "Company" shall refer
instead to the successor corporation and not to the Company), and may exercise
every right and power of the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein; provided,
however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the
case of a sale of all of the Company's properties or other assets that meets
the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest on,
or Liquidated Damages with respect to, the Notes and such default continues
for a period of three Business Days,
(b) the Company defaults in the payment of principal of or
premium, if any, on the Notes when the same becomes due and payable whether at
maturity, by declaration, upon redemption (including in connection with an
offer to purchase) or otherwise and such default continues for a period of one
Business Day,
(c) the Company fails to comply with any of the provisions of
Sections 4.04(c) or 5.01 or Article 8 hereof or to observe or perform any of
the covenants or agreements on the part of the Company contained in the
Purchase Agreement, the Registration Rights Agreement or in any other document
or certificate of the Company contemplated herein or therein or breach of any
representation or warranties herein or therein,
(d) the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in this Indenture or the Notes for
20 days after notice to the Company by the Trustee or the Holders of at least
an Investment Majority,
(e) the Company or any of its Subsidiaries shall fail to make
any payment in respect of any of their respective Indebtedness (individually
or collectively) (provided, if such Indebtedness is not Senior Debt, that such
defaulted Indebtedness has an aggregate outstanding principal balance in
excess of $500,000) when due or within any applicable grace period or any
event or condition shall occur which results in the acceleration of the
maturity of any such Indebtedness,
(f) a final judgment or order (not covered by insurance) for the
payment of money shall be entered by a court of competent jurisdiction against
the Company or any of its Subsidiaries in excess of $25,000 individually or
$75,000 in the aggregate for all such judgments or orders (treating any
deductibles, self insurance or retention as not so covered) and such judgment
or order shall continue unsatisfied, unbonded and unstayed for a period of 30
consecutive days,
(g) the Company or any of its Subsidiaries makes or sends notice
of a bulk transfer,
(h) the Company or any of its Subsidiaries, pursuant to or
within the meaning of any Bankruptcy Law: (i) commences a voluntary case or
proceeding; (ii) consents to the entry of an order for relief against it in an
involuntary case or proceeding; (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property; (iv) makes a
general assignment for the benefit of its creditors; or (v) admits in writing
its inability to pay its debts as the same become due,
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (i) is for relief against the Company or any
of its Subsidiaries in an involuntary case, (ii) appoints a Custodian of the
Company or any of its Subsidiaries or for all or substantially all of the
property of the Company or any of its Subsidiaries or (iii) orders the
liquidation of the Company or any of its Subsidiaries, and, in each case, such
order or decree remains unstayed and in effect for 30 consecutive days,
(j) the liquidation, dissolution of winding up of the Company,
or
(k) the Common Stock ceases to be traded on the Nasdaq SmallCap
Market or the Nasdaq National Market System.
SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified in
clauses (c) (arising from a failure to comply with Section 4.04(c), (h) or (i)
of Section 6.01 hereof) occurs and is continuing, the Trustee or the Holders
of an Investment Majority may declare all the Notes to be due and payable
immediately. Upon any such declaration, the Notes shall become due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clauses (c) (arising from a failure to comply with Section
4.04(c), (h) or (i) of Section 6.01 hereof occurs, all outstanding Notes shall
be due and payable immediately without further action or notice. The Holders
of an Investment Majority by written notice to the Trustee may on behalf of
all of the Holders rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium that
has become due solely because of the acceleration) have been cured or waived.
If an Event of Default occurs on or after April 22, 2004 then, upon
acceleration of the Notes, anything in this Indenture or in the Notes to the
contrary notwithstanding, a premium shall also become and be immediately due
and payable, to the extent permitted by law, equal to the amount that the
Company would have had to pay if the Company then had elected to redeem the
Notes pursuant to Section 3.05 hereof. If an Event of Default occurs prior to
April 22, 2004, then, upon acceleration of the Notes, an additional premium
shall also become and be immediately due and payable in an amount, for each of
the years beginning on April 22 of the years set forth below, as set forth
below (expressed as a percentage of the principal received that would
otherwise be due but for the provisions of this sentence):
Year Percentage
---- ----------
2002 107.0%
2003 105.6%
SECTION 6.03. OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or Liquidated Damages, if due in cash, or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than an Investment Majority by notice to the Trustee
may on behalf of the Holders of all of the Notes waive an existing Default or
Event of Default and its consequences hereunder, except a continuing Default
or Event of Default in the payment of the principal of, premium and Liquidated
Damages, if any, or interest on, the Notes (including in connection with an
offer to purchase) (provided, however, that the Holders of an Investment
Majority may rescind an acceleration and its consequences, including any
related payment default that resulted from such acceleration). Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of an Investment Majority may direct the time, method and place
of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it, except where the
provision which is the underlying basis for the remedy provides for the
waiving of such provision only by Holders representing a larger percentage of
the Notes than an Investment Majority in which event only Holders of such
larger percentage may so direct the Trustee. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders of
Notes or that may involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of an Investment Majority make a written request
to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of an Investment
Majority do not give the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE A PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and Liquidated
Damages, if any, and interest on the Note, on or after the respective due
dates expressed in the Note (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any
money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money, property or other consideration
pursuant to this Article, it shall pay out the money, property or other
consideration in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for
principal, premium and Liquidated Damages, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Liquidated Damages, if any and
interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no others,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture, but need not verify
the contents thereof.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c) and (e) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate
of the Company with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting interest it
must eliminate such conflict within 90 days, apply to the SEC for permission
to continue as trustee or resign. Any Agent may do the same with like rights
and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, or interest on any Note, the Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each April 23 beginning with the April 23 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA Sec. 313(a) (but if no event described
in TIA Sec. 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA Sec. 313(b)(2). The Trustee shall also transmit by mail all reports
as required by ▇▇▇ ▇▇▇. 313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the SEC and each stock exchange
on which the Notes are listed in accordance with TIA Sec. 313(d). The Company
shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such reasonable
compensation as shall be agreed in writing for its acceptance of this
Indenture and services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
resignation or removal of the Trustee and any other termination of the
Indenture including any termination under any Bankruptcy Law.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Notes and any Liquidated Damages on all money
or property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
resignation or removal of the Trustee and any other termination of the
Indenture including any termination under any Bankruptcy Law.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Sec. 313(b)(2) to the
extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of an
Investment Majority may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 or 7.11
hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the
Holders of an Investment Majority may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent Jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10, such Holder of a Note may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Notes. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or
state authorities and that has a combined capital and surplus of at least
$250,000,000 as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Sec. 310(a)(1), (2) and (5). The Trustee is subject to TIA Sec.
310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to TIA Sec. 311(a), excluding any creditor
relationship listed in TIA Sec. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Sec. 311(a) to the extent indicated therein.
ARTICLE 8
CONVERSION
SECTION 8.01. RIGHT OF CONVERSION
The Notes shall be convertible from time to time in whole or in part, at
the option of Holders, upon written notice to the Company as set forth in
Section 8.03 below, into shares of Common Stock. The conversion privilege
under this Article 8 shall expire at the close of business on the Business Day
preceding a redemption date pursuant to Section 3.05, unless the Company
defaults in making the payment due on redemption. The Notes shall be
converted automatically into Common Stock if after April 22, 2003 the Company
closes a public offering of Common Stock with a per share price of $25.88 and
net proceeds to the Company of at least $35 million. The number of Common
Shares into which Notes are convertible shall be equal to the Conversion
Amount (as defined below) divided by the Conversion Price (as defined below).
The "Conversion Amount" shall be the aggregate unpaid principal amount of
notes outstanding plus accrued and unpaid interest and all other amounts due
under the Notes to be converted (including Liquidated Damages), in each case
at the Conversion Date (as defined in below). Notes surrendered for conversion
during the period from the close of business on any record date next preceding
any Interest Payment Date to the opening of business on such Interest Payment
Date (except in the case of Notes which have been called for redemption within
such period) shall be accompanied by payment in New York Clearing House funds
or other funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of notes being
surrendered for conversion. Except as provided in the previous sentence, no
payment or adjustment shall be made upon any conversion on account of any
interest accrued on the Notes surrendered for conversion or on account of any
dividends on the Common Stock issued upon conversion. The "Conversion Price"
shall be $17.25 per share, subject to adjustment from time to time as provided
herein.
The issuance of the Common Shares upon conversion of the Notes shall be
without charge or cost to Holder (other than in respect of the extinguishment
of the debt converted thereby).
The Company hereby represents and warrants that, as of the Issue Date,
the sum of (1) the number of shares of Common Stock outstanding plus (2) the
number of shares of Common Stock that would be issued if all rights, warrants,
options or other securities (including but not limited to debt instruments)
convertible into or exercisable or exchangeable for Common Stock issued by the
Company were converted, exercised or exchanged as of the Issue Date in full
was 1,248,381.
SECTION 8.02. ADJUSTMENTS TO CONVERSION PRICE AND THE NUMBER OF COMMON
SHARES
The Conversion Price and the number of Common Shares shall be subject to
adjustment from time to time upon the happening of certain events as provided
in this Section 8.02.
(a) (i) If the Company shall at any time after the Issue
Date issues, grants or sells any shares of Common Stock, or options, warrants
or other rights to acquire shares of Common Stock or securities convertible or
exchangeable, directly or indirectly, into shares of Common Stock, including
shares held in the Company's treasury, for a consideration, exercise or
conversion price per share less than the Conversion Price in effect
immediately prior to the issuance, grant or sale of such shares, options,
warrants or other rights, or other securities convertible or exchangeable,
directly or indirectly, into shares of Common Stock, or without consideration,
then forthwith upon such issuance, grant or sale, the Conversion Price shall
be adjusted so that the Conversion Price shall equal the Conversion Price
immediately prior to the date of such issuance, grant or sale multiplied by a
fraction, the numerator of which shall be (A) the number of shares of Common
Stock outstanding on the date of such issuance, grant or sale, plus (B) the
number of additional shares of Common Stock which the aggregate consideration
received by the Company upon such issuance, grant or sale (plus the aggregate
of any additional amount to be received by the Company upon the exercise of
such options, warrants, rights or securities) would purchase at such
Conversion Price, and the denominator of which shall be (A) the number of
shares of Common Stock outstanding on the date of such issuance, grant or
sale, plus (B) the number of additional shares of Common Stock issued, granted
or sold (or into which the options, warrants, rights or securities so issued,
granted or sold are exercisable, convertible or exchangeable).
(ii) For the purpose of any computation to be made in
accordance with this Section 8.02(a), the following provisions shall be
applicable:
(A) In the case of the issuance or sale of shares of
Common Stock or such options, warrants, rights or other securities for a
consideration part or all of which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the amount of cash received by
the Company for such shares, options, warrants, rights or other securities
(or, if shares of Common Stock or such options, warrants, rights or other
securities are offered by the Company for subscription, the subscription
price, or, if shares of Common Stock or such options, warrants, rights or
other securities shall be sold to underwriters or dealers for public offering
without a subscription offering, the initial public offering price) before
deducting therefrom any compensation paid or discount allowed in the sale,
underwriting or purchase thereof by underwriters or dealers or others
performing similar services, or any expenses incurred in connection therewith.
(B) In the case of the issuance or sale (otherwise
than as a dividend or other distribution on any stock of the Company) of
shares of Common Stock or such options, warrants, rights or other securities
for a consideration part or all of which shall be other than cash, the amount
of the consideration therefor other than cash shall be deemed to be the fair
market value of such consideration as determined in good faith by the Board of
Directors.
(C) This Section 8.02(a) shall not apply with respect
to a stock dividend or distribution payable in shares of capital stock of the
Company, but Section 8.02(f) hereof shall apply with respect to such
transaction or issuance.
(D) The reclassification of securities of the Company
other than shares of Common Stock into securities including shares of Common
Stock shall be deemed to involve the issuance of such shares of Common Stock
or such options, warrants, rights or other securities for a consideration
other than cash immediately prior to the close of business on the date fixed
for the determination of security holders entitled to receive such shares or
such options, warrants, rights or other securities, and the value of the
consideration allocable to such shares of Common Stock or such options,
warrants, rights or other securities shall be determined as provided in
Section 8.02(a)(ii)(B) hereof.
(E) The number of shares of Common Stock at any one
time outstanding shall include the aggregate number of shares issued or
issuable upon the exercise in full of all options, rights and warrants and
upon the conversion or exchange in full of convertible or exchangeable
securities.
(iii) Subject to Section 8.02(b) hereof, with respect to
any issuance, grant or sale of options, warrants or other rights to acquire
shares of Common Stock or securities convertible or exchangeable, directly or
indirectly, into shares of Common Stock, the adjustment, if any, provided for
pursuant to this Section 8.02(a) shall be made upon the issuance, grant or
sale of such option, warrant, right or security (and no additional adjustment
shall be made upon the exercise, conversion or exchange thereof to the extent
such additional adjustment would be duplicative of a prior adjustment).
(b) If the purchase price provided for in any options, rights or
warrants, the additional consideration, if any, payable upon the conversion or
exchange of any convertible or exchangeable securities, or the rate at which
any convertible or exchangeable securities are convertible into or
exchangeable for Common Stock, shall change at any time (other than under or
by reason of provisions designed to protect against dilution), the Conversion
Price adjusted pursuant to Section 8.02(a) hereof in effect at the time of
such event shall forthwith be readjusted to the Conversion Price which would
have been in effect at such time had such options, rights, warrants and
convertible and exchangeable securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate, as the
case may be, at the time initially granted, issued or sold; and on the
expiration of any such options, warrants or rights or the termination of any
such right to convert or exchange such convertible securities or exchangeable
securities, the Conversion Price then in effect hereunder shall forthwith be
increased to the Conversion Price which would have been in effect at the time
of such expiration or termination had such options, rights, warrants or
convertible or exchangeable securities, to the extent outstanding immediately
prior to such expiration or termination, never been issued.
(c) Upon each adjustment of the Conversion Price pursuant to
Section 8.02(a), the number of Common Shares issuable upon conversion of the
Notes shall be adjusted so that such number shall equal the number of Common
Shares issuable immediately prior to such adjustment of the Conversion Price
multiplied by a fraction, the numerator of which shall be the Conversion Price
immediately prior to such adjustment in the Conversion Price and the
denominator of which shall be the Conversion Price immediately following such
adjustment in the Conversion Price.
(d) If the Company shall at any time after the Issue Date issue,
grant or sell securities with greater or superior voting rights than the
shares of Common Stock outstanding as of the Issue Date, Holders, at their
option, may receive upon conversion either the Common Shares or a like number
of such securities with greater or superior voting rights, in addition to all
other securities and property otherwise issuable upon such conversion.
(e) In the case of any consolidation of the Company with, or
merger of the Company with, or merger of the Company into, or sale or transfer
by the Company of all or substantially all of its assets to another
corporation or other entity (other than a consolidation or merger which does
not result in any reclassification or change of the outstanding Common Stock),
the corporation or other entity formed by such consolidation or merger or
acquiror of such assets shall execute and deliver to the Trustee a
supplemental instrument or agreement providing that Holders shall have the
right thereafter (until the Maturity Date or earlier conversion or redemption
of this Note) to receive, upon conversion, the kind and amount of shares of
stock and other securities and property receivable upon such consolidation,
merger, sale or transfer, by a holder of the number of shares of Common Stock
which Holders could have received had they converted immediately prior to such
consolidation, merger, sale or transfer. Such supplemental instrument or
agreement shall provide for adjustments which shall be identical to the
adjustments provided in this Section 8.02.
(f) In the event that the Company shall at any time after the
Issue Date (i) declare or pay a dividend or otherwise distribute to its
stockholders any assets, property, rights, evidences of indebtedness,
securities (including a stock dividend or distribution payable in shares of
capital stock of the Company), whether issued by the Company or by another, or
any other thing of value, (ii) change, split, divide, combine or otherwise
reclassify its capital stock into the same or a different number of shares, or
into shares of any other class or classes or (iii) make any distribution of
its assets to holders of its capital stock pursuant to a complete or partial
liquidation of the Company, then, in each case, the Conversion Price and the
Common Shares shall be equitably adjusted so that Holders shall thereafter be
entitled, in addition to (or, if the circumstances clearly require consistent
with the essential intent and principles of this Section 8.02, in substitution
for) the Common Shares or other securities and property receivable upon the
conversion Notes, to receive, upon the conversion, such additional or lesser
number of shares of capital stock, or the same assets, property, rights,
evidences of indebtedness, securities or any other thing of value, or such
assets of the Company, that it would have been entitled to receive at the time
of the occurrence of any of the foregoing events as if the Notes had been
converted immediately prior to such event. At the time of the occurrence of
any of the foregoing events, the Company shall make appropriate reserves to
ensure the timely performance of the provisions of this Section 8.02(f).
(g) The Company will not, by amendment of its Articles of
Incorporation or its other organizational documents or through any
consolidation, merger, reorganization, transfer of assets, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Indenture or the
Notes, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of Holders against impairment.
(h) If, at any time, as a result of an adjustment made pursuant
to this Section 8.02, Holders shall become entitled to receive any securities
of the Company other than Common Shares, thereafter the number of such other
securities so receivable upon conversion shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to
the provisions contained in this Section 8.02, and such provisions shall apply
on like terms to any such other securities.
(i) Irrespective of any adjustment or change in the Conversion
Price or the number or kind of securities issuable upon the conversion
hereunder, the Notes theretofore or thereafter issued may continue to express
the Conversion Price and the number and kind of securities which were stated
in the initial Notes or any Note(s) subsequently issued in lieu thereof (but
the actual number and kind of securities issuable upon the conversion and the
Conversion Price shall in all cases be as determined in accordance with the
provisions contained therein).
(j) Whenever an adjustment is made as provided in this Section
8.02, the Company shall forthwith file, at the principal office of the
Company, a certificate of its chief financial officer, showing in detail the
facts requiring such adjustment and the Conversion Price in effect following
such adjustment, and mail a copy of such certificate by first-class certified
mail, return receipt requested, postage prepaid, to the Trustee and each
Holder.
(k) If any event, circumstance, condition or transaction shall
occur as to which the provisions of this Section 8.02 are not strictly
applicable but as to which the failure to make any adjustment would adversely
affect the rights represented by this Indenture or the Notes in accordance
with the essential intent and principles of this Section 8.02 or, if the
provisions of this Section 8.02 are strictly applicable, but such provisions
would not fairly protect the rights of Holders in accordance with the
essential intent and principles of this Section 8.02 (which are to place
Holders in a position as nearly equal as possible to the position they would
have occupied had they purchased the Common Shares on the Issue Date), then,
in each such case, the Board of Directors of, in its good faith, shall cause
the Company to make such adjustments, on a basis consistent with the essential
intent and principles established in this Section 8.02, necessary to preserve,
without dilution, the rights represented hereby.
(l) The provisions of this Section 8.02 shall similarly apply to
successive actions, activities, events, circumstances, conditions or
transactions. If more than one provision of this Section 8.02 would apply
with respect to a particular action, activity, event, circumstance, condition
or transaction, only the provision that would yield the most beneficial result
for Holders shall apply with respect to such action, activity, event,
circumstance, condition or transaction, and no adjustment shall be made to the
extent it is duplicative of another adjustment made hereunder.
(m) The provisions of this Section 8.02 shall not apply with
respect to Authorized Stock Issuances.
SECTION 8.03. CONVERSION PROCEDURES.
(a) If any Holder desires to convert any portion of the Notes as
provided in Section 8.01 hereof, such Holder shall provide to the Company its
Conversion Notice specifying the amount of principal and accrued interest to
be converted and name or names (with address) in which a certificate or
certificates evidencing the Common Shares are to be issued and the Company
shall so notify the Trustee and the Company Stock Transfer Agent in writing
specifying the amount of principal and accrued interest to be converted and
name or names (with address) in which a certificate or certificates evidencing
the Common Shares are to be issued. The Company will make a notation of the
date that a notice of conversion is received, which date shall be deemed to be
the date of receipt and conversion for purposes hereof (such date, and the
date of any public offering described in Section 8.01, each being a
"Conversion Date").
(b) The Company, as soon as practicable following a Conversion
Date, shall deliver to the Trustee certificates evidencing the number of full
Common Shares or other securities or property to which such Person shall be
entitled as provided herein in respect of the amount of the principal and
interest so converted and an Officers' Certificate pursuant to which the
calculation of such number of Common Shares or other securities or property
issued in respect of such conversion pursuant to Section 8.01 shall be set
forth in reasonable detail. If Holder disputes any such calculation, it and
the Company shall negotiate in good faith and in a commercially reasonable
manner the actual number of Common Shares or other securities or property
issuable in such conversion hereunder. If such dispute is not resolved within
30 Business Days, the dispute shall be resolved by a Person mutually agreed
between the parties (the "Dispute Resolution Person"). If the parties are
unable to agree upon such a Dispute Resolution Person, then each shall
designate a non-Affiliated Person and the two such non-Affiliated Persons
shall jointly designate the Dispute Resolution Person. The Dispute Resolution
Person shall give its determination as to the actual number of Common Shares
issuable in such conversion hereunder within 30 days of its appointment as
such. The costs and expenses associated with such Dispute Resolution Person
shall be borne equally between Holder and the Company, and such Dispute
Resolution Person's determination as to the actual number of Common Shares
issuable to the Holder hereunder shall be binding upon the Trustee, the Holder
and the Company. Any conversion shall be deemed to have been made as of the
related Conversion Date, and the Person or Persons entitled to receive the
Common Shares or other securities or property deliverable upon such conversion
shall be treated for all purposes as the record holder or holders of such
Common Shares on such Conversion Date. Upon conversion in accordance with the
provisions hereof, the debt converted thereby shall be deemed to be
extinguished and such extinguishment shall be reflected in the Notes as
provided in Article 2.
(c) Notwithstanding any provision hereof to contrary, the
Company shall not be required to issue certificates representing fractions of
shares of Common Stock upon the conversion of any Notes, nor shall it be
required to issue scrip or pay cash in lieu of fractional interests, it being
the intent of the parties that all fractional interests shall be eliminated by
rounding any fraction of .5 or more up to the nearest whole number of shares
of Common Stock and any fraction of less than .5 down to the nearest whole
number of shares of Common Stock. Concurrent with the delivery of Common
Shares to a Holder, the Company shall deliver payment in respect of any
fractional share.
SECTION 8.04. RESERVATION OF SHARES; TRANSFER TAXES; ETC.
The Company shall at all times reserve and keep available, out of its
authorized and unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the Notes, such number of shares of Common Stock,
free of preemptive or similar rights, as shall be sufficient to effect the
conversion of the Notes from time to time. The Company shall use its best
efforts from time to time, in accordance with the laws of the State of
Colorado, to increase the authorized number of shares of Common Stock if at
any time the number of shares of Common Stock not outstanding shall not be
sufficient to permit the conversion of the Notes.
The Company shall pay when due and payable any and all issue or other
taxes and charges that may be payable in respect of any issue or delivery of
Common Shares on conversion of the Notes, except as set forth in the
immediately following sentence. The Company covenants that, upon issuance,
all shares of Common Stock issuable upon conversion of the Notes shall be duly
authorized, validly issued, fully paid and non-assessable, and free and clear
of any and all Liens and taxes, and the issuance of such securities will not
be subject to any preemptive or similar right of the Company or any other
Person (all of which rights being hereby waived irrevocably).
The Company agrees that if any shares of capital stock to be reserved for
the purpose of the issuance of shares upon the conversion of the Notes require
registration with or approval of any governmental authority under any federal
or state law before such shares may be validly issued or delivered upon
conversion, then the Company will in good faith and as expeditiously as
possible secure such registration or approval, as the case may be. If and so
long as the Common Stock issuable upon the conversion of the Notes is listed
on any national securities exchange, the Company will, if permitted by the
rules of such exchange, list and keep listed on such exchange, upon official
notice of issuance, all shares of such Common Stock issuable upon conversion
of this Note.
SECTION 8.05. RESPONSIBILITY OF TRUSTEE.
The Trustee, subject to the provisions of Section 7.01, and any
conversion agent shall not at any time be under any duty or responsibility to
any Holder to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed or
herein or in any supplemental Indenture provided to be employed in making the
same. Neither the Trustee nor any conversion agent shall be accountable with
respect to the validity or value (or the kind or amount) of any Common shares,
or any other securities or property, which may at any time be issued or
delivered upon the conversion of any note; and it or they do not make any
representation with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible to make any cash payment or to issue, transfer or
deliver any Common Shares or stock certificates or other securities or
property upon the surrender of any note for the purpose of conversion; and the
Trustee, subject to the provisions of Section 7.01 and any conversion agent
shall not be responsible for any failure by the Company to comply with any of
the covenants contained in this Article.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes or to alter the provisions of Article 2 hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder;
(c) to provide for the assumption of the Company's obligations
to the Holders of the Notes by a successor to the Company pursuant to Article
5 hereof;
(d) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder of the Notes; or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the written request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 and 9.06 hereof, the Trustee shall join with the
Company in the execution of any amended or supplemental Indenture authorized
or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture and the Notes may be amended or
supplemented with the consent of the Holders of at least an Investment
Majority (including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04
and 6.07 hereof, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium, if
any, or interest on the Notes or Liquidated Damages, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture or the Notes may be waived with the consent of the
Holders of an Investment Majority (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes);
provided, however, that without the consent of an Investment Supermajority
(including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, such Notes), no waiver or amendment to this
Indenture may make any change in the provisions of Section 4.15 hereof or the
definitions related thereto that adversely affects the rights of any Holder of
Notes. Section 2.08 hereof shall determine which Notes are considered to be
"outstanding" for purposes of this Section 9.02.
Upon the written request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Sections 9.02 and 9.06 hereof, the Trustee shall join with the Company in the
execution of such amended or supplemental Indenture unless such amended or
supplemental Indenture directly affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may,
but shall not be obligated to, enter into such amended or supplemental
Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver.
However, without the consent of each Holder affected, an amendment or
waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or alter or waive any of the provisions with respect to the redemption of
the Notes;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a rescission
of acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes and a waiver of the
payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest on the Notes;
(g) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions; or
(h) change any definition which shall have the effect of
amending a provision of the Indenture that could not be amended without the
consent of each Holder affected.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in a amended or supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting ▇▇▇▇▇▇'s Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of
a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment
becomes effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee at the written request of the Company shall place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall, upon receipt of an Authentication Order, authenticate new
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article Nine if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the
Board of Directors approves it. In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject to Section
7.01 hereof) shall be fully protected in relying upon, in addition to the
documents required by Section 11.04 hereof, an Officer's Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture and that such
Supplemental Indenture constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company (subject to customary
exceptions).
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Notes is subordinated in right of payment, to
the extent and in the manner provided in this Article 10, to the prior payment
in full of all Senior Debt (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt.
Notwithstanding anything to the contrary provided herein, (i) the Trustee's
rights under Section 7.07 shall not be subordinate to any Senior Debt and (ii)
so long as no default shall have occurred in payment or performance of any
obligation of the Company with respect to the Senior Debt, payments of
interest and principal on the Notes may be made at payment dates as specified
therein.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution (which may consist of cash, securities or other
property, by set-off or otherwise) to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment for the benefit of creditors or any marshalling of
the Company's assets and liabilities:
(a) holders of Senior Debt shall be entitled to receive payment
in full of all obligations due in respect of such Senior Debt (including
interest after the commencement of any such proceeding at the rate specified
in the applicable Senior Debt) before Holders of the Notes shall be entitled
to receive any payment with respect to the Notes (except that Holders may
receive Permitted Junior Securities; and
(b) until all obligations with respect to Senior Debt (as
provided in subsection (1) above) are paid in full, any distribution to which
Holders would be entitled but for this Article 10 shall be made to holders of
Senior Debt (except that Holders of Notes may receive Permitted Junior
Securities, as their interests may appear.
SECTION 10.03. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any payment of any
obligations with respect to the Notes at a time when a Responsible Officer of
Trustee has received written notice or such Holder, as applicable, has actual
knowledge that such payment is prohibited by this Article 10, such payment
shall be held by the Trustee or such Holder, in trust for the benefit of, and
shall be paid forthwith over and delivered, upon written request, to, the
holders of Senior Debt as their interests may appear or their Representative
under the indenture or other agreement (if any) pursuant to which Senior Debt
may have been issued, as their respective interests may appear, for
application to the payment of all obligations with respect to Senior Debt
remaining unpaid to the extent necessary to pay such obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt, and shall not be liable to any such
holders if the Trustee shall pay over or distribute to or on behalf of Holders
or the Company or any other Person money or assets to which any holders of
Senior Debt shall be entitled by virtue of this Article 10, except if such
payment is made as a result of the willful misconduct or gross negligence of
the Trustee.
SECTION 10.04. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any obligations with
respect to the Notes to violate this Article 10, but failure to give such
notice shall not affect the subordination of the Notes to the Senior Debt as
provided in this Article 10.
SECTION 10.05. SUBROGATION.
After all Senior Debt is paid in full and until the Notes are paid in
full, Holders of Notes shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders of Notes have been applied to
the payment of Senior Debt. A distribution made under this Article 10 to
holders of Senior Debt that otherwise would have been made to Holders of Notes
is not, as between the Company and Holders, a payment by the Company on the
Notes.
SECTION 10.06. RELATIVE RIGHTS.
This Article 10 defines the relative rights of Holders of Notes and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and premium, if any, and interest on the Notes in accordance with
their terms;
(2) affect the relative rights of Holders of Notes and creditors
of the Company other than their rights in relation to holders of Senior Debt;
or
(3) prevent the Trustee or any Holder of Notes from exercising
its available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders of Notes.
If the Company fails because of this Article 10 to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event of
Default.
SECTION 10.07. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company or any Holder or by the failure of the Company or any
Holder to comply with this Indenture.
SECTION 10.08. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given hereunder to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders of Notes shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
of Notes for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Debt and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article 10.
SECTION 10.09. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any
obligations with respect to the Notes to violate this Article 10. Only the
Company or a Representative may give the notice. Nothing in this Article 10
shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
SECTION 10.10. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Notes, by the Holder's acceptance thereof, authorizes and
directs the Trustee on such ▇▇▇▇▇▇'s behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as such ▇▇▇▇▇▇'s attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.09 hereof at least 30 days before the expiration of the time to file
such claim, other representative of the Holders is hereby authorized to file
an appropriate claim for and on behalf of the Holders of the Notes.
SECTION 10.14. AMENDMENTS.
The provisions of this Article 10 shall not be amended or modified
without the written consent of the holders of all Senior Debt.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by ▇▇▇ ▇▇▇. 318(c), the imposed duties shall control.
SECTION 11.02. NOTICES.
Any notice or communication by the Company or the Trustee to the others
is duly given if in writing and delivered in Person or mailed by first class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Infinity, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Executive Officer
With a copy to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Suite ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
If to the Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
The Company or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand with a
confirmed receipt, if personally delivered; when answered back, if telexed
with a tested telex; when receipt acknowledged by a Responsible Officer of the
Trustee, if telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA Sec. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall mail
a copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES.
Holders may communicate pursuant to TIA Sec. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company,
the Trustee, the Registrar and anyone else shall have the protection of TIA
Sec. 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Sec. 314(a)(4)) shall comply with the provisions of TIA Sec.
314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company irrevocably consent to the jurisdiction of the courts of the
State of New York and of any federal court located in such State in connection
with any action or proceeding arising out of or relating to this Indenture,
any document or instrument delivered pursuant to, in connection with or
simultaneously with this Indenture, or a breach of this Indenture or any such
document or instrument. In any such action or proceeding the Company hereto
waives personal service of any summons, complaint or other process and agrees
that service thereof may be made in accordance with Section 10.02. Within 30
days after such service, or such other time as may be mutually agreed upon in
writing by the attorneys for the parties to such action or proceeding, the
party so served shall appear or answer such summons, complaint or other
process. The Company agrees that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. TO THE EXTENT IT
MAY LEGALLY DO SO, THE COMPANY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING ARISING UNDER OR WITH
RESPECT TO THIS NOTE OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR
INCIDENTAL TO, THE INDENTURE OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. TO THE EXTENT IT MAY LEGALLY DO SO,
ISSUER AGREES THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR
PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.07 MAY BE FILED WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPANY TO WAIVER OF ITS RIGHT
TO TRIAL BY JURY.
SECTION 11.08. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.09. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 11.10. SEVERABILITY
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.11. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.12. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
[Signatures on following page]
SIGNATURES
Dated as of April 22, 2002
INFINITY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
WILMINGTON TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Financial Services Officer
EXHIBIT A
(Face of Note)
CUSIP/CINS ________________
7% Subordinated Convertible Notes due April 15, 2007
No. ___ $______________
Infinity, Inc.
promises to pay to _________________________________
or registered assigns,
the principal sum of _______________________________
Dollars on April 15, 2007.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
INFINITY, INC.
By:___________________________
Name:
Title:
Dated: ________________
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
WILMINGTON TRUST COMPANY,
as Trustee
By:_________________________________
(Back of Note)
7% Subordinated Convertible Notes due 2007
[Insert the Global Note Legend, Restricted Legend and/or Resale Legend, as
applicable, pursuant to the provisions of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. INTEREST. Infinity, Inc., a Colorado corporation (the "Company"),
promises to pay interest on the principal amount of this Note at 7.0% per
annum from April 22, 2002 until maturity and shall pay the Liquidated Damages
payable pursuant to Section 1.2(b)(2) of the Registration Rights Agreement
referred to below. The Company will pay interest (in cash or Additional
Notes in accordance with Section 4.01 of the Indenture) semi-annually on April
15 and October 15 of each year, or if any such day is not a Business Day, on
the next succeeding Business Day (each an "Interest Payment Date"). Interest
on the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be October 15, 2002. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 6% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace periods) from time to time on demand
at the same rate to the extent lawful. 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 Notes
(except defaulted interest) and on the Liquidated Damages to the Persons who
are registered Holders of Notes at the close of business on the record date or
next Business Day preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium and Liquidated
Damages, if any is due and to be paid in cash, and interest at the office or
agency of the Company maintained for such purpose within or without the City
and State of New York, or, at the option of the Company, payment of interest
and Liquidated Damages may be made by check mailed to the Holders at their
addresses set forth in the register of Holders, and provided that payment by
wire transfer of immediately available funds will be required with respect to
principal of and interest (paid in cash), premium and Liquidated Damages (if
due and to be paid in cash) on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Company
or the Paying Agent. Such payment shall be 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 that interest and/or Liquidated Damages
may be paid through the issuance of Additional Notes, subject to Sections 2.13
and 4.01 of the Indenture, respectively.
3. PAYING AGENT AND REGISTRAR. Initially, Wilmington Trust Company,
the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of April 22, 2002 ("Indenture") between the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended
(15 U.S. Code Secs. 77aaa-77bbbb). The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and
be controlling. The Notes are obligations of the Company limited to
$12,540,000 in aggregate principal amount, plus amounts, if any, issued to pay
Liquidated Damages or interest on outstanding Notes as set forth in Paragraph
2 hereof. In addition, the Notes shall be pari passu with the Company's 8%
Subordinated Convertible Notes due 2006, issued by the Company on December 21,
2001.
5. REDEMPTION. Except as set forth in Paragraph 7 below, the Company
shall not be required to make mandatory redemption payments with respect to
the Notes. The Company shall not have the option to redeem the Notes prior to
April 22, 2004 except as otherwise provided in Section 3.05 of the Indenture.
Thereafter, subject to right of Conversion pursuant to Paragraph 6 hereof, the
Company shall have the option to redeem the Notes, in whole but not in part,
upon not less than 45 (unless a shorter period shall be satisfactory to the
Trustee) nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on April 22, of the years
indicated below:
Year Percentage
---- ----------
2004 104.2%
2005 102.8%
2006 and thereafter 101.4%
6. CONVERSION. Unpaid principal, accrued and unpaid interest and all
other amounts due under the Notes shall be convertible into Common Stock from
time to time in whole or in part at the option of the Holders by written
notice to the Company. Such conversion shall be at an initial price of $17.25
per share, subject to adjustment from time to time as provided in the
Indenture.
7. REPURCHASE AT OPTION OF HOLDERS. If there is a Change of Control,
the Company shall be required to make an offer (a "Change of Control Offer")
to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price equal to (i) the
percentage of the principal amount thereof applicable to redemptions pursuant
to Paragraph 5, if after April 22, 2004, or 101% of the principal amount
thereof otherwise, plus (ii) accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase (in either case, the "Change
of Control Payment"). Within 10 days following any Change of Control, the
Company shall mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture.
8. 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 whose Notes are to be redeemed at its registered address. On and after
the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption. One Business Day before the redemption date the Notes
shall cease to be convertible pursuant to Paragraph 6.
9. DENOMINATIONS, TRANSFER. The Notes are in registered form without
coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and
the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a Majority in Interest of the principal amount of the
then outstanding Notes, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the
Holders of 75% of the principal amount of the then outstanding Notes. Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the
Notes in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, to comply with the requirements of the Commission in order to effect
or maintain the qualification of the Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include:
(i) default in the payment when due of interest on, or Liquidated
Damages with respect to, the Notes which continues for a period of three
Business Days, (ii) default in the payment of principal of or premium, if any,
on the Notes when the same becomes due and payable whether at maturity, by
declaration, upon redemption (including in connection with an offer to
purchase) or otherwise which continues for a period of one Business Day, (iii)
failure by the Company to comply with any of the provisions of Sections
4.04(c) or 5.01 or Article 8 of the Indenture or to observe or perform any of
the covenants or agreements on the part of the Company contained in the
Purchase Agreement, the Registration Rights Agreement or in any other document
or certificate of the Company contemplated therein breach of any
representation or warranties therein, (iv) failure to observe or perform any
other covenant, representation, warranty or other agreement in this Indenture
or the Notes for 20 days after notice to the Company by the Trustee or the
Holders of at least an Investment Majority, (v) failure by the Company or any
of its Subsidiaries to make any payment in respect of any of their respective
Indebtedness (individually or collectively) (provided, if such Indebtedness is
not Senior Debt, that such defaulted Indebtedness has an aggregate outstanding
principal balance in excess of $500,000) when due or within any applicable
grace period or any event or condition shall occur which results in the
acceleration of the maturity of any such Indebtedness, (vi) issuance of a
final judgment or order (not covered by insurance) for the payment of money
shall be entered by a court of competent jurisdiction against the Company or
any of its Subsidiaries in excess of $25,000 individually or $75,000 in the
aggregate for all such judgments or orders (treating any deductibles, self
insurance or retention as not so covered) and such judgment or order
continuing unsatisfied, unbonded and unstayed for a period of 30 consecutive
days, (vii) the Company r any of its Subsidiaries making or sending notice of
a bulk transfer, (viii) the Company or any of its Subsidiaries, pursuant to or
within the meaning of any Bankruptcy Law: (i) commencing a voluntary case or
proceeding; (ii) consenting to the entry of an order for relief against it in
an involuntary case or proceeding; (iii) consenting to the appointment of a
Custodian of it or for all or substantially all of its property; (iv) making a
general assignment for the benefit of its creditors or (v) admits in writing
its inability to pay its debts as the same become due, (ix) a court of
competent jurisdiction entering an order or decree under any Bankruptcy Law
that: (i) is for relief against the Company or any of its Subsidiaries in an
involuntary case, (ii) appoints a Custodian of the Company or any of its
Subsidiaries or for all or substantially all of the property of the Company or
any of its Subsidiaries or (iii) orders the liquidation of the Company or any
of its Subsidiaries, and, in each case, such order or decree remains unstayed
and in effect for 30 consecutive days, (x) the liquidation, dissolution of
winding up of the Company, (xi) the Common Stock ceasing to be traded on the
Nasdaq SmallCap Market or the Nasdaq National Market System.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least an Investment Majority may declare all the Notes to be due
and payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable without further action or
notice. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. Subject to certain limitations, Holders of an Investment
Majority may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of the Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if a committee of its Responsible Offers
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest on,
or the principal of or premium on, the Notes. The Company is required to
deliver to the Trustee quarterly, a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, 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 the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
Uniform Gifts to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Infinity, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
ASSIGNMENT FORM
To assign this Note, fill in the form below: I) or (we) assign and transfer
this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________ to transfer
this Note on the books of the Company. The agent may substitute another to
act for him.
Date: ___________
Your Signature: _________________________________
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 of the Indenture, sign below:
Date: ___________
Your Signature: _________________________________
(Sign exactly as your name appears on the Note)
Tax Identification No.:__________________________
Signature Guarantee.
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Infinity, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Registrar address block]
Re: 7% Subordinated Convertible Notes Due 2007
Reference is hereby made to the Indenture, dated as of April 22, 2002
(the "Indenture"), between Infinity, Inc., as issuer (the "Company"), and
[insert Trustee], as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
_____________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified herein, in the principal
amount of $_________ in such Note[s] or interests (the "Transfer"), to
___________ (the "Transferee"), as further specified herein. In connection
with the Transfer, the Transferor hereby certifies that:
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) 0 a beneficial interest in the Global Note (CUSIP
___________); or
(b) 0 a Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) 0 a beneficial interest in the Global Note (CUSIP
___________), or;
(b) 0 a Definitive Note.
in accordance with the terms of the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________________________
[Insert Name of Transferor]
By:___________________________________
Name:
Title:
Dated:__________________