Exhibit 4.3
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INTEGRATED PHYSICIAN SYSTEMS, INC.
Company,
and
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Trustee
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INDENTURE
Dated as of ___________, 1997
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____% Convertible Subordinated Debentures due 2004
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Reconciliation and tie between Trust Indenture Act of 1939, as amended,
and Indenture dated as of _________, 1997
Trust Indenture Indenture
Act Section Section
- --------------- -------
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 608, 610
Section 311 (a) . . . . . . . . . . . . . . . . . . . 613(a)
(b). . . . . . . . . . . . . . . . . . . . 613(b)
Section 312 (a). . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b). . . . . . . . . . . . . . . . . . . . 702(b)
(c). . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a). . . . . . . . . . . . . . . . . . . . 703(a)
(b). . . . . . . . . . . . . . . . . . . . 703(b)
(c). . . . . . . . . . . . . . . . . . . . 703(a)
(d). . . . . . . . . . . . . . . . . . . . 703(b)
(e). . . . . . . . . . . . . . . . . . . . 703(c)
Section 314 (a). . . . . . . . . . . . . . . . . . . . 704(a)
(a)(4) . . . . . . . . . . . . . . . . . . 101, 1004
(b). . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . 103
(c)(2) . . . . . . . . . . . . . . . . . . 103
(c)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . 103
Section 315 (a). . . . . . . . . . . . . . . . . . . . 601(a)
(b). . . . . . . . . . . . . . . . . . . . 602, 703(a)(6)
(c). . . . . . . . . . . . . . . . . . . . 601(b)
(d). . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . 601(c)(3)
(e). . . . . . . . . . . . . . . . . . . . 514
Section 316 (a). . . . . . . . . . . . . . . . . . . . 103
(a)(1)(A). . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . 508
(c). . . . . . . . . . . . . . . . . . . . 104(c)
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a). . . . . . . . . . . . . . . . . . . . 107
TABLE OF CONTENTS
Page
ARTICLE ONE ----
[TITLE]
Section 101 Rules of Construction and Definitions...........................1
Act.............................................................2
Affiliate.......................................................2
Authenticating Agent............................................2
Board of Directors..............................................2
Board Resolution................................................2
Business Day....................................................2
Closing Price...................................................3
Common Stock....................................................3
Company.........................................................3
Company Request.................................................3
Corporate Trust Office..........................................3
Corporation.....................................................3
Default.........................................................3
Defaulted Interest..............................................3
Event of Default................................................3
Exchange Act....................................................4
Holder..........................................................4
Indenture.......................................................4
Interest Payment Date...........................................4
Junior Securities...............................................4
Maturity........................................................4
Officer.........................................................4
Officers' Certificate...........................................4
Opinion of Counsel..............................................4
Outstanding.....................................................4
Paying Agent....................................................5
Person..........................................................5
Predecessor Security............................................5
Redemption Date.................................................5
Redemption Price................................................5
Regular Record Date.............................................5
Responsible Officer.............................................6
Securities......................................................6
Security Register...............................................6
SEC.............................................................6
Securityholder..................................................6
Senior Indebtedness.............................................7
Trustee.........................................................7
Underwriter.....................................................7
Vice President..................................................7
Voting Stock....................................................8
Section 102 Compliance certificates and Opinions............................8
Section 103 Form of Documents Delivered to Trustee..........................9
Section 104 Acts of Holders.................................................9
Section 105 Notices, etc., to Trustee and the Company......................10
Section 106 Notice to Holders; Waiver......................................10
Section 107 Conflict with Trust Indenture Act..............................10
Section 108 Effect of Headings and Table of Contents.......................11
Section 109 Successors and Assigns.........................................11
Section 110 Separability...................................................11
Section 111 Benefits of Indenture..........................................11
Section 112 Governing Law..................................................11
Section 113 Legal Holidays.................................................12
Page
ARTICLE TWO ----
FORM OF SECURITIES
Section 201 Form Generally.................................................12
Section 202 Form of Face of Security.......................................12
Section 203 Form of Reverse of Security....................................14
Section 204 Form of Trustee's Certificate of Authentication................17
Section 205 Form of Election to Convert....................................17
ARTICLE THREE
The Securities
Section 301 Title and Terms................................................18
Section 302 Denominations..................................................19
Section 303 Execution, Authentication, Delivery, and Dating................19
Section 304 Temporary Securities...........................................20
Section 305 Registration; Registration of Transfer and Exchange............21
Section 306 Mutilated, Destroyed, Lost, and Stolen Securities..............21
Section 307 Payment of Interest; Interest Rights Preserved.................22
Section 308 Persons Deemed Owners..........................................23
Section 309 Cancellation...................................................24
Section 310 CUSIP Numbers..................................................24
Section 311 Computation of Interest.......................................24
ARTICLE FOUR
Satisfaction and Discharge
Section 401 Satisfaction and Discharge.....................................25
Section 402 Application of Trust Money.....................................26
Section 403 Reinstatement..................................................26
ARTICLE FIVE
Remedies
Section 501 Events of Default..............................................27
Section 502 Acceleration of Maturity; Rescission and Annulment.............29
Section 503 Collection of Indebtedness and Suits for Enforcement by
Trustee........................................................30
Section 504 Trustee May File Proofs of Claim...............................31
Section 505 Trustee May Enforce Claims Without Possession of Securities....31
Section 506 Application of Money Collected.................................32
Section 507 Limitation on Suits............................................32
Section 508 Unconditional Right of Holders to Receive Principal
and Interest and to Convert....................................33
Section 509 Restoration of Rights and Remedies.............................33
Section 510 Rights and Remedies Cumulative.................................33
Section 511 Delay or Omission Not Waiver...................................33
Section 512 Control by Holders.............................................34
Section 513 Waiver of Past Defaults........................................34
Section 514 Undertaking for Costs..........................................34
Section 515 Waiver of Stay or Extension Laws...............................35
ARTICLE SIX
The Trustee
TO BE PROVIDED
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701 Company to Furnish Trustee Names and Addresses of Holders......
Section 702 Preservation of Information; Communications to Holders.........
Section 703 Reports by Trustee.............................................
Section 704 Reports by Company.............................................
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801 Company May Consolidate, Etc., Only on Certain Terms...........
Section 802 Successor Substituted..........................................
Section 803 Mergers into the Company.......................................
ARTICLE NINE
Supplemental Indentures
Section 901 Supplemental Indentures Without Consent of Holders.............
Section 902 Supplemental Indentures With Consent of Holders................
Section 903 Execution of Supplemental Indentures...........................
Section 904 Effect of Supplemental Indentures..............................
Section 905 Conformity With Trust Indenture Act............................
Section 906 Reference in Securities to Supplemental Indentures.............
ARTICLE TEN
Covenants
Section 1001 Payment of Principal and Interest..............................
Section 1002 Maintenance of Office or Agency................................
Section 1003 Money for Security Payments to be Held in Trust................
Section 1004 Statement by Officers as to Default............................
Section 1005 Limitation on Dividends, Redemption, Etc.......................
Section 1006 Contingency for Sinking Fund...................................
Section 1007 Payment of Taxes and Other Claims..............................
ARTICLE ELEVEN
Redemption of Securities
Section 1101 Right of Redemption............................................
Section 1102 Applicability of Article.......................................
Section 1103 Election to Redeem; Notice to Trustee..........................
Section 1104 Selection by Trustee of Securities to be Redeemed..............
Section 1105 Notice of Redemption...........................................
Section 1106 Deposit of Redemption Price....................................
Section 1107 Securities Payable on Redemption Date..........................
Section 1108 Securities Redeemed in Part....................................
Section 1109 Conversion Arrangements on Call for Redemption.................
ARTICLE TWELVE
Conversion of Securities
Section 1201 Conversion Privilege and Conversion Price......................
Section 1202 Exercise of Conversion Privilege...............................
Section 1203 Fractions of Shares............................................
Section 1204 Conversion Price Adjustments...................................
Section 1205 Notice of Adjustments of Conversion Price and Minimum Closing
Price..........................................................
Section 1206 Notice of Certain Corporate Action.............................
ARTICLE THIRTEEN
Subordination of Securities
Section 1301 Agreements to Subordinate by Company...........................
Section 1302 Distribution on Dissolution, Liquidation and Reorganization;
Subrogation....................................................
Section 1303 No Payment in Event of Default on Senior Indebtedness..........
Section 1304 Payments Permitted.............................................
Section 1305 Authorization of Trustee to Effect Subordination...............
Section 1306 Notices to Trustee.............................................
Section 1307 Trustee as Holder of Senior Indebtedness of the Company........
Section 1308 Modification of Terms of Senior Indebtedness of the Company....
Section 1309 Certain Conversions Not Deemed Payment.........................
Section 1310 Article Applicable to Paying Agents............................
ARTICLE FOURTEEN
Right to Require Repurchase
Section 1401 Right to Require Repurchase....................................
Section 1402 Notice; Method of Exercising Repurchase Right..................
Section 1403 Deposit of Repurchased Price...................................
Section 1404 Securities Not Repurchased on Repurchase Date..................
Section 1405 Securities Repurchased in Part.................................
Section 1406 Certain Definitions............................................
INDENTURE, dated as of ________________, 1997, between INTEGRATED PHYSICIAN
SYSTEMS, INC., a Delaware corporation (the "Company"), and ___________________,
a corporation organized under the laws of the State of New York
(the "Trustee").
RECITALS OF THE COMPANY:
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The Company has duly authorized the creation of an issue of a single series
of [6 to 8]% Convertible Subordinated Debentures due 2004 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101 Rules of Construction and Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned thereto
in this Article, and words in the singular include the plural and words in the
plural include the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
then in effect;
(4) the words "herein," "hereof," and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section, or other subdivision.
(5) the word "or" is not exclusive; and
(6) the word "including" means including, without limitation.
"Act" when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified person means any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
when used with respect to any specified Person, means the power to direct or
cause the direction of the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract, or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate the Securities.
"Board of Directors" means either the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board of
Directors.
"Board Resolution" means a copy of a resolution certified by the Secretary
or Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday on which
banking institutions in the City of New York, New York by law, regulation, or
executive order are not required or authorized to close.
"Closing Price" on any Trading Day with respect to the per share price of
Common Stock means the last reported sales price regular way or, in case no such
reported sale takes place on such Trading Day, the average of the reported
closing bid and asked prices regular way on the principal national securities
exchange on which the Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on the
National Stock Market, as the case may be, or, if the Common Stock is not listed
or admitted to trading on any national securities exchange or quoted on the
Nasdaq Stock Market, the closing bid price in the over-the-counter market as
furnished by any New York Stock Exchange member firm that is selected from time
to time by the Company for that purpose.
"Common Stock" includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution, or winding up of the Company
and which is not subject to redemption by the Company. However, subject to the
provisions of Section 1211, shares issuable on conversions of Securities shall
include only shares of the class designated as Common Stock at the date of this
Indenture or shares of any class or classes resulting from any reclassification
or reclassifications thereof and which have no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution,or winding-up of the Company and which are
not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from such
reclassifications.
"Company" means the Person designated as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, "Company" shall mean
such successor. The foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board of Directors, its
Chief Executive Officer, its President, a Senior Vice President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Total Assets" means, as of any date of determination, the
consolidated total assets of the Company and its subsidiaries, determined in
accordance with generally accepted accounting principles then in effect
consistently applied.
"Corporate Trust Office" means the office of the Trustee in New York, New
York, at which at any particular time its corporate trust business shall be
principally administered and which at the date of this Indenture is located at
One State Street, New York, New York 10004.
"corporation" means a corporation, association, company, joint stock
company or business trust.
"Default" means any event which is, or after the giving of notice or the
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof, including the provisions of the Trust
Indenture Act that are deemed to be part hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the
Securities.
"Junior Securities" has the meaning specified in Section 1005.
"Maturity", when used with respect to any Security, means the date on which
the principal amount of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, upon repurchase, or otherwise.
"Officer" means the Chief Executive Officer, the Chairman of the Board of
Directors, the President, any Senior Vice President, any Vice President, the
Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of
the Company.
"Officers' Certificate" means a certificate signed by the Chief Executive
Officer, the President, or a Vice President, and by the Treasurer, Assistant
Treasurer, the Secretary, or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for the payment or redemption of which money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306, or in
exchange for or, in lieu of which, other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal amount of, or interest on, any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company, limited liability partnership, or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means the previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for, or in lieu of, a
mutilated, destroyed, lost, or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost, or stolen Security.
"Redemption Date" or "redemption date" shall mean the date specified for
redemption of the Securities by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the _________ 1 or _________ 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer, any trust officer or assistant
trust officer, the controller or any assistant controller, 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.
"Securities" has the meaning specified in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"SEC" means the Securities and Exchange Commission as from time to time
constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture, the SEC is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Securityholder" means a person in whose name a security is registered on
the Security Registrar's books.
"Senior Indebtedness" means (a) the principal amount of, and premium, if
any, and unpaid interest (whether accruing before or after filing of any
petition in bankruptcy or any similar proceedings by or against the Company and
whether or not allowed as a claim in bankruptcy or any similar proceeding) on
the following, whether heretofore or hereafter created, incurred, assumed, or
guaranteed: (i) all indebtedness for borrowed money created, incurred, assumed,
or guaranteed by the Company (other than indebtedness evidenced by the
Securities and indebtedness which by the terms of the instrument creating or
evidencing the same is specifically stated to be not prior in right of payment
to the Securities); (ii) bankers' acceptances and reimbursement obligations
under letters of credit; (iii) obligations of the Company under interest rate
and currency swaps, caps, floors, collars, or similar agreements or arrangements
intended to protect the Company against fluctuations in interest or currency
rates; (iv) any other indebtedness evidenced by a note or written instrument;
and (v) obligations of the Company under any agreement to lease, or lease of,
any real or personal property, which obligations are required to be capitalized
on the books of the Company in accordance with generally accepted accounting
principles then in effect (other than leases which by their terms are
specifically stated to be not prior in right of payment to the Securities), or
guarantees by the Company of similar obligations of others; and (b) all
deferrals, modifications, renewals, or extensions of such indebtedness, and any
debentures, notes, or other evidence of indebtedness issued in exchange for such
indebtedness or to refund the same.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person, by one or more other Subsidiaries of such Person, or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, one or more other Subsidiaries of such
Person, or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in effect on the date of this Indenture, provided, however, that in the event
the Trust Indenture Act is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act as so
amended.
"Trading Day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Common Stock is not listed on
the New York Stock Exchange, on the principal other national or regional
securities exchanges on which the Common Stock is then listed, or, if the Common
Stock is not listed on a national or regional securities exchange, on the Nasdaq
Stock Market or the principal other market on which the Common Stock is then
traded.
"Trustee" means the Person identified as the "Trustee" in the first
paragraph of this Indenture until such time as a successor replaces it pursuant
to the applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Underwriters" has the meaning specified under the heading "Underwriting"
in the Company's registration statement on Form S-1 No. 333-_______
initially filed with the Securities and Exchange Commission on _____________,
1997 and in any amendments thereto.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" of any Person means capital stock of such Person which
ordinarily has voting power for the election of directors (or Persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
Section 102 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual, he 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 complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such conditions or covenant has been complied with.
Section 103 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give, or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver, or other action provided by this Indenture to be given or taken by
Holders may be embodied in, and evidenced by, one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee or the Company, as the case may
be, deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver, or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof, in exchange therefor, or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 105 Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver,
or Act of Holders or other document provided or permitted by this Indenture
to be made upon, given, or furnished to, or filed with, (1) the Trustee by
any Holder or by the Company shall be sufficient for every purpose hereunder
if made, given, furnished, or filed in writing to or with the Trustee at its
Corporate Trust Office, or (2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
the Company addressed to it at the address of its principal office,
_______________, Attention: President, or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107 Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies, or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of, and
govern, this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 110 Separability.
In case any provision in this Indenture or in the Securities 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 111 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness of the Company, and the Holders of
Securities, any benefit or any legal or equitable right, remedy, or claim under
this Indenture.
Section 112 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
Section 113 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repurchase
Date, or Stated Maturity of any Security or the last date on which a Holder has
the right to convert his Securities shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or conversion of the Securities need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, Redemption Date,
or Repurchase Date, or at the Stated Maturity
or on such last day for conversion, provided, that no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date,
Repurchase Date, or Stated Maturity, as the case may be.
ARTICLE TWO
Form of Securities
Section 201 Form Generally.
The Securities and the Trustee's certificate of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions, and other variations as are required or
permitted by this Indenture, and may have such letters, numbers, or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistent herewith, be determined by the officers executing such Securities, as
evidenced by their execution thereof.
The definitive Securities shall be typewritten or printed, lithographed or
engraved, or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
Section 202 Form of Face of Security.
INTEGRATED PHYSICIAN SYSTEMS, INC.
[6 to 8]% Convertible Subordinated Debenture Due 2004
No. $___________
Integrated Physician Systems, Inc., a Delaware corporation (herein called
the "Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to________ , or registered assigns, the principal sum of _______Dollars
on __________, 2004, and to pay interest thereon from ___________], 1997 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on _________ 15 and ________ 15 in each
year, commencing ___________ 15, 1997 at the rate of [6to 8]% per annum,
until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ___________ 1 or __________ 1 (whether or not a
Business Day), as the case may be, next preceding each Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than
10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of, and interest on, this Security will be made at
the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, City of New York or at any other office or agency
maintained by the Company for such purpose, in such coin or currency of the
United States of America at the time of payment is legal tender for payment
of public and private debts; provided, however, that, at the option of the
Company, payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: INTEGRATED PHYSICIAN SYSTEMS, INC.
By:
----------------------
Name:
Title:
Attest:
Section 203 Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its [6 1/2 to 8]% Convertible Subordinated Debentures
Due 2004 (hereinafter referred to as the "Securities"), limited in aggregate
principal amount to $28,750,000.00, issued and to be issued under an
Indenture, dated as of _______________], 1996 (the "Indenture"), between the
Company and _____________________________, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
and immunities thereunder of the Company, the Trustee, the holders of Senior
Indebtedness of the Company, and the Holders of the Securities and the terms
upon which the Securities are, and are to be, authenticated and delivered.
Subject to, and upon compliance with, the provisions of the Indenture,
the Holder of this Security is entitled, at his irrevocable option, at any
time and from time to time, on or before the close of business on __________
15, 2004, or in case this Security or a portion hereof is called for
redemption, through optional redemption by the Company, a sinking fund, or
otherwise, then in respect of this Security or such portion hereof until and
including, but (unless the Company defaults in making the payment due upon
redemption) not after, the close of business on the fifth (5th) day preceding
the Redemption Date, to convert this Security (or any portion of the
principal amount hereof which is $1,000 or an integral multiple thereof), at
the principal amount hereof, or of such portion, into fully paid and
non-assessable shares (calculated as to each conversion to the nearest
1/100 of a share) of Common Stock of the Company at a conversion price equal
to $_________ for each share of Common Stock (or at the current adjusted
conversion price if an adjustment has been made as provided in the Indenture)
by surrender of this Security, duly endorsed or assigned to the Company or in
blank, to the Company at its office or agency in the Borough of Manhattan,
The City of New York or at any other office or agency maintained by the
Company for such purpose, accompanied by written notice to the Company that
the Holder hereof elects to convert this Security, or if less than the entire
principal amount hereof is to be converted, the portion hereof to be
converted, and, in case such surrender shall be made during the period from
the close of business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date (unless
this Security or the portion thereof being converted matures prior to such
Interest Payment Date or has been called for redemption on a Redemption Date
within such period), also accompanied by payment in New York Clearing House
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 this
Security then being converted. Subject to the aforesaid requirements for
payment and, in the case of a conversion after the Regular Record Date next
preceding any Interest Payment Date and on or before such Interest Payment
Date, to the right of the Holder of this Security (or any Predecessor
Security) of record at such Regular Record Date to receive an installment of
interest (with certain exceptions provided in the Indenture), no payment or
adjustment is to be made on conversion for interest accrued hereon or for
dividends on the Common Stock issued on conversion. No fractions of shares or
scrip representing fractions of shares will be issued on conversion, but
instead of any fractional interest the Company shall pay a cash adjustment as
provided in the Indenture. The conversion price is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case
of certain consolidations or mergers to which the Company is a party or the
transfer of substantially all of the assets of the Company, the Indenture
shall be amended, without the consent of any Holders of Securities, so that
this Security, if then outstanding, will be convertible thereafter, during
the period this Security shall be convertible as specified above, only into
the kind and amount of securities, cash, and other property receivable upon
the consolidation, merger or transfer by a holder of the number of shares of
Common Stock into which this Security might have been converted immediately
prior to such consolidation, merger, or transfer (assuming such holder of
Common Stock failed to exercise any rights of election and received per share
the kind and amount received per share by a plurality of non-electing shares).
The Securities are redeemable, at the Company's option, as a whole or
from time to time in part, upon not less than 45 nor more than 60 days'
notice mailed to each Holder of Securities to be redeemed at his address
appearing in the Security Register, on any date on or after ________, 2000
and prior to maturity, at a Redemption Price equal to 100% of the principal
amount together in the case of any such redemption, with accrued but unpaid
interest to the Redemption Date, except that the Securities may not be
redeemed prior to Maturity unless for a period of 20 consecutive Trading Days
ending on the date immediately preceding the date on which notice of the
Redemption Date is given, the Closing Price per share of the Common Stock has
equaled or exceeded $_______, subject to adjustment in the case of the same
events which would result in an adjustment of the conversion price as
provided in Section 1204 of the Indenture with any adjustments to the Closing
Price to be effected in the same manner and to the same extent as provided in
Section 1204 with respect to adjustments to the conversion price. Interest
installments whose Stated Maturity is on or prior to such Redemption Date
will be payable to the Holders of such Securities (or one or more Predecessor
Securities) of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.
If there is a Repurchase Event (as defined in the Indenture), the Company
will be required to offer to purchase all Securities outstanding on a date 30
days after the Company gives notice of the Repurchase Event at a purchase
price equal to 100% of the principal amount thereof, together with accrued
and unpaid interest to the date of purchase.
In the event of redemption, conversion, or repurchase of this Security in
part only, a new
Security or Securities for the unredeemed, unconverted, or unrepurchased
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness of the Company, and this Security
is issued subject to the provisions of the Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture
at any time by the Company and the Trustee with the consent of the Holders of
a majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal amount of, and interest
on, this Security at the times, place, and rate, and in the coin or currency,
herein prescribed or to convert this Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York or at any other office or agency maintained by the Company for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed
by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee
or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration or transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee, and any agent for the Company or the Trustee may
treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee, nor any such agent shall be affected by notice to
the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned thereto in the Indenture.
Section 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
------------------------------------
as Trustee
By:
---------------------------------
Authorized Officer
Section 205. Form of Election to Convert.
To Integrated Physician Systems, Inc.:
The undersigned owner of this Security hereby irrevocably exercises
the option to convert this Security, or the portion below designated, into
shares of Common Stock of Integrated Physician Systems, Inc. in accordance
with the terms of the Indenture referred to in this Security, and directs
that the shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and
delivered to the undersigned registered Holder hereof, unless a different
name has been indicated in the assignment below. If shares are to be issued
in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto. Any amount required to
be paid by the undersigned on account of interest accompanies this Security.
Dated:
Portion of Security to be
converted ($1,000 or an
integral multiple thereof):
$
Signature (for conversion only)
If shares of Common Stock are to be issued and registered otherwise than to
the registered Holder named above, please print or type the name and
address, including zip code, and social security or other taxpayer
identification number.
ARTICLE THREE
The Securities
Section 301 Title and Terms.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is limited to the sum of (a) $25,000,000.00
and (b) such aggregate principal amount (which may not exceed $3,750,000.00
principal amount) of Securities, if any, as shall be purchased
by the Underwriters pursuant to an over-allotment option in accordance with
the terms and provisions of the Underwriting Agreement, dated ___________,
1997, among the Company and the underwriters identified therein.
The Securities shall be known and designated as the "[6 1/2 to 8]%
Convertible Subordinated Debentures due 2004" of the Company. Their Stated
Maturity shall be _________, 2004, and they shall bear interest at the rate
of [6 1/2 to 8]% per annum, from __________, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
as the case may be, payable semi-annually on ____________ and ____________,
commencing _________, 1997 until the principal amount thereof is paid or made
available for payment.
The principal amount of, and interest on, the Securities shall be payable
at the office or agency of the Company in the United States maintained for
such purpose and at any other office or agency maintained by the Company for
such purpose in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article Eleven hereof.
The Securities shall be convertible as provided in Article Twelve hereof.
The Securities shall be subordinated in right of payment to Senior
Indebtedness of the Company as provided in Article Thirteen hereof.
The Securities shall be subject to repurchase by the Company, at the
option of the Holders, as provided in Article Fourteen hereof.
Section 302 Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1000 and integral multiples thereof.
Section 303 Execution, Authentication, Delivery, and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board of Directors, its Vice Chairman of the Board of Directors, its
Chief Executive Officer, its President, or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and make available for delivery
such Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304 Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten,
mimeographed, or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions,
and other variations as the officers executing such Securities may determine,
as evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation
of definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any
office or agency of the Company designated pursuant to Section 1002, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute, and the Trustee shall
authenticate and make available for delivery in exchange therefor, a like
principal amount of definitive Securities of authorized denominations. Until
so exchanged, the temporary Securities shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities.
Section 305 Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an office
or agency of the
Company designated pursuant to Section 1002 for such purpose, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Sections 304, 906, 1108, 1202, or 1402 not
involving any transfer.
The Company shall not be required (i) in the case of a partial redemption
of the Securities, to issue, register the transfer of, or exchange, any
Security during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of Securities selected for
redemption under Section 1104 and ending at the close of business on the day
of such mailing, or (ii) to register the transfer of, or exchange, any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Section 306 Mutilated, Destroyed, Lost, and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute, and the Trustee shall authenticate and deliver in exchange
therefor, a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss, or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost, or stolen Security, a new
Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost, or stolen Security has
become, or is about to become, due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security upon compliance
with the foregoing conditions.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost, or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost, or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost, or stolen Securities.
Section 307 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date notwithstanding the fact that such Holder was a Holder on
such Regular Record Date, and such Defaulted Interest may be paid by the
Company, at its election, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days, and not
less than 10 days, prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and, if
so listed, upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to interest to accrue, which were carried by
such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date and any
Security called for redemption on a Redemption Date within such period),
interest the Stated Maturity of which is on such Interest Payment Date shall
be payable on such Interest Payment Date notwithstanding such conversion, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on such Regular Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security that is converted, interest whose
Stated Maturity is after the date of conversion of such Security shall not be
payable.
Section 308 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee, and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, and (subject
to Section 307) interest on, such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee, nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 309 Cancellation.
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange, or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of, or in exchange for, any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of in accordance with
its customary procedures and a certificate of disposition delivered to the
Company, unless by Company Order, the Company directs that canceled certificates
be returned to it as directed by a Company Order.
Section 310 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
Section 311 Computation of Interest.
Interest on the Securities shall be computed on the basis of a year of
twelve 30-day months. Except as provided in the following sentence, the amount
of interest payable for any period shorter than a full monthly period for which
interest in computed, will be computed on the basis of the actual number of days
elapsed in such a 30-day month.
ARTICLE FOUR
Satisfaction and Discharge
Section 401 Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer, or exchange of
Securities herein expressly provided for), and the Trustee, on demand of, and at
the expense of, the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when either:
(1) (A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost, or stolen
and which have been replaced or paid as provided in Section 306
and (ii) Securities the payment money for
which has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid by the
Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, or (ii) will
become due and payable at their Stated Maturity within one year,
or (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee
as trust funds in trust for that purpose an amount sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614, and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
payment of which such money has been deposited with the Trustee. All moneys
deposited with the Trustee pursuant to Section 401 (and held by it or any Paying
Agent) for the payment of Securities subsequently converted shall be returned to
the Company upon Company Request. Moneys held pursuant to this Section shall not
be subject to the claims of the holders of Senior Indebtedness of the Company
pursuant to Article Thirteen.
Section 403 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money in accordance
with Section 402 by reason of any order or judgment of any court or governmental
authority enjoining, restraining, or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 401
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 402: provided, however, that if the Company
makes any payment of principal of, or interest on, any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or Paying Agent.
ARTICLE FIVE
Remedies
Section 501 Events of Default.
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Thirteen or be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree, or order
of any court or any order, rule, or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal amount of any Security when
due, whether at Maturity, upon redemption, by declaration, or
otherwise (except a default referred to in paragraph (4) below); or
(3) default in the deposit of any sinking fund obligation when such
obligation become due or payable, and continuance of such default for
a period of 30 days; or
(4) default in the payment of the Repurchase Price (as defined in Section
1401) in respect of any Security on the Repurchase Date (as defined in
Section 1401) therefor in accordance with the provisions of Article
Fourteen and the continuance of such default for a period of 10 days;
or
(5) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or the breach of which is
elsewhere in this Section specifically dealt with), and continuance of
such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) a default under any mortgage, indenture, or instrument under which
there may be issued, or by which there may be secured or evidenced,
any indebtedness of the Company or any Subsidiary in excess of
$1,000,000 either for borrowed money or representing any Senior
Indebtedness of the Company, which results in such indebtedness: (i)
being declared due and payable prior to the date on which it would
otherwise become due and payable after the expiration of any
applicable grace period or (ii) becoming due and payable prior to the
date on which it would otherwise become due and payable and the
holders of such indebtedness take any action to collect such
indebtedness; provided, however, that if such default under such
mortgage, indenture, or instrument shall be remedied or cured by the
Company, or waived by the holders of such indebtedness, then the Event
of Default hereunder by reason thereof shall be deemed likewise to
have been thereupon remedied, cured, or waived without further action
upon the part of either the Trustee or any of the Holders of the
Securities; and provided, further, that the Trustee (subject to
Sections 601 and 602) shall not have any rights, duties, liabilities,
or responsibilities with respect to such default unless and until the
Trustee shall have received written notice thereof at the Corporate
Trust Office from the Company, the trustee under any such mortgage,
indenture, or instrument of indebtedness or the agent of any such
holder or holders or the Holder or Holders of any Outstanding
Securities and provided, further, that any such default by a
Subsidiary shall not constitute an Event of Default unless such
Subsidiary or its property also constitutes more than 15% of the
Company's Consolidated Total Assets; or
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization, or other similar law or (B) a decree or
order adjudging the Company or any Subsidiary thereof a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment, or composition of, or in
respect of, the Company or any such Subsidiary under any applicable
Federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator, or other similar official of the
Company or any such Subsidiary or of any substantive part of their
respective property, or ordering the winding up or liquidation of
their respective affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; provided, however, that
notwithstanding anything in this clause to the contrary, any action by
or against a Subsidiary of the Company or its property shall not
constitute an Eventof Default unless such Subsidiary or its property
constitutes 15% or more of the Company's Consolidated Total Assets; or
(8) the commencement by the Company or any Subsidiary thereof of a
voluntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization, or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company or any such Subsidiary to the entry of a
decree or order for relief in respect of itself in or an involuntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization, or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against the Company or any such Subsidiary, or the filing by the
Company or any such Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by the Company or any such Subsidiary to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator,
or other similar official of the Company or any such Subsidiary or of
any substantial part of the property of the Company or any such
Subsidiary, or the making by the Company or any such Subsidiary of an
assignment for the benefit of creditors, or the admission by the
Company or any such Subsidiary in writing of their inability to pay
their debts generally as they become due, or the taking of corporate
action by the Company or any such Subsidiary in furtherance of any
such action; provided, however, that notwithstanding anything in this
clause to the contrary, any action by or against a Subsidiary of the
Company or its property shall not constitute an Event of Default
unless such Subsidiary or its property constitutes 15% or more of the
Company's Consolidated Total Assets.
The Trustee shall not be charged with knowledge of the identity of any
Subsidiary of the Company unless and until the Trustee shall have received
written notice thereof at its Corporate Trust Office from the Company or the
Holder or Holders of any Outstanding Securities.
Section 502 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities and any
other amounts payable hereunder to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal and all accrued interest shall become
immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as provided in this Article hereinafter, the Holders of a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay:
(i) all overdue interest on all Securities;
(ii) the principal of any Securities which have become due otherwise
than by such declaration of acceleration and interest thereon at
the rate borne by the Securities;
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the
Securities; and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements, and advances of
the Trustee, its agents, and counsel; and
(2) all Events of Default, other than the non-payment of the principal
amount of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of any Security at
Maturity thereof (except for a default referred to in clause (4)), or
(3) default is made in the deposit of any sinking fund payment when due
hereunder, or
(4) default is made in the payment of the Repurchase Price in respect of
any Security on the Repurchase Date therefor in accordance with the
provisions of Article Fourteen and such default continues for a period
of 10 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment thereof
shall be legally enforceable, interest on any overdue principal and on any
overdue interest, at the rate borne by the Securities, and, in addition thereto,
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.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company of another obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may, in its
discretion, proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 504 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property, or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator, or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements, and advances of the
Trustee, its agents, and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture 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 Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements, and
advances of the Trustee, its agents, and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: Subject to Article Thirteen, to the payment of the amounts
then due and unpaid for principal amount of, and interest
on, the Securities in respect of which, or for the benefit
of which, such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and
interest, respectively.
Section 507 Limitation on Suits.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses, and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request, and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb, or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 508 Unconditional Right of Holders to Receive Principal and Interest
and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have
the right, which is absolute and unconditional, to receive
payment of the principal amount of, and (subject to Section 307) interest on,
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption or repurchase, on the Redemption Date or
Repurchase Date) and to convert such Security in accordance with Article Twelve
and to institute suit for the enforcement of any such payment and right to
convert, and such rights shall not be impaired without the consent of such
Holder.
Section 509 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee, and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost, or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512 Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; provided, that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability.
Section 513 Waiver of Past Defaults.
Subject to Section 902 hereof, the Holders of not less than a majority in
principal amount of the Outstanding Securities may, on behalf of the Holders of
all the Securities, waive any past default hereunder and its consequences,
except a default:
(1) in the payment of the principal amount of, or interest on, any
Security (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the
Trustee); or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
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.
Setion 514 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, 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,
suffered, or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may,
in its discretion, assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 25% in principal
amount of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of the payment of the principal amount of, or interest on,
any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption or repurchase, on or after the
Redemption Date or Repurchase Date) or for the enforcement of the right to
convert any Security in accordance with Article Twelve.
Section 515 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not
hinder, delay, or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) 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; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case 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 their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method, and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of this Section.
Section 602 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived, provided, however, that,
except in the case of a default in the payment of the principal amount of, or
interest on, any Security or in the payment of any sinking fund installment, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders. For the purpose
of this Section, the term "default" means any event which is, or after the
giving of notice or the lapse of time, or both would become, an Event of
Default.
Section 603 Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness, or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable
that a matter be proved or established prior to taking, suffering, or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(d) 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 in respect of any action taken, suffered, or omitted by it hereunder
in good faith and in reliance thereon;
(e) 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 pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses, and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to reasonable examination of the books, records, and premises
of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be statements of the Company, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 605 Holding of Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar, or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Section
608 and Section 311 of the Trust Indenture Act, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar, or such other agent.
Section 606 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds, except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder, except as
otherwise agreed with the Company.
Section 607 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such reasonable compensation
as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements,
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement, or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee for, and to hold
it harmless against, any loss, liability, or expense incurred without
negligence or bad faith on its part arising out of or in connection
with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of the principal amount of, or interest on, particular
Securities.
Section 608 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof, or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section or Section 310(a)(5) of the Trust Indenture Act, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation, or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed, or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal, or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and
accepted appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 107. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Section 611 Acceptance Of Appointment By Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge, and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed, or conveyance, shall become vested with all the rights, powers, trusts,
and duties of the retiring Trustee; provided, that on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer, and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments required to more fully and
certainly vest in, and confirm to, such successor Trustee all such rights,
powers, and trusts.
No successor Trustee shall accept its appointment unless, at the time of
such acceptance, such successor Trustee shall be qualified and eligible under
this Article.
Section 612 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion, or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion, or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613 Appointment of Authenticating Agent.
The Trustee may, upon receipt of a Company Request, appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon exchange, registration of
transfer, partial conversion, partial repurchase or partial redemption, or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof, or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually pursuant to law or to the requirements of said supervising or examining
authority, then for the purpose of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated or any corporation resulting from
any merger, conversion, or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Company or the Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company or the Trustee, as the
case may be. Upon receiving such a notice of resignation or upon such a
termination, or in the case at any time such Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, and duties of
its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable
compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustees's certificate of authentication,
an alternate certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
-------------------------------------
as Trustee
By:
----------------------------------
As Authenticating Agent
By:
----------------------------------
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701 Company To Furnish Trustee Names And Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702 Preservation Of Information; Communications To Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703 Reports By Trustee.
(a) Within 60 days after [EARLIER INTEREST PAYMENT DATE] of each year,
commencing with the year 1997, the Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed or if not listed on any exchange with the appropriate
division or market of the Nasdaq Stock Market, with the SEC, and with the
Company. The Company will notify the Trustee when the Securities are listed on
any stock exchange or division or market of the Nasdaq Stock Market.
Section 704 Reports By Company.
The Company shall:
(a) File with the Trustee, within 15 days after the Company is required to
file the same with the SEC, copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules and regulations prescribe) which the
Company may be required to file with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company is not required to file
information, documents, or reports pursuant to either of said Sections, then it
shall file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such of the
supplementary and periodic information, documents, and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange or on any national
automated quotation system as may be prescribed from time
to time in such rules and regulations;
(b) File with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such additional
information, documents, and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(c) Transmit by mail to all Holders, as their names and addresses appear
in the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents, and reports required to
be filed by the Company pursuant to paragraphs (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to time by the
SEC.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer, or Lease
Section 801 Company May Consolidate, Etc., Only On Certain Terms.
The Company shall not consolidate with, or merge into, any other Person or
convey, transfer, or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the Company is
merged or the Person which acquired by conveyance, transfer, or sale, or which
leases the properties and assets of the Company substantially as an entirety
shall be a corporation, partnership, or trust, organized and validly existing
under the laws of the United States of America, any state thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered by the successor corporation to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the principal
amount of, and interest on, all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed and shall have provided for conversion rights in accordance with
Section 1211;
(2) immediately after giving effect to such merger, consolidation,
conveyance, transfer, sale, or lease, no Event of Default, and no event which,
after the giving of notice or the lapse of time, or both, would become an Event
of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer, sale, or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with in all material
respects. [CHECK]
For purposes of this Section and Section 802, a conveyance, transfer, sale,
or lease of the properties and assets of the Company "substantially as an
entirety" shall mean a conveyance, transfer, or lease of properties and assets
of the Company representing 80% or more of the fair value (as determined in good
faith by the Board of Directors) of all of the Company's properties and assets
on the date of such conveyance, transfer, sale, or lease.
Section 802 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer, or lease of all or substantially
all the properties and assets of the Company in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer, or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
Section 803 Mergers into the Company.
The Company shall not permit any other corporation to merge into the
Company, unless, after giving effect to such merger, the conditions precedent
contained in clauses (2) and (3) of Section 801 mutatis mutandis, have been
complied with.
ARTICLE NINE
Supplemental Indentures
Section 901 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company; or
(3) to secure the Securities; or
(4) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Section 1211; or
(5) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this Indenture; provided,
that such action pursuant to this clause (5) shall not adversely affect the
interests of the Holders of the Securities; or
(6) to comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
Section 902 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal amount of, or any
installment of interest on, any Security, or reduce the principal amount
thereof, or reduce the rate of interest thereon, or change the place of payment
where, or the coin or currency in which, any Security or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date or, in the case of a repurchase pursuant to
Article Fourteen, on or after 10 days following the Repurchase Date), or
adversely affect the right to convert any Security as provided in Article Twelve
(except as permitted by Section 901(4)), or modify the provisions of this
Indenture with respect to the subordination of the Securities in a manner
adverse to the Holders,
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of the Holders of which is required for any waiver of
certain defaults hereunder and their consequences provided for in this
Indenture; or
(3) modify any of the provisions of this Section or Section 513, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; or
(4) modify or affect, in any manner adverse to the Holders, the terms and
conditions of the obligations of the Company under Article Fourteen to
repurchase the Securities.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, or immunities under this Indenture or otherwise.
Section 904 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905 Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Covenants
Section 1001 Payment of Principal and Interest.
The Company will duly and punctually pay the principal amount of, and
interest on, the Securities in accordance with the terms of the Securities and
this Indenture.
Section 1002 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, City of New York,
an office or agency where Securities may be presented or surrendered for
payment or conversion, where Securities may be surrendered for registration
of transfer or exchange, and where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Company
initially appoints the Corporate Trust Office of the Trustee as its agency
for the foregoing purposes. The Company will 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, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices, and demands.
The Company may also from time to time designate one or more other offices
or agencies (within or outside the Borough of Manhattan) where the Securities
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 for such purposes. The
Company will 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.
Section 1003 Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal amount of, or interest on, any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal amount and/or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
prior to each due date of the principal amount of and/or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will (i) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent and (ii) during the continuance of any default by the
Company (or any other obligor upon the Securities) in the making of any payment
in respect of the Securities, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal amount of, or interest
on, any Security and remaining unclaimed for two years after such principal or
interest has become due and payable shall be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of any such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may, at the
expense of the Company, cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 1004 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, one of the signatories to which shall be the Company's principal
executive officer, principal financial officer, or principal accounting officer,
stating whether or not to the best knowledge of the signers thereof the Company
is in default in the performance and observance of any of the terms, covenants,
provisions, and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005 Limitation on Dividends, Redemptions, Etc.
Neither the Company nor any Subsidiary may (i) declare or pay any dividends
or make any other distribution on any Junior Securities (other than dividends or
distribution payable in Junior Securities), or (ii) purchase, redeem, or
otherwise acquire or retire for value any Junior Securities, except Junior
Securities acquired upon conversion thereof into other Junior Securities, or
(iii) permit a Subsidiary of the Company to purchase, redeem, or otherwise
acquire or retire for value any Junior Securities if, upon giving effect to such
dividend, distribution, purchase, redemption, or other acquisition, a default in
the payment of any interest upon any Security when it becomes due and payable or
a default in the payment of the principal of (or Repurchase Price or sinking
fund payment for, if any) any Security at its Maturity shall have occurred and
be continuing.
The term "Junior Securities" means (i) shares of the Common Stock, (ii)
shares of any other class or classes of capital stock of the Company, (iii) any
other non-debt securities of the Company (whether or not such other securities
are convertible into Junior Securities), or (iv) debt securities of the Company
(other than Senior Indebtedness of the Company and the Securities) as to which,
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding, it is expressly provided that such debt securities are not
Senior Indebtedness of the Company with respect to, or do not rank pari passu
with, the Securities.
Section 1006 Contingency for Sinking Fund.
If the Company provides for one or more sinking funds for securities or
other similar obligations representing indebtedness for money borrowed ranking
equal to or junior to the Securities, and such securities have a maturity or
weighted average time to maturity which is on or prior to the Stated Maturity of
the Securities, the Company will provide a sinking fund for the Securities
calculated to retire that amount of Securities equal to the lesser of (i) the
same percentage of outstanding Securities prior to maturity as the percentage of
the principal amount of such other indebtedness to be retired prior to maturity
on the same payment schedule as such other indebtedness or (ii) such amount of
Securities necessary to result in the Securities having the same weighted
average time to maturity as such securities or other similar indebtedness. Upon
the issuance of such securities, the Company will deliver to the Trustee an
Officers' Certificate setting forth the sinking fund schedule for the
Securities, demonstrating that such schedule has been calculated in accordance
with this Section and stating that such schedule complies with the provisions of
this Section. Except as set forth herein with respect to the credit against
mandatory sinking fund payments and the redemption price, the terms of the
sinking fund applicable to the Securities shall, to the extent reasonably
administratively acceptable to the Trustee, be the same as those applicable to
the relevant indebtedness. The redemption price of the Securities in connection
with any sinking fund shall be 100% of the principal amount thereof plus accrued
and unpaid interest to the date fixed for redemption. The Company may, at its
option, receive credit against mandatory sinking fund payments for the principal
amount of (i) Securities acquired by the Company and surrendered for
cancellation, (ii) Securities previously converted into Common Stock or
converted into Common Stock upon the call of such Securities for redemption
pursuant to the sinking fund, and (iii) Securities redeemed or called for
redemption otherwise than through the operation of the sinking fund. If the
Company wishes to exercise such option, it shall, not less than 60 days prior to
each sinking fund payment date for the Securities, deliver to the Trustee (i) an
Officers' Certificate specifying the portion of the sinking fund payment which
is to be satisfied by surrendering and crediting Securities, stating the basis
of such credit, and certifying that the Securities being used as a credit have
not previously been so credited and (ii) any Securities to be so surrendered.
Not more than 60 days before each sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1104 and cause notice of the redemption thereof to
be given in the name of, and at the expense of, the Company in the manner
provided in Section 1105. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 1106, 1107, and 1108. All monies deposited to fund the sinking fund
which are not required by the Trustee for redemption of Securities through
operation of the sinking fund shall be promptly refunded to the Company.
Section 1007 Payment of Taxes and Other Claims.
The Company will pay or discharge, or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments, and
governmental charges levied or imposed upon it or upon its income, profits, or
property; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge, or
claim whose amount, applicability, or validity is being contested in good faith
by appropriate proceedings and further provided that no failure to comply with
the terms of this Section shall constitute a default
hereunder until such time as a final non-appealable judgment shall have been
rendered against the Company for any such taxes, assessments, or governmental
charges.
ARTICLE ELEVEN
Redemption of Securities
Section 1101 Right of Redemption.
The Securities may be redeemed at the election of the Company, as a whole
or from time to time in part, at any time on or after ___________, 1999, at the
Redemption Price specified in the form of Security hereinbefore set forth for
redemptions, together with accrued and unpaid interest to the Redemption Date,
except that the Securities may not be redeemed prior to maturity unless for a
period of 20 consecutive Trading Days immediately preceding the date on which
notice of the Redemption Date is given, the Closing Price per share of the
Common Stock has equaled or exceeded $15.00 (the "Minimum Closing Price"),
subject to adjustment in the case of the same events which would result in an
adjustment of the conversion price as provided in Section 1204 of this Indenture
with any adjustments to the Redemption Price to be effected in the same matter
and to the same extent as provided in Section 1204 with respect to adjustments
to the conversion price. Prior to the mailing of any notice of the foregoing
redemption pursuant to Section 1105, the Company shall deliver to the Trustee an
Officers' Certificate evidencing compliance with the foregoing restriction.
Section 1102 Applicability of Article.
Redemption of Securities at the election of the Company, as permitted by
any provision of this Indenture, shall be made in accordance with such provision
and this Article.
Section 1103 Election to Redeem; Notice to Trustee.
The election of the Company to redeem Securities pursuant to Section 1101
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days, and no more than
90 days, prior to the Redemption Date fixed by the Company (unless a shorter
redemption price shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities to be redeemed
and provide a copy of the notice of redemption to be given to Holders of
Securities to be redeemed pursuant to Section 1105.
Section 1104 Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $1,000 or any integral multiple thereof) of
the principal amount of the Securities of a denomination larger than $1,000.
If any Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed shall be treated by
the Trustee as Outstanding for the purpose of such selection. The Trustee shall
promptly notify the Company and the Security Registrar in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1105 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 45, nor more than 60, days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at such Holder's address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (including, if relevant, CUSIP number and, in
the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date;
(5) the conversion price, the date on which the right to convert the
principal of the Securities to be redeemed will terminate, and
the place or places where such Securities may be surrendered for
conversion;
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price; and
(7) that the redemption is pursuant to the contingent sinking fund,
if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, upon Company Request, by the Trustee
in the name and at the expense of the Company.
Section 1106 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date other than any Securities called for
redemption on that date which have been converted prior to the date of such
deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 307) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
Section 1107 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to the
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal amount shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security.
Section 1108 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal of the Security so surrendered.
Section 1109 Conversion Arrangements on Call for Redemption.
Notwithstanding anything to the contrary contained in this Indenture, in
connection with any redemption of Securities, the Company, by an agreement with
one or more investment bankers or other purchasers, may arrange for such
purchasers to purchase all Securities called for redemption (the "Called
Securities") which are either (i) surrendered for redemption or (ii) not duly
surrendered for redemption or conversion prior to the close of business on fifth
day prior to the Redemption Date, and to convert the same into shares of Common
Stock, by the purchasers' depositing with the Trustee (acting as Paying Agent
with respect to the deposit of such amount and as conversion agent with respect
to the conversion of such Called Securities), in trust for the Holders of the
Called Securities, on or prior to the Redemption Date in the manner agreed to by
the Company and such purchasers, an amount sufficient to pay the Redemption
Price, payable by the Company on redemption of such Called Securities. In
connection with any such arrangement for purchase and conversion, the Trustee as
Paying Agent shall pay on or after the Redemption Date such amounts so deposited
by the purchasers in exchange for Called Securities surrendered for redemption
prior to the close of business on the fifth day prior to the Redemption Date and
for all Called Securities surrendered after such Redemption Date.
Notwithstanding anything to the contrary contained in this Article Eleven, the
obligation of the Company to pay the Redemption Price of such Called Securities
shall be satisfied and discharged to the extent such amount is so paid by such
purchasers, provided, however, that nothing in this Section 1109 shall in any
way relieve the Company of the obligations to pay such Redemption Price on all
Called Securities to the extent such amount is not so paid by said purchasers.
For all purposes of this Indenture, any Called Securities surrendered by the
Holders for redemption, and any Called Securities not duly surrendered for
redemption or conversion prior to the close of business on the fifth day prior
to the Redemption Date, shall be deemed acquired by such purchasers from such
Holders and surrendered by such purchasers for conversion and shall in all
respects be deemed to have been converted, all as of immediately prior to the
close of business on the fifth day prior to the Redemption Date, subject to the
deposit by the purchasers of the above amount as aforesaid. Nothing in this
Section 1109 shall in any way limit the right of any Holder of a Security to
convert his Security pursuant to the terms of this Indenture any time prior to
the close of business on the fifth day preceding the Redemption Date.
ARTICLE TWELVE
Conversion of Securities
Section 1201 Conversion Privilege and Conversion Price.
Subject to, and upon compliance with, the provisions of this Article, at
the option of the Holder
thereof, any Security or any portion of the principal amount thereof which is
$1,000 or an integral multiple of $1,000 may be converted at the principal
amount thereof, or of such portion thereof, into fully paid and nonassessable
shares (calculated as to each conversion to the nearest 1/100 of a share) of
Common Stock, at the conversion price, determined as hereinafter provided, in
effect at the time of conversion. Such conversion right shall expire at the
close of business on _____________, 2004. In case a Security or portion
thereof is called for redemption, such conversion right in respect of the
Security or portion so called shall expire at the close of business on the
fifth day preceding the Redemption Date, unless the Company defaults in
making the payment due upon redemption.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "conversion price") shall be initially $ per
share of Common Stock. The conversion price shall be adjusted in certain
instances as provided in paragraphs (a), (b), (c), (d), (e), and (f) of Section
1204.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in paragraph (a) or (d) of Section
1204 which does not give rise to a conversion price adjustment pursuant to
paragraphs (a) or (d) of Section 1204, the Holder of each Security, upon the
conversion thereof pursuant to this Article subsequent to the close of business
on the date fixed for the determination of stockholders entitled to receive such
distribution shall be entitled to receive for each share of Common Stock into
which such Security is converted, the portion of the evidences of indebtedness,
shares of capital stock, cash, and assets so distributed applicable to one share
of Common Stock, provided that, at the election of the Company (such election
shall be evidenced by a Board Resolution) with respect to all Holders so
converting, the Company may, in lieu of distributing to such Holder any portion
of such distribution not consisting of cash or securities of the Company, pay
such Holder an amount in cash equal to the fair market value thereof (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution). If any conversion of a Security described
in the immediately preceding sentence occurs prior to the payment date for a
distribution to holders of Common Stock which the Holder of the Security so
converted is entitled to receive in accordance with the immediately preceding
sentence, the Company may elect (such election to be evidenced by a Board
Resolution) to distribute to such Holder a due bill for the evidences of
indebtedness, shares of capital stock, cash, or assets to which such Holder is
so entitled, provided that such due bill (i) meets any applicable requirements
of the principal national securities exchange or other market on which the
Common Stock is then traded and (ii) requires payment or delivery of such
evidences of indebtedness, shares of capital stock, cash, or assets no later
than the date of payment or delivery thereof to holders of Common Stock
receiving such distribution.
Section 1202 Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any Security
to be converted shall surrender such Security, duly endorsed or assigned to the
Company or in blank, at any office or agency maintained by the Company pursuant
to Section 1002, accompanied by written notice to the Company (in the form set
forth on the reverse of the Securities) at such office or agency that the Holder
elects to convert such Security or, if less than the entire principal amount
thereof is to be converted, the portion thereof to be converted. Securities
surrendered for conversion during the
period from the close of business on any Regular Record Date next preceding
any Interest Payment Date to the opening of business on such Interest Payment
Date shall (except for Securities whose Maturity is prior to such Interest
Payment Date and Securities called for redemption on a Redemption Date within
such period) 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 Securities
being surrendered for conversion. Except as provided in the preceding
sentence and subject to the fourth paragraph of Section 307, no payment or
adjustment shall be made upon any conversion on account of any interest
accrued on the Securities surrendered for conversion or on account of any
dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to the
close of business on the last day prior to the day of surrender of such
Securities for conversion in accordance with the foregoing provisions, and at
such time the rights of Holders of such Securities as Holders shall cease, and
the Person or Persons entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or holders of
such Common Stock at such time. As promptly as practicable on or after the
conversion date, the Company shall issue and shall deliver at such office or
agency a certificate or certificates for the number of full shares of Common
Stock issuable upon conversion, together with payment in lieu of any fraction of
a share, as provided in Section 1203.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
Section 1203 Fractions of Shares.
No fractional shares of Common Stock shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof) so surrendered. Instead
of any fractional share of Common Stock which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the Closing Price per share of the Common Stock at
the close of business on the last day prior to the day of conversion (or, if
such day is not a Trading Day, on the Trading Day immediately preceding such
day).
Section 1204 Conversion Price Adjustments.
The conversion price shall be subject to adjustment (without duplication)
from time to time as follows:
(a) In case the Company shall declare a dividend or make a distribution
on the outstanding shares of Common Stock in shares of Common Stock or shall
declare or make a
dividend or other distribution on any other class of capital stock of the
Company or any Subsidiary not wholly owned by the Company which dividend or
distribution includes Common Stock, the conversion price in effect at the
time of the record date for such dividend or distribution shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the close of business
on the record date for such dividend or distribution and the denominator
shall be the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such adjustment to become
effective immediately after the record date for such dividend. [CHECK]Any
shares of Common Stock issuable in payment of a dividend shall be deemed to
have been issued immediately prior to the time of the record date for such
dividend for purposes of calculating the number of outstanding shares of
Common Stock of the Company under subsections (c) and (d) below. For the
purposes of this subsection (a), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company, but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company shall not
pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company. In the event that any such dividend or
distribution is not paid or made, the conversion price then in effect shall
be readjusted, effective as of the date when the Board of Directors
determines not to pay or make such dividend or distribution, to the
conversion price which would be then in effect if such record date had not
been fixed. Such adjustments shall be made successively whenever any event
specified above shall occur.
(b) In case outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the conversion price in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately reduced, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a smaller number
of shares of Common Stock, the conversion price in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(c) In case the Company shall fix a record date for the issuance of rights
or warrants to all holders of its Common Stock entitling them (for a period
expiring within 45 days after the record date mentioned below) to subscribe for
or purchase shares of Common Stock (or securities convertible into shares of
Common Stock) at a price per share (or having an initial conversion price per
share) less than the Current Market Price (as defined in subsection (h) below)
of a share of Common Stock on such record date, the conversion price shall be
adjusted immediately thereafter so that it shall equal the price determined by
multiplying the conversion price in effect immediately prior thereto by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares of Common Stock which
the aggregate offering price of the number of shares of such Common Stock so
offered (or the aggregate initial conversion price of the convertible securities
so offered) would purchase at the Current Market Price per share, and of which
the denominator shall be the sum of the number of shares of Common Stock
outstanding on such record date and the number of additional shares of Common
Stock offered for subscription or purchase (or into which the convertible
securities so offered are initially convertible).
For the purposes of this subsection (c), the number of shares of Common Stock
at any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. Such adjustment shall
be made successively whenever such a record date is fixed and shall become
effective immediately after such record date. In the event that such rights
or warrants are not so issued, the conversion price then in effect shall be
readjusted, effective as of the date when the Board of Directors determines
not to issue such rights or warrants, to the conversion price which would
then be in effect if such record date had not been fixed.
(d) In case the Company shall fix a record date for making a distribution
by dividend or otherwise to holders of shares of its Common Stock or holders
(other than the Company or wholly-owned Subsidiaries) of capital stock of any
Subsidiary, (i) of evidences of indebtedness of the Company or any Subsidiary of
the Company, (ii) of assets (including shares of any class of capital stock,
cash or other securities, but excluding any rights or warrants referred to in
subsection (c) or securities referred to in subsection (e), excluding any
dividend or distribution referred to in subsection (a) and excluding any
dividend or distribution paid exclusively in cash out of retained or current
earnings), or (iii) of rights or warrants entitling the holders thereof to
receive upon payment of the consideration set forth therein shares of capital
stock of the Company (excluding those referred to in subsection (c) above), in
each such case the conversion price shall be adjusted so that it shall equal the
price determined by multiplying the conversion price in effect immediately prior
thereto by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on such record date multiplied by the Current Market
Price per share on such record date, less the fair market value (as determined
by the Board of Directors, whose determination shall be conclusive, and
described in a Board Resolution) on the date of the effectiveness of such
conversion price adjustment of said shares or evidences of indebtedness or
assets or rights or warrants so distributed, and of which the denominator shall
be the number of shares of Common Stock outstanding on such record date
multiplied by such Current Market Price per share, such reduction to become
effective immediately prior to the opening of business on the day following the
later of (a) the date fixed for the payment of such distribution and (b) the
date 20 days after the notice relating to such distribution is given pursuant to
Section 1206(a). If the Board of Directors determines the fair market value of
any distribution for purposes of this subsection (d) by reference to the actual
or when issued trading market for any securities comprising such distribution,
it must in doing so consider the prices in such market over the same period used
in computing the Current Market Price per share pursuant to subsection (h) of
this Section.
(e) In case the Company shall issue or distribute shares of Common Stock,
(excluding shares issued (i) in any of the transactions described in subsection
(a) above, (ii) upon conversion or exchange of securities (other than the
Securities) convertible into, or exchangeable for, Common Stock described in
subsection (f) below, (iii) to employees or consultants under the Company's 1996
Stock Option Plan, as now in effect or hereafter amended, if such shares would
otherwise be included in this Section 1204(e), (iv) to the Company's employees
or consultants under bona fide benefit plans, employment agreements, or
consulting agreements adopted by the Company's Board of Directors and approved
by its stockholders or granted at an exercise price of at least 100% of the fair
market value of the shares on the date of grant whether or not approved by
stockholders, if such shares would otherwise be included in this Section 1204(e)
(but only to the extent that the aggregate
number of shares excluded by this subdivision (iv), and issued after the date
of this Indenture, shall not exceed 10% of the Common Stock outstanding at
the time of any such issuance), (v) upon exercise of rights or warrants
issued to the holders of Common Stock,(vi) to acquire, or in connection with
the acquisition of, all or any portion of a business as a going concern,
whether such acquisition shall be effected by purchase of assets, exchange of
securities, merger, consolidation, or otherwise, (vii) in connection with the
entry into a medical practice or other professional practice management
agreement by the Company for a term of at least 5 years, (viii) upon exercise
of rights or warrants issued in a bona fide public offering pursuant to a
firm commitment underwriting, but only if no adjustment is required pursuant
to this Section 1204 (without regard to subsection (j) of this Section 1204)
with respect to the transaction giving rise to such rights (provided,
however, that in the case of any event described in Subsections (v) through
(viii) above, the Board of Directors has determined that the consideration
received for such shares of Common Stock equals the Current Market Price of
such Common Shares on the date of their issuance), or (ix) pursuant to an
offering effected at a discount of less than 5% from the Current Market Price
per share determined as provided in Section 1204(h) below) for a
consideration per share less than the Current Market Price per share on the
date the Company fixes the offering price of such additional shares, the
conversion price shall be adjusted immediately thereafter so that it shall
equal the price determined by multiplying the conversion price in effect
immediately prior thereto by a fraction, of which the numerator shall be the
sum of the total number of shares of Common Stock outstanding immediately
prior to the issuance of such additional shares and the number of shares of
Common Stock which the aggregate consideration received (determined as
provided in subsection (g) below) for the issuance of such additional shares
would purchase at the Current Market Price per share, and of which the
denominator shall be the number of shares of Common Stock outstanding
immediately after the issuance of such additional shares. For the purposes of
this subsection (e), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company, but
shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock. Such adjustment shall be made
successively whenever such an issuance is made and shall become effective
immediately after such issuance.
(f) In case the Company shall issue any securities convertible into, or
exchangeable for, shares of Common Stock (excluding securities issued in
transactions described in subsections (c) and (d) above, or the Securities) for
a consideration per share of Common Stock initially deliverable upon conversion
or exchange of such securities (determined as provided in subsection (g) below)
less than the Current Market Price per share in effect immediately prior to the
issuance of such securities, the conversion price shall be adjusted immediately
thereafter so that it shall equal the price determined by multiplying the
conversion price in effect immediately prior thereto by a fraction, the
numerator of which shall be the sum of the number of shares of Common Stock
outstanding immediately prior to the issuance of such securities and the number
of shares of Common Stock which the aggregate consideration received (determined
as provided in subsection (g) below) for such securities would purchase at the
Current Market Price per share, and the denominator of which shall be the sum of
the number of shares of Common Stock outstanding immediately prior to such
issuance and the maximum number of shares of Common Stock of the Company
deliverable upon conversion of, or in exchange for, such securities at the
initial conversion or exchange price or rate. For the purposes of this
subsection (f), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company, but shall
include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. Such adjustment shall be made
successively whenever such an issuance is made and shall become effective
immediately after such issuance.
Upon the termination of the right to convert or exchange such securities,
the conversion price shall forthwith be readjusted to such conversion price as
would have obtained had the adjustments made upon the issuance of such
convertible or exchangeable securities been made upon the basis of the delivery
of only the number of shares of Common Stock actually delivered upon conversion
or exchange of such securities and upon the basis of the consideration actually
received by the Company (determined as provided in subsection (g) below) for
such securities.
(g) For purposes of any computation respecting consideration received
pursuant to subsections (e) and (f) above, the following shall apply:
(i) in the case of the issuance of shares of Common Stock for cash,
the consideration shall be the amount of such cash, provided that
in no case shall any deductions be made for any commissions,
discounts, or other expenses incurred by the Company for any
underwriting of the issue or otherwise in connection therewith;
(ii) in the case of the issuance of shares of Common Stock for a
consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair
market value thereof as determined by the Board of Directors
(irrespective of the accounting treatment thereof), whose
determination shall be conclusive, and described in a Board
Resolution; and
(iii) in the case of the issuance of securities convertible into,
or exchangeable for, shares of Common Stock, the aggregate
consideration received therefor shall be deemed to be the
sum of the consideration received by the Company for the
isuance of such securities and the additional minimum
consideration, if any, to be received by the Company upon
the conversion or exchange thereof (the consideration in
each case to be determined in the same manner as provided in
subparagraphs (i) and (ii) of this subsection (g)).
(h) For the purpose of any computation under subsections (c), (d), (e),
and (f) above, the "Current Market Price" per share at any date shall be deemed
to be the average of the daily Closing Prices for 30 consecutive Trading Days
commencing 45 Trading Days before such date.
(i) In any case in which this Section 1204 shall require that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (i) issuing to the
Holder of any Security converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable upon
such conversion by reason of the adjustment required by such event over and
above the shares of Common Stock issuable upon such conversion before giving
effect to such adjustment and (ii) paying to such Holder any amount in cash in
lieu of a fractional share of Common Stock pursuant to Section 1203;
provided, however, that the Company shall deliver to such Holder a due bill
or other appropriate instrument evidencing such Holder's right to receive
such additional shares of Common Stock, and such cash, upon the occurrence of
the event requiring such adjustment.
(j) No adjustment in the conversion price need be made unless such
adjustment would require an increase or decrease of at least 1% in the
conversion price; provided, however, that any such adjustment which is not
required to be made by reason of this subsection (j) shall be carried forward
and taken into account in any subsequent adjustment.
(k) All calculations under this Section 1204 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
(l) Notwithstanding any other provision of this Section 1204, no
adjustment to the conversion price shall reduce the conversion price below the
then par value per share of the Common Stock, and any such purported adjustment
shall instead reduce the conversion price to such par value. The Company hereby
covenants not to take any action (i) to increase the par value per share of the
Common Stock other than in connection with one or more reverse stock splits or
(ii) that would or does result in any adjustment in the conversion price that,
if made without giving effect to the previous sentence, would cause the
conversion price to be less than the then par value share of the Common Stock;
provided, however, that the covenant in this sentence shall be suspended if
within 10 days of determining in good faith that such action would result in
such adjustment (but no later than the Business Day following the effectiveness
of such adjustment), the Company gives a notice under Section 1103 and effects
the redemption referred to in such notice on the Redemption Date
referred to herein, but shall be retroactively reinstated if such notice or
redemption does not occur.
Section 1205 Notice of Adjustments of Conversion Price and Minimum Closing
Price.
Whenever the conversion price is adjusted as provided in this Section 1204
or the Minimum Closing Price is adjusted as provided in Sections 1101 and 1204
or the Holders become entitled to receive evidences of indebtedness, shares of
capital stock, cash, or assets in connection with the conversion of the
Securities in accordance with the third paragraph of Section 1201 (an
"Entitlement"), the Company shall promptly file with the Trustee and each
Conversion Agent (i) an Officers' Certificate in the case of an adjustment
pursuant to subsection (a) of this Section 1204, or (ii) both an Officers'
Certificate and a certificate of a firm of independent public accountants, in
the case of any other adjustment or an Entitlement, which Officers' Certificate
and certificate of independent public accountants shall conform to the
provisions of Section 102, in each case setting forth the conversion price and
Minimum Closing Price after such adjustment or the amount and nature of such
Entitlement and setting forth a brief statement of the facts requiring such
adjustment or Entitlement and the computation thereof, which Officers'
Certificate and certificate of the firm of independent public accountants shall
be conclusive evidence of the correctness of any such adjustment or Entitlement,
and promptly after such filing the Company shall mail or cause to be mailed a
notice of such adjustment or Entitlement to each Securityholder at his last
address as the same appears on the Security Register. Neither the Trustee nor
any Conversion Agent shall be under any duty or responsibility with respect to
any such Officers' Certificate or certificate except to exhibit the same to any
Holder of Securities desiring inspection thereof.
Section 1206 Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other distribution) on
the Common Stock payable otherwise than exclusively in cash; or
(b) the Company shall authorize the granting to all holders of Common
Stock of rights or warrants to subscribe for or purchase any shares of capital
stock of any class or of any other rights (excluding rights, warrants, or
options issuable in connection with any employee benefit plan); or
(c) of any reclassification of Common Stock (other than a subdivision or
combination of the outstanding Common Stock), or of any consolidation or merger
to which the Company is a party and for which approval of any stockholders of
the Company shall be required, or of the sale or transfer of all or
substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation, or winding
up of the Company;
then the Company shall cause to be filed at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 1002, and
shall cause to be mailed to all Holders at their last addresses as they shall
appear in the Security Register, at least 20 days (or 10 days in any case
specified in clause (a) or (b) above) prior to the applicable record,
effectiveness, or expiration date hereinafter specified a notice stating (x)
the date on which a record (if any) is to be taken for the purpose of such
dividend, distribution, or granting of rights or warrants, or, if a record is
not to be taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution, rights, or warrants are to be
determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation, or winding up is expected
to become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash, or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, or winding up.
Section 1207 Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of the authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then deliverable upon the conversion of all outstanding Securities.
All shares of Common Stock which shall be so deliverable shall be duly and
validly authorized and issued, fully paid, and nonassessable.
Section 1208 Taxes on Conversions.
The Company will pay any and all taxes that may be payable in respect of
the issue or delivery of shares of Common Stock on conversion of Securities
pursuant hereto. The Company
shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be made
unless and until the Person requesting such issue has paid to the Company the
amount of any such tax, or has established to the satisfaction of the Company
that such tax has been paid.
Section 1209 Covenant as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued
upon conversion of Securities will upon issue be fully paid and non-assessable
and, except as provided in Section 1208, the Company will pay all taxes, liens,
and charges with respect to the issue thereof.
Section 1210 Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the Trustee
to be canceled by or at the direction of the Trustee, which shall dispose of the
same as provided in Section 309.
Section 1211 Provisions in Case of Consolidation, Merger, or Sale of Assets.
Subject to any applicable right of each Holder of Securities to cause the
Company to purchase his Securities upon a Repurchase Event pursuant to the
provisions of Article Fourteen of this Indenture, in case of any consolidation
of the Company with, or merger of the Company into, any other Person, any merger
of another Person into the Company (other than a merger which does not result in
any reclassification, conversion, exchange, or cancellation of outstanding
shares of Common Stock) or any sale or transfer of all or substantially all of
the assets of the Company, the Person formed by such consolidation or resulting
from such merger or which acquires such assets, as the case may be, shall
execute and deliver to the Trustee a supplemental indenture providing that the
Holder of each Security then outstanding shall have the right thereafter, during
the period such Security shall be convertible as specified in Section 1201, to
convert such Security only into the kind and amount of securities, cash, and
other property receivable, if any, upon such consolidation, merger, sale, or
transfer by a holder of the number of shares of Common Stock into which such
Security might have been converted immediately prior to such consolidation,
merger, sale, or transfer, assuming such holder of Common Stock (i) is not a
Person with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made, as the
case may be (a "Constituent Person"), or an Affiliate of a Constituent Person
and (ii) failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash, and other property receivable upon such
consolidation, merger, sale, or transfer (provided that if the kind or amount of
securities, cash, and other property receivable upon such consolidation, merger,
sale, or transfer is not the same for each share of Common Stock of the Company
held immediately prior to such consolidation, merger, sale, or transfer by other
than a Constituent Person or an Affiliate thereof and in respect of which such
rights of election shall not have been exercised ("non-electing share"), then
for the purpose of this Section the kind and amount of securities, cash, and
other property receivable upon such consolidation, merger, sale, or transfer by
each non-electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of non-electing shares). Such supplemental indenture
shall provide for adjustments which,
for events subsequent to the effective date of such supplemental indenture,
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article. The above provisions of this Section shall
similarly apply to successive consolidations, mergers, sales, or transfers.
Section 1212 Company to Cause Registration of Common Stock.
The Company covenants that if any shares of Common Stock required to be
reserved for purposes of conversion of Securities hereunder require registration
with, or approval of, any governmental authority under any Federal or State law,
or listing upon any national securities exchange, before such shares may be
issued upon conversion, the Company will in good faith and as expeditiously as
possible endeavor to cause such shares to be duly registered, approved or
listed, as the case may be.
Section 1213 Disclaimer by Trustee of Responsibility for Certain Matters.
Subject to Section 601, the Trustee shall not at any time be under any duty
or responsibility to any Holder of Securities to determine whether any facts
exist which may require any adjustment of the conversion price or Minimum
Closing 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. The Trustee
shall not be accountable with respect to the validity, value, kind, or amount of
any shares of Common Stock, or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Security, and it makes no
representation with respect thereto. The Trustee shall not be responsible for
any failure of the Company to issue, transfer, or deliver any shares of Common
Stock or stock certificates or other securities or property or cash upon the
surrender of any Security for the purpose of conversion or, subject to Section
601, to comply with any of the covenants of the Company contained in this
Article. Each conversion agent other than the Company shall have the same
protection under this Section as the Trustee.
ARTICLE THIRTEEN
Subordination of Securities
Section 1301 Agreements to Subordinate by Company.
The Company, for itself, its successors, and its assigns, covenants and
agrees, and each Holder of Securities, by his acceptance thereof, likewise
covenants and agrees, that payment by the Company of the principal amount of,
and interest on, each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of all Senior Indebtedness of the Company.
Section 1302 Distribution on Dissolution, Liquidation, and Reorganization;
Subrogation.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation, or reorganization of the Company, whether voluntary or
involuntary, in bankruptcy, insolvency, reorganization, or receivership
proceedings, or upon an assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of the Company or otherwise (subject to
the power of a court of competent jurisdiction to make other equitable provision
reflecting the rights conferred in this Indenture upon the Senior Indebtedness
of the Company and the holders thereof, with respect to the Securities and the
holders thereof, by a lawful plan of reorganization under applicable bankruptcy
law):
(a) the holders of all Senior Indebtedness of the Company shall be
entitled to receive payment in full of the principal amount thereof, premium, if
any, and the interest due thereon before the Holders of the Securities are
entitled to receive any payment upon the principal amount of, or interest on,
indebtedness evidenced by the Securities or on account of any other monetary
claims, including such monetary claims as may result from rights of repurchase
or rescission, under or in respect of the Securities; and
(b) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property, or securities, to which the Holders of the
Securities or the Trustee would be entitled, except for the provisions of this
Article Thirteen, shall be paid by the liquidating trustee or agent or other
Person making such payment or distribution, whether a trustee in bankruptcy, a
receiver, or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness of the Company or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments evidencing
any of such Senior Indebtedness of the Company may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the principal
amount of, premium, if any, and interest on, the Senior Indebtedness of the
Company, held or represented by each, to the extent necessary to make payment in
full of all Senior Indebtedness of the Company remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness of the Company; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property, or securities, shall be received by the Holders of the Securities or
by the Trustee before all Senior Indebtedness of the Company is paid in full,
such payment or distribution shall be paid over to the holders of such Senior
Indebtedness of the Company, or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness of the Company may have been issued,
ratably as aforesaid, for application to the payment of all Senior Indebtedness
of the Company remaining unpaid until all such Senior Indebtedness of the
Company shall have been paid in full, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness of the
Company.
Subject to the payment in full of all Senior Indebtedness of the Company,
the Holders of the Securities shall be subrogated to the rights of the holders
of Senior Indebtedness of the Company to receive payments or distributions of
cash, property, or securities of the Company applicable to
Senior Indebtedness of the Company until the principal amount of, and
interest on, the Securities shall be paid in full, and no such payments or
distributions to the Holders of the Securities of cash, property, or
securities otherwise distributable to the holders of Senior Indebtedness of
the Company shall, as between the Company, its creditors other than the
holders of Senior Indebtedness of the Company, and the Holders of the
Securities, be deemed to be a payment by the Company to, or on account of,
the Securities. It is understood that the provisions of this Article Thirteen
are, and are intended, solely for the purpose of defining the relative rights
of the Holders of the Securities, on the one hand, and the holders of Senior
Indebtedness of the Company, on the other hand. Nothing contained in this
Article Thirteen or elsewhere in this Indenture or in the Securities is
intended to, or shall, impair, as between the Company, its creditors other
than the holders of Senior Indebtedness of the Company, and the Holders of
the Securities, the obligations of the Company, which are unconditional and
absolute, to pay to the Holders of the Securities the principal amount of,
and interest on, the Securities as and when the same shall become due and
payable in accordance with their terms, or to affect the relative rights of
the Holders of the Securities and the creditors of the Company other than the
holders of Senior Indebtedness of the Company, nor shall anything herein or
in the Securities prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article
Thirteen of the holders of Senior Indebtedness of the Company in respect of
cash, property, or securities of the Company received upon the exercise of
any such remedy. Upon any payment or distribution of assets of the Company
referred to in this Article Thirteen, the Trustee, subject to the provisions
of Section 601, shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other Person making any distribution to the
Trustee for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Senior Indebtedness of the Company 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 Thirteen.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company. The Trustee shall not be liable
to any such holder if it shall pay over or distribute to or on behalf of Holders
of the Securities or the Company monies or assets to which any holder of Senior
Indebtedness of the Company shall be entitled by virtue of this Article
Thirteen.
Nothing in this Article Thirteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
If the Trustee or any Holder of Securities does not file a proper claim
or proof of debt in the form required in any proceeding referred to above
prior to thirty (30) days before the expiration of the time to file such
claim in such proceeding, then the holder of any Senior Indebtedness of the
Company or any trustee, representative, or agent therefor is hereby
authorized, and has the right, to file an appropriate claim or claims for, or
on behalf of, such Holders of Securities.
Section 1303 No Payment in Event of Default on Senior Indebtedness.
No payment by the Company on account of principal of, or interest on, the
Securities, and no payment in respect of sinking fund requirements, if any, the
Redemption Price, or any Repurchase Price shall be made before amounts then due
for principal of, premium of, if any, and interest on, Senior Indebtedness of
the Company have been made or duly provided for in money or money's worth if:
(i) there is an event of default on or under any Senior Indebtedness with
respect to the payment of all or any portion of any Senior Indebtedness; or (ii)
there shall exist a default in any covenant with respect to any Senior
Indebtedness (other than as specified in clause (i) of this sentence) and, in
such event, such default shall not have been cured or waived or shall not have
ceased to exist, the Trustee and the Company shall have received written notice
from the holder of such Senior Indebtedness or if there is more than one holder
of such Senior Indebtedness from the trustee, representative, or agent of the
holders of such Senior Indebtedness stating that no payment shall be made with
respect to the Securities, and such default would permit the maturity of such
Senior Indebtedness (if not already due and payable) to be accelerated, provided
that no such default will prevent any payment on, or in respect of, the
Securities for more than 120 days unless the maturity of such Senior
Indebtedness has been accelerated, except for a payment under Article Eleven and
Section 1006 if, at the time of mailing of notice of redemption pursuant to
Section 1105 relating to such payment, there is no event of default on or under
Senior Indebtedness of the Company known to the Trustee.
Section 1304 Payments Permitted.
Nothing contained in this Indenture or in any of the Securities shall (a)
affect the obligations of the Company to make, or prevent the Company from
making, at any time, except as provided in Sections 1302 and 1303, payments of
the principal amount of, or interest on, the Securities or (b) prevent the
application by the Trustee of any moneys deposited with it hereunder to the
payment of, or on account of, the principal amount of, or interest on, the
Securities, unless the Trustee shall have received at is Corporate Trust Office
written notice of any event prohibiting the making of such payment except as
provided in Section 1303 with respect to payments under Article Eleven and
Section 1006.
Section 1305 Authorization to Trustee to Effect Subordination.
Each Holder of Securities by its acceptance thereof authorizes and directs
the Trustee in its behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article Thirteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1306 Notices to Trustee.
Notwithstanding the provisions of this Article or any provisions of this
Indenture, neither the Trustee nor any Paying Agent (other than the Company)
shall be charged with the knowledge of the existence of any Senior Indebtedness
of the Company or of any event which would prohibit the making of any payment of
monies to or by the Trustee or such Paying Agent, unless and until the
Trustee or such Paying Agent shall have received (in the case of the Trustee,
at its Corporate Trust Office) written notice thereof from the Company or
from the holder of any Senior Indebtedness of the Company or from the
trustee, representative, or agent for any such holder, together with proof
satisfactory to the Trustee for any such holding of Senior Indebtedness of
the Company or of the authority of such trustee, representative, or agent;
provided, however, that if at least two Business Days prior to the date upon
which by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of either the principal amount
of, or interest on, any Security) the Trustee shall not have received with
respect to any such monies the notice provided for in this Section 1306,
then, anything herein to the contrary notwithstanding, the Trustee shall have
the full power and authority to receive such monies and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such two
Business Days prior to such date. The Trustee shall be entitled to rely on
the delivery to it of a written notice by a Person representing himself to be
a holder of Senior Indebtedness of the Company (or a trustee, representative,
or agent on behalf of such holder) to establish that such a notice has been
given by a holder of Senior Indebtedness of the Company or a trustee,
representative, or agent on behalf of any such holder. In the event that the
Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of the
Company to participate in any payment or distribution pursuant to this
Article Thirteen, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness of the Company held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution, and any
other facts pertinent to the rights of such Person under this Article
Thirteen and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
Section 1307 Trustee as Holder of Senior Indebtedness of the Company.
The Trustee shall be entitled to all the rights set forth in this Article
Thirteen with respect to any Senior Indebtedness of the Company at any time held
by it to the same extent as any other holder of Senior Indebtedness of the
Company and nothing in Section 311 of the Trust Indenture Act or in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
Section 1308 Modification of Terms of Senior Indebtedness of the Company.
Any renewal or extension of the time of payment of any Senior Indebtedness
of the Company or the exercise by the holders of Senior Indebtedness of the
Company of any of their rights under any instrument creating or evidencing
Senior Indebtedness of the Company, including, without limitation, the waiver of
default thereunder, may be made or done all without notice to or assent from the
Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal,
or other change of, or waiver, consent, or other action (collectively an
"Action") in respect of, any liability or obligation under or in respect of,
or of any of the terms, covenants, or conditions of any indenture or other
instrument under which any Senior Indebtedness of the Company is outstanding
or of such Senior Indebtedness of the Company, whether or not the Action is
in accordance with the provisions
of any applicable document, shall in any way alter or affect any of the
provisions of this Article Thirteen or of the Securities relating to the
subordination thereof.
Section 1309 Certain Conversions Not Deemed Payment.
For the purposes of this Article only, (1) the issuance and delivery of
junior securities upon conversion of Securities in accordance with Article
Twelve shall not be deemed to constitute a payment or distribution on account of
the principal amount of, or interest on, Securities or on account of the
purchase or other acquisition of Securities unless (i) such conversion would
result in a change of control for purposes of Section 382 of the Internal
Revenue Code and the rules and regulations promulgated thereunder, and (ii) such
change in control would result in the loss of, or a limitation on, the annual
availability of net operating losses to the Company for tax purposes, and (2)
the payment, issuance, or delivery of cash, property, or securities (other than
junior securities) upon conversion of a Security shall be deemed to constitute
payment on account of the principal amount of, such Security. For the purposes
of this Section, the term "junior securities" means (a) shares of any stock of
any class of the Company and (b) securities of the Company which are
subordinated in right of payment to all Senior Indebtedness which may be
outstanding at the time of issuance or delivery of such securities to the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Securities, the right, which is absolute and unconditional, of
the Holder of any Security, to convert such Security in accordance with Article
Thirteen.
Section 1310 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article Thirteen shall in such case (unless the context otherwise
requires) be construed as extending to, and including, such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to, or in place of, the Trustee; provided,
however, that Section 1307 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
ARTICLE FOURTEEN
Right to Require Repurchase
Section 1401 Right to Require Repurchase.
In the event that there shall occur a Repurchase Event (as defined in
Section 1406), then each Holder shall have the right, at such Holder's option,
to require the Company to purchase, and upon the exercise of such right, the
Company shall, subject to the provisions of Section 1303, purchase,
all or any part of such Holder's Securities on the date (the "Repurchase
Date") that is 30 days after the date the Company gives notice of the
Repurchase Event as contemplated in Section 1402(a) at a price (the
"Repurchase Price") equal to 100% of the principal amount thereof, together
with accrued and unpaid interest to the Repurchase Date. Such right to
require the repurchase of Securities shall not continue after a discharge of
the Company from its obligations with respect to the Securities in accordance
with Article Four.
Section 1402 Notice; Method of Exercising Repurchase Right.
(a) On or before the 15th day after the Repurchase Event, the Company, or,
upon Company Request, the Trustee (in the name and at the expense of the
Company), shall give notice of the occurrence of the Repurchase Event and of the
repurchase right set forth herein arising as a result thereof by first-class
mail, postage prepaid, to each Holder of the Securities at such Holder's address
appearing in the Security Register. The Company shall at the same time also
deliver a copy of such notice of a repurchase right to the Trustee.
Each notice of repurchase right shall state:
(1) the Repurchase Date;
(2) the date by which the repurchase right must be exercised;
(3) the Repurchase Price; and
(4) the instructions a Holder must follow to exercise a repurchase
right.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repurchase right. The Trustee shall have no
affirmative obligation to determine if there shall have occurred a Repurchase
Event.
(b) To exercise the repurchase right, a Holder shall deliver to the
Company (or an agent designated by the Company for such purpose in the notice
referred to in (a) above) and to the Trustee on or before the fifth (5th) day
prior to the Repurchase Date (i) written notice of Holder's exercise of such
right, which notice shall set forth the name of the Holder, the principal amount
of the Security or Securities (or portion of a Security) to be repurchased, and
a statement that an election to exercise the repurchase right is being made
thereby, and (ii) the Security or Securities with respect to which the
repurchase right is being exercised, duly endorsed for transfer to the Company.
Such written notice shall be irrevocable following the close of business on
the fifth (5th) day prior to the Repurchase Date, provided, however, that the
Company, in its sole and absolute discretion, may consent to the withdrawal of
any Securities after such date and prior to the Repurchase Date. If the
Repurchase Date falls between any Regular Record Date and the next succeeding
Interest Payment Date, Securities to be repurchased must be accompanied by
payment from the Holder of an amount equal to the interest thereon which the
registered Holder thereof is to receive on such Interest Payment Date.
(c) In the event that a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall on the Repurchase Date pay or cause to
be paid in cash to the holder thereof the Repurchase Price of the Security or
Securities as to which the repurchase right had been exercised. In the event
that a repurchase right is exercised with respect to less than the entire
principal amount of a surrendered Security, the Company shall execute and
deliver to the Trustee, and the Trustee shall authenticate for issuance in the
name of the Holder, a new Security or Securities in the aggregate principal
amount of the unrepurchased portion of such surrendered Security.
Section 1403 Deposit of Repurchased Price.
Prior to the Repurchase Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Repurchase Price of the Securities which are to be
repurchased on the Repurchase Date.
Section 1404 Securities Not Repurchased on Repurchase Date.
If any Security surrendered for repurchase shall not be so paid on the
Repurchase Date, the principal amount shall, until paid, bear interest to the
extent permitted by applicable law from the Repurchase Date at a rate per annum
borne by such Security.
Section 1405 Securities Repurchased in Part.
Any Security which is to be repurchased only in part shall be surrendered
at any office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to, and in exchange for, the
unrepurchased portion of the principal of the Security so surrendered.
Section 1406 Certain Definitions.
For purposes of this Article:
(a) "Fundamental Change" means the occurrence of any transaction or event
in connection with which all or substantially all of the Common Stock shall be
exchanged for, converted into, acquired for, or constitute the right to receive
consideration (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise) which is not all or substantially all common stock which is (or, upon
consummation of or immediately following such transaction or event, will be)
listed on a national securities exchange or approved for quotation in any Nasdaq
Stock Market or any similar system of automated dissemination of quotations of
securities prices. A Fundamental Change shall not include
any acquisition of Common Stock by any person or group so long as it does not
result in termination of such listing or approval for quotation. For purposes
of the definition of a "Fundamental Change," (i) "substantially all of the
Common Stock" shall mean at least 85% of the Common Stock outstanding
immediately prior to the transaction giving rise to a Fundamental Change, and
(ii) consideration shall be "substantially all common stock" if at least 80%
of the fair value (as determined in good faith by the Board of Directors) of
the total consideration is attributable to common stock.
(b) A "Repurchase Event" shall have occurred if a Fundamental Change shall
have occurred unless (i) the current market price of the Common Stock per share
(which, for the purposes of this Article, shall be deemed to be the average of
the daily Closing Prices of the Common Stock for the five consecutive Trading
Days before the Fundamental Change) is at least equal to the conversion price
per share of the Securities in effect immediately preceding the time of such
Fundamental Change, or (ii) (A) the consideration, in the transaction or event
giving rise to a Fundamental Change, to the holders of Common Stock consists of
(w) cash, (x) securities (other than common stock) that are, or immediately upon
issuance will be, listed on a national securities exchange or quoted in the
Nasdaq National Market System, or (y) common stock that is, or immediately upon
issuance will be, listed on a national securities exchange or approved for
quotation in any Nasdaq Stock Market or similar system of automated
dissemination of quotations of securities prices, or (z) any combination of cash
and such securities, including common stock, and (B) the aggregate fair market
value of such consideration (which, in the case of such securities, shall be
equal to the average of the daily Closing Prices of such securities during the
10 (ten) consecutive Trading Days commencing with the sixth Trading Day
following consummation of such transaction or event) is at least 105% of the
conversion price of the Securities in effect on the date immediately preceding
the closing date of such transaction or event.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
INTEGRATED PHYSICIAN SYSTEMS, INC.
By:
--------------------------
Name:
Title:
Attest:
------------------------------
By:
--------------------------
Name:
Title:
Attest:
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the day of __________, 1997, before me personally came , to me known,
who, being by me duly sworn, did depose and say that he/she is the
______________ of INTEGRATED PHYSICIAN SYSTEMS, INC., one of the corporations
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of the Board of Directors of such corporation.
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the day of __________, 1997, before me personally came , to me known,
who, being by me duly sworn, did depose and say that he/she is the
______________ of ________________________________, one of the corporations
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of the Board of Directors of such corporation.
Notary Public