EXHIBIT 4.1
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MATRIA HEALTHCARE, INC.
and
EACH OF THE GUARANTORS NAMED HEREIN
and
WELLS FARGO BANK, N.A.
as Trustee
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INDENTURE
Dated as of May 5, 2004
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$75,000,000 Principal Amount
4.875% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2024
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1)........................................................................ 7.10
(a)(2)........................................................................ 7.10
(a)(3)........................................................................ N.A.
(a)(4)........................................................................ N.A.
(a)(5)........................................................................ N.A.
(b)........................................................................... 7.08; 7.10; 13.02
(c)........................................................................... N.A.
311(a)........................................................................... 7.11
(b)........................................................................... 7.11
(c)........................................................................... N.A.
312(a)........................................................................... 2.05
(b)........................................................................... 13.03
(c)........................................................................... 13.03
313(a)........................................................................... 7.06
(b)(1)........................................................................ N.A.
(b)(2)........................................................................ 7.06
(c)........................................................................... 7.06; 13.02
(d)........................................................................... 7.06
314(a)........................................................................... 4.03
(b)........................................................................... N.A.
(c)(1)........................................................................ 13.04
(c)(2)........................................................................ 13.04
(c)(3)........................................................................ N.A.
(d)........................................................................... N.A.
(e)........................................................................... 13.05
(f)........................................................................... N.A.
315(a)........................................................................... 7.01(B)
(b)........................................................................... 7.05; 13.02
(c)........................................................................... 7.01(A)
(d)........................................................................... 7.01(C)
(e)........................................................................... 6.11
316(a) (last sentence)........................................................... 2.09
(a)(1)(A)..................................................................... 6.05
(a)(1)(B)..................................................................... 6.04
(a)(2)........................................................................ N.A.
(b)........................................................................... 6.07
(c)........................................................................... N.A.
317(a)(1)........................................................................ 6.08
(a)(2)........................................................................ 6.09
(b)........................................................................... 2.04
318(a)........................................................................... 13.01
I
TABLE OF CONTENTS
Page
I. DEFINITIONS AND INCORPORATION BY REFERENCE 1
1.01 Definitions.........................................................................................1
1.02 Other Definitions...................................................................................6
1.03 Incorporation by Reference of Trust Indenture Act...................................................8
1.04 Rules of Construction...............................................................................8
II. THE SECURITIES 9
2.01 Form and Dating.....................................................................................9
2.02 Execution and Authentication........................................................................9
2.03 Registrar, Paying Agent and Conversion Agent.......................................................10
2.04 Paying Agent to Hold Money in Trust................................................................11
2.05 Securityholder Lists...............................................................................11
2.06 Transfer and Exchange..............................................................................11
2.07 Replacement Securities.............................................................................12
2.08 Outstanding Securities.............................................................................12
2.09 Securities Held by the Company or an Affiliate.....................................................13
2.10 Temporary Securities...............................................................................13
2.11 Cancellation.......................................................................................13
2.12 Defaulted Interest.................................................................................14
2.13 CUSIP Numbers......................................................................................14
2.14 Deposit of Moneys..................................................................................14
2.15 Book-Entry Provisions for Global Securities........................................................14
2.16 Special Transfer Provisions........................................................................15
2.17 Restrictive Legends................................................................................16
III. REDEMPTION 17
3.01 Right of Redemption................................................................................17
3.02 Notices to Trustee.................................................................................23
3.03 Selection of Securities to Be Redeemed.............................................................23
3.04 Notice of Redemption...............................................................................23
3.05 Effect of Notice of Redemption.....................................................................25
3.06 Deposit of Redemption Price........................................................................26
3.07 Securities Redeemed in Part........................................................................26
3.08 Purchase of Securities at Option of the Holder.....................................................27
3.09 Repurchase at Option of Holder upon a Repurchase Event.............................................30
3.10 Conversion Arrangement on Call for Redemption......................................................36
IV. COVENANTS 37
4.01 Payment of Securities..............................................................................37
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4.02 Maintenance of Office or Agency....................................................................37
4.03 Rule 144A Information and Annual Reports...........................................................38
4.04 Compliance Certificate.............................................................................38
4.05 Stay, Extension and Usury Laws.....................................................................39
4.06 Corporate Existence................................................................................39
4.07 Notice of Default..................................................................................39
4.08 Limitation on Layering Indebtedness................................................................39
4.09 Additional Subsidiary Guarantees...................................................................40
4.10 Further Instruments and Acts.......................................................................40
V. SUCCESSORS 40
5.01 When Company May Merge, Etc........................................................................40
5.02 Successor Substituted..............................................................................40
VI. DEFAULTS AND REMEDIES 41
6.01 Events of Default..................................................................................41
6.02 Acceleration.......................................................................................43
6.03 Other Remedies.....................................................................................43
6.04 Waiver of Past Defaults............................................................................44
6.05 Control by Majority................................................................................44
6.06 Limitation on Suits................................................................................44
6.07 Rights of Holders to Receive Payment...............................................................45
6.08 Collection Suit by Trustee.........................................................................45
6.09 Trustee May File Proofs of Claim...................................................................45
6.10 Priorities.........................................................................................46
6.11 Undertaking for Costs..............................................................................46
VII. TRUSTEE 46
7.01 Duties of Trustee..................................................................................46
7.02 Rights of Trustee..................................................................................47
7.03 Individual Rights of Trustee.......................................................................48
7.04 Trustee's Disclaimer...............................................................................48
7.05 Notice of Defaults.................................................................................49
7.06 Reports by Trustee to Holders......................................................................49
7.07 Compensation and Indemnity.........................................................................49
7.08 Replacement of Trustee.............................................................................50
7.09 Successor Trustee by Merger, Etc...................................................................51
7.10 Eligibility; Disqualification......................................................................51
7.11 Preferential Collection of Claims Against Company..................................................51
VIII. DISCHARGE OF INDENTURE 51
8.01 Termination of the Obligations of the Company and Guarantors.......................................51
8.02 Application of Trust Money.........................................................................52
8.03 Repayment to Company...............................................................................52
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8.04 Reinstatement......................................................................................52
IX. AMENDMENTS 52
9.01 Without Consent of Holders.........................................................................52
9.02 With Consent of Holders............................................................................53
9.03 Compliance with Trust Indenture Act................................................................54
9.04 Revocation and Effect of Consents..................................................................55
9.05 Notation on or Exchange of Securities..............................................................55
9.06 Trustee Protected..................................................................................55
X. CONVERSION 55
10.01 Conversion Privilege; Restrictive Legends.........................................................55
10.02 Conversion Procedure..............................................................................58
10.03 Fractional Shares.................................................................................59
10.04 Taxes on Conversion...............................................................................59
10.05 Company to Provide Stock..........................................................................59
10.06 Adjustment of Conversion Rate.....................................................................60
10.07 No Adjustment.....................................................................................65
10.08 Other Adjustments.................................................................................66
10.09 Adjustments for Tax Purposes......................................................................66
10.10 Notice of Adjustment..............................................................................66
10.11 Notice of Certain Transactions....................................................................67
10.12 Effect of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or Sales on
Conversion Privilege............................................................................67
10.13 Trustee's Disclaimer..............................................................................68
10.14 Rights Distributions Pursuant to Shareholders' Rights Plans.......................................68
XI. SUBORDINATION 69
11.01 Agreement to Subordinate..........................................................................69
11.02 Certain Definitions...............................................................................69
11.03 Liquidation; Dissolution; Bankruptcy..............................................................70
11.04 Default on Designated Senior Indebtedness.........................................................70
11.05 Acceleration of Securities........................................................................71
11.06 When Distribution Must Be Paid Over...............................................................71
11.07 Notice by the Company.............................................................................72
11.08 Subrogation.......................................................................................72
11.09 Relative Rights...................................................................................72
11.10 Subordination May Not Be Impaired by the Company..................................................73
11.11 Distribution or Notice to Representative..........................................................73
11.12 Rights of Trustee and Paying Agent................................................................73
XII. SUBSIDIARY GUARANTEES 74
12.01 Guarantees........................................................................................74
12.02 Effectiveness of Subsidiary Guarantees............................................................75
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12.03 Subordination of Subsidiary Guarantees............................................................75
12.04 Limitation on Guarantor Liability.................................................................76
12.05 Execution and Delivery of Subsidiary Guarantees...................................................76
12.06 Guarantors May Consolidate, Etc., on Certain Terms; Release.......................................76
XIII. MISCELLANEOUS 77
13.01 Trust Indenture Act Controls......................................................................77
13.02 Notices...........................................................................................77
13.03 Communication by Holders with Other Holders.......................................................78
13.04 Certificate and Opinion as to Conditions Precedent................................................78
13.05 Statements Required in Certificate or Opinion.....................................................78
13.06 Rules by Trustee and Agents.......................................................................79
13.07 Legal Holidays....................................................................................79
13.08 Duplicate Originals...............................................................................79
13.09 Governing Law.....................................................................................79
13.10 No Adverse Interpretation of Other Agreements.....................................................79
13.11 Successors........................................................................................79
13.12 Separability......................................................................................80
13.13 Table of Contents, Headings, Etc..................................................................80
13.14 Calculations in Respect of the Securities.........................................................80
Exhibit A - Form of Global Security
Exhibit B-1 - Form of Private Placement Legend
Exhibit B-2 - Form of Legend for Global Security
Exhibit B-3 - Form of Legend Regarding Registration Rights
Agreement and Subsidiary Guarantees
Exhibit C - Form of Notice of Transfer Pursuant to Registration Statement
Exhibit D - Form of Opinion of Counsel in Connection with Registration
of Securities
Exhibit E - Form of Subsidiary Guarantee
Exhibit F - Form of Supplemental Indenture to be Delivered by Subsequent
Guarantors
Schedule 1 - Schedule of Guarantors
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INDENTURE, dated as of May 5, 2004, among Matria Healthcare, Inc., a
Delaware corporation (the "COMPANY"), each of the Guarantors named in SCHEDULE 1
hereto and Wells Fargo Bank, N.A., as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's 4.875%
Convertible Senior Subordinated Notes due 2024 (the "SECURITIES").
I. DEFINITIONS AND INCORPORATION BY REFERENCE
1.01 DEFINITIONS.
The term "ADDITIONAL INTEREST" has the meaning ascribed to it in the
Registration Rights Agreement.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
this purpose, "control" shall mean the power to direct the management and
policies of a person through the ownership of securities, by contract or
otherwise.
"BID SOLICITATION AGENT" means a Company-appointed agent that performs
the calculations pursuant to ARTICLE X and PARAGRAPH 10 of the Securities.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or any
committee thereof authorized to act for it hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an 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.
"CAPITAL STOCK" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of
such Person and all warrants or options to acquire such capital stock.
"CLOSING SALE PRICE" means the price of a share of Common Stock on the
relevant date, determined (a) on the basis of the closing per share sale price
(or if no closing sale price is reported, the average of the bid and ask prices
or, if more than one in either case, the average of the average bid and the
average ask prices) on such date on the principal national securities exchange
on which the Common Stock is listed; or (b) if the Common Stock is not listed on
a national securities exchange, as reported by the National Association of
Securities Dealers Automated Quotation System; or (c) if not so quoted, as
reported by National Quotation Bureau, Incorporated or a similar organization.
In the absence of such a quotation or report, the Closing Sale Price shall be
such price as the Company shall reasonably determine on the basis of such
quotations as most accurately reflecting the price that a fully informed buyer,
acting on his own accord, would pay to a fully informed seller, acting on his
own accord in an arms-length transaction, for a share of such Common Stock.
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"COMMON STOCK" means the common stock, $0.01 par value per share, of
the Company, or such other Capital Stock of the Company into which the Company's
common stock is reclassified or changed.
"COMPANY" means the party named as such above until a successor
replaces it pursuant to the applicable provision hereof and thereafter means the
successor.
"COMPANY ORDER" or "COMPANY REQUEST" means a written request or order
signed on behalf of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer, any Executive Vice President or any Senior Vice President and
by its Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"CONSENT SOLICITATION" has the meaning ascribed to it in the Dealer
Manager Agreement.
"CONVERSION RATE" means the number of shares of Common Stock issuable
upon conversion of a Security per $1,000 principal amount thereof, which
Conversion Rate shall initially be 33.9153 shares of Common Stock per $1,000
principal amount of Securities, subject to adjustment as provided in ARTICLE X.
"CONVERSION PRICE" means, as of any date of determination, the dollar
amount derived by dividing one thousand dollars ($1,000) by the Conversion Rate
in effect on such date.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in SECTION 13.02 or such other address as the Trustee may give
notice of to the Company.
"DEALER MANAGER AGREEMENT" means that certain dealer manager agreement,
dated March 29, 2004, between the Company and the Initial Purchaser.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees and
successors.
"DOMESTIC SUBSIDIARY" means any direct or indirect Subsidiary of the
Company that is organized under the laws of the United States of America or any
state of the United States of America or the District of Columbia.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC thereunder.
"FINANCING CONDITION" has the meaning ascribed to it in the Offer to
Purchase and Consent Solicitation Statement.
"GUARANTEE" means a direct or indirect guarantee by any Person of any
Indebtedness of any other Person and includes, without limitation, any
obligation, direct or indirect, contingent or otherwise, of such Person (1) to
purchase or pay (or advance or supply funds for the purchase or payment of)
Indebtedness of such other Person (whether arising by virtue of partnership
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arrangements or by arrangements or agreements to keep-well, to purchase assets,
goods, securities or services (unless such purchase arrangements or agreements
are on arm's-length terms and are entered into in the ordinary course of
business), to take-or-pay or to maintain financial statement conditions or
otherwise); or (2) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part).
"GUARANTEE EFFECTIVENESS DATE" means the first date, if any, when all
of the following shall have been satisfied: (1) the Financing Condition shall
have been satisfied; (2) the Tender Offer and the Consent Solicitation shall
have closed; and (3) the Proposed Amendments shall have become operative, in
each case as contemplated by the Dealer Manager Agreement.
"GUARANTORS" means (a) each Qualifying Subsidiary and (b) each other
Subsidiary that has executed a Subsidiary Guarantee in accordance with the
provisions of this Indenture, and their respective successors and assigns.
"Guarantors" shall include, without limitation, in accordance with SECTION 4.09,
newly acquired or created Qualifying Subsidiaries.
"HOLDER" or "SECURITYHOLDER" means a person in whose name a Security is
registered on the Registrar's books.
"INDEBTEDNESS" of a person means the principal of, premium, if any, and
interest on, and all other obligations in respect of (a) all indebtedness of
such person for borrowed money (including all indebtedness evidenced by notes,
bonds, debentures or other securities), (b) all obligations (other than trade
payables) incurred by such person in the acquisition (whether by way of
purchase, merger, consolidation or otherwise and whether by such person or
another person) of any business, real property or other assets, (c) all
reimbursement obligations of such person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
person, (d) all capital lease obligations of such person, (e) all net
obligations of such person under interest rate swap, currency exchange or
similar agreements of such person, (f) all obligations and other liabilities,
contingent or otherwise, under any lease or related document, including a
purchase agreement, conditional sale or other title retention agreement, in
connection with the lease of real property or improvements thereon (or any
personal property included as part of any such lease) which provides that such
person is contractually obligated to purchase or cause a third party to purchase
the leased property or pay an agreed-upon residual value of the leased property,
including such person's obligations under such lease or related document to
purchase or cause a third party to purchase such leased property or pay an
agreed-upon residual value of the leased property to the lessor, (g) guarantees
by such person of indebtedness described in CLAUSES (A) THROUGH (F) of another
person, and (h) all renewals, extensions, refundings, deferrals, restructurings,
amendments and modifications of any indebtedness, obligation, guarantee or
liability of the kind described in CLAUSES (A) THROUGH (G).
"INDENTURE" means this Indenture as amended or supplemented from time
to time.
"INITIAL PURCHASER" means UBS Securities LLC.
The term "INTEREST" includes additional interest, unless the context
otherwise requires or unless the terms of the Registration Rights Agreement
provide otherwise.
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"ISSUE DATE" means May 5, 2004.
"MATURITY DATE" means May 1, 2024.
"OFFER TO PURCHASE AND CONSENT SOLICITATION STATEMENT" has the meaning
ascribed to it in the Dealer Manager Agreement.
"OFFICER" of a Person means the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, any Vice President, the Treasurer or the Secretary of such
Person.
"OFFICERS' CERTIFICATE" means a certificate signed by two (2) Officers
of the Company or by an Officer and an Assistant Treasurer or an Assistant
Secretary of the Company.
"OPINION OF COUNSEL" means a written opinion from legal counsel who may
be an employee of or counsel for the Company, or other counsel reasonably
acceptable to the Trustee.
"OPTION" means the Initial Purchaser's option to acquire up to
$11,250,000 aggregate principal amount of additional Securities ("ADDITIONAL
SECURITIES") as provided for in the Purchase Agreement.
"PERSON" or "PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
The term "PREMIUM" includes any Make-Whole Payment, unless the context
otherwise requires.
"PROPOSED AMENDMENTS" has the meaning ascribed to it in the Dealer
Manager Agreement.
"PURCHASE AGREEMENT" means the Purchase Agreement dated April 30, 2004
between the Company and the Initial Purchaser.
"PURCHASE NOTICE" means a Purchase Notice in the form set forth in the
Securities.
"QIB" means a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act.
"QUALIFYING SUBSIDIARY" means each Domestic Subsidiary, excluding (A)
MHI Insurance, Ltd. and (B) those Domestic Subsidiaries that in the aggregate do
not constitute a Significant Subsidiary of the Company.
"REDEMPTION" means a Provisional Redemption or an Optional Redemption.
"REDEMPTION DATE" means the date specified for Provisional Redemption
or Optional Redemption of the Securities in accordance with the terms of the
Securities and this Indenture.
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"REDEMPTION PRICE" means, with respect to a Security to be redeemed by
the Company in accordance with ARTICLE III, one hundred percent (100%) of the
outstanding principal amount of such Security to be redeemed.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date hereof, among the Company, the Guarantors and
the Initial Purchaser.
"RESPONSIBLE OFFICER" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"RESTRICTED SECURITY" means a Security that constitutes a "restricted
security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Security
constitutes a Restricted Security.
"RIGHTS AGREEMENT" means that certain Amended and Restated Rights
Agreement, dated April 27, 1999, between the Company and SunTrust Bank, as the
same may be amended, supplemented or superceded.
"RULE 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the 4.875% Convertible Senior Subordinated Notes due
2024 issued by the Company pursuant to this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder.
"SECURITY AGENT" means any Registrar, Paying Agent, Conversion Agent,
Bid Solicitation Agent or co-Registrar or co-agent.
"SIGNIFICANT SUBSIDIARY" with respect to any person means any
subsidiary of such person that constitutes a "significant subsidiary" within the
meaning of Rule 1-02(w) of Regulation S-X under the Securities Act, as such
regulation is in effect on the date of this Indenture.
"SUBSIDIARY" means (i) a corporation a majority of whose Capital Stock
with voting power, under ordinary circumstances, to elect directors is at the
time, directly or indirectly, owned by the Company, by one or more subsidiaries
of the Company or by the Company and one or more of its subsidiaries or (ii) any
other person (other than a corporation) in which the Company, one or more its
subsidiaries or the Company and one or more its subsidiaries, directly or
indirectly, at the date of determination thereof, have at least majority
ownership interest.
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"SUBSIDIARY GUARANTEE" means the Guarantee by each Guarantor of the
Company's payment obligations under this Indenture and the Registration Rights
Agreement and on the Securities, executed pursuant to the provisions of this
Indenture.
"TENDER OFFER" has the meaning ascribed to it in the Dealer Manager
Agreement.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb) as amended and in effect from time to time.
"TRADING DAY" means a day during which trading in securities generally
occurs on the principal national or regional securities exchange in the United
States on which the Common Stock is then listed or, if the Common Stock is not
listed on a national or regional securities exchange in the United States, on
the National Association of Securities Dealers Automated Quotation System or, if
the Common Stock is not quoted on the National Association of Securities Dealers
Automated Quotation System, on the principal other market on which the Common
Stock is then traded.
"TRADING PRICE" means, on any date, the average of the secondary market
bid quotations for the Securities obtained by the Bid Solicitation Agent on
behalf of the Trustee for five million dollars ($5,000,000) principal amount of
Securities at approximately 4:00 p.m., New York City time, on such date, from
three (3) independent, nationally recognized securities dealers selected by the
Company; provided, that if the Bid Solicitation Agent on behalf of the Trustee
can reasonably obtain only two (2) such bids, then the average of such two (2)
bids shall instead be used; provided further, that if the Bid Solicitation Agent
on behalf of the Trustee can reasonably obtain only one (1) such bid, then such
bid shall instead be used; provided further, that if the Bid Solicitation Agent
on behalf of the Trustee cannot reasonably obtain at least one (1) such bid, or
if, in reasonable, good faith judgment of the Board of Directors, which judgment
shall be described in a Board Resolution, the bid quotation or quotations so
obtained by the Bid Solicitation Agent on behalf of the Trustee are not
indicative of the secondary market value of the Securities, then, in each case,
the Trading Price per $1,000 principal amount of Securities on the applicable
date of determination shall be deemed to be equal to ninety seven percent (97%)
of the product of (I) the Conversion Rate in effect on such date of
determination and (II) the Closing Sale Price on such date of determination.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions hereof and thereafter
means the successor.
"VOTING STOCK" of any Person means the total voting power of all
classes of the Capital Stock of such Person entitled to vote generally in the
election of directors of such Person.
1.02 OTHER DEFINITIONS.
Term Defined in Section
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"ADDITIONAL SECURITIES"....................................... 1.01
"ADJUSTED CONVERSION PRICE"................................... 10.01
"AGGREGATE AMOUNT"............................................ 10.06
"AGGREGATE REDEMPTION PAYMENT AMOUNT"......................... 3.01
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"AVERAGE 5-DAY CLOSING SALE PRICE"............................ 3.01
"BANKRUPTCY LAW".............................................. 6.01
"BUSINESS DAY"................................................ 13.07
"CHANGE IN CONTROL"........................................... 3.09
"CONVERSION AGENT"............................................ 2.03
"CONVERSION DATE"............................................. 10.02
"CONVERSION SHARES"........................................... 10.06
"CONVERSION VALUE"............................................ 10.01
"CUSTODIAN"................................................... 6.01
"DESIGNATED SENIOR INDEBTEDNESS".............................. 11.02
"DETERMINATION DATE".......................................... 10.06
"DISTRIBUTION DATE"........................................... 10.06
"EVENT OF DEFAULT"............................................ 6.01
"EXPIRATION DATE"............................................. 10.06
"EXPIRATION TIME"............................................. 10.06
"GLOBAL SECURITY"............................................. 2.01
"LEGAL HOLIDAY"............................................... 13.07
"MAKE-WHOLE PAYMENT".......................................... 3.01
"NON-PAYMENT DEFAULT"......................................... 11.04
"NOTICE DATE"................................................. 3.01
"NOTICE OF DEFAULT"........................................... 6.01
"NOTE MEASUREMENT PERIOD"..................................... 10.01
"OPTIONAL REDEMPTION"......................................... 3.01
"OPTION PURCHASE DATE"........................................ 3.08
"OPTION PURCHASE NOTICE"...................................... 3.08
"OPTION PURCHASE PRICE"....................................... 3.08
"PARTICIPANTS"................................................ 2.15
"PAYING AGENT"................................................ 2.03
"PAYMENT BLOCKAGE NOTICE"..................................... 11.04
"PAYMENT BLOCKAGE PERIOD"..................................... 11.04
"PAYMENT DEFAULT"............................................. 11.04
"PHYSICAL SECURITIES"......................................... 2.01
"PRIVATE PLACEMENT LEGEND".................................... 2.17
"PROVISIONAL REDEMPTION"...................................... 3.01
"PURCHASED SHARES"............................................ 10.06
"REGISTRAR"................................................... 2.03
"REPRESENTATIVE".............................................. 11.02
"REPURCHASE AT HOLDER'S OPTION"............................... 3.01
"REPURCHASE DATE"............................................. 3.09
"REPURCHASE EVENT"............................................ 3.09
"REPURCHASE EVENT NOTICE"..................................... 3.09
"REPURCHASE PRICE"............................................ 3.09
"REPURCHASE RIGHT"............................................ 3.09
"REPURCHASE UPON REPURCHASE EVENT"............................ 3.01
"RESALE RESTRICTION TERMINATION DATE"......................... 2.17
"RIGHTS"...................................................... 10.06
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"SENIOR INDEBTEDNESS"......................................... 11.02
"TERMINATION OF TRADING"...................................... 3.09
"THIRD PARTY AGGREGATE AMOUNT"................................ 10.06
"THIRD PARTY EXPIRATION DATE"................................. 10.06
"THIRD PARTY EXPIRATION TIME"................................. 10.06
"THIRD PARTY PURCHASED SHARES"................................ 10.06
"TRADING PRICE CONDITION"..................................... 10.01
"UNDERLYING SHARES"........................................... 10.06
1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"COMMISSION" means the SEC;
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Securityholder or a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities and the Subsidiary Guarantees
means the Company (or any successor) and, on and after the Guarantee
Effectiveness Date, the Guarantors (or any successor), respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein have the meanings so assigned to them.
1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in effect from time to time;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural and in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
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(vii) references to currency shall mean the lawful currency of
the United States of America, unless the context requires otherwise.
For avoidance of doubt, the limitations of SECTION 4.08 shall not apply
to distinctions between categories of Senior Indebtedness that exist by reason
of any liens or guarantees arising or created in respect of some but not all of
such Senior Indebtedness.
II. THE SECURITIES
2.01 FORM AND DATING.
The Securities and the Trustee's certificate of authentication shall be
substantially in the form set forth in EXHIBIT A, which is incorporated in and
forms a part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Security shall
be dated the date of its authentication.
Securities offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more Global Securities, substantially in the
form set forth in EXHIBIT A (the "GLOBAL SECURITY"), deposited with the Trustee,
as custodian for the Depositary, duly executed by the Company and authenticated
by the Trustee as hereinafter provided and bearing the legends set forth in
EXHIBITS B-1 and B-2. The aggregate principal amount of the Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary, as hereinafter provided;
provided, that in no event shall the aggregate principal amount of the Global
Security or Securities exceed $75,000,000 (or $86,250,000 if the Initial
Purchaser elects to purchase all of the Additional Securities pursuant to the
Option).
Securities issued in exchange for interests in a Global Security
pursuant to SECTION 2.15 may be issued in the form of permanent certificated
Securities in registered form in substantially the form set forth in EXHIBIT A
(the "PHYSICAL SECURITIES") and, if applicable, bearing any legends required by
SECTION 2.17.
The Securities shall bear the legends set forth in EXHIBIT B-3.
2.02 EXECUTION AND AUTHENTICATION.
One Officer shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
Upon a written order of the Company signed by one Officer of the
Company, the Trustee shall authenticate Securities for original issue in the
aggregate principal amount of $75,000,000
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and such additional principal amount, if any, as shall be determined pursuant to
the next sentence of this SECTION 2.02. Upon receipt by the Trustee of an
Officers' Certificate stating that the Initial Purchaser has elected to purchase
from the Company a specified principal amount of Additional Securities, not to
exceed $11,250,000, pursuant to the Option, the Trustee shall authenticate and
deliver such specified principal amount of Additional Securities to or upon the
written order of the Company signed as provided in the immediately preceding
sentence. Such Officers' Certificate must be received by the Trustee not later
than the proposed date for delivering of such Additional Securities. The
aggregate principal amount of Securities outstanding at any time may not exceed
$75,000,000 except as provided in this SECTION 2.02.
Upon a written order of the Company signed by two (2) Officers or by an
Officer and an Assistant Treasurer of the Company, the Trustee shall
authenticate Securities not bearing the Private Placement Legend to be issued to
the transferee when sold pursuant to an effective registration statement under
the Securities Act as set forth in SECTION 2.16(B).
The Trustee shall act as the initial authenticating agent. Thereafter,
the Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such authenticating
agent. An authenticating agent has the same rights as a Security Agent to deal
with the Company and its Affiliates.
If a written order of the Company pursuant to this SECTION 2.02 has
been, or simultaneously is, delivered, any instructions by the Company to the
Trustee with respect to endorsement, delivery or redelivery of a Security issued
in global form shall be in writing but need not comply with SECTION 13.04 hereof
and need not be accompanied by an Opinion of Counsel.
The Securities shall be issuable only in registered form without
interest coupons and only in denominations of $1,000 principal amount and any
integral multiple thereof.
2.03 REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("REGISTRAR"), an office or agency in
the Borough of Manhattan, The City of New York, where Securities may be
presented for payment ("PAYING AGENT") and an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
conversion ("CONVERSION AGENT"). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may appoint or change
one or more co-Registrars, one or more additional paying agents and one or more
additional conversion agents without notice and may act in any such capacity on
its own behalf. The term "REGISTRAR" includes any co-Registrar; the term "PAYING
AGENT" includes any additional paying agent; and the term "CONVERSION AGENT"
includes any additional conversion agent.
The Company shall enter into an appropriate agency agreement with any
Security Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that
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relate to such Security Agent. The Company shall notify the Trustee of the name
and address of any Security Agent not a party to this Indenture. If the Company
fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee
shall act as such.
The Company initially appoints the Trustee as Paying Agent, Bid
Solicitation Agent, Registrar and Conversion Agent.
2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all moneys held by the Paying Agent for the
payment of the Securities, and shall notify the Trustee of any Default by the
Company in making any such payment. While any such Default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent shall have no
further liability for the money. If the Company acts as Paying Agent, it shall
segregate and hold as a separate trust fund all money held by it as Paying
Agent.
2.05 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each interest payment date and at such other times
as the Trustee may request in writing a list, in such form and as of such date
as the Trustee may reasonably require, of the names and addresses of
Securityholders.
2.06 TRANSFER AND EXCHANGE.
Subject to SECTIONS 2.15 and 2.16 hereof, where Securities are
presented to the Registrar with a request to register their transfer or to
exchange them for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transaction are met. To permit registrations of
transfer and exchanges, the Trustee shall authenticate Securities at the
Registrar's request. The Company, the Trustee and the Registrar shall not be
required to register the transfer of or exchange any Security (i) during a
period beginning at the opening of business fifteen (15) days before the mailing
of a notice of redemption of the Securities selected for Redemption under
SECTION 3.04 and ending at the close of business on the day of such mailing or
(ii) for a period of fifteen (15) days before the selection, pursuant to SECTION
3.03, of Securities to be redeemed or (iii) that has been selected for
Redemption or for which a Purchase Notice has been delivered, and not withdrawn,
in accordance with this Indenture, except the unredeemed or unrepurchased
portion of Securities being redeemed or repurchased in part.
No service charge shall be made for any transfer, exchange or
conversion of Securities, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge that may be
imposed in connection with any transfer, exchange or conversion of Securities,
other than exchanges pursuant to SECTIONS 2.10, 9.05 or 10.02, or ARTICLE III,
not involving any transfer.
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2.07 REPLACEMENT SECURITIES.
If the Holder of a Security claims that the Security has been
mutilated, lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security upon surrender to the Trustee
of the mutilated Security, or upon delivery to the Trustee of evidence of the
loss, destruction or theft of the Security satisfactory to the Trustee and the
Company. In the case of lost, destroyed or wrongfully taken Securities, if
required by the Trustee or the Company, an indemnity bond must be provided by
the Holder that is reasonably satisfactory to the Trustee and the Company to
protect the Company, the Trustee or any Security Agent from any loss which any
of them may suffer if a Security is replaced. The Trustee may charge for its
expenses in replacing a Security.
In case any such mutilated, lost, destroyed or wrongfully taken
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 when due.
Every replacement Security is an additional obligation of the Company
only as provided in SECTION 2.08.
2.08 OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those converted, those cancelled by it, those
delivered to it for cancellation and those described in this SECTION 2.08 as not
outstanding. Except to the extent provided in SECTION 2.09, a Security does not
cease to be outstanding because the Company or one of its Subsidiaries or
Affiliates holds the Security.
If a Security is replaced pursuant to SECTION 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it, or a court
holds, that the replaced Security is held by a protected purchaser.
If the Paying Agent (other than the Company) holds on an Option
Purchase Date, Redemption Date, Repurchase Date or Maturity Date, money (and, if
applicable as provided herein and in accordance herewith, shares of Common
Stock) sufficient to pay the aggregate Option Purchase Price, Redemption Price,
Repurchase Price or principal amount, as the case may be, with respect to all
Securities to be redeemed, purchased or paid upon Repurchase at Holder's Option,
Redemption, Repurchase Upon Repurchase Event or maturity, as the case may be, in
each case plus, if applicable, accrued and unpaid interest, if any, and, if
applicable, any Make-Whole Payment, payable as herein provided upon Repurchase
at Holder's Option, Redemption, Repurchase Upon Repurchase Event or maturity,
then (unless there shall be a Default in the payment of such aggregate Option
Purchase Price, Redemption Price, Repurchase Price or principal amount, or of
such accrued and unpaid interest or Make-Whole Payment, or, in the case of a
Provisional Redemption on a Redemption Date that is also an interest payment
date, a Default in the payment of the accrued and unpaid interest, if any, to,
but excluding, the Redemption Date to the Holder of record of such Security at
the close of business on the record date for such interest payment) on and after
such date such Securities shall be deemed to be no longer outstanding, interest
on such Securities shall cease to accrue, and such Securities shall be
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deemed paid whether or not such Securities are delivered to the Paying Agent.
Thereafter, all rights of the Holders of such Securities shall terminate with
respect to such Securities, other than the right to receive the Option Purchase
Price, Redemption Price, Repurchase Price or principal amount, as the case may
be, plus, if applicable, such accrued and unpaid interest and Make-Whole
Payment, in accordance with this Indenture.
If a Security is converted in accordance with ARTICLE X, then, from and
after the time of such conversion on the Conversion Date, such Security shall
cease to be outstanding, and interest, if any, shall cease to accrue on such
Security; provided, however, that nothing in this paragraph shall affect the
provision in the Registration Rights Agreement for additional interest on shares
of Common Stock issued upon conversion of such Security.
2.09 SECURITIES HELD BY THE COMPANY OR AN AFFILIATE.
In determining whether the Holders of the required aggregate principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or any of its Subsidiaries or Affiliates shall
be considered as though not outstanding, except that, for the purposes of
determining whether a Responsible Officer of the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which the
Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be considered to be outstanding for purposes
of this SECTION 2.09 if the pledgee establishes, to the satisfaction of the
Trustee, the pledgee's right so to concur with respect to such Securities and
that the pledgee is not, and is not acting at the direction or on behalf of, the
Company, any other obligor on the Securities or the Subsidiary Guarantees, an
Affiliate of the Company or an affiliate of any Guarantor or any such other
obligor. In the event of a dispute as to whether the pledgee has established the
foregoing, the Trustee may rely on the advice of counsel or on an Officers'
Certificate.
2.10 TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for such temporary Securities.
2.11 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, Paying Agent and Conversion Agent shall forward to
the Trustee any Securities surrendered to them for transfer, exchange, payment
or conversion. The Trustee shall promptly cancel all Securities surrendered for
transfer, exchange, payment, conversion or cancellation in accordance with its
customary procedures. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation or that
any Securityholder has converted pursuant to ARTICLE X.
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2.12 DEFAULTED INTEREST.
If and to the extent the Company defaults in a payment of interest on
the Securities, the Company shall pay the defaulted interest in any lawful
manner plus, to the extent not prohibited by applicable statute or case law,
interest on such defaulted interest at the rate provided in the Securities. The
Company may pay the defaulted interest (plus interest on such defaulted
interest) to the persons who are Securityholders on a subsequent special record
date. The Company shall fix such record date and payment date. At least fifteen
(15) calendar days before the record date, the Company shall mail to
Securityholders a notice that states the record date, payment date and amount of
interest to be paid.
2.13 CUSIP NUMBERS.
The Company in issuing the Securities may use one or more "CUSIP"
numbers, and, if so, the Trustee shall use the CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided, however, that no
representation is hereby deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP numbers printed on the notice or on the Securities;
provided further, that reliance may be placed only on the other identification
numbers printed on the Securities, and the effectiveness of any such notice
shall not be affected by any defect in, or omission of, such CUSIP numbers. The
Company shall promptly notify the Trustee of any change in the CUSIP numbers.
2.14 DEPOSIT OF MONEYS.
Prior to 10:00 A.M., New York City time, on each interest payment date,
Maturity Date, Redemption Date, Option Purchase Date or Repurchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust in accordance with SECTION 2.04)
money, in funds immediately available on such date, (and, if applicable as
provided herein and in accordance herewith, shares of Common Stock) sufficient
to make cash payments, if any, due on such interest payment date, Maturity Date,
Redemption Date, Option Purchase Date or Repurchase Date, as the case may be, in
a timely manner which permits the Paying Agent to remit payment to the Holders
on such interest payment date, Maturity Date, Redemption Date, Option Purchase
Date or Repurchase Date, as the case may be.
2.15 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(A) The Global Securities initially shall (i) be registered in the name
of the Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii) bear legends as set forth in
SECTION 2.17.
Members of, or participants in, the Depositary ("PARTICIPANTS") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the
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Depositary or impair, as between the Depositary and Participants, the operation
of customary practices governing the exercise of the rights of a Holder of any
Security.
(B) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. In addition, Physical Securities shall be transferred to all
beneficial owners, as identified by the Depositary, in exchange for their
beneficial interests in Global Securities only if (i) the Depositary notifies
the Company that the Depositary is unwilling or unable to continue as depositary
for any Global Security (or the Depositary ceases to be a "clearing agency"
registered under Section 17A of the Exchange Act) and a successor Depositary is
not appointed by the Company within ninety (90) days of such notice or cessation
or (ii) an Event of Default has occurred and is continuing and the Registrar has
received a written request from the Depositary to issue Physical Securities.
(C) In connection with the transfer of a Global Security in its
entirety to beneficial owners pursuant to SECTION 2.15(B), such Global Security
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall upon written instructions from the
Company authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in such Global Security, an
equal aggregate principal amount of Physical Securities of authorized
denominations.
(D) Any Physical Security constituting a Restricted Security delivered
in exchange for an interest in a Global Security pursuant to SECTION 2.15(B)
shall, except as otherwise provided by SECTION 2.16, bear the Private Placement
Legend.
(E) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
2.16 SPECIAL TRANSFER PROVISIONS.
(A) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
Notwithstanding any other provisions of this Indenture, but except as provided
in SECTION 2.15(B), a Global Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(B) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar or co-Registrar shall
deliver only Securities that bear the Private Placement Legend unless (i) the
requested transfer is after the Resale Restriction Termination Date, (ii) there
is delivered to the Trustee and the Company an opinion of counsel reasonably
satisfactory to the Company and addressed to the Company to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or (iii)
such Security has been sold pursuant to an effective registration statement
under the Securities Act
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and the Holder that sold such Securities has delivered to the Registrar or
co-Registrar a notice in the form of EXHIBIT C hereto. Upon the effectiveness,
under the Securities Act, of a "Shelf Registration Statement" (as defined in the
Registration Rights Agreement), the Company shall deliver to the Trustee a
notice of effectiveness, a Global Security or Global Securities, which do not
bear the Private Placement Legend, an authentication order in accordance with
SECTION 2.02 and an Opinion of Counsel in the form of EXHIBIT D hereto, and, if
required by the Depositary, the Company shall deliver to the Depositary a letter
of representations in a form reasonably acceptable to the Depositary. Upon the
effectiveness of any post-effective amendment to the Shelf Registration
Statement (as defined in the Registration Rights Agreement) and upon the
effectiveness, under the Securities Act, of any Subsequent Shelf Registration
Statement (as defined in the Registration Rights Agreement), the Company shall
deliver to the Trustee a notice of effectiveness and an Opinion of Counsel in
the form of EXHIBIT D hereto. Upon any sale, pursuant to a Shelf Registration
Statement, of a beneficial interest in a Global Security that theretofore
constituted a Restricted Security and delivery of appropriate evidence thereof
to the Trustee, and upon any sale or transfer of a beneficial interest in
connection with which the Private Placement Legend will be removed in accordance
with this Indenture, the Trustee shall increase the principal amount of the
Global Security that does not constitute a Restricted Security by the principal
amount of such sale or transfer and likewise reduce the principal amount of the
Global Security that does constitute a Restricted Security.
(C) GENERAL. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to SECTION 2.15 or this SECTION 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(D) TRANSFERS OF SECURITIES HELD BY AFFILIATES. Any certificate (i)
evidencing a Security that has been transferred to an Affiliate within two (2)
years after the Issue Date, as evidenced by a notation on the assignment form
for such transfer or in the representation letter delivered in respect thereof
or (ii) evidencing a Security that has been acquired from an Affiliate (other
than by an Affiliate) in a transaction or a chain of transactions not involving
any public offering, shall, until two (2) years after the last date on which the
Company or any of its Affiliates was an owner of such Security (or such longer
period of time as may be required under the Securities Act or applicable state
securities laws), in each case, bear the Private Placement Legend, unless
otherwise agreed by the Company (with written notice thereof to the Trustee).
2.17 RESTRICTIVE LEGENDS.
Each Global Security and Physical Security that constitutes a
Restricted Security shall bear the legend (the "PRIVATE PLACEMENT LEGEND") as
set forth in EXHIBIT B-1 on the face thereof until after the second anniversary
of the later of (i) the Issue Date and (ii) the last date on which the Company
or any Affiliate was the owner of such Security (or any predecessor security)
(or such shorter period of time as permitted by Rule 144(k) under the Securities
Act or
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any successor provision thereunder) (or such longer period of time as may be
required under the Securities Act or applicable state securities laws, as set
forth in an Opinion of Counsel, unless otherwise agreed between the Company and
the Holder thereof) (such date, the "RESALE RESTRICTION TERMINATION DATE").
Each Global Security shall also bear the legend as set forth in EXHIBIT
B-2.
III. REDEMPTION
3.01 RIGHT OF REDEMPTION.
(A) Redemption of the Securities, as permitted by any provision of this
Indenture, shall be made:
(i) with respect to a Redemption at the Company's option, in
accordance with PARAGRAPHS 6 AND 7 of the Securities,
(ii) with respect to a repurchase at the Holder's option, in
accordance with PARAGRAPH 8 of the Securities (a "REPURCHASE AT
HOLDER'S OPTION") and
(iii) with respect to any repurchase upon a Repurchase Event,
in accordance with PARAGRAPH 9 of the Securities (a "REPURCHASE UPON
REPURCHASE EVENT"),
in each case in accordance with the applicable provisions of this
ARTICLE III.
(B) The Company will comply with all federal and state securities laws,
and the applicable laws of any foreign jurisdiction, in connection with any
offer to sell or solicitations of offers to buy Securities pursuant to this
ARTICLE III.
(C)
(i) The Company shall have the right, at the Company's option,
at any time, and from time to time, on a Redemption Date before May 1,
2009, to redeem (a "PROVISIONAL REDEMPTION") all or any part of the
Securities at a price equal to the Redemption Price plus the Make-Whole
Payment if:
(a) for each of at least twenty (20) Trading Days in
any consecutive thirty (30) Trading Days ending on, and
including, the Trading Day immediately preceding the date (the
"NOTICE DATE") of mailing of the notice of Provisional
Redemption as provided in SECTION 3.04, the Closing Sale Price
exceeds one hundred and fifty percent (150%) of the Conversion
Price in effect on such Trading Day;
(b) a "Shelf Registration Statement" (as defined in
the Registration Rights Agreement) is effective under the
Securities Act and available for use, in accordance with the
Registration Rights Agreement, as of such Notice Date
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through, and including, such Redemption Date, and is
reasonably expected to remain effective under the Securities
Act and so available until at least the thirtieth (30th) day
after such Redemption Date, unless there are no "Registrable
Securities" (as defined in the Registration Rights Agreement)
outstanding;
(c) no "Event" (as defined in the Registration Rights
Agreement) has occurred that has not ceased, in accordance
with the provisions of the Registration Rights Agreement, on
or before such Redemption Date; and
(d) no continuing Default or Event of Default exists
that has not been cured or waived, in accordance herewith, on
or before such Redemption Date.
(ii) As used herein, the "MAKE-WHOLE PAYMENT" with respect
to a Security subject to a Provisional Redemption on a Redemption
Date shall mean an amount equal to the sum of (a) the present
value, as of such Redemption Date, of all remaining scheduled
interest payments on such Security from, and including, such
Redemption Date through, and including, May 1, 2009; (b) any
defaulted interest that the Company shall have failed to pay with
respect to such Security on or prior to such Redemption Date,
including any unpaid interest that has accrued, in accordance with
SECTION 2.12, to, but excluding, such Redemption Date on any such
defaulted interest; (c) any unpaid additional interest that has
accrued with respect to such Security to, but excluding, such
Redemption Date. Such present value shall be calculated using a
discount rate equal to the yield to maturity of United States
Treasury securities with a constant maturity most nearly equal to
the then remaining term on such Security from such Redemption Date
to May 1, 2009; provided, however, that if such remaining term is
not equal to the constant maturity of the United States Treasury
security for which a weekly average yield is given, then the
applicable yield to maturity shall be obtained by linear
interpolation, calculated to the nearest one-twelfth (1/12th) of a
year, from the weekly average yields of the United States Treasury
securities for which such yields are given, unless such remaining
term is less than one (1) year, in which case the weekly average
yield on United States Treasury securities actually traded,
adjusted to a constant maturity of one (1) year, shall be used.
Such yield to maturity data for United States Treasury securities
shall be obtained from data compiled and published in the most
recent Federal Reserve Statistical Release H.19 that has become
available at any time on or after the Notice Date until the second
(2nd) Business Day immediately preceding such Redemption Date or,
if such Statistical Release is no longer published, any publicly
available source for similar market data. As soon as practicable
after the time the amount of the Make-Whole Payment shall have been
calculated, but no later than the second (2nd) Business Day
immediately preceding such Redemption Date, the Company shall
publicly disseminate the amount of the Make-Whole Payment in a
press release or publish it on the Company's website. The
Make-Whole Payment shall be paid by the Company on all Securities
called for Provisional Redemption, including, without limitation,
any Securities that have been converted into shares of Common Stock
on or after the Notice Date and before such Redemption Date. In no
event shall the Make-Whole Payment with respect to a Security that
is called for Provisional Redemption be reduced by any amount of
accrued and unpaid interest; provided, however, that in the event
such Redemption
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Date is an interest payment date, then the Make-Whole Payment
shall be reduced by any accrued and unpaid interest to, but
excluding, the Redemption Date, which accrued and unpaid
interest shall instead be paid by the Company on the
Redemption Date to the Holder of record of such Security at
the close of business on the record date for such interest
payment. In no event shall a Holder that has converted, in
accordance herewith, such Holder's Security into shares of
Common Stock, which Security has been called for Provisional
Redemption, be required to surrender any such shares of Common
Stock in order to be entitled to receive the Make-Whole
Payment with respect to such Security.
(iii) The Make-Whole Payment may be paid for, in
whole or in part, at the election of the Company, in cash or
shares of Common Stock or in any combination of cash and
shares of Common Stock; provided, however, that:
(a) no portion of the Make-Whole Payment
shall be paid in shares of Common Stock unless the
conditions set forth in SECTION 3.01(C)(IX) are
satisfied;
(b) the Redemption Price shall be
exclusively paid in cash;
(c) any portion of a Make-Whole Payment that
represents unpaid interest or additional interest
that has accrued to, but excluding, the Redemption
Date (including defaulted interest and any unpaid
interest that has accrued, in accordance with SECTION
2.12, to, but excluding, the Redemption Date on any
such defaulted interest) shall be exclusively paid in
cash; and
(d) the Company will not issue fractional
shares of Common Stock in payment of the Make-Whole
Payment and shall instead deliver a check in an
amount equal to the value of such fraction computed
on the basis of the Closing Sale Price on the Trading
Day immediately before the Redemption Date.
(iv) Except as provided in this SECTION 3.01(C), once
the Company has mailed the notice of Provisional Redemption
specified in SECTION 3.04, the Company shall not change its
election set forth in such notice pursuant SECTION 3.04(VIII)
with respect to the portion of the Make-Whole Payment to be
paid in cash or shares of Common Stock.
(v) Except as otherwise provided in this SECTION
3.01(C), each Holder whose Securities are redeemed pursuant to
a Provisional Redemption shall receive the same percentage of
cash and of shares of Common Stock in payment of the
Make-Whole Payment for such Securities.
(vi) The portion of the Make-Whole Payment to be paid
in shares of Common Stock, if payment in shares of Common
Stock is permitted pursuant to this SECTION 3.01(C), shall be
paid by the issuance of a number of shares of Common Stock
equal to a fraction:
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(a) whose numerator is the dollar amount of such
portion of the Make-Whole Payment (excluding the amounts
specified in SECTION 3.01(C)(III)(C)) to be paid in shares of
Common Stock; and
(b) whose denominator is the product of (I) the
average (the "AVERAGE 5-DAY CLOSING SALE PRICE") of the
Closing Sale Prices for the five (5) consecutive Trading Days
ending on, and including, the Trading Day immediately
preceding the Redemption Date, which average shall be
appropriately adjusted in the good faith determination of the
Board of Directors (whose determination shall be described in
a Board Resolution) to account for the occurrence, during such
five (5) Trading Day period, of a stock split, stock dividend
or a subdivision or combination of our common stock or a
similar event; and (II) ninety five percent (95%);
provided, however, that fractional shares of Common
Stock shall be paid in cash as provided in SECTION 3.01(C)(III)(D).
Upon the determination of such Average 5-Day Closing Sale Price,
but in no event later than the Redemption Date, the Company shall
publicly disseminate in a press release or publish on the Company's
website the amount of such Average 5-Day Closing Sale Price and the
actual number of shares of Common Stock to be delivered as provided
in this SECTION 3.01(C) in full or partial payment of the
Make-Whole Payment.
(vii) All shares of Common Stock delivered as full or
partial payment of the Make-Whole Payment pursuant to this SECTION
3.01(C) shall be newly issued shares or treasury shares, shall be
duly authorized, validly issued, fully paid and non-assessable and
shall be free from preemptive rights and free of any lien or
adverse claim.
(viii) If a Holder is paid in shares of Common Stock as
full or partial payment of the Make-Whole Payment pursuant to this
SECTION 3.01(C), the Company shall pay any documentary, stamp or
similar issue or transfer tax due on such issue of Common Stock.
However, the Holder shall pay any such tax which is due because the
Holder requests the Common Stock to be issued in a name other than
the Holder's name. The Paying Agent may refuse to deliver the
certificates representing the shares of Common Stock being issued
in a name other than the Holder's name until the Paying Agent
receives a sum sufficient to pay any tax which will be due because
the shares of Common Stock are to be issued in a name other than
the Holder's name. Nothing herein shall preclude any income tax
withholding required by law or regulations.
(ix) The Company shall not be entitled to pay any portion
of the Make-Whole Payment in shares of Common Stock pursuant to
this SECTION 3.01(C) unless all of the following conditions are
satisfied:
(a) The Company shall have specified, in the notice
of Provisional Redemption specified in SECTION 3.04, which
notice shall have been timely mailed to each Holder whose
Securities are to be redeemed pursuant to the Provisional
Redemption, that the Company will pay all or a portion of the
Make-Whole Payment in shares of Common Stock and shall have
specified in such notice the
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percentages of the Make-Whole Payment in respect of which the
Company will pay in cash or shares of Common Stock;
(b) before a notice of Provisional Redemption is
mailed to Holders pursuant to SECTION 3.04, the Company shall
have delivered an Officers' Certificate to the Trustee
specifying (I) the manner of payment selected by the Company,
(II) the information required by SECTION 3.04 to be included
in the such notice and (III) if the Company elects to pay all
or a portion of the Make-Whole Payment in shares of Common
Stock, that the conditions to such manner of payment set forth
in this SECTION 3.01(C) have been, or will be, complied with;
(c) the information necessary to calculate the
Average 5-Day Closing Sale Price is published in a daily
newspaper of national circulation;
(d) the shares of Common Stock to be delivered as
payment, in whole or in part, of the Make-Whole Payment shall
be either (I) registered under the Securities Act for initial
issuance, unless such registration is not necessary to permit
the Holders who receive such shares and who are not Affiliates
of the Company to publicly resell such shares (for purposes of
this SECTION 3.01(C)(IX)(D), resales subject to the volume,
manner of sale or notice restrictions of Rule 144 under the
Securities Act are deemed not to be "public resales") or (II)
registered for resale pursuant to a shelf registration
statement, which shall permit resales on a delayed and/or
continuous basis from time to time pursuant to Rule 415 under
the Securities Act, that has become effective under the
Securities Act and that is reasonably expected to remain
effective and available for use until at least the thirtieth
(30th) day after the Redemption Date, unless the shares may be
publicly sold without restriction pursuant to Rule 144(k)
under the Securities Act;
(e) the shares of Common Stock to be delivered as
payment, in whole or in part, of the Make-Whole Payment shall
be duly qualified or registered under applicable state
securities laws or shall be qualified for an available
exemption from such qualification and registration;
(f) the shares of Common Stock to be delivered as
payment, in whole or in part, of the Make-Whole Payment shall
be approved for listing on The Nasdaq National Market or a
U.S. national securities exchange;
(g) before the close of business on the Business Day
immediately preceding the Redemption Date, the Trustee shall
have received an Officers' Certificate stating:
(1) that the conditions in clauses (a), (b),
(c), (d), (e) and (f) above have been satisfied; and
(2) the number of shares of Common Stock to
be issued for each $1,000 principal amount of
Securities to be redeemed and the Closing Sale Price
per share of Common Stock on each Trading Day in
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the period during which the Average 5-Day Closing
Sale Price is calculated pursuant to this SECTION
3.01(C);
(h) before the close of business on the Business Day
immediately preceding the Redemption Date, the Trustee shall
have received an Opinion of Counsel stating that:
(1) the shares of Common Stock to be issued
by the Company in full or partial payment of the
Make-Whole Payment have been duly authorized and,
when issued and delivered pursuant to the terms of
this Indenture in payment of the Make-Whole Payment,
will be validly issued, fully paid and non-assessable
and, to the best of such counsel's knowledge, free
from preemptive rights; and
(2) the conditions specified in SECTIONS
3.01(C)(IX)(D), 3.01(C)(IX)(E) and 3.01(C)(IX)(F)
have been satisfied; provided, however, that such
Opinion of Counsel need not address whether the shelf
registration statement referred to in SECTION
3.01(C)(IX)(D) is reasonably expected to remain
effective and available for use until at least the
thirtieth (30th) day after the Redemption Date.
If, prior to the close of business on the
Redemption Date, any of the foregoing conditions are not satisfied
with respect to a Holder of Securities subject to the Provisional
Redemption, and the Company has elected, pursuant to this SECTION
3.01(C), to pay all or a portion of the Make-Whole Payment in
shares of Common Stock, the Company shall pay the entire Make-Whole
Payment for such Securities in cash.
(x) All shares of Common Stock issued as payment, in whole
or in part, of the Make-Whole Payment shall be deemed, for purposes
of the Registration Rights Agreement, to constitute "Registrable
Securities" (as defined in the Registration Rights Agreement),
unless either (i) such shares were registered under the Securities
Act for initial issuance and are able to be publicly resold by the
recipients of such shares without further registration under the
Securities Act or (ii) such registration was and is not necessary
to permit the Holders who receive such shares to publicly resell
such shares (for purposes of this SECTION 3.01(C)(X), resales
subject to the volume, manner of sale or notice restrictions of
Rule 144 under the Securities Act are deemed not to be "public
resales").
(D) The Company shall have the right, at the Company's option, at any
time, and from time to time, on a Redemption Date on or after May 1, 2009, to
redeem all or any part of the Securities at a price payable in cash equal to the
Redemption Price plus accrued and unpaid interest, if any, to, but excluding,
the Redemption Date (an "OPTIONAL REDEMPTION").
(E) As used herein, the term "AGGREGATE REDEMPTION PAYMENT AMOUNT"
shall mean (i) in the case of a Provisional Redemption, the sum of the
Redemption Price and the Make-Whole Payment and (ii) in the case of an Optional
Redemption, the sum of the
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Redemption Price and accrued and unpaid interest, if any, to, but excluding, the
Redemption Date payable as herein provided upon Optional Redemption.
(F) Securities in denominations larger than $1,000 principal amount may
be redeemed in part but only in integral multiples of $1,000 principal amount.
3.02 NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to PARAGRAPH 6 of
the Securities, it shall notify the Trustee at least fifteen (15) days prior to
the mailing, in accordance with SECTION 3.04, of the notice of Redemption
(unless a shorter notice period shall be satisfactory to the Trustee) of the
Redemption Date, the applicable provision of this Indenture pursuant to which
the Redemption is to be made and the aggregate principal amount of Securities to
be redeemed.
3.03 SELECTION OF SECURITIES TO BE REDEEMED.
If the Company has elected to redeem less than all the Securities
pursuant to PARAGRAPH 6 of the Securities, the Trustee shall, within five (5)
Business Days after receiving the notice specified in SECTION 3.02, select the
Securities to be redeemed by lot, on a pro rata basis or in accordance with any
other method the Trustee considers fair and appropriate. The Trustee shall make
such selection from Securities then outstanding and not already to be redeemed
by virtue of having been previously called for Redemption. The Trustee may
select for Redemption portions of the principal amount of Securities that have
denominations larger than $1,000 principal amount. Securities and portions of
them the Trustee selects for Redemption shall be in amounts of $1,000 principal
amount or integral multiples of $1,000 principal amount. The Trustee shall
promptly notify the Company in writing of the Securities selected for Redemption
and the principal amount thereof to be redeemed.
The Company, the Trustee and the Registrar need not register the
transfer of or exchange any Securities that have been selected for Redemption,
except the unredeemed portion of Securities being redeemed in part. The Company,
the Trustee and the Registrar need not issue, authenticate, register the
transfer of or exchange any Security for a period of fifteen (15) days before
the selection, pursuant to this SECTION 3.03, of Securities to be redeemed.
3.04 NOTICE OF REDEMPTION.
At least thirty (30) days but not more than sixty (60) days before a
Redemption Date, the Company shall mail, or cause to be mailed, by first-class
mail a notice of Redemption to each Holder whose Securities are to be redeemed,
at the address of such Holder appearing in the security register.
The notice shall identify the Securities and the aggregate principal
amount thereof to be redeemed pursuant to a Redemption and shall state:
(i) the Redemption Date;
(ii) the Aggregate Redemption Payment Amount;
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(iii) the Conversion Rate and the Conversion Price;
(iv) the names and addresses of the Paying Agent and the
Conversion Agent;
(v) that the right to convert the Securities called for
Redemption will terminate at the close of business on the Business Day
immediately preceding the Redemption Date, unless there shall be a
Default in the payment of the Aggregate Redemption Payment Amount or,
in the case of a Provisional Redemption of Securities on a Redemption
Date that is also an interest payment date, a Default in the payment of
the accrued and unpaid interest, if any, to, but excluding, the
Redemption Date to the Holder(s) of record of such Securities at the
close of business on the record date for such interest payment;
(vi) that Holders who want to convert Securities must satisfy
the requirements of ARTICLE X;
(vii) the paragraph of the Securities pursuant to which the
Securities are to be redeemed;
(viii) in the case of a Provisional Redemption, whether the
Company will pay the Make-Whole Payment in cash or shares of Common
Stock or in a combination thereof, in each case specifying the
percentages of the Make-Whole Payment in respect of which the Company
will pay in cash or shares of Common Stock;
(ix) in the case of a Provisional Redemption where the Company
has stated in the notice, pursuant to SECTION 3.04(VIII), that the
Company will pay any portion of the Make-Whole Payment in shares of
Common Stock, that the Company will pay the entire Make-Whole Payment
in cash if the Company fails to satisfy the conditions set forth in
this Indenture for such payment in shares of Common Stock;
(x) that Securities called for Redemption must be surrendered
to the Paying Agent to collect the Aggregate Redemption Payment Amount,
provided, that in no event shall a Holder that has converted, in
accordance herewith, such Holder's Security into shares of Common
Stock, which Security has been called for Provisional Redemption, be
required to surrender any such shares of Common Stock in order to be
entitled to receive the Make-Whole Payment with respect to such
Security;
(xi) that, unless there shall be a Default in the payment of
the Aggregate Redemption Payment Amount or, in the case of a
Provisional Redemption of Securities on a Redemption Date that is also
an interest payment date, a Default in the payment of the accrued and
unpaid interest, if any, to, but excluding, the Redemption Date to the
Holder(s) of record of such Securities at the close of business on the
record date for such interest payment, interest on Securities called
for Redemption ceases to accrue on and after the Redemption Date, such
Securities will cease to be convertible after the close of business on
the Business Day immediately preceding the Redemption Date, and all
rights of the Holders of such Securities shall terminate on and after
the Redemption Date, other than the right to receive, upon surrender of
such Securities and
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in accordance with the Indenture, the Aggregate Redemption Payment
Amount, provided, that, in the event a Security has been called for
Provisional Redemption and has been converted, in accordance herewith,
into shares of Common Stock prior to the Redemption Date, the Holder of
record of such Security at the close of business on the Notice Date
shall, in any event and without any surrender, be entitled to receive,
on the Redemption Date, the Make-Whole Payment with respect to such
Security by wire transfer of immediately available funds, in accordance
with PARAGRAPH 3 of the Security; and
(xii) the CUSIP number or numbers, as the case may be, of the
Securities.
The right, pursuant to ARTICLE X, to convert Securities called for
Redemption shall terminate at the close of business on the Business Day
immediately preceding the Redemption Date, unless there shall be a Default in
the payment of the Aggregate Redemption Payment Amount or, in the case of a
Provisional Redemption of Securities on a Redemption Date that is also an
interest payment date, a Default in the payment of the accrued and unpaid
interest, if any, to, but excluding, the Redemption Date to the Holder(s) of
record of such Securities at the close of business on the record date for such
interest payment.
At the Company's request, upon reasonable prior notice agreed to by the
Trustee, the Trustee shall give the notice of Redemption in the Company's name
and at the Company's expense; provided, that the form and content of such notice
shall be prepared by the Company.
3.05 EFFECT OF NOTICE OF REDEMPTION.
Once notice of Redemption is mailed, Securities called for Redemption
become due and payable on the Redemption Date at the Aggregate Redemption
Payment Amount, and, on and after such Redemption Date (unless there shall be a
Default in the payment of the Aggregate Redemption Payment Amount or, in the
case of a Provisional Redemption of Securities on a Redemption Date that is also
an interest payment date, a Default in the payment of the accrued and unpaid
interest, if any, to, but excluding, the Redemption Date to the Holder(s) of
record of such Securities at the close of business on the record date for such
interest payment), such Securities shall cease to bear interest, and all rights
of the Holders of such Securities shall terminate, other than the right to
receive, upon surrender of such Securities and in accordance with the next
sentence, the Aggregate Redemption Payment Amount, provided, that, in the event
a Security has been called for Provisional Redemption and has been converted, in
accordance herewith, into shares of Common Stock prior to the Redemption Date,
the Holder of record of such Security at the close of business on the Notice
Date shall, in any event and without any surrender, be entitled to receive, on
the Redemption Date, the Make-Whole Payment with respect to such Security by
wire transfer of immediately available funds, in accordance with PARAGRAPH 3 of
the Security. Upon surrender to the Paying Agent of a Security subject to
Redemption, such Security shall be paid, to the Holder surrendering such
Security, at the Aggregate Redemption Payment Amount. If the Redemption Date is
an interest payment date, the Company shall pay, on such Redemption Date, the
accrued and unpaid interest, if any, to, but excluding, the Redemption Date to
the Holder of record of such Security at the close of business on the record
date for such interest payment, and such accrued and unpaid interest shall not
be paid to the
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Holder submitting such Security for Redemption (unless such Holder was the
Holder of record of such Security at the close of business on the record date
for such interest payment).
If any Security shall not be fully and duly paid upon surrender thereof
for Redemption, the principal of, and accrued and unpaid interest on, such
Security shall, until paid, bear interest from the Redemption Date at the rate
borne by such Security on the principal amount of such Security, and such
Security shall continue to be convertible pursuant to ARTICLE X; provided,
however, that in the case of a Security that has been called for Provisional
Redemption and converted, in accordance herewith, into shares of Common Stock
prior to the Redemption Date, only the Make-Whole Payment with respect to such
Security shall bear interest at the rate borne by such Security prior to such
conversion.
Notwithstanding anything herein to the contrary, there shall be no
purchase of any Securities pursuant to a Redemption if there has occurred (prior
to, on or after, as the case may be, the mailing of the notice of Redemption
specified in SECTION 3.04) and is continuing an Event of Default (other than a
Default in the payment of the Aggregate Redemption Payment Amount or, in the
event the Redemption Date is an interest payment date, the accrued and unpaid
interest, if any, to, but excluding, the Redemption Date payable as herein
provided). The Paying Agent will promptly return to the respective Holders
thereof any Securities held by it during the continuance of such an Event of
Default.
3.06 DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 A.M., New York City time on the Redemption Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust in accordance with SECTION 2.04)
money, in funds immediately available on the Redemption Date, and, if applicable
as provided herein and in accordance herewith, shares of Common Stock,
sufficient to pay the Aggregate Redemption Payment Amount and, in the case of a
Provisional Redemption on a Redemption Date that is also an interest payment
date, the accrued and unpaid interest, if any, to, but excluding, the Redemption
Date, of all Securities to be redeemed on that date. The Paying Agent shall
return to the Company, as soon as practicable, any money not required for that
purpose.
3.07 SECURITIES REDEEMED IN PART.
Any Security to be submitted for Redemption only in part shall be
delivered pursuant to SECTION 3.05 (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 its attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, of the same tenor and in
aggregate principal amount equal to the portion of such Security not submitted
for Redemption.
If any Security selected for partial Redemption is converted in part,
the principal of such Security subject to Redemption shall be reduced by the
principal amount of such Security that is converted.
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3.08 PURCHASE OF SECURITIES AT OPTION OF THE HOLDER.
(A) At the option of the Holder thereof, Securities (or portions
thereof that are integral multiples of $1,000 in principal amount) shall be
purchased by the Company pursuant to PARAGRAPH 8 of the Securities on each of
May 1, 2009, May 1, 2014 and May 1, 2019 (each, an "OPTION PURCHASE DATE"), at a
purchase price, payable in cash, equal to one hundred percent (100%) of the
principal amount of the Securities (or such portions thereof) to be so purchased
(the "OPTION PURCHASE PRICE"), plus accrued and unpaid interest, if any, to, but
excluding, the applicable Option Purchase Date, upon:
(i) delivery to the Company (if it is acting as its own
Paying Agent), or to a Paying Agent designated by the Company for
such purpose in the Option Purchase Notice, by such Holder, at any
time from the opening of business on the date that is twenty (20)
Business Days prior to the applicable Option Purchase Date until
the close of business on the Business Day immediately preceding the
applicable Option Purchase Date, of a Purchase Notice, in the form
set forth in the Securities or any other form of written notice
substantially similar thereto, in each case, duly completed and
signed, with appropriate signature guarantee, stating:
(a) the certificate number(s) of the Securities which
the Holder will deliver to be purchased;
(b) the principal amount of Securities to be
purchased, which must be $1,000 or an integral multiple
thereof; and
(c) that such principal amount of Securities are to
be purchased as of the applicable Option Purchase Date
pursuant to the terms and conditions specified in PARAGRAPH 8
of the Securities and in this Indenture; and
(ii) delivery to the Company (if it is acting as its own
Paying Agent), or to a Paying Agent designated by the Company for
such purpose in the Option Purchase Notice, at any time after
delivery of such Purchase Notice, of such Securities (together with
all necessary endorsements), such delivery being a condition to
receipt by the Holder of the Option Purchase Price therefor plus
accrued and unpaid interest, if any, payable as herein provided
upon Repurchase at Holder's Option.
If such Securities are held in book-entry form through the Depositary,
the Purchase Notice shall comply with applicable procedures of the Depositary.
Upon such delivery of Securities to the Company (if it is acting as its
own Paying Agent) or such Paying Agent, such Holder shall be entitled to receive
from the Company or such Paying Agent, as the case may be, a nontransferable
receipt of deposit evidencing such delivery.
Notwithstanding anything herein to the contrary, any Holder delivering
the Purchase Notice contemplated by this SECTION 3.08(A) to the Company (if it
is acting as its own Paying Agent) or to a Paying Agent designated by the
Company for such purpose in the Option Purchase Notice shall have the right to
withdraw such Purchase Notice by delivery, at any time prior to the close of
business on the Business Day immediately preceding the applicable Option
Purchase
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Date, of a written notice of withdrawal to the Company (if acting as its own
Paying Agent) or the Paying Agent, which notice shall contain the information
specified in SECTION 3.08(B)(VII).
The Paying Agent shall promptly notify the Company of the receipt by it
of any Purchase Notice or written notice of withdrawal thereof.
(B) The Company shall give notice (the "OPTION PURCHASE NOTICE") on a
date not less than twenty (20) Business Days prior to each Option Purchase Date
to all Holders at their addresses shown in the register of the Registrar and to
beneficial owners as required by applicable law. Such notice shall state:
(i) the Option Purchase Price plus accrued and unpaid
interest, if any, to, but excluding, such Option Purchase Date and the
Conversion Rate;
(ii) the names and addresses of the Paying Agent and the
Conversion Agent;
(iii) that Securities with respect to which a Purchase Notice
is given by a Holder may be converted pursuant to ARTICLE X, if
otherwise convertible in accordance with ARTICLE X, only if such
Purchase Notice has been withdrawn in accordance with this SECTION
3.08;
(iv) that Securities must be surrendered to the Paying Agent
to collect payment of the Option Purchase Price plus accrued and unpaid
interest, if any, payable as herein provided upon Repurchase at
Holder's Option;
(v) that the Option Purchase Price, plus accrued and unpaid
interest, if any, to, but excluding, such Option Purchase Date, for any
Security as to which a Purchase Notice has been given and not withdrawn
will be paid as promptly as practicable, but in no event more than
three (3) Business Days, following the later of such Option Purchase
Date or the time of delivery of the Security as described in (iv)
above;
(vi) the procedures the Holder must follow to exercise rights
under this SECTION 3.08 and a brief description of those rights;
(vii) that a Holder will be entitled to withdraw its election
in the Purchase Notice if the Company (if acting as its own Paying
Agent) or the Paying Agent receives, at any time prior to the close of
business on the Business Day immediately preceding the applicable
Option Purchase Date, or such longer period as may be required by law,
a letter or telegram, telex or facsimile transmission (receipt of which
is confirmed and promptly followed by a letter) setting forth (I) the
name of such Holder, (II) a statement that such Holder is withdrawing
its election to have Securities repurchased, (III) the principal amount
of the Securities of such Holder to be so withdrawn, which amount must
be $1,000 or an integral multiple thereof, (IV) the certificate number
of such Securities to be so withdrawn, and (V) the principal amount, if
any, of the Securities of such Holder that remain subject to the
Purchase
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Notice delivered by such Holder in accordance with this SECTION 3.08,
which amount must be $1,000 or an integral multiple thereof;
(viii) that, on and after the applicable Option Purchase Date
(unless there shall be a Default in the payment of such Option Purchase
Price or such accrued and unpaid interest), interest on Securities
subject to Repurchase at Holder's Option will cease to accrue, and all
rights of the Holders of such Securities shall terminate, other than
the right to receive, upon surrender of such Securities and in
accordance with this SECTION 3.08, the Option Purchase Price and such
accrued and unpaid interest; and
(ix) the CUSIP number or numbers, as the case may be, of the
Securities.
At the Company's request, the Trustee shall mail such Option Purchase
Notice in the Company's name and at the Company's expense; provided, however,
that, in all cases, the text of such Option Purchase Notice shall be prepared by
the Company.
No failure of the Company to give an Option Purchase Notice shall limit
any Holder's right to exercise a Repurchase at Holder's Option.
(C) Subject to the provisions of this SECTION 3.08, the Company shall
pay, or cause to be paid, the Option Purchase Price, plus accrued and unpaid
interest, if any, to, but excluding, the applicable Option Purchase Date, with
respect to each Security subject to Repurchase at Holder's Option to the Holder
thereof as promptly as practicable, but in no event more than three (3) Business
Days, following the later of the applicable Option Purchase Date and the time
such Security is surrendered to the Paying Agent.
(D) Prior to 10:00 A.M., New York City time on the applicable Option
Purchase Date, the Company shall deposit with a Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust in accordance
with SECTION 2.04) money, in funds immediately available on the applicable
Option Purchase Date, sufficient to pay the Option Purchase Price, plus accrued
and unpaid interest, if any, to, but excluding, such Option Purchase Date, of
all of the Securities that are to be repurchased by the Company on such Option
Purchase Date pursuant to a Repurchase at Holder's Option. The Paying Agent
shall return to the Company, as soon as practicable, any money not required for
that purpose.
(E) Once the Purchase Notice has been duly delivered in accordance with
this SECTION 3.08, the Securities to be repurchased pursuant to the Repurchase
at Holder's Option shall, on the applicable Option Purchase Date, become due and
payable at the Option Purchase Price (plus accrued and unpaid interest, if any,
to, but excluding, such Option Purchase Date) applicable thereto, and, on and
after such date (unless there shall be a Default in the payment of the Option
Purchase Price or such accrued and unpaid interest), such Securities shall cease
to bear interest and shall cease to be convertible pursuant to ARTICLE X, and
all rights of the Holders of such Securities shall terminate, other than the
right to receive, in accordance with this SECTION 3.08, the Option Purchase
Price and such accrued and unpaid interest.
(F) Securities with respect to which a Purchase Notice has been duly
delivered in accordance with this SECTION 3.08 may be converted pursuant to
ARTICLE X, if otherwise convertible in accordance with ARTICLE X, only if such
Purchase Notice has been withdrawn in
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accordance with this SECTION 3.08 or if there shall be a Default in the payment
of the Option Purchase Price or in the accrued and unpaid interest, if any,
payable as herein provided upon Repurchase at Holder's Option.
(G) If any Security shall not be paid upon surrender thereof for
Repurchase at Holder's Option, the principal of, and accrued and unpaid interest
on, such Security shall, until paid, bear interest from the applicable Option
Purchase Date at the rate borne by such Security on the principal amount of such
Security, and such Security shall continue to be convertible pursuant to ARTICLE
X.
(H) Any Security which is to be submitted for Repurchase at Holder's
Option only in part shall be delivered pursuant to this SECTION 3.08 (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 its attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, of the same tenor and in aggregate principal amount equal to the portion
of such Security not submitted for Repurchase at Holder's Option.
(I) Notwithstanding anything herein to the contrary, there shall be no
purchase of any Securities pursuant to this SECTION 3.08 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such
Securities, of the required Purchase Notice) and is continuing an Event of
Default (other than a Default in the payment of the Option Purchase Price or
accrued and unpaid interest, if any, payable as herein provided upon Repurchase
at Holder's Option). The Paying Agent will promptly return to the respective
Holders thereof any Securities held by it during the continuance of an Event of
Default (other than a Default in the payment of the Option Purchase Price or
such accrued and unpaid interest), in which case, upon such return, the Purchase
Notice with respect to the Repurchase at Holder's Option shall be deemed to have
been withdrawn.
(J) Notwithstanding anything herein to the contrary, if the option
granted to Holders to require the repurchase of the Securities on the applicable
Option Purchase Date is determined to constitute a tender offer, the Company
shall comply with all applicable tender offer rules under the Exchange Act,
including Rule 13e-4 and Regulation 14E, and with all other applicable laws, and
will file a Schedule TO or any other schedules required under the Exchange Act
or any other applicable laws.
3.09 REPURCHASE AT OPTION OF HOLDER UPON A REPURCHASE EVENT.
(A) In the event any Repurchase Event (as defined below) shall occur,
each Holder of Securities shall have the right (the "REPURCHASE RIGHT"), at the
Holder's option, to require the Company to repurchase all of such Holder's
Securities (or portions thereof that are integral multiples of $1,000 in
principal amount), on a date selected by the Company (the "REPURCHASE DATE"),
which Repurchase Date shall be no later than thirty (30) days after the date the
Repurchase Event Notice (as defined below) is mailed in accordance with SECTION
3.09(B), at a price, payable in cash, equal to one hundred percent (100%) of the
principal amount of the
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Securities (or portions thereof) to be so repurchased (the "REPURCHASE PRICE"),
plus accrued and unpaid interest, if any, to, but excluding, the Repurchase
Date, upon:
(i) delivery to the Company (if it is acting as its own Paying
Agent), or to a Paying Agent designated by the Company for such purpose
in the Repurchase Event Notice, no later than the close of business on
the Business Day immediately preceding the Repurchase Date, of a
Purchase Notice, in the form set forth in the Securities or any other
form of written notice substantially similar thereto, in each case,
duly completed and signed, with appropriate signature guarantee,
stating:
(a) the certificate number(s) of the Securities which
the Holder will deliver to be repurchased;
(b) the principal amount of Securities to be
repurchased, which must be $1,000 or an integral multiple
thereof; and
(c) that such principal amount of Securities are to
be repurchased pursuant to the terms and conditions specified
in PARAGRAPH 9 of the Securities and in this Indenture; and
(ii) delivery to the Company (if it is acting as its own
Paying Agent), or to a Paying Agent designated by the Company for such
purpose in the Repurchase Event Notice, at any time after the delivery
of such Purchase Notice, of such Securities (together with all
necessary endorsements) with respect to which the Repurchase Right is
being exercised, such delivery being a condition to receipt by the
Holder of the Repurchase Price therefor plus accrued and unpaid
interest, if any, payable as herein provided upon Repurchase Upon
Repurchase Event.
If such Securities are held in book-entry form through the Depositary,
the Purchase Notice shall comply with applicable procedures of the Depositary.
Upon such delivery of Securities to the Company (if it is acting as its
own Paying Agent) or such Paying Agent, such Holder shall be entitled to receive
from the Company or such Paying Agent, as the case may be, a nontransferable
receipt of deposit evidencing such delivery.
Notwithstanding anything herein to the contrary, any Holder delivering
the Purchase Notice contemplated by this SECTION 3.09(A) to the Company (if it
is acting as its own Paying Agent) or to a Paying Agent designated by the
Company for such purpose in the Repurchase Event Notice shall have the right to
withdraw such Purchase Notice by delivery, at any time prior to the close of
business on the Business Day immediately preceding the Repurchase Date, of a
written notice of withdrawal to the Company (if acting as its own Paying Agent)
or the Paying Agent, which notice shall contain the information specified in
SECTION 3.09(B)(XI).
The Paying Agent shall promptly notify the Company of the receipt by it
of any Purchase Notice or written notice of withdrawal thereof.
(B) Within thirty (30) days after the occurrence of a Repurchase Event,
the Company shall mail, or cause to be mailed, to all Holders of record of the
Securities at their addresses
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shown in the register of the Registrar, and to beneficial owners as required by
applicable law, a notice (the "REPURCHASE EVENT NOTICE") of the occurrence of
such Repurchase Event and the Repurchase Right arising as a result thereof. The
Company shall deliver a copy of the Repurchase Event Notice to the Trustee and
shall cause a copy to be published at the expense of the Company in THE NEW YORK
TIMES or THE WALL STREET JOURNAL or another newspaper of national circulation.
Each Repurchase Event Notice shall state:
(i) the events causing the Repurchase Event;
(ii) the date of such Repurchase Event;
(iii) the Repurchase Date;
(iv) the date by which the Repurchase Right must be exercised;
(v) the Repurchase Price plus accrued and unpaid interest, if
any, to, but excluding, the Repurchase Date;
(vi) the names and addresses of the Paying Agent and the
Conversion Agent;
(vii) a description of the procedure which a Holder must
follow to exercise the Repurchase Right;
(viii) that, in order to exercise the Repurchase Right, the
Securities must be surrendered for payment of the Repurchase Price plus
accrued and unpaid interest, if any, payable as herein provided upon
Repurchase Upon Repurchase Event;
(ix) that the Repurchase Price, plus accrued and unpaid
interest, if any, to, but excluding, the Repurchase Date, for any
Security as to which a Purchase Notice has been given and not withdrawn
will be paid as promptly as practicable, but in no event more than
three (3) Business Days, following the later of the Repurchase Date or
the time of delivery of the Security as described in (viii);
(x) that, on and after the Repurchase Date (unless there shall
be a Default in the payment of such Repurchase Price or such accrued
and unpaid interest), interest on Securities subject to Repurchase Upon
Repurchase Event will cease to accrue, and all rights of the Holders of
such Securities shall terminate, other than the right to receive, upon
surrender of such Securities, the Repurchase Price and such accrued and
unpaid interest;
(xi) that a Holder will be entitled to withdraw its election
in the Purchase Notice if the Company (if acting as its own Paying
Agent), or the Paying Agent receives, prior to the close of business on
the Business Day immediately preceding the Repurchase Date, or such
longer period as may be required by law, a letter or telegram, telex or
facsimile transmission (receipt of which is confirmed and promptly
followed by
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a letter) setting forth (I) the name of such Holder, (II) a statement
that such Holder is withdrawing its election to have Securities
repurchased, (III) the principal amount of the Securities of such
Holder to be so withdrawn, which amount must be $1,000 or an integral
multiple thereof, (IV) the certificate number of such Securities to be
so withdrawn, and (V) the principal amount, if any, of the Securities
of such Holder that remain subject to the Purchase Notice delivered by
such Holder in accordance with this SECTION 3.09, which amount must be
$1,000 or an integral multiple thereof;
(xii) the Conversion Rate and any adjustments to the
Conversion Rate that will result from the Repurchase Event;
(xiii) that Securities with respect to which a Purchase Notice
is given by a Holder may be converted pursuant to ARTICLE X, if
otherwise convertible in accordance with ARTICLE X, only if such
Purchase Notice has been withdrawn in accordance with this SECTION
3.09; and
(xiv) the CUSIP number or numbers, as the case may be, of the
Securities.
At the Company's request, the Trustee shall mail such Repurchase Event
Notice in the Company's name and at the Company's expense; provided, however,
that, in all cases, the text of such Repurchase Event Notice shall be prepared
by the Company.
No failure of the Company to give a Repurchase Event Notice shall limit
any Holder's right to exercise a Repurchase Right.
(C) Subject to the provisions of this SECTION 3.09, the Company shall
pay, or cause to be paid, the Repurchase Price, plus accrued and unpaid
interest, if any, to, but excluding, the Repurchase Date, with respect to each
Security as to which the Repurchase Right shall have been exercised to the
Holder thereof as promptly as practicable, but in no event more than three (3)
Business Days, following the later of the Repurchase Date and the time such
Security is surrendered to the Paying Agent.
(D) Prior to 10:00 A.M., New York City time on a Repurchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust in accordance with SECTION 2.04)
money, in funds immediately available on the Repurchase Date, sufficient to pay
the Repurchase Price, plus accrued and unpaid interest, if any, to, but
excluding, the Repurchase Date, of all of the Securities that are to be
repurchased by the Company on such Repurchase Date pursuant to a Repurchase Upon
Repurchase Event. The Paying Agent shall return to the Company, as soon as
practicable, any money not required for that purpose.
(E) Once the Repurchase Event Notice and the Purchase Notice have been
duly given in accordance with this SECTION 3.09, the Securities to be
repurchased pursuant to a Repurchase Upon Repurchase Event shall, on the
Repurchase Date, become due and payable at the Repurchase Price (plus accrued
and unpaid interest, if any, to, but excluding, the Repurchase Date) applicable
thereto, and, on and after such date (unless there shall be a Default in the
payment of the Repurchase Price or such accrued and unpaid interest), such
Securities shall cease to bear interest and shall cease to be convertible
pursuant to ARTICLE X, and all rights of the
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Holders of such Securities shall terminate, other than the right to receive, in
accordance with this SECTION 3.09, the Repurchase Price and such accrued and
unpaid interest.
(F) Securities with respect to which a Purchase Notice has been duly
delivered in accordance with this SECTION 3.09 may be converted pursuant to
ARTICLE X, if otherwise convertible in accordance with ARTICLE X, only if such
Purchase Notice has been withdrawn in accordance with this SECTION 3.09 or if
there shall be a Default in the payment of the Repurchase Price or in the
accrued and unpaid interest, if any, payable as herein provided upon Repurchase
Upon Repurchase Event.
(G) If any Security shall not be paid upon surrender thereof for
Repurchase Upon Repurchase Event, the principal of, and accrued and unpaid
interest on, such Security shall, until paid, bear interest from the Repurchase
Date at the rate borne by such Security on the principal amount of such
Security, and such Security shall continue to be convertible pursuant to ARTICLE
X.
(H) Any Security which is to be submitted for Repurchase Upon
Repurchase Event only in part shall be delivered pursuant to this SECTION 3.09
(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 its attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, of the same tenor and in aggregate principal amount
equal to the portion of such Security not submitted for Repurchase Upon
Repurchase Event.
(I) Notwithstanding anything herein to the contrary, there shall be no
purchase of any Securities pursuant to this SECTION 3.09 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such
Securities, of the required Purchase Notice) and is continuing an Event of
Default (other than a Default in the payment of the Repurchase Price or accrued
and unpaid interest, if any, payable as herein provided upon Repurchase Upon
Repurchase Event). The Paying Agent will promptly return to the respective
Holders thereof any Securities held by it during the continuance of an Event of
Default (other than a Default in the payment of the Repurchase Price or such
accrued and unpaid interest), in which case, upon such return, the Purchase
Notice with respect to the Repurchase Upon Repurchase Event shall be deemed to
have been withdrawn.
(J) Notwithstanding anything herein to the contrary, if the option
granted to Holders to require the repurchase of the Securities upon the
occurrence of a Repurchase Event is determined to constitute a tender offer, the
Company shall comply with all applicable tender offer rules under the Exchange
Act, including Rule 13e-4 and Regulation 14E, and with all other applicable
laws, and will file a Schedule TO or any other schedules required under the
Exchange Act or any other applicable laws.
(K) As used herein and in the Securities:
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A "REPURCHASE EVENT" shall be deemed to have occurred upon the
occurrence of either a "Change in Control" or a "Termination of Trading."
A "CHANGE IN CONTROL" shall be deemed to have occurred at such time as:
(i) any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as such term is used in Rule 13d-3
under the Exchange Act), directly or indirectly, of fifty percent
(50%) or more of the total voting power of all classes of the
Company's Capital Stock entitled to vote generally in the election of
directors; or
(ii) at any time the following persons cease for any reason to
constitute a majority of the Company's Board of Directors:
(1) individuals who on the Issue Date constituted the
Company's Board of Directors; and
(2) any new directors whose election to the Company's
Board of Directors or whose nomination for election by the
Company's shareholders was approved by at least a majority of
the directors of the Company then still in office who were
either directors of the Company on the Issue Date or whose
election or nomination for election was previously so
approved; or
(iii) the Company consolidates with, or merges with or into,
another person or any person consolidates with, or merges with or into,
the Company, in any such event other than pursuant to a transaction
where the persons that "beneficially owned," directly or indirectly,
the shares of the Company's Voting Stock immediately prior to such
transaction, "beneficially own," directly or indirectly, immediately
after such transaction, shares of the continuing, surviving or
acquiring corporation's Voting Stock representing at least a majority
of the total voting power of all outstanding classes of the Voting
Stock of the continuing, surviving or acquiring corporation and such
persons "beneficially own" such shares in substantially the same
proportion as such ownership immediately prior to the transaction; or
(iv) the sale, transfer, lease, conveyance or other
disposition of all or substantially all of the property or assets of
the Company to any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), including any group
acting for the purpose of acquiring, holding, voting or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange
Act; or
(v) the Company is liquidated or dissolved or the holders of
the Company's Capital Stock approve any plan or proposal for the
liquidation or dissolution of the Company;
provided, however, that a Change in Control will not be deemed to have
occurred if either:
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(1) the Closing Sale Price for each of any five (5)
Trading Days during the ten (10) Trading Days immediately
preceding the Change in Control is equal to at least one
hundred and twenty percent (120%) of the Conversion Price in
effect on such Trading Day; or
(2) in the case of a merger or consolidation, all of
the consideration (other than cash payments for fractional
shares or pursuant to statutory appraisal rights) in the
merger or consolidation constituting the Change in Control
consists of common stock and any associated rights traded on a
U.S. national securities exchange or quoted on The Nasdaq
National Market (or which will be so traded or quoted when
issued or exchanged in connection with such Change in
Control), and, as a result of such transaction or
transactions, the Securities become convertible solely into
such common stock and associated rights.
A "TERMINATION OF TRADING" shall occur if the Common Stock of the
Company (or other common stock into which the Securities are then convertible)
is neither listed for trading on a U.S. national securities exchange nor
approved for trading on an established automated over-the-counter trading market
in the United States.
3.10 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
In connection with a Redemption of Securities, the Company may arrange,
in lieu of Redemption, for the purchase and conversion of any Securities called
for Redemption by an agreement with one or more investment banks or other
purchasers to purchase all or a portion of such Securities by paying, on or
before 10:00 A.M., New York City time on the Redemption Date, to the Paying
Agent in trust for the Holders whose Securities are to be so purchased, an
amount of money, in funds immediately available on the Redemption Date, that,
together with any amounts deposited with the Paying Agent by the Company for
Redemption of such Securities, is not less than the aggregate Redemption Price,
together with accrued and unpaid interest, if any, to, but excluding, the
Redemption Date, of such Securities. Notwithstanding anything to the contrary
contained in this ARTICLE III, the obligation of the Company to pay the
Redemption Price of such Securities, including all accrued interest, if any,
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers, but no such agreement shall relieve the Company of its
obligation to pay such Redemption Price or such accrued and unpaid interest, if
any. If such an agreement is entered into, any Securities not duly surrendered
for conversion by the Holders thereof may, at the option of the Company, be
deemed, to the fullest extent permitted by law, acquired by such purchasers from
such Holders and (notwithstanding anything to the contrary contained in ARTICLE
X) surrendered by such purchasers for conversion, all as of immediately prior to
the close of business on the Redemption Date, subject to payment of the above
amount as aforesaid. The Paying Agent shall hold and pay to the Holders whose
Securities are selected for Redemption any such amount paid to it for purchase
and conversion in the same manner as it would moneys deposited with it by the
Company for the Redemption of Securities. Without the prior written consent of
the Trustee and the Paying Agent, no arrangement between the Company and such
purchasers for the purchase and conversion of any Securities shall increase or
otherwise affect any of the powers, duties, rights, immunities, responsibilities
or obligations of the Trustee or Paying Agent as set forth in this Indenture,
and the Company agrees to indemnify the Trustee and Paying Agent from, and
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hold them harmless against, any and all loss, liability or expense arising out
of or in connection with any such arrangement for the purchase and conversion of
any Securities between the Company and such purchasers, including the costs and
expenses (including counsel fees and expenses) incurred by the Trustee or Paying
Agent in the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of their powers, duties,
responsibilities or obligations under this Indenture except to the extent
arising from their bad faith, willful misconduct or negligence.
IV. COVENANTS
4.01 PAYMENT OF SECURITIES.
The Company shall pay all amounts due with respect to the Securities on
the dates and in the manner provided in the Securities. All such amounts shall
be considered paid on the date due if the Paying Agent holds (or, if the Company
is acting as Paying Agent, the Company has segregated and holds in trust in
accordance with SECTION 2.04) on that date money (and, if applicable as provided
herein and in accordance herewith, shares of Common Stock) sufficient to pay the
amount then due with respect to the Securities (unless there shall be a Default
in the payment of such amounts to the respective Holder(s)).
The Company shall pay interest on any overdue amount (including, to the
extent permitted by applicable law, overdue interest) at the rate borne by the
Securities.
4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-Registrar) where Securities may be surrendered
for registration of transfer or exchange or conversion and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. 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.
The Company may also from time to time designate one or more other
offices or agencies 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, the City of New York 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.
The Company hereby designates the Corporate Trust Office of the Trustee
as an agency of the Company in accordance with SECTION 2.03.
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4.03 RULE 144A INFORMATION AND ANNUAL REPORTS.
(A) At any time when the Company is not subject to Sections 13 or 15(d)
of the Exchange Act, the Company and the Guarantors shall promptly provide to
the Trustee and shall, upon request, provide to any Holder, beneficial owner or
prospective purchaser of Securities or shares of Common Stock issued upon
conversion of any Securities or issued pursuant to ARTICLE III, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to
facilitate the resale of such Securities or shares of Common Stock pursuant to
Rule 144A. The Company and the Guarantors shall take such further action as any
Holder or beneficial holder of such Securities or shares of Common Stock may
reasonably request to the extent required from time to time to enable such
Holder or beneficial holder to sell its Securities or shares of Common Stock in
accordance with Rule 144A, as such rule may be amended from time to time.
(B) The Company shall, in accordance with TIA ss. 314(a), deliver to
the Trustee, within thirty (30) calendar days after the Company files such
annual reports, information, documents and other reports with the SEC, copies of
the Company's annual reports (which shall contain audited financial statements
of the Company) and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or Section 15(d) of the Exchange Act; provided, however, that the
Company shall not be required to deliver to the Trustee any material for which
the Company has sought and received confidential treatment by the SEC. In the
event the Company is at any time no longer subject to the reporting requirements
of Section 13 or Section 15(d) of the Exchange Act, the Company shall continue
to provide the Trustee and to each Holder, within thirty (30) calendar days
after the Company would have been required to file such reports with the SEC,
annual and quarterly consolidated financial statements substantially equivalent
to financial statements that would have been included in reports filed with the
SEC if the Company were subject to the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act, including, with respect to annual information
only, a report thereon by the Company's certified independent public accountants
as such would be required in such reports filed with the SEC and, in each case,
together with a management's discussion and analysis of financial condition and
results of operations which would be so required. The Company also shall comply
with the other provisions of TIA ss. 314(a).
4.04 COMPLIANCE CERTIFICATE.
The Company and each Guarantor (to the extent that such Guarantor is so
required under the TIA) shall deliver to the Trustee, within ninety (90)
calendar days after the end of each fiscal year of the Company, or, if earlier,
by the date the Company is, or would be, required to file with the SEC the
Company's annual report (whether on Form 10-K under the Exchange Act or another
appropriate form) for such fiscal year, an Officers' Certificate stating whether
or not the signers know of any Default or Event of Default by the Company in
performing any of its obligations under this Indenture or the Securities. If
they do know of any such Default or Event of Default, the certificate shall
describe the Default or Event of Default and its status.
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4.05 STAY, EXTENSION AND USURY LAWS.
The Company and each Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
each Guarantor (in each case, 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, by resort to any such law, 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 has been enacted.
4.06 CORPORATE EXISTENCE.
Subject to ARTICLE 4.10, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate existence of each of its Subsidiaries (including
Guarantors) in accordance with the respective organizational documents of each
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Subsidiaries; provided, however, that the Company shall not
be required to preserve any such right, license or franchise, or the corporate
existence of any Subsidiary, if in the good faith judgment of the Board of
Directors (i) such preservation or existence is not material to the conduct of
business of the Company and (ii) the loss of such right, license or franchise or
the dissolution of such Subsidiary does not have a material adverse impact on
the Holders.
4.07 NOTICE OF DEFAULT.
In the event that any Default or Event of Default shall occur, the
Company will give prompt written notice of such Default or Event of Default, and
any remedial action proposed to be taken, to the Trustee.
4.08 LIMITATION ON LAYERING INDEBTEDNESS.
The Company shall not incur any Indebtedness that is expressly made
subordinate in right of payment to any of the Company's Senior Indebtedness
unless such Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such Indebtedness is outstanding, is expressly made
pari passu with, or subordinate in right of payment to, the Securities pursuant
to provisions consistent in all material respects with those contained in
ARTICLE XI. No Guarantor shall incur any Indebtedness that is expressly made
subordinate in right of payment to any of such Guarantor's Senior Indebtedness
unless such Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such Indebtedness is outstanding, is expressly made
pari passu with, or subordinate in right of payment to, such Guarantor's
Subsidiary Guarantee pursuant to provisions consistent in all material respects
with those contained in ARTICLE XI.
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4.09 ADDITIONAL SUBSIDIARY GUARANTEES.
If, after the time of execution of this Indenture, there shall be
created or acquired another Qualifying Subsidiary, then such newly created or
acquired Qualifying Subsidiary shall become a Guarantor and the Company shall
cause such Qualifying Subsidiary to, within three (3) Business Days after the
date on which such Qualifying Subsidiary was created or acquired, execute (a) a
supplemental indenture in the form attached hereto as EXHIBIT F; (b) a
counterpart to the Registration Rights Agreement; and (c) a Subsidiary
Guarantee, in each case in accordance with ARTICLE XII.
4.10 FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee, the Company and the Guarantors shall
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
V. SUCCESSORS
5.01 WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with, or merge with or into, or sell,
transfer, lease, convey or otherwise dispose of all or substantially all of the
property or assets of the Company to, another person, whether in a single
transaction or series of related transactions, unless (i) such other person is a
corporation organized under the laws of the United States, any State thereof or
the District of Columbia; (ii) such person assumes by supplemental indenture all
the obligations of the Company under the Securities and this Indenture; and
(iii) immediately after giving effect to the transaction, no Default or Event of
Default shall exist.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel (which may rely upon such Officers' Certificate as to the
absence of Defaults and Events of Default) stating that the proposed transaction
and such supplemental indenture will, upon consummation of the proposed
transaction, comply with this Indenture.
5.02 SUCCESSOR SUBSTITUTED.
Upon any consolidation, merger or any sale, transfer, lease, conveyance
or other disposition of all or substantially all of the property or assets of
the Company, the successor person formed by such consolidation or into which the
Company is merged or to which such sale, transfer, lease, conveyance or other
disposition is made shall succeed to, and, except in the case of a lease, be
substituted for, and may exercise every right and power of, and shall assume
every duty and obligation of, the Company under this Indenture with the same
effect as if such successor had been named as the Company herein. When the
successor assumes all obligations of the Company hereunder, except in the case
of a lease, all obligations of the predecessor shall terminate.
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VI. DEFAULTS AND REMEDIES
6.01 EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(i) the Company fails to pay the principal of, or
premium, if any, on, any Security when the same becomes due and
payable, whether at maturity, upon Redemption, on an Option Purchase
Date with respect to a Repurchase at Holder's Option, on a Repurchase
Date with respect to a Repurchase Upon Repurchase Event or otherwise,
whether or not such payment is prohibited by ARTICLE XI;
(ii) the Company fails to pay an installment of interest
or additional interest, on any Security when due, if such failure
continues for thirty (30) days after the date when due, whether or not
such payment is prohibited by ARTICLE XI;
(iii) the Company fails to timely provide a Repurchase
Event Notice, or an Option Purchase Notice, as required by the
provisions of this Indenture;
(iv) the Company fails to comply with any other term,
covenant or agreement set forth in the Securities or this Indenture and
such failure continues for the period, and after the notice, specified
below;
(v) the Company or any of its Subsidiaries defaults in
the payment when due, after the expiration of any applicable grace
period, of principal of, or premium, if any, or interest on,
Indebtedness for money borrowed, in the aggregate principal amount then
outstanding of ten million dollars ($10,000,000) or more, or the
acceleration of Indebtedness of the Company or any of its Subsidiaries
for money borrowed in such aggregate principal amount or more so that
it becomes due and payable prior to the date on which it would
otherwise become due and payable and such default is not cured or
waived, or such acceleration is not rescinded, within thirty (30) days
after notice to the Company by the Trustee or to the Company and the
Trustee by Holders of at least twenty five percent (25%) in the
aggregate principal amount of the Securities then outstanding, each in
accordance with this Indenture;
(vi) the Company or any of its Subsidiaries fails to pay
final judgments, the uninsured portion of which aggregates in excess of
ten million dollars ($10,000,000), and such judgments are not paid,
discharged or stayed within thirty (30) days;
(vii) except as permitted by this Indenture, at any time on
or after the Guarantee Effectiveness Date, any Subsidiary Guarantee of
a Guarantor that is a Significant Subsidiary of the Company, or any
Subsidiary Guarantees of any group of Subsidiaries that in the
aggregate would constitute a Significant Subsidiary of the Company,
shall be held in any judicial proceeding to be unenforceable or invalid
or shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny
or disaffirm its obligations under such Guarantor's Subsidiary
Guarantee;
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(viii) the Company or any of its Significant Subsidiaries
(including any Guarantor that is a Significant Subsidiary of the
Company) or any group of Subsidiaries (including Guarantors) that in
the aggregate would constitute a Significant Subsidiary of the Company
pursuant to, or within the meaning of, any Bankruptcy Law, insolvency
law, or other similar law now or hereafter in effect or otherwise:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its property or
assets, or
(D) makes a general assignment for the benefit
of its creditors; or
(ix) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of
its Significant Subsidiaries (including any Guarantor that is
a Significant Subsidiary of the Company) or any group of
Subsidiaries (including Guarantors) that in the aggregate
would constitute a Significant Subsidiary of the Company in an
involuntary case or proceeding, or adjudicates the Company or
any of its Significant Subsidiaries (including any Guarantor
that is a Significant Subsidiary of the Company) or any group
of Subsidiaries (including Guarantors) that in the aggregate
would constitute a Significant Subsidiary of the Company
insolvent or bankrupt,
(B) appoints a Custodian of the Company or any
of its Significant Subsidiaries (including any Guarantor that
is a Significant Subsidiary of the Company) or any group of
Subsidiaries (including Guarantors) that in the aggregate
would constitute a Significant Subsidiary of the Company for
all or substantially all of the property or assets of the
Company or any such Significant Subsidiary or any such group
of Subsidiaries that in the aggregate would constitute a
Significant Subsidiary of the Company, as the case may be, or
(C) orders the winding up or liquidation of the
Company or any of its Significant Subsidiaries (including any
Guarantor that is a Significant Subsidiary of the Company) or
any group of Subsidiaries (including Guarantors) that in the
aggregate would constitute a Significant Subsidiary of the
Company,
and, in the case of each of the foregoing clauses (A), (B) and (C) of
this SECTION 6.01(IX), the order or decree remains unstayed and in
effect for at least ninety (90) consecutive days.
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The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "CUSTODIAN" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under CLAUSE (IV) above is not an Event of Default until (I)
the Trustee notifies the Company, or the Holders of at least twenty five percent
(25%) in aggregate principal amount of the Securities then outstanding notify
the Company and the Trustee, of the Default and (II) the Default is not cured
within thirty (30) days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "NOTICE OF
DEFAULT". If the Holders of at least twenty five percent (25%) in aggregate
principal amount of the outstanding Securities request the Trustee to give such
notice on their behalf, the Trustee shall do so. When a Default is cured, it
ceases.
6.02 ACCELERATION.
If an Event of Default (excluding an Event of Default specified in
SECTION 6.01(VIII) or (IX) with respect to the Company (but including an Event
of Default specified in SECTION 6.01(VIII) or (IX) solely with respect to a
Significant Subsidiary of the Company (including any Guarantor that is a
Significant Subsidiary of the Company) or any group of Subsidiaries (including
Guarantors) that in the aggregate would constitute a Significant Subsidiary of
the Company)) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least twenty five percent (25%) in aggregate principal amount
of the Securities then outstanding by notice to the Company and the Trustee, may
declare the Securities to be immediately due and payable in full. Upon such
declaration, the principal of, premium, if any, and any accrued and unpaid
interest on, all Securities shall be due and payable immediately. If an Event of
Default specified in SECTION 6.01(VIII) or (IX) with respect to the Company
(excluding, for purposes of this sentence, an Event of Default specified in
SECTION 6.01(VIII) or (IX) solely with respect to a Significant Subsidiary of
the Company (including any Guarantor that is a Significant Subsidiary of the
Company) or any group of Subsidiaries (including Guarantors) that in the
aggregate would constitute a Significant Subsidiary of the Company) occurs, the
principal of, and accrued and unpaid interest on, all the Securities shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder. The Holders of a majority in
aggregate principal amount of the Securities then outstanding by written notice
to the Trustee may rescind or annul an acceleration and its consequences if (A)
the rescission would not conflict with any order or decree, (B) all existing
Events of Default, except the nonpayment of principal or interest that has
become due solely because of the acceleration, have been cured or waived and (C)
all amounts due to the Trustee under SECTION 7.07 have been paid.
6.03 OTHER REMEDIES.
Notwithstanding any other provision of this Indenture, if an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy by
proceeding at law or in equity to collect the payment of amounts due with
respect to the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any
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Holder in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative.
6.04 WAIVER OF PAST DEFAULTS.
Subject to SECTIONS 6.07 and 9.02, the Holders of a majority in
aggregate principal amount of the Securities then outstanding may, by notice to
the Trustee, waive any past Default or Event of Default and its consequences,
other than (A) a Default or Event of Default in the payment of the principal of,
or premium, if any, or interest or additional interest on, any Security, or in
the payment of the Redemption Price, the Option Purchase Price or the Repurchase
Price (or accrued and unpaid interest, if any, payable as herein provided upon
Redemption, Repurchase at Holder's Option or Repurchase Upon Repurchase Event),
(B) a Default or Event of Default arising from a failure by the Company to
convert any Securities into shares of Common Stock in accordance with this
Indenture or (C) any Default or Event of Default in respect of any provision of
this Indenture or the Securities which, under SECTION 9.02, cannot be modified
or amended without the consent of the Holder of each outstanding Security
affected. When a Default or an Event of Default is waived, it is cured and
ceases. This SECTION 6.04 shall be in lieu of TIA Section 316(a)(1)(B), and TIA
Section 316(a)(1)(B) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
6.05 CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the
Securities then outstanding may 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 it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, is unduly prejudicial to
the rights of other Holders or would involve the Trustee in personal liability
unless the Trustee is offered indemnity reasonably satisfactory to it; provided,
that the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction. This SECTION 6.05 shall be in lieu of TIA
Section 316(a)(1)(A), and TIA Section 316(a)(1)(A) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
6.06 LIMITATION ON SUITS.
Except as provided in SECTION 6.07, a Securityholder may not institute
any proceeding under this Indenture, or for the appointment of a receiver or a
trustee, or for any other remedy under this Indenture unless:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least twenty five percent (25%) in
aggregate principal amount of the Securities then outstanding make a
written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense;
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(iv) the Trustee does not comply with the request within
sixty (60) days after receipt of notice, the request and the offer of
indemnity; and
(v) during such sixty (60) day period, the Holders of a
majority in aggregate principal amount of the Securities then
outstanding do not give the Trustee a direction inconsistent with the
request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of all amounts due with respect to the Securities, on
or after the respective due dates as provided herein, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
Notwithstanding any other provision of this Indenture, the right of any
Holder to bring suit for the enforcement of the right to convert the Security in
accordance with this Indenture shall not be impaired or affected without the
consent of the Holder.
6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in SECTION 6.01(I) or (II) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount due with respect to
the Securities, including any unpaid and accrued interest.
6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee, any
predecessor Trustee and the Securityholders allowed in any judicial proceedings
relative to the Company or its creditors or properties.
The Trustee may 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 similar
official in any 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 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 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the 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.
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6.10 PRIORITIES.
If the Trustee collects any money pursuant to this ARTICLE VI, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under SECTION 7.07;
Second: to Securityholders for all amounts due and unpaid on the
Securities, without preference or priority of any kind,
according to the amounts due and payable on the Securities;
and
Third: to the Company.
The Trustee, upon prior written notice to the Company may fix a record
date and payment date for any payment by it to Securityholders pursuant to this
SECTION 6.10.
6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit other than the Trustee of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This SECTION 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to SECTION 6.07 or a suit by Holders of more than ten
percent (10%) in aggregate principal amount of the outstanding Securities.
VII. TRUSTEE
7.01 DUTIES OF TRUSTEE.
(A) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(B) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith, willful misconduct or
negligence 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
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be furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(C) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(ii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to SECTION 6.05.
(D) Every provision of this Indenture that in any way relates to
the Trustee is subject to the provisions of this SECTION 7.01.
(E) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
7.02 RIGHTS OF TRUSTEE.
(A) Subject to SECTION 7.01, the Trustee may conclusively rely on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document; if, however, the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled during normal business hours to
examine the relevant books, records and premises of the Company, personally or
by agent or attorney upon reasonable prior notice.
(B) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel.
(C) 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 shall be sufficiently evidenced by a Board
Resolution.
(D) The Trustee may consult with counsel (such counsel to be
reasonably acceptable to the Company) and the 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 may act through agents or attorneys and shall not
be responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
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(F) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
discretion, rights or powers conferred upon it by this Indenture.
(G) Except with respect to SECTION 6.01, the Trustee shall have no
duty to inquire as to the performance of the Company with respect to the
covenants contained in ARTICLE IV. In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event of
Default occurring pursuant to SECTIONS 6.01(I) and (II) or (ii) any Default or
Event of Default of which a Responsible Officer of the Trustee shall have
received written notification or obtained actual knowledge. Delivery of reports,
information and documents to the Trustee under ARTICLE IV (other than SECTIONS
4.04 and 4.07) is for informational purposes only and the Trustee's receipt of
the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(H) The Trustee shall be under no obligation to exercise any of
the rights or powers vested by this Indenture at the request or demand of any of
the Holders pursuant to this Indenture unless such Holders shall have offered to
the Trustee security or indemnity reasonably satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or demand.
(I) The rights, privileges, protections, immunities and benefits
given to the Trustee, including without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and each agent, custodian and other Person employed to act
hereunder.
(J) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any of
its Affiliates with the same rights the Trustee would have if it were not
Trustee. Any Security Agent may do the same with like rights. The Trustee,
however, must comply with SECTIONS 7.10 and 7.11.
7.04 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities; it shall not be accountable for the Company's
use of the proceeds from the Securities; and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
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7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing as to which
the Trustee has received notice pursuant to the provisions of this Indenture,
the Trustee shall mail to each Holder a notice of the Default or Event of
Default within thirty (30) days after it occurs unless such Default or Event of
Default has been cured or waived. Except in the case of a Default or Event of
Default in payment of any amounts due with respect to any Security, the Trustee
may withhold the notice if, and so long as it in good faith determines that,
withholding the notice is in the best interests of Holders.
7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within sixty (60) days after each May 15 beginning with May 15, 2005,
the Trustee shall mail to each Securityholder if required by TIA Section 313(a)
a brief report dated as of such May 15 that complies with TIA Section 313(c). In
such event, the Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be mailed by first class mail to the Company and filed by the Trustee with
the SEC and each stock exchange, if any, on which the Securities are listed. The
Company shall promptly notify the Trustee when the Securities are listed on any
stock exchange.
7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its services as shall be agreed upon in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable compensation and out-of-pocket expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee against any and all loss,
liability, damage, claim or expense (including the reasonable fees and expenses
of counsel and taxes other than those based upon the income of the Trustee)
incurred by it in connection with the acceptance or administration of this trust
and the performance of its duties hereunder, including the reasonable costs and
expenses of defending itself against any claim (whether asserted by the Company,
any Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers and duties hereunder. The Company need not pay
for any settlement made without its consent. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnification. The Company
need not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee through the Trustee's negligence, bad faith or willful
misconduct.
To secure the Company's payment obligations in this SECTION 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay amounts due on
particular Securities.
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The indemnity obligations of the Company with respect to the Trustee
provided for in this SECTION 7.07 shall survive any resignation or removal of
the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in SECTION 6.01(VIII) or (IX) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this SECTION 7.08.
The Trustee may resign by so notifying the Company in writing thirty
(30) Business Days prior to such resignation. The Holders of a majority in
aggregate principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee and the Company in writing and may appoint a
successor Trustee with the Company's consent. The Company may remove the Trustee
if:
(i) the Trustee fails to comply with SECTION 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of
the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within thirty (30) days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
Company's expense), the Company or the Holders of at least ten percent (10%) in
aggregate principal amount of the outstanding Securities may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with SECTION 7.10, the Company or any
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in SECTION 7.07.
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7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee, if such successor corporation is otherwise eligible
hereunder.
7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA Section 310(b). Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
VIII. DISCHARGE OF INDENTURE
8.01 TERMINATION OF THE OBLIGATIONS OF THE COMPANY AND GUARANTORS.
This Indenture shall cease to be of further effect if (a) either (i)
all outstanding Securities (other than Securities replaced pursuant to SECTION
2.07 hereof) have been delivered to the Trustee for cancellation or (ii) all
outstanding Securities have become due and payable at their scheduled maturity
or upon Repurchase at Holder's Option, Redemption or Repurchase Upon Repurchase
Event, and in either case the Company irrevocably deposits, prior to the
applicable due date, with the Trustee or the Paying Agent (if the Paying Agent
is not the Company or any of its Affiliates) cash sufficient to pay all amounts
due and owing on all outstanding Securities (other than Securities replaced
pursuant to SECTION 2.07 hereof) on the Maturity Date or an Option Purchase
Date, Redemption Date or Repurchase Date, as the case may be; (b) the Company
and/or any Guarantor(s) pay to the Trustee all other sums payable hereunder by
the Company and the Company has otherwise satisfied in full all of its
obligations under this Indenture; (c) no Default or Event of Default with
respect to the Securities shall exist on the date of such deposit; (d) such
deposit will not result in a breach or violation of, or constitute a Default or
Event of Default under, this Indenture or any other agreement or instrument to
which the Company or any Guarantor is a party or by which it is bound; and (e)
the Company has delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture have been complied
with; provided, however, that SECTIONS 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.15, 2.16, 2.17, 3.05, 3.08, 3.09, 4.01, 4.02, 4.05, 7.07 and 7.08 and ARTICLES
VIII, X and XII
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shall survive any discharge of this Indenture until such time as the Securities
have been paid in full and there are no Securities outstanding.
8.02 APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money deposited with it pursuant to
SECTION 8.01. It shall apply the deposited money through the Paying Agent and in
accordance with this Indenture to the payment of the principal of and any unpaid
and accrued interest on the Securities.
8.03 REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly notify the Company of,
and pay to the Company upon the request of the Company, any excess money held by
them at any time. The Trustee and the Paying Agent shall pay to the Company upon
the written request of the Company any money held by them for the payment of the
principal of, premium, if any, or any accrued and unpaid interest or additional
interest on, the notes that remains unclaimed for two (2) years; 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 of general circulation in the City of New York or cause to
be mailed to each Holder, notice stating that such money remains unclaimed and
that, after a date specified therein, which shall not be less than thirty (30)
days from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, Securityholders entitled to the money must look to the Company for
payment as general creditors, subject to applicable law, and all liability of
the Trustee and the Paying Agent with respect to such money and payment shall,
subject to applicable law, cease.
8.04 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money in
accordance with SECTIONS 8.01 and 8.02 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to SECTIONS
8.01 and 8.02 until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with SECTIONS 8.01 and 8.02; provided,
however, that if the Company has made any payment of amounts due with respect to
any Securities because of 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.
IX. AMENDMENTS
9.01 WITHOUT CONSENT OF HOLDERS.
The Company and the Guarantors, with the consent of the Trustee, may
amend or supplement this Indenture or the Securities or the Subsidiary
Guarantees without notice to or the consent of any Securityholder:
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(i) to comply with SECTIONS 5.01 and 10.12;
(ii) to make any changes or modifications to this
Indenture necessary in connection with the registration of the public
offer and sale of the Securities under the Securities Act pursuant to
the Registration Rights Agreement or the qualification of this
Indenture under the TIA;
(iii) to secure the obligations of the Company in respect
of the Securities;
(iv) to add to the covenants of the Company described in
this Indenture for the benefit of Securityholders or to surrender any
right or power conferred upon the Company;
(v) to make provisions with respect to adjustments to the
Conversion Rate as required by this Indenture or to increase the
Conversion Rate in accordance with this Indenture; and
(vi) to allow any Guarantor to execute a supplemental
indenture and/or a Subsidiary Guarantee with respect to the Securities
pursuant to SECTION 4.09.
In addition, the Company, the Guarantors and the Trustee may enter into
a supplemental indenture without the consent of Holders of the Securities to
cure any ambiguity, defect, omission or inconsistency in this Indenture in a
manner that does not materially adversely affect the rights of any Holder.
9.02 WITH CONSENT OF HOLDERS.
The Company and the Guarantors, with the consent of the Trustee, may
amend or supplement this Indenture, the Securities or the Subsidiary Guarantees
without notice to any Securityholder but with the written consent of the Holders
of at least a majority in aggregate principal amount of the outstanding
Securities. Subject to SECTIONS 6.04 AND 6.07, the Holders of a majority in
aggregate principal amount of the outstanding Securities may, by notice to the
Trustee, waive compliance by the Company with any provision of this Indenture or
the Securities without notice to any other Securityholder. Notwithstanding
anything herein to the contrary, without the consent of each Holder of each
outstanding Security affected, an amendment, supplement or waiver, including a
waiver pursuant to SECTION 6.04, may not:
(a) change the stated maturity of the principal
of, or the payment date of any installment of interest on, any
Security;
(b) reduce the principal amount of, or any
premium, interest or additional interest on, any Security;
(c) change the place or currency of payment of
principal of, or any premium, interest or additional interest
on, any Security;
(d) impair the right to institute suit for the
enforcement of any payment on, or with respect to, any
Security;
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(e) modify, in a manner adverse to Holders, the
provisions with respect to the right of Holders pursuant to
ARTICLE III to require the Company to purchase Securities on
an Option Purchase Date or to repurchase Securities upon the
occurrence of a Repurchase Event;
(f) modify the provisions of ARTICLE XI in a
manner adverse to Holders;
(g) adversely affect the right of Holders to
convert Securities in accordance with ARTICLE X;
(h) reduce the percentage of the aggregate
principal amount of the outstanding Securities whose Holders
must consent to a modification to or amendment of any
provision of this Indenture;
(i) reduce the percentage of the aggregate
principal amount of the outstanding Securities whose Holders
must consent to a waiver of compliance with any provision of
this Indenture or a waiver of any Default or Event of Default;
or
(j) modify the provisions of this Indenture with
respect to modification and waiver (including waiver of a
Default or an Event of Default), except to increase the
percentage required for modification or waiver or to provide
for consent of each affected Holder.
In addition, the Company shall not release any Guarantor from any of
its obligations under such Guarantor's Subsidiary Guarantee or this Indenture
except in accordance with the terms of this Indenture, or modify the terms of
any Subsidiary Guarantee in a manner materially adverse to Holders, in each case
without the consent of the Trustee and holders of at least two-thirds (2/3) in
aggregate principal amount of the outstanding Securities.
Promptly after an amendment, supplement or waiver under SECTION 9.01 or
this SECTION 9.02 becomes effective, the Company shall mail, or cause to be
mailed, to Securityholders a notice briefly describing such amendment,
supplement or waiver. Any failure of the Company to mail such notice shall not
in any way impair or affect the validity of such amendment, supplement or
waiver.
It shall not be necessary for the consent of the Holders under this
SECTION 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment, waiver or supplement to this Indenture or the
Securities shall comply with the TIA as then in effect.
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9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
After an amendment, supplement or waiver becomes effective with respect
to the Securities, it shall bind every Holder unless it makes a change that
requires, pursuant to SECTION 9.02, the consent of each Holder affected. In that
case, the amendment, supplement or waiver shall bind each Holder of a Security
who has consented to it and, provided that notice of such amendment, supplement
or waiver is reflected on a Security that evidences the same debt as the
consenting Holder's Security, every subsequent Holder of a Security or portion
of a Security that evidences the same debt as the consenting Holder's Security.
9.05 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security as directed and
prepared by the Company about the changed terms and return it to the Holder.
Alternatively, if the Company so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms.
9.06 TRUSTEE PROTECTED.
The Trustee shall sign any amendment, supplemental indenture or waiver
authorized pursuant to this ARTICLE IX; provided, however, that the Trustee need
not sign any amendment, supplement or waiver authorized pursuant to this ARTICLE
IX that adversely affects the Trustee's rights, duties, liabilities or
immunities. The Trustee shall be entitled to receive and conclusively rely upon
an Opinion of Counsel and an Officers' Certificate that any supplemental
indenture, amendment or waiver is permitted or authorized pursuant to this
Indenture.
X. CONVERSION
10.01 CONVERSION PRIVILEGE; RESTRICTIVE LEGENDS.
(A) Subject to the provisions of SECTIONS 3.04, 3.07, 3.08 AND
3.09, the Securities shall be convertible into shares of Common Stock in
accordance with this ARTICLE X and as set forth below if any of the following
conditions are satisfied:
(i) Conversion Based on Closing Sale Price of Common
Stock. The Securities may be surrendered for conversion into shares of
Common Stock on any
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Business Day of a calendar quarter after the calendar quarter ending
June 30, 2004, if the Closing Sale Price for each of twenty (20) or
more consecutive Trading Days in a period of thirty (30) consecutive
Trading Days ending on the last Trading Day of the immediately
preceding calendar quarter exceeds one hundred and twenty five percent
(125%) of the Adjusted Conversion Price (as defined below) in effect on
the last Trading Day of the immediately preceding calendar quarter. As
used herein the "ADJUSTED CONVERSION PRICE" in effect on the last
Trading Day of the immediately preceding calendar quarter means the
Conversion Price in effect on such last Trading Day, appropriately
adjusted, in the good faith determination of the Board of Directors,
which determination shall be described in a Board Resolution, to
account for any adjustments to the Conversion Rate which shall have
become effective during the period of thirty (30) consecutive Trading
Days ending on the last Trading Day of the immediately preceding
calendar quarter.
(ii) Conversion Upon Satisfaction of Trading Price
Condition. The Securities may be surrendered for conversion into shares
of Common Stock during the five (5) Business Day period after any five
(5) consecutive Trading Day period (the "NOTE MEASUREMENT PERIOD") in
which the average Trading Price per $1,000 principal amount of the
Securities was equal to or less than ninety seven percent (97%) of the
average Conversion Value (as defined below) during the Note Measurement
Period (such condition, the "TRADING PRICE CONDITION"). The Bid
Solicitation Agent shall not have any obligation to determine the
Trading Price unless the Company has requested such determination, and
the Company shall have no obligation to make such request unless a
Holder of at least one million dollars ($1,000,000) in aggregate
principal amount of Securities provides the Company with reasonable
evidence that the Trading Price per $1,000 principal amount of the
Securities would be equal to or less than ninety seven percent (97%) of
the product of the Closing Sale Price and the Conversion Rate. Upon
receipt of such evidence, the Company shall instruct the Bid
Solicitation Agent to determine the Trading Price per $1,000 principal
amount of the Securities for each of the five (5) successive Trading
Days immediately after the date the Company receives such evidence and
on each Trading Day thereafter until the first Trading Day on which the
Trading Price Condition is no longer satisfied. Notwithstanding
anything to the contrary in this paragraph, a Security may not be
surrendered for conversion pursuant to the Trading Price Condition
after May 1, 2019 if, on any Trading Day during the applicable Note
Measurement Period, the Closing Sale Price shall be between one hundred
percent (100%) and one hundred and twenty five percent (125%) of the
Conversion Price in effect on such Trading Day. For purposes of this
paragraph, the "CONVERSION VALUE" per $1,000 principal amount of
Securities, on a given Trading Day, means the product of the Closing
Sale Price on such Trading Day and the Conversion Rate in effect on
such Trading Day.
(iii) Conversion Based on Redemption. A Security, or
portion of a Security, which has been called for Redemption pursuant to
PARAGRAPH 6 of the Securities may be surrendered for conversion into
shares of Common Stock; provided, however, that such Security or
portion thereof may be surrendered for conversion pursuant to this
paragraph only until the close of business on the Business Day
immediately preceding the Redemption Date.
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(iv) Conversion Upon Certain Distributions. If the Company
takes any action, or becomes aware of any event, that would require an
adjustment to the Conversion Rate pursuant to SECTIONS 10.06(B),
10.06(C), 10.06(D), 10.06(E) or 10.06(F), the Securities may be
surrendered for conversion into shares of Common Stock beginning on the
date the Company mails the notice to the Holders as provided in SECTION
10.11 (or, if earlier, the date the Company is required to mail such
notice) and at any time thereafter until the close of business on the
Business Day immediately preceding the "ex" date (as defined in SECTION
10.06(H)) of the applicable transaction or until the Company announces
that such transaction will not take place.
(v) Conversion Upon Occurrence of Certain Corporate
Transactions. If either (i) the Company is a party to a consolidation,
merger or binding share exchange pursuant to which the Common Stock
would be converted into cash, securities or other property, (ii) any
"person" or "group" (as such terms are used for purposes of Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as such term is used in Rule 13d-3 under the Exchange Act),
directly or indirectly, of fifty percent (50%) or more of the total
voting power of all classes of the Company's Capital Stock entitled to
vote generally in the election of directors, or (iii) the Company
sells, transfers, leases, conveys or otherwise disposes of all or
substantially all of the property or assets of the Company to any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), including any group acting for the purpose of
acquiring, holding, voting or disposing of securities within the
meaning of Rule 13d-5(b)(1) under the Exchange Act, then, in each case,
the Securities may be surrendered for conversion into shares of Common
Stock at any time from and after the date which is fifteen (15) days
prior to the date announced by the Company as the anticipated effective
date of such transaction or event (which anticipated effective date the
Company shall disclose, in good faith, in the written notice and public
announcement referred to in SECTION 10.01(C)) until the date that is
fifteen (15) days after the actual effective date of such transaction
or event.
(B) The initial Conversion Rate shall be 33.9153 shares of Common
Stock per $1,000 principal amount of Securities. The Conversion Rate shall be
subject to adjustment in accordance with SECTIONS 10.06 THROUGH 10.12.
(C) Whenever any event described in SECTION 10.01 shall occur
which shall cause the Securities to become convertible into shares of Common
Stock, the Company shall (i) promptly deliver, in accordance with SECTION 13.02,
written notice of the convertibility of the Securities to the Trustee and each
Holder; and (ii) publicly announce that the Securities have become convertible.
Such written notice and public announcement shall include a description of such
event, a description of the periods during which the Securities shall be
convertible and the procedures by which a Holder may convert its Securities. At
the Company's request, upon reasonable prior notice agreed to by the Trustee,
the Trustee shall, in the Company's name and at the Company's expense, deliver
to each Holder the written notice of the convertibility of the Securities
required by this SECTION 10.01(C); provided, that the form and content of such
notice shall be prepared by the Company.
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(D) A Holder may convert a portion of the principal of such
Security if the portion is $1,000 principal amount or an integral multiple of
$1,000 principal amount. Provisions of this Indenture that apply to conversion
of all of a Security also apply to conversion of a portion of it.
(E) Any shares of Common Stock issued upon conversion of a
Security shall bear the Private Placement Legend until after the second
anniversary of the later of the Issue Date and the last date on which the
Company or any Affiliate was the owner of such shares or the Security (or any
predecessor security) from which such shares were converted (or such shorter
period of time as permitted by Rule 144(k) under the Securities Act or any
successor provision thereunder) (or such longer period of time as may be
required under the Securities Act or applicable state securities laws, as set
forth in an Opinion of Counsel, unless otherwise agreed by the Company and the
Holder thereof).
10.02 CONVERSION PROCEDURE.
To convert a Security, a Holder must satisfy the requirements of
PARAGRAPH 10 of the Securities. As soon as practicable following the date (the
"CONVERSION DATE") on which the Holder satisfies all those requirements, the
Company shall deliver to the Holder through the Conversion Agent a certificate
for the number of full shares of Common Stock issuable upon the conversion, as
provided in PARAGRAPH 10 of the Securities, and a check for the amount of cash
payable in lieu of any fractional share. On and after the Conversion Date, the
person in whose name such certificate is to be registered shall be treated as a
shareholder of record of the Company, and all rights of the Holder of the
Security to be converted shall terminate, other than the right to receive the
shares of Common Stock and cash deliverable as provided in the preceding
sentence. A Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities into shares of
Common Stock, or is deemed to be a shareholder of record of the Company, as
provided in this paragraph, and then only to the extent such Securities are
deemed to have been so converted or such Holder is so deemed to be a shareholder
of record.
Except as provided in the Securities or in this ARTICLE X or in ARTICLE
III, no payment or adjustment will be made for accrued interest on, or
additional interest with respect to, a converted Security or for dividends on
any Common Stock issued on or prior to conversion. If any Holder surrenders a
Security for conversion after the close of business on the record date for the
payment of an installment of interest and prior to the related interest payment
date, then, notwithstanding such conversion, the interest payable with respect
to such Security on such interest payment date shall be paid on such interest
payment date to the Holder of record of such Security at the close of business
on such record date; provided, however, that such Security, when surrendered for
conversion, must be accompanied by payment to the Conversion Agent on behalf of
the Company of an amount equal to the interest payable on such interest payment
date on the portion so converted; provided further, however, that such payment
to the Conversion Agent described in the immediately preceding proviso in
respect of a Security surrendered for conversion shall not be required if such
Security is called for Redemption pursuant to SECTION 3.04 and PARAGRAPHS 6 AND
7 of the Securities; provided further, that, if the Company shall have, prior to
the Conversion Date with respect to a Security, defaulted in a payment of
interest on such Security, then in no event shall the Holder of such Security
who surrenders such Security for conversion be required to pay such defaulted
interest or the interest that shall have
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accrued on such defaulted interest pursuant to SECTION 2.12 (it being understood
that nothing in this SECTION 10.02 shall affect the Company's obligations under
SECTION 2.12).
If a Holder converts more than one Security at the same time, the
number of full shares of Common Stock issuable upon such conversion shall be
based on the total principal amount of all Securities converted.
Upon surrender of a Security that is converted in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday
in a place where a Conversion Agent is located, the Security may be surrendered
to that Conversion Agent on the next succeeding day that is not a Legal Holiday.
10.03 FRACTIONAL SHARES.
The Company will not issue fractional shares of Common Stock upon
conversion of Securities and instead will deliver a check in an amount equal to
the value of such fraction computed on the basis of the Closing Sale Price on
the Trading Day immediately before the Conversion Date.
10.04 TAXES ON CONVERSION.
If a Holder converts its Security, the Company shall pay any
documentary, stamp or similar issue or transfer tax or duty due on the issue, if
any, of shares of Common Stock upon the conversion. However, such Holder shall
pay any such tax or duty which is due because such shares are issued in a name
other than such Holder's name. The Conversion Agent may refuse to deliver a
certificate representing the shares of Common Stock to be issued in a name other
than such Holder's name until the Conversion Agent receives a sum sufficient to
pay any tax or duty which will be due because such shares are to be issued in a
name other than such Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulation.
10.05 COMPANY TO PROVIDE STOCK.
The Company shall at all times reserve out of its authorized but
unissued Common Stock or Common Stock held in its treasury enough shares of
Common Stock to permit the conversion of all of the Securities into shares of
Common Stock.
All shares of Common Stock which may be issued upon conversion of the
Securities shall be validly issued, fully paid and non-assessable and shall be
free of preemptive or similar rights and free of any lien or adverse claim.
The Company shall comply with all securities laws regulating the offer
and delivery of shares of Common Stock upon conversion of Securities and shall
list such shares on each national securities exchange or automated quotation
system on which the Common Stock is listed.
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10.06 ADJUSTMENT OF CONVERSION RATE.
The Conversion Rate shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (1) pay a dividend
in shares of Common Stock to all holders of Common Stock, (2)
make a distribution in shares of Common Stock to all holders
of Common Stock, (3) subdivide the outstanding shares of
Common Stock into a greater number of shares of Common Stock
or (4) combine the outstanding shares of Common Stock into a
smaller number of shares of Common Stock, the Conversion Rate
in effect immediately prior to such action shall be adjusted
so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive the number of shares
of Common Stock which such Holder would have owned immediately
following such action had such Securities been converted
immediately prior thereto. Any adjustment made pursuant to
this SECTION 10.06(a) shall become effective immediately after
the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in
the case of a subdivision or combination.
(b) In case the Company shall issue rights or
warrants to all or substantially all holders of Common Stock,
entitling them, for a period expiring not more than sixty (60)
days immediately following the record date for the
determination of holders of Common Stock entitled to receive
such rights or warrants, to subscribe for or purchase shares
of Common Stock (or securities convertible into or
exchangeable or exercisable for Common Stock), at a price per
share (or having a conversion, exchange or exercise price per
share) that is less than the current market price (as
determined pursuant to SECTION 10.06(h)) of Common Stock on
the record date for the determination of holders of Common
Stock entitled to receive such rights or warrants, the
Conversion Rate shall be increased by multiplying the
Conversion Rate in effect immediately prior to such record
date by a fraction of which (A) the numerator shall be the sum
of (I) the number of shares of Common Stock outstanding at the
close of business on such record date and (II) the aggregate
number of shares (the "UNDERLYING SHARES") of Common Stock
underlying all such issued rights or warrants (whether by
exercise, conversion, exchange or otherwise), and (B) the
denominator shall be the sum of (I) number of shares of Common
Stock outstanding at the close of business on such record date
and (II) the number of shares of Common Stock which the
aggregate exercise, conversion, exchange or other price at
which the Underlying Shares may be subscribed for or purchased
pursuant to such rights or warrants would purchase at such
current market price. Such increase shall become effective
immediately prior to the opening of business on the day
following such record date. In no event shall the Conversion
Rate be decreased pursuant to this SECTION 10.06(b).
(c) In case the Company shall dividend or
distribute to all or substantially all holders of Common Stock
shares of Capital Stock of the Company (other than Common
Stock), evidences of Indebtedness or other assets (other than
dividends or distributions requiring an adjustment to the
Conversion Rate in accordance with SECTIONS 10.06(d), 10.06(e)
OR 10.06(f)), or shall
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dividend or distribute to all or substantially all holders of
Common Stock rights or warrants to subscribe for or purchase
securities (other than those referred to in SECTION 10.06(b)),
then in each such case the Conversion Rate shall be increased
by multiplying the Conversion Rate in effect immediately prior
to the close of business on the record date for the
determination of shareholders entitled to such dividend or
distribution by a fraction of which (A) the numerator shall be
the current market price of Common Stock (as determined
pursuant to SECTION 10.06(h)) on such record date and (B) the
denominator shall be an amount equal to (I) such current
market price less (II) the fair market value (as determined in
good faith by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution), on
such record date, of the portion of the shares of Capital
Stock, evidences of Indebtedness, assets, rights and warrants
to be dividended or distributed applicable to one share of
Common Stock, such increase to become effective immediately
prior to the opening of business on the day following such
record date; provided, however, that if such denominator is
equal to or less than zero, then, in lieu of the foregoing
adjustment to the Conversion Rate, adequate provision shall be
made so that each Holder shall have the right to receive upon
conversion of its Securities, in addition to the shares of
Common Stock issuable (and cash, if any, payable) upon such
conversion, an amount of shares of Capital Stock, evidences of
Indebtedness, assets, rights and/or warrants that such Holder
would have received had such Holder converted all of its
Securities on such record date. Notwithstanding the foregoing,
in the event that the Company shall distribute rights or
warrants (other than those referred to in SECTION 10.06(b))
(collectively, "RIGHTS") pro rata to holders of Common Stock,
the Company may, in lieu of making any adjustment pursuant to
this SECTION 10.06(c), make proper provision so that each
Holder of a Security who converts such Security (or any
portion thereof) on or after the record date for such
distribution and prior to the expiration or redemption of the
Rights shall be entitled to receive upon such conversion, in
addition to the shares of Common Stock issuable (and cash, if
any, payable) upon such conversion (the "CONVERSION SHARES"),
a number of Rights to be determined as follows: (i) if such
conversion occurs on or prior to the date for the distribution
to the holders of Rights of separate certificates evidencing
such Rights (the "DISTRIBUTION DATE"), the same number of
Rights to which a holder of a number of shares of Common Stock
equal to the number of shares of Conversion Shares would be
entitled at the time of such conversion in accordance with the
terms and provisions of and applicable to the Rights; and (ii)
if such conversion occurs after the Distribution Date, the
same number of Rights to which a holder of the number of
shares of Common Stock into which the principal amount of the
Security so converted was convertible immediately prior to the
Distribution Date would have been entitled on the Distribution
Date in accordance with the terms and provisions of and
applicable to the Rights. Any distribution of rights or
warrants pursuant to a shareholders' rights plan complying
with the requirements set forth in the preceding sentence of
this paragraph and with SECTION 10.14 shall not constitute a
distribution of rights or warrants pursuant to this SECTION
10.06(c). In no event shall the Conversion Rate be decreased
pursuant to this SECTION 10.06(c).
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(d) In case the Company shall, by dividend or
otherwise, at any time make a distribution of cash (excluding
any cash that is distributed as part of a distribution
requiring a Conversion Rate adjustment pursuant to SECTIONS
10.06(e), OR 10.06(f)) to all or substantially all holders of
Common Stock, the Conversion Rate shall be increased by
multiplying the Conversion Rate in effect immediately prior to
the close of business on the record date for the determination
of holders of Common Stock entitled to such distribution by a
fraction (A) whose numerator shall be the current market price
per share of Common Stock (as determined pursuant to SECTION
10.06(h)) on such record date and (B) whose denominator shall
be an amount equal to (I) such current market price per share
of Common Stock less (II) the amount of the distribution per
share of Common Stock; provided, however, that the Conversion
Rate shall not be adjusted pursuant to this SECTION 10.06(d)
to the extent, and only to the extent, such adjustment would
cause the Conversion Price to be less than one cent ($0.01);
provided further that, if the denominator of such fraction
shall be equal to or less than zero, the Conversion Rate shall
be instead adjusted so that the Conversion Price is equal to
one cent ($0.01). An adjustment to the Conversion Rate
pursuant to this SECTION 10.06(d) shall become effective
immediately prior to the opening of business on the day
immediately following such record date. In no event shall the
Conversion Rate be decreased pursuant to this SECTION
10.06(d).
(e) In case the Company or any Subsidiary shall
distribute cash or other consideration in respect of a tender
offer or exchange offer made by the Company or any Subsidiary
for all or any portion of the Common Stock where the sum of
the aggregate amount of such cash distributed and the
aggregate fair market value (as determined in good faith by
the Board of Directors, whose determination shall be
conclusive and set forth in a Board Resolution), as of the
Expiration Date (as defined below), of such other
consideration distributed (such sum, the "AGGREGATE AMOUNT")
expressed as an amount per share of Common Stock validly
tendered or exchanged, and not withdrawn, pursuant to such
tender offer or exchange offer as of the Expiration Time (as
defined below) (such tendered or exchanged shares of Common
Stock, the "PURCHASED SHARES") exceeds the current market
price per share of Common Stock (as determined pursuant to
SECTION 10.06(h)) on the last date (such last date, the
"EXPIRATION DATE") on which tenders or exchanges could have
been made pursuant to such tender offer or exchange offer (as
the same may be amended through the Expiration Date), then the
Conversion Rate shall be increased by multiplying the
Conversion Rate in effect immediately prior to the close of
business on the Expiration Date by a fraction (A) whose
numerator is equal to the sum of (I) the Aggregate Amount and
(II) the product of (a) the current market price per share of
Common Stock (as determined pursuant to SECTION 10.06(h)) on
the Expiration Date and (b) an amount equal to (i) the number
of shares of Common Stock outstanding as of the last time (the
"EXPIRATION TIME") at which tenders or exchanges could have
been made pursuant to such tender offer or exchange offer
(including all Purchased Shares) less (ii) the Purchased
Shares and (B) whose denominator is equal to the product of
(I) the number of shares of Common Stock
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outstanding as of the Expiration Time (including all Purchased
Shares) and (II) the current market price per share of Common
Stock on the Expiration Date.
An increase, if any, to the Conversion Rate pursuant to this SECTION
10.06(e) shall become effective immediately prior to the opening of
business on the Business Day following the Expiration Date. In the
event that the Company or a Subsidiary is obligated to purchase shares
of Common Stock pursuant to any such tender offer or exchange offer,
but the Company or such Subsidiary is permanently prevented by
applicable law from effecting any such purchases, or all such purchases
are rescinded, then the Conversion Rate shall again be adjusted to be
the Conversion Rate which would then be in effect if such tender offer
or exchange offer had not been made. If the application of this SECTION
10.06(e) to any tender offer or exchange offer would result in a
decrease in the Conversion Rate, no adjustment shall be made for such
tender offer or exchange offer under this SECTION 10.06(e).
(f) If (i) a person other than the Company or
any Subsidiary shall distribute cash or other consideration in
respect of a tender or exchange offer made by such person for
all or any portion of the Common Stock; (ii) as of the last
date (the "THIRD PARTY EXPIRATION DATE") on which tenders or
exchanges could have been made pursuant to such tender offer
or exchange offer (as the same may be amended through such
date), the Board of Directors does not recommend rejection of
such tender offer or exchange offer; (iii) such person
(including such person's "affiliates," within the meaning of
Rule 144(a)(1) under the Securities Act, and including any
"syndicate" or "group," within the meaning of Section 13(d)(3)
of the Exchange Act, that includes such person) would,
assuming that all shares sought for tender or exchange
pursuant to such tender or exchange offer are validly tendered
or exchanged pursuant to such tender or exchange offer,
"beneficially own" (within the meaning of Rule 13d-3 under the
Exchange Act) at least fifteen percent (15%) of the total
shares of Common Stock outstanding immediately after the Third
Party Expiration Time (as defined below); and (iv) the sum of
the aggregate amount of such cash and the fair market value
(as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution), as of the Third Party Expiration Date, of such
other consideration (such sum, the "THIRD PARTY AGGREGATE
AMOUNT"), expressed as an amount per share of Common Stock
validly tendered or exchanged, and not withdrawn, pursuant to
such tender offer or exchange offer as of the last time (the
"THIRD PARTY EXPIRATION TIME") at which tenders or exchanges
could have been made pursuant to such tender offer or exchange
offer (such tendered or exchanged shares of Common Stock, the
"THIRD PARTY PURCHASED SHARES"), exceeds the current market
price per share of Common Stock (as determined pursuant to
SECTION 10.06(h)) on the Expiration Date, then the Conversion
Rate shall be adjusted by multiplying the Conversion Rate in
effect immediately prior to the close of business on the Third
Party Expiration Date by a fraction (A) whose numerator is
equal to the sum of (I) the Third Party Aggregate Amount and
(II) the product of (a) the current market price per share of
Common Stock (as determined pursuant to SECTION 10.06(h)) on
the Third Party Expiration Date and (b) an amount equal to (i)
the number of shares
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of Common Stock outstanding as of the Third Party Expiration
Time (including all Third Party Purchased Shares) less (ii)
the Third Party Purchased Shares and (B) whose denominator is
equal to the product of (I) the number of shares of Common
Stock outstanding as of the Third Party Expiration Time
(including all Third Party Purchased Shares) and (II) the
current market price per share of Common Stock (as determined
pursuant to SECTION 10.06(h)) on the Third Party Expiration
Date.
An adjustment, if any, to the Conversion Rate pursuant to this SECTION
10.06(f) shall become effective immediately prior to the opening of
business on the Business Day following the Third Party Expiration Date.
In the event that such tender offer or exchange offer is permanently
prevented by applicable law from being effected, or all purchases
pursuant to such tender offer or exchange offer are rescinded, then the
Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if such tender offer or exchange offer had not
been made. If the application of this SECTION 10.06(f) to any tender
offer or exchange offer would result in a decrease in the Conversion
Rate, no adjustment shall be made for such tender offer or exchange
offer under this SECTION 10.06(f).
(g) In addition to the foregoing adjustments in
SUBSECTIONS (a), (b), (c), (d), (e) AND (f) above, the
Company, from time to time and to the extent permitted by law,
may increase the Conversion Rate by any amount for a period of
at least twenty (20) days or such longer period as may be
required by law, if the Board of Directors has made a
determination, which determination shall be conclusive, that
such increase would be in the best interests of the Company.
Such Conversion Rate increase shall be irrevocable during such
period. The Company shall give notice to the Trustee and cause
notice of such increase to be mailed to each Holder of
Securities at such Holder's address as the same appears on the
registry books of the Registrar, at least fifteen (15) days
prior to the date on which such increase commences.
(h) For the purpose of any computation under
SUBSECTIONS (a), (b), (c) OR (d) above of this SECTION 10.06,
the current market price per share of Common Stock on the date
fixed for determination of the shareholders entitled to
receive the issuance or distribution requiring such
computation (the "DETERMINATION DATE") shall be deemed to be
the average of the Closing Sale Prices for the ten (10)
consecutive Trading Days immediately preceding the
Determination Date, and, for the purpose of any computation
under SECTIONS 10.06(e) OR 10.06(f), the current market price
per share of Common Stock on the Expiration Date or Third
Party Expiration Date, as the case may be, for the tender
offer or exchange offer requiring such computation shall be
deemed to be the average of the Closing Sale Price for the ten
(10) consecutive Trading Days immediately preceding the
Expiration Date or Third Party Expiration Date, as the case
may be; provided, however, that (i) if the "ex" date for any
event (other than the event requiring such computation) that
requires an adjustment to the Conversion Rate pursuant to
SUBSECTION (a), (b), (c), (d), (e) OR (f) above occurs on or
after the tenth (10th) Trading Day prior to the Determination
Date, Expiration Date or Third Party
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Expiration Date, whichever is applicable, and prior to the
"ex" date for the issuance or distribution requiring such
computation, the Closing Sale Price for each Trading Day prior
to the "ex" date for such other event shall be adjusted by
multiplying such Closing Sale Price by the reciprocal of the
fraction by which the Conversion Rate is so required to be
adjusted as a result of such other event, (ii) if the "ex"
date for any event (other than the event requiring such
computation) that requires an adjustment to the Conversion
Rate pursuant to SUBSECTION (a), (b), (c), (d), (e) OR (f)
above occurs on or after the "ex" date for the issuance or
distribution requiring such computation and on or prior to the
Determination Date or the Expiration Date or Third Party
Expiration Date, whichever is applicable, the Closing Sale
Price for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Closing Sale
Price by the same fraction by which the Conversion Rate is so
required to be adjusted as a result of such other event, and
(iii) if the "ex" date for the event requiring such
computation is on or prior to the Determination Date or
Expiration Date or Third Party Expiration Date, whichever is
applicable, after taking into account any adjustment required
pursuant to CLAUSE (i) OR (ii) of this proviso, the Closing
Sale Price for each Trading Day on and after such "ex" date
shall be adjusted by adding thereto the amount of any cash and
the fair market value (as determined in good faith by the
Board of Directors in a manner consistent with any
determination of such value for the purposes of this SECTION
10.06, whose determination shall be conclusive and described
in a Resolution of the Board of Directors) of the evidences of
Indebtedness, shares of Capital Stock or other securities or
assets or cash being distributed (in the event requiring such
computation) applicable to one share of Common Stock as of the
close of business on the day before such "ex" date.
For purposes of this subsection, the term "ex" date, (i) when used with
respect to any issuance or distribution, means the first date on which
the Common Stock trades the regular way on the relevant exchange or in
the relevant market from which the Closing Sale Price was obtained
without the right to receive such issuance or distribution, (ii) when
used with respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades the
regular way on such exchange or in such market after the time at which
such subdivision or combination becomes effective, and (iii) when used
with respect to any tender offer or exchange offer means the first date
on which the Common Stock trades the regular way on such exchange or in
such market after the expiration time of such tender offer or exchange
offer (as it may be amended or extended).
10.07 NO ADJUSTMENT.
No adjustment in the Conversion Rate shall be required until cumulative
adjustments amount to one percent (1%) or more of the Conversion Price as last
adjusted (or, if never adjusted, the initial Conversion Price); provided,
however, that any adjustments which by reason of this SECTION 10.07 are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this ARTICLE X shall be made to
the nearest cent or to the nearest one-millionth of a share, as the case may be.
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If any rights, options or warrants issued by the Company and requiring
an adjustment to the Conversion Rate in accordance with SECTION 10.06 are only
exercisable upon the occurrence of certain triggering events, then the
Conversion Rate will not be adjusted as provided in SECTION 10.06 until the
earliest of such triggering event occurs. Upon the expiration or termination of
any rights, options or warrants issued by the Company (which rights, options or
warrants require an adjustment to the Conversion Rate in accordance with SECTION
10.06) without the exercise of such rights, options or warrants, the Conversion
Rate then in effect shall be adjusted immediately to the Conversion Rate which
would have been in effect at the time of such expiration or termination had such
rights, options or warrants, to the extent outstanding immediately prior to such
expiration or termination, never been issued.
If any dividend or distribution is declared and the Conversion Rate is
adjusted pursuant to SECTION 10.06 on account of such dividend or distribution,
but such dividend or distribution is thereafter not paid or made, the Conversion
Rate shall again be adjusted to the Conversion Rate which would then be in
effect had such dividend or distribution not been declared.
No adjustment to the Conversion Rate need be made for a transaction
referred to in this ARTICLE X if Holders are to participate in the transaction
without conversion on a basis and with notice that the Board of Directors
determines in good faith to be fair and appropriate in light of the basis and
notice on which holders of Common Stock participate in the transaction (which
determination shall be described in a Board Resolution).
10.08 OTHER ADJUSTMENTS.
In the event that, as a result of an adjustment made pursuant to
SECTION 10.06 hereof, the Holder of any Security thereafter surrendered for
conversion shall become entitled to receive any shares of Capital Stock other
than shares of Common Stock, thereafter the Conversion Rate of such other shares
so receivable upon conversion of any Security shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to Common Stock contained in this ARTICLE X.
10.09 ADJUSTMENTS FOR TAX PURPOSES.
The Company may make such increases in the Conversion Rate, in addition
to those required by SECTION 10.06 hereof, as it determines to be advisable in
order that any stock dividend, subdivision of shares, distribution or rights to
purchase stock or securities or distribution of securities convertible into or
exchangeable for stock made by the Company or to its shareholders will not be
taxable to the recipients thereof.
10.10 NOTICE OF ADJUSTMENT.
Whenever the Conversion Rate is adjusted, the Company shall promptly
mail to Holders at the addresses appearing on the Registrar's books a notice of
the adjustment and file with the Trustee an Officers' Certificate briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence of the correctness of such adjustment.
At the Company's request, upon reasonable prior notice agreed to by the Trustee,
the Trustee shall, in the Company's name and at the Company's expense, mail to
Holders at the
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addresses appearing on the Registrar's books such notice of adjustment required
by this SECTION 10.10; provided, that the form and content of such notice shall
be prepared by the Company.
10.11 NOTICE OF CERTAIN TRANSACTIONS.
In the event that:
(1) the Company takes any action, or becomes aware of any
event, which would require an adjustment in the Conversion Rate,
(2) the Company or any Guarantor takes any action that
would require a supplemental indenture pursuant to SECTION 10.12, or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders at the addresses appearing on the Registrar's
books and the Trustee a written notice stating the proposed record, effective or
expiration date, as the case may be, of any transaction referred to in CLAUSE
(1), (2) or (3) of this SECTION 10.11. The Company shall mail such notice at
least twenty (20) days before such date; however, failure to mail such notice or
any defect therein shall not affect the validity of any transaction referred to
in CLAUSE (1), (2) or (3) of this SECTION 10.11. At the Company's request, upon
reasonable prior notice agreed to by the Trustee, the Trustee shall, in the
Company's name and at the Company's expense, mail to Holders at the addresses
appearing on the Registrar's books such written notice required by this SECTION
10.11; provided, that the form and content of such notice shall be prepared by
the Company.
10.12 EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS, MERGERS, BINDING SHARE
EXCHANGES OR SALES ON CONVERSION PRIVILEGE.
If any of the following shall occur, namely: (i) any reclassification
or change in the Common Stock issuable upon conversion of Securities (other than
a change in par value, or from par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination), (ii) any
consolidation, merger or binding share exchange to which the Company is a party
other than a merger in which the Company is the continuing Person and which does
not result in any reclassification of, or change (other than a change in name,
or par value, or from par value to no par value, or from no par value to par
value or as a result of a subdivision or combination) in, the Common Stock or
(iii) any sale, transfer, lease, conveyance or other disposition of all or
substantially all of the property or assets of the Company, then the Company or
such successor or purchasing Person, as the case may be, and each Guarantor,
shall, as a condition precedent to such reclassification, change, consolidation,
merger, binding share exchange, sale, transfer, lease, conveyance or
disposition, execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee providing that, at and after the
effective time of such reclassification, change, consolidation, merger, binding
share exchange, sale, transfer, lease, conveyance or disposition, the Holder of
each Security then outstanding shall have the right to convert such Security
into the kind and amount of shares of stock and other securities and property
(including cash) receivable upon such reclassification, change, consolidation,
merger, binding share exchange, sale, transfer, lease, conveyance or disposition
by a holder of the number of shares of Common Stock deliverable upon conversion
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of such Security immediately prior to such reclassification, change,
consolidation, merger, binding share exchange, sale, transfer, lease, conveyance
or disposition, assuming that such Holder would not have exercised any rights of
election that such Holder would have had as a holder of Common Stock to select a
particular type of consideration. Such supplemental indenture shall provide for
adjustments of the Conversion Rate which shall be as nearly equivalent as may be
practicable to the adjustments of the Conversion Rate provided for in this
ARTICLE X. The foregoing, however, shall not in any way affect the right a
Holder of a Security may otherwise have, pursuant to SECTION 10.06(c) or SECTION
10.14, to receive Rights upon conversion of a Security. If, in the case of any
such consolidation, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition, the stock or other securities and property (including
cash) receivable thereupon by a holder of Common Stock includes shares of stock
or other securities and property of a Person other than the successor or
purchasing Person, as the case may be, in such consolidation, merger, binding
share exchange, sale, transfer, lease, conveyance or disposition, then such
supplemental indenture shall also be executed by such other Person and shall
contain such additional provisions to protect the interests of the Holders of
the Securities as the Board of Directors in good faith shall reasonably
determine necessary by reason of the foregoing (which determination shall be
described in a Board Resolution). The provision of this SECTION 10.12 shall
similarly apply to successive consolidations, mergers, binding share exchanges,
sales, transfers, leases, conveyances or dispositions.
In the event a supplemental indenture shall have been executed pursuant
to this SECTION 10.12, the Company shall promptly file with the Trustee an
Officers' Certificate briefly stating the reasons therefor, the kind or amount
of shares of stock or securities or property (including cash) receivable by
Holders of the Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, binding share exchange, sale,
transfer, lease, conveyance or disposition and any adjustment to be made with
respect thereto.
10.13 TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this
ARTICLE X should be made, how it should be made or what such adjustment should
be, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be protected in relying upon, the Officers' Certificate
with respect thereto which the Company is obligated to file with the Trustee
pursuant to SECTION 10.10 hereof. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the failure by the
Company to comply with any provisions of this ARTICLE X.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to SECTION 10.12, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to SECTION 10.12 hereof.
10.14 RIGHTS DISTRIBUTIONS PURSUANT TO SHAREHOLDERS' RIGHTS PLANS.
Upon conversion of any Security or a portion thereof, the Company shall
make provision for the Holder thereof to receive, in addition to, and
concurrently with the delivery of, the shares
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of Common Stock issuable (and cash, if any, payable) upon such conversion, the
rights described in the Rights Agreement (whether or not the rights have been
separated from the Common Stock prior to the time of conversion). In the event
that the Company implements a shareholders' rights plan after the date hereof or
amends, supplements or supercedes the Rights Agreement, the Company shall
provide that the Holders will receive upon conversion of their Securities, in
addition to shares of Common Stock issuable (and cash, if any, payable) upon
such conversion, the rights described therein (whether or not the rights have
been separated from the Common Stock prior to the time of conversion).
XI. SUBORDINATION
11.01 AGREEMENT TO SUBORDINATE.
The Company agrees, and each Securityholder by accepting a Security
agrees, that the payment of all amounts due with respect to the Securities is
subordinated in right of payment, to the extent and in the manner provided in
this ARTICLE XI, to the prior payment in full in cash or cash equivalents of all
Senior Indebtedness of the Company (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed) and that the subordination
is for the benefit of the holders of Senior Indebtedness of the Company.
11.02 CERTAIN DEFINITIONS.
"DESIGNATED SENIOR INDEBTEDNESS" means any Senior Indebtedness of the
Company in which the instrument creating or evidencing the indebtedness
expressly provides that such indebtedness is "designated senior indebtedness"
with respect to the Securities. Designated Senior Indebtedness shall initially
include any Indebtedness of the Company outstanding under that certain Loan and
Security Agreement between the Company and HFG Healthco-4, LLC, dated October
22, 2002, as amended, and the Company's 11% Series B Senior Notes due 2008.
"REPRESENTATIVE" means the indenture trustee or other trustee, agent or
representative for an issue of Senior Indebtedness of the Company.
"SENIOR INDEBTEDNESS" means:
(A) with respect to the Company, all Indebtedness of the Company
outstanding at any time, except (i) the Securities, (ii) Indebtedness that by
its terms provides that it shall not be "senior" in right of payment to the
Securities, (iii) Indebtedness that by its terms provides that it shall be "pari
passu" or "junior" or "subordinated" in right of payment to the Securities, (iv)
Indebtedness for trade payables or any account payable or other accrued current
liability or obligation incurred in the ordinary course of business in
connection with the obtaining of materials or services and (v) Indebtedness of
the Company to any of its Subsidiaries; and
(B) with respect to a Guarantor, all Indebtedness of such
Guarantor outstanding at any time, except (i) the Subsidiary Guarantee of such
Guarantor, (ii) Indebtedness that by its terms provides that it shall not be
"senior" in right of payment to such Subsidiary Guarantee, (iii) Indebtedness
that by its terms provides that it shall be "pari passu" or "junior" or
"subordinated" in right of payment to such Subsidiary Guarantee, (iv)
Indebtedness for trade payables or any
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account payable or other accrued current liability or obligation incurred in the
ordinary course of business in connection with the obtaining of materials or
services and (v) Indebtedness of such Guarantor to any of its "subsidiaries" (as
defined in Rule 405 under the Securities Act).
11.03 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
In the event of any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relating to the Company or to its assets, or any
liquidation, dissolution or other winding-up of the Company, whether voluntary
or involuntary, or any assignment for the benefit of creditors or other
marshaling of assets or liabilities of the Company (except in connection with
the consolidation or merger of the Company or its liquidation or dissolution
following the sale, transfer, lease, conveyance or other disposition of all or
substantially all of the property or assets of the Company upon the terms and
conditions of ARTICLE V), the holders of Senior Indebtedness of the Company will
be entitled to receive payment in full in cash or cash equivalents of all Senior
Indebtedness of the Company, or provision shall be made for such payment in
full, before the Securityholders will be entitled to receive any payment or
distribution of any kind or character on account of principal of, or premium, if
any, or interest or additional interest on, the Securities; and any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, by set-off or otherwise, to which the Securityholders or
the Trustee would be entitled but for the provisions of this ARTICLE XI 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 ratably according to the aggregate
amounts remaining unpaid on account of the Senior Indebtedness of the Company 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.
11.04 DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS
No payment or distribution of any assets of the Company of any kind or
character, whether in cash, property or securities, may be made by or on behalf
of the Company on account of the principal of, or premium, if any, or interest
or additional interest, if any, on, the Securities or on account of a Repurchase
at Holder's Option or Repurchase Upon Repurchase Event, Redemption or any other
repurchase or acquisition of Securities, upon the occurrence of any Payment
Default in respect of Designated Senior Indebtedness until such Payment Default
shall have been cured or waived in writing or shall have ceased to exist or such
Designated Senior Indebtedness shall have been discharged or paid in full in
cash or cash equivalents. A "PAYMENT DEFAULT" shall mean a default in payment,
whether at scheduled maturity, upon a scheduled installment, by acceleration or
otherwise, of principal of, or premium, if any, or interest on, Designated
Senior Indebtedness beyond any applicable grace period.
If (i) there occurs any default or event of default with respect to any
Designated Senior Indebtedness, other than a Payment Default, pursuant to which
the maturity of such Designated Senior Indebtedness may be accelerated (a
"NON-PAYMENT DEFAULT"), and (ii) the Trustee receives written notice (a "PAYMENT
BLOCKAGE NOTICE") of such Non-Payment Default from the
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Company or a Representative with respect to such Designated Senior Indebtedness,
then no payment or distribution of any assets of the Company of any kind or
character, whether in cash, property or securities, may be made during the
Payment Blockage Period (as defined below) by or on behalf of the Company on
account of the principal of, or premium, if any, or interest or additional
interest, if any, on, the Securities or on account of a Repurchase at Holder's
Option or Repurchase Upon Repurchase Event, Redemption or any other repurchase
or acquisition of Securities.
The Payment Blockage Period shall mean the period (each a "PAYMENT
BLOCKAGE PERIOD") that shall commence upon receipt by the Trustee of the Payment
Blockage Notice, and shall end on the earliest of:
(i) one hundred seventy nine (179) days
thereafter, provided, that the Designated Senior Indebtedness
to which the non-payment default relates shall not theretofore
have been accelerated;
(ii) the date on which such Non-Payment Default
is cured or waived or ceases to exist;
(iii) the date on which such Designated Senior
Indebtedness is discharged or paid in full; or
(iv) the date on which such Payment Blockage
Period shall have been terminated by written notice to the
Trustee from a Representative of such Designated Senior
Indebtedness.
After the termination of a Payment Blockage Period, the Company shall resume
making any and all required payments in respect of the Securities, including any
missed payments. In any event, not more than one Payment Blockage Period may be
commenced during any period of three hundred and sixty five (365) consecutive
days. No Non-Payment Default that existed or was continuing on the date of the
commencement of any Payment Blockage Period will or can be made the basis for
the commencement of a subsequent Payment Blockage Period, unless such
Non-Payment default has been cured or waived for a period of at least ninety
(90) consecutive days subsequent to the commencement of such initial Payment
Blockage Period.
11.05 ACCELERATION OF SECURITIES.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of the Company's Senior
Indebtedness of such acceleration.
11.06 WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that, notwithstanding the provisions of SECTIONS 11.03 AND
11.04, any payment or distribution of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or any Holder which is
prohibited by such provisions, then and in such event such payment shall be held
in trust for the benefit of, and shall be paid over and delivered by such
Trustee or Holder to, the trustee or Representative with respect to holders of
the Company's Senior Indebtedness, as their interest may appear, for application
to the Company's
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Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been
paid in full in cash or cash equivalents after giving effect to any concurrent
distribution to or for the holders of the Company's Senior Indebtedness.
With respect to the holders of the Company's Senior Indebtedness, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this ARTICLE XI, and no implied covenants or
obligations with respect to the holders of the Company's Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of the Company's Senior
Indebtedness, and shall not be liable to any such holders if the Trustee shall
pay over or distribute to or on behalf of Holders or the Company or any other
person money or assets to which any holders of the Company's Senior Indebtedness
shall be entitled by virtue of this ARTICLE XI, except if such payment is made
as a result of the willful misconduct or negligence of the Trustee.
11.07 NOTICE BY THE COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any obligations
with respect to the Securities to violate this ARTICLE XI, but failure to give
such notice shall not affect the subordination of the Securities to the
Company's Senior Indebtedness as provided in this ARTICLE XI.
11.08 SUBROGATION.
After all Senior Indebtedness of the Company is paid in full and until
the Securities are paid in full, Securityholders shall be subrogated (equally
and ratably with all other Indebtedness that is equal in right of payment to the
Securities) to the rights of holders of the Company's Senior Indebtedness to
receive distributions applicable to the Company's Senior Indebtedness to the
extent that distributions otherwise payable to the Securityholders have been
applied to the payment of the Company's Senior Indebtedness. A distribution made
under this ARTICLE XI, to holders of the Company's Senior Indebtedness that
otherwise would have been made to Securityholders is not, as between the Company
and Securityholders, a payment by the Company of the Securities.
11.09 RELATIVE RIGHTS.
This ARTICLE XI, defines the relative rights of Holders and holders of
the Company's Senior Indebtedness. Nothing in this Indenture shall: (i) impair,
as between the Company and Holders, the obligation of the Company, which is
absolute and unconditional, to pay principal of, premium, if any, and interest
on the Securities in accordance with their terms; (ii) affect the relative
rights of Holders and creditors of Holders other than their rights in relation
to holders of the Company's Senior Indebtedness; or (iii) prevent the Trustee or
any Holder from exercising its available remedies upon a Default or Event of
Default, subject to the rights of holders and owners of the Company's Senior
Indebtedness to receive distributions and payments otherwise payable to Holders
of Securities. If the Company fails because of this ARTICLE XI, to pay principal
of or interest on a Security on the Maturity Date, the failure is still a
Default or Event of Default.
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11.10 SUBORDINATION MAY NOT BE IMPAIRED BY THE COMPANY.
No right of any holder of the Company's Senior Indebtedness to enforce
the subordination of the Indebtedness evidenced by the Securities shall be
impaired by any act or failure to act by the Company or any Holder or by the
failure of the Company or any Holder to comply with this Indenture.
Without in any way limiting the generality of this SECTION 11.10, the
holders of the Company's Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing or
releasing the subordination provided in this ARTICLE XI, or the obligations
hereunder of the Holders to the holders of the Company's Senior Indebtedness, do
any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, the Company's
Senior Indebtedness, or any instrument evidencing the same or any agreement
under which the Company's Senior Indebtedness is outstanding or secured; (b)
sell, exchange, release, foreclose against or otherwise deal with any property
pledged, mortgaged or otherwise securing the Company's Senior Indebtedness; (c)
release any person liable in any manner for the collection of the Company's
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company, any Subsidiary thereof or any other person.
11.11 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
any Senior Indebtedness of the Company, the distribution may be made and the
notice given to their trustee or Representative.
Upon any payment or distribution of assets of the Company referred to
in this ARTICLE XI, the Trustee and the Holders the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, all holders of the Company's Senior Indebtedness 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 XI.
11.12 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this ARTICLE XI, or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Securities, unless a Responsible Officer of the Trustee
shall have received at its Corporate Trust Office of the Trustee at least three
(3) Business Days prior to the date of such payment written notice of facts that
would cause the payment of any obligations with respect to the Securities to
violate this ARTICLE XI. Only the Company or a trustee or Representative with
respect to the Company's Senior Indebtedness may
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give the notice. Nothing in this ARTICLE XI, shall impair the claims of, or
payments to, the Trustee under or pursuant to SECTION 7.07.
The Trustee in its individual or any other capacity may hold the
Company's Senior Indebtedness with the same rights it would have if it were not
Trustee.
XII. SUBSIDIARY GUARANTEES
12.01 GUARANTEES.
Subject to this ARTICLE XII, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Security authenticated
and delivered by the Trustee, to each holder of shares of Common Stock issued
upon conversion of a Security or issued pursuant to ARTICLE III and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securities or the obligations of the
Company hereunder or thereunder, that: (a) the principal of, premium, if any,
and interest or additional interest, if any, on the Securities (including,
without limitation, any additional interest in respect of shares of Common Stock
issued upon conversion of a Security or issued pursuant to ARTICLE III) will be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and premium, if any, and
interest or additional interest, if any, on the Securities or such shares, if
lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder or under the Registration Rights Agreement will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any
Securities, any such shares or any of such other obligations, that the same will
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection. For purposes
of this ARTICLE XII, "Holder" shall be deemed to include any holder of shares of
Common Stock issued upon conversion of a Security or issued pursuant to ARTICLE
III.
Subject to this ARTICLE XII, each Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Notwithstanding the foregoing, each Guarantor shall,
with respect to any claim, action or proceeding against such Guarantor relating
to this Indenture, the Securities or such Guarantor's Subsidiary Guarantee, be
entitled to assert a defense of prior payment or performance by such Guarantor
of the obligations that are the subject of such claim, action or proceeding.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that this
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Subsidiary Guarantee shall not be discharged except by complete performance of
the obligations contained in the Securities, this Indenture and the Registration
Rights Agreement. Nothing in the foregoing sentence shall affect the obligations
contained in SECTION 6.06 of this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by the Company or any Guarantor either to the
Trustee or to such Holder, then each Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in ARTICLE VI
hereof for the purposes of the Subsidiary Guarantees, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in ARTICLE VI hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantors for
the purpose of the Subsidiary Guarantees. The Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Guarantee.
12.02 EFFECTIVENESS OF SUBSIDIARY GUARANTEES.
Notwithstanding anything in this ARTICLE XII or otherwise in this
Indenture to the contrary, the provisions of SECTION 12.01 and the obligations
of each Guarantor shall become operative on the Guarantee Effectiveness Date (if
any) and shall remain operative, except as otherwise provided herein, on and
after such date (it being understood that the provisions of SECTION 12.01 shall
not become operative if there shall be no Guarantee Effectiveness Date and that
neither SECTION 12.01, nor the obligations of any Guarantor thereunder, shall be
operative at any time prior to the Guarantee Effectiveness Date).
12.03 SUBORDINATION OF SUBSIDIARY GUARANTEES.
The obligations of each Guarantor under its Subsidiary Guarantee
pursuant to this ARTICLE XII shall be junior and subordinated to the Senior
Indebtedness of such Guarantor on the same basis as the Securities are junior
and subordinated to Senior Indebtedness of the Company. For the purposes of the
foregoing sentence, the Trustee and the Holders shall have the right to receive
and/or retain payments by any of the Guarantors only at such times as they may
receive and/or retain payments in respect of the Securities pursuant to this
Indenture, including ARTICLE XI hereof. For avoidance of doubt, "Designated
Senior Indebtedness" of any Guarantor shall initially include any Indebtedness
of such Guarantor outstanding, as of the Guarantee Effectiveness Date, under
that certain Loan and Security Agreement between the Company and HFG Healthco-4,
LLC, dated October 22, 2002, as amended, and any Guarantee of such Guarantor in
effect on the Guarantee Effectiveness Date under the Company's 11% Series B
Senior Notes due 2008.
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12.04 LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and, by its acceptance of Securities, each Holder,
hereby confirms that it is the intention of all such parties that the Subsidiary
Guarantee of each Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of each Guarantor shall be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this ARTICLE XII, result in the obligations of such Guarantor
under its Subsidiary Guarantee not constituting a fraudulent transfer or
conveyance.
12.05 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
To evidence its Subsidiary Guarantee set forth in SECTION 12.01, each
Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form included in EXHIBIT E shall be endorsed by an Officer
of such Guarantor on each Security authenticated and delivered by the Trustee
and that this Indenture shall be executed on behalf of such Guarantor by one of
its Officers.
Notwithstanding the foregoing, each Guarantor hereby agrees that any
failure by such Guarantor to endorse on each Security a notation of such
Subsidiary Guarantee shall not affect such Guarantor's obligations under SECTION
12.01 or the validity of such Guarantor's Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on any Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Security on which the Subsidiary Guarantee is endorsed, the Subsidiary Guarantee
shall nevertheless be valid.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set
forth in this Indenture on behalf of the Guarantors.
12.06 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS; RELEASE.
No Guarantor may sell or otherwise dispose of all or substantially all
of its properties or assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person, other
than the Company or another Guarantor, unless:
(A) at the time of and immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(B) to the extent applicable to such transaction, SECTION 3.09 and
ARTICLE V of this Indenture are complied with.
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In case of any such sale or other disposition or consolidation or
merger, provided the conditions of clauses (A) and (B) above are satisfied, the
Subsidiary Guarantee of the Guarantor that is a party to such transaction shall
be released and the Person acquiring such properties or assets (including by way
of merger or consolidation) or Capital Stock of such Guarantor shall not be
required to assume the obligations of such Guarantor.
In case of any such sale or other disposition or consolidation or
merger, where the conditions of clauses (A) and (B) above are not satisfied, the
Person acquiring the properties or assets in such sale or other disposition, or
the Person formed by or surviving any such consolidation or merger, shall assume
all the obligations of such Guarantor under (a) this Indenture, pursuant to a
supplemental indenture reasonably satisfactory to the Trustee, (b) such
Guarantor's Subsidiary Guarantee and (c) the Registration Rights Agreement.
Any Guarantor not released from its obligations under its Subsidiary
Guarantee shall remain liable for the full amount of principal of, premium, if
any, and interest and additional interest on the Securities (and, as applicable,
shares of Common Stock issued upon conversion of a Security or issued pursuant
to ARTICLE III) and for the other obligations of any Guarantor under this
Indenture as provided in this ARTICLE XII.
XIII. MISCELLANEOUS
13.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision of the TIA shall control.
13.02 NOTICES.
Any notice or communication by the Company, any Guarantor or the
Trustee to any other is duly given if in writing and delivered in person, mailed
by first-class mail or by express delivery to the other party's address stated
in this SECTION 13.02. The Company, any Guarantor or the Trustee by notice to
the other may designate additional or different addresses for subsequent notices
or communications. Notices and communications to any Guarantor shall be given
care of the Company.
Any notice or communication to a Holder shall be mailed to its address
shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Security Agent at the same time.
All notices or communications shall be in writing.
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The Company's address is:
Matria Healthcare, Inc.
1850 Parkway Place
Marietta, GA 30067
Attn: Chief Financial Officer
The Trustee's address is:
Wells Fargo Bank, N.A.
Attn: Corporate Trust Services
213 Court Street, Suite 703
Middletown, CT 06457
13.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
13.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Each signer of an Officers' Certificate or an Opinion of Counsel may
(if so stated) rely, effectively, upon an Opinion of Counsel as to legal matters
and an Officers' Certificate or certificates of public officials as to factual
matters if such signer reasonably and in good faith believes in the accuracy of
the document relied upon.
13.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(i) a statement that the person making such certificate
or opinion has read such covenant or condition;
(ii) 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;
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(iii) a statement that, in the opinion of such person, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
13.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar, Paying Agent or Conversion Agent may make reasonable
rules and set reasonable requirements for their respective functions.
13.07 LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the City of New York, in the State
of New York or in the city in which the Trustee administers its corporate trust
business. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue on that payment for the intervening
period.
A "BUSINESS DAY" is a day other than a Legal Holiday.
13.08 DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. Delivery of an executed counterpart by facsimile shall be effective
as delivery of a manually executed counterpart thereof.
13.09 GOVERNING LAW.
The laws of the State of New York, without regard to principles of
conflicts of law, shall govern this Indenture, the Securities and the Subsidiary
Guarantees.
13.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
13.11 SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors. All agreements of each Guarantor in this Indenture and the
Subsidiary Guarantees shall bind its successors, except as otherwise provided in
SECTION 12.06.
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13.12 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
and a Holder shall have no claim therefor against any party hereto.
13.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
13.14 CALCULATIONS IN RESPECT OF THE SECURITIES.
The Company and its agents (including, without limitation, the Bid
Solicitation Agent) shall make all calculations under this Indenture and the
Securities in good faith. In the absence of manifest error, such calculations
shall be final and binding on all Holders. The Company shall provide a copy of
such calculations to the Trustee as required hereunder, and, absent such
manifest error, the Trustee shall be entitled to rely on the accuracy of any
such calculation without independent verification.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first above written.
MATRIA HEALTHCARE, INC.
By: /s/ Parker H. Petit
------------------------------------
Name: Parker H. Petit
Title: Chairman and Chief Executive
Officer
QUALITY ONCOLOGY, INC.
DIABETES SELF CARE, INC.
FACET TECHNOLOGIES LLC
DIABETES MANAGEMENT SOLUTIONS, INC.
By: /s/ Roberta L. McCaw
------------------------------------
Name: Robert L. McCaw
Title: Secretary
WELLS FARGO BANK, N.A., as Trustee
By: /s/ Joseph P. O'Donnell
------------------------------------
Name: Joseph P. O'Donnell
Title: Assistant Vice President
EXHIBIT A
[Face of Security]
MATRIA HEALTHCARE, INC.
Certificate No. _______
[INSERT PRIVATE PLACEMENT LEGEND AND GLOBAL SECURITY LEGEND AS REQUIRED]
4.875% Convertible Senior Subordinated Note due 2024
CUSIP No. ____________
Matria Healthcare, Inc., a Delaware corporation (the "COMPANY"), for
value received, hereby promises to pay to Cede & Co., or its registered assigns,
the principal sum of _____________________ dollars ($__________) on May 1, 2024
and to pay interest thereon, as provided on the reverse hereof, until the
principal and any unpaid and accrued interest are paid or duly provided for.
Interest Payment Dates: May 1 and November 1, with the first payment to
be made on November 1, 2004.
Record Dates: April 15 and October 15.
The provisions on the back of this certificate are incorporated as if
set forth on the face hereof.
IN WITNESS WHEREOF, MATRIA HEALTHCARE, INC. has caused this instrument
to be duly signed.
MATRIA HEALTHCARE, INC.
By:
-------------------------------
Name:
Title:
Dated:
-------------------
A-1
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to
in the within-mentioned Indenture.
WELLS FARGO BANK, N.A., as Trustee
By:
------------------------------------
Authorized Signatory
Dated:
-------------------
A-2
[REVERSE OF SECURITY]
MATRIA HEALTHCARE, INC.
4.875% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2024
1. INTEREST. Matria Healthcare, Inc., a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company will pay interest, payable
semi-annually in arrears, on May 1 and November 1 of each year, with the first
payment to be made on November 1, 2004. Interest on the Securities will accrue
on the principal amount from, and including, the most recent date to which
interest has been paid or provided for or, if no interest has been paid, from,
and including, May 5, 2004, in each case to, but excluding, the next interest
payment date or Maturity Date, as the case may be. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. MATURITY. The Securities will mature on May 1, 2024.
3. METHOD OF PAYMENT. Except as provided in the Indenture (as
defined below), the Company will pay interest on the Securities to the persons
who are Holders of record of Securities at the close of business on the record
date set forth on the face of this Security next preceding the applicable
interest payment date. Holders must surrender Securities to a Paying Agent to
collect the principal amount, Redemption Price, Option Purchase Price or
Repurchase Price of the Securities, plus, if applicable, accrued and unpaid
interest, if any, or any Make-Whole Payment, if applicable, payable as herein
provided upon Redemption, Repurchase at Holder's Option or Repurchase Upon
Repurchase Event, as the case may be (provided, that, Holders that have
converted Securities that have been called for a Provisional Redemption shall be
entitled to receive the Make-Whole Payment in accordance with the terms of the
Indenture without any such surrender). The Company will pay, in money of the
United States that at the time of payment is legal tender for payment of public
and private debts, all amounts due in cash with respect to the Securities, which
amounts shall be paid (A) in the case this Security is in global form, by wire
transfer of immediately available funds to the account specified by the Holder
hereof and (B) in the case this Security is held in other than global form, by
wire transfer of immediately available funds to the account specified by the
Holder hereof or, if no such account is specified, by mailing a check to such
Holder's address shown in the register of the Registrar.
4. PAYING AGENT, REGISTRAR, CONVERSION AGENT. Initially, Wells
Fargo Bank, N.A. (the "TRUSTEE") will act as Paying Agent, Registrar, Bid
Solicitation Agent and Conversion Agent. The Company may change any Paying
Agent, Registrar, Bid Solicitation Agent or Conversion Agent without notice.
5. INDENTURE. The Company issued the Securities under an
Indenture dated as of May 5, 2004 (the "INDENTURE") among the Company, the
Guarantors and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA") as
amended and in effect from time to time. The Securities are subject to all such
terms, and
A-3
Holders are referred to the Indenture and the TIA for a statement of
such terms. The Securities are general unsecured senior subordinated obligations
of the Company limited to $75,000,000 aggregate principal amount ($86,250,000 if
the Initial Purchaser has elected to exercise in full the Option to purchase up
to an additional $11,250,000 aggregate principal amount of the Securities),
except as otherwise provided in the Indenture (except for Securities issued in
substitution for destroyed, mutilated, lost or stolen Securities). Terms used
herein without definition and which are defined in the Indenture have the
meanings assigned to them in the Indenture.
6. PROVISIONAL AND OPTIONAL REDEMPTION.
The Company shall have the right, at the Company's option, at
any time, and from time to time, on a Redemption Date before May 1, 2009, to
redeem (a "PROVISIONAL REDEMPTION") all or any part of the Securities at a price
equal to one hundred percent (100%) of the principal amount of the Securities to
be redeemed plus the Make-Whole Payment (as defined below) if (A) for each of at
least twenty (20) Trading Days in any consecutive thirty (30) Trading Days
ending on, and including, the Trading Day immediately preceding the date (the
"NOTICE DATE") of mailing of the notice of Provisional Redemption as provided in
SECTION 3.04 of the Indenture, the Closing Sale Price exceeds one hundred and
fifty percent (150%) of the Conversion Price in effect on such Trading Day; (B)
a "Shelf Registration Statement" (as defined in the Registration Rights
Agreement) is effective under the Securities Act and available for use, in
accordance with the Registration Rights Agreement, as of such Notice Date
through, and including, such Redemption Date, and is reasonably expected to
remain effective under the Securities Act and so available until at least the
thirtieth (30th) day after such Redemption Date; (C) no "Event" (as defined in
the Registration Rights Agreement) has occurred that has not ceased, in
accordance with the provisions of the Registration Rights Agreement, on or
before such Redemption Date; and (D) no continuing Default or Event of Default
exists that has not been cured or waived, in accordance herewith, on or before
such Redemption Date.
The "MAKE-WHOLE PAYMENT" with respect to a Security subject to
a Provisional Redemption on a Redemption Date shall mean an amount equal to the
sum of (a) the present value, as of such Redemption Date, of all remaining
scheduled interest payments on such Security from, and including, such
Redemption Date through, and including, May 1, 2009; (b) any defaulted interest
that the Company shall have failed to pay with respect to such Security on or
prior to such Redemption date, including any unpaid interest that has accrued,
in accordance with SECTION 2.12 of the Indenture, to, but excluding, such
Redemption Date on any such defaulted interest; (c) any unpaid additional
interest that has accrued with respect to such Security to, but excluding, such
Redemption Date. Such present value shall be calculated using a discount rate
equal to the yield to maturity of United States Treasury securities with a
constant maturity most nearly equal to the then remaining term on such Security
from such Redemption Date to May 1, 2009; provided, however, that if such
remaining term is not equal to the constant maturity of the United States
Treasury security for which a weekly average yield is given, then the applicable
yield to maturity shall be obtained by linear interpolation, calculated to the
nearest one-twelfth (1/12th) of a year, from the weekly average yields of the
United States Treasury securities for which such yields are given, unless such
remaining term is less than one (1) year, in which case the weekly average yield
on United States Treasury securities actually traded, adjusted to a constant
maturity of one (1) year, shall be used. Such yield to maturity data for
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United States Treasury securities shall be obtained from data compiled and
published in the most recent Federal Reserve Statistical Release H.19 that has
become available at any time on or after the Notice Date until the second (2nd)
Business Day immediately preceding such Redemption Date or, if such Statistical
Release is no longer published, any publicly available source for similar market
data. As soon as practicable after the time the amount of the Make-Whole Payment
shall have been calculated, but no later than the second (2nd) Business Day
immediately preceding such Redemption Date, the Company shall publicly
disseminate the amount of the Make-Whole Payment in a press release or publish
it on the Company's website. The Make-Whole Payment shall be paid by the Company
on all Securities called for Provisional Redemption, including, without
limitation, any Securities that have been converted into shares of Common Stock
on or after the Notice Date and before such Redemption Date. In no event shall
the Make-Whole Payment with respect to a Security that is called for Provisional
Redemption be reduced by any amount of accrued and unpaid interest; provided,
however, that in the event such Redemption Date is an interest payment date,
then the Make-Whole Payment shall be reduced by any accrued and unpaid interest
to, but excluding, the Redemption Date, which accrued and unpaid interest shall
instead be paid by the Company on the Redemption Date to the Holder of record of
such Security at the close of business on the record date for such interest
payment. In no event shall a Holder that has converted, in accordance herewith,
such Holder's Security into shares of Common Stock, which Security has been
called for Provisional Redemption, be required to surrender any such shares of
Common Stock in order to be entitled to receive the Make-Whole Payment with
respect to such Security.
Subject to the terms and conditions of the Indenture, the
Make-Whole Payment may be paid for, in whole or in part, at the election of the
Company, in cash or shares of Common Stock or in any combination of cash and
shares of Common Stock; provided, however, that (a) no portion of the Make-Whole
Payment shall be paid in shares of Common Stock unless the conditions set forth
in SECTION 3.01(C)(ix) of the Indenture are satisfied; (b) the Redemption Price
shall be exclusively paid in cash; (c) any portion of a Make-Whole Payment that
represents unpaid interest or additional interest that has accrued to, but
excluding, the Redemption Date (including defaulted interest and any unpaid
interest that has accrued, in accordance with SECTION 2.12 of the Indenture, to,
but excluding, the Redemption Date on any such defaulted interest) shall be
exclusively paid in cash; and (d) the Company will not issue fractional shares
of Common Stock in payment of the Make-Whole Payment and shall instead deliver a
check in an amount equal to the value of such fraction computed on the basis of
the Closing Sale Price on the Trading Day immediately before the Redemption
Date. Subject to the provisions of the Indenture, shares of Common Stock issued
as payment for any portion of the Make-Whole Payment shall be valued at ninety
five percent (95%) of the Average 5-Day Closing Sale Price for the five (5)
consecutive Trading Days ending on, and including, the Trading Day immediately
preceding the Redemption Date, which average shall be appropriately adjusted in
the good faith determination of the Board of Directors (whose determination
shall be described in a Board Resolution) to account for the occurrence, during
such five (5) Trading Day period, of a stock split, stock dividend or a
subdivision or combination of our common stock or a similar event; provided,
however, that fractional shares of Common Stock shall be paid in cash as
provided in SECTION 3.01(C)(iii)(d) of the Indenture.
The Company shall have the right, at the Company's option, at
any time, and from time to time, on a Redemption Date on or after May 1, 2009,
to redeem all or any part of
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the Securities at a price payable in cash equal to one hundred percent (100%) of
the principal amount of the Securities to be redeemed, plus accrued and unpaid
interest, if any, to, but excluding, the Redemption Date (an "OPTIONAL
REDEMPTION").
Upon surrender to the Paying Agent of a Security subject to
Redemption, such Security shall be paid, to the Holder surrendering such
Security, at the Aggregate Redemption Payment Amount. If the Redemption Date is
an interest payment date, the Company shall pay, on such Redemption Date, the
accrued and unpaid interest, if any, to, but excluding, the Redemption Date to
the Holder of record of such Security at the close of business on the record
date for such interest payment, and such accrued and unpaid interest shall not
be paid to the Holder submitting such Security for Redemption (unless such
Holder was the Holder of record of such Security at the close of business on the
record date for such interest payment).
If the Paying Agent (other than the Company) holds on the
Redemption Date money (and, if applicable as provided in the Indenture and in
accordance with the Indenture, shares of Common Stock) sufficient to pay the
Aggregate Redemption Payment Amount with respect to all Securities to be
redeemed, then (unless there shall be a Default in the payment of the Aggregate
Redemption Payment Amount or, in the case of a Provisional Redemption on a
Redemption Date that is also an interest payment date, a Default in the payment
of the accrued and unpaid interest, if any, to, but excluding, the Redemption
Date to the Holder(s) of record of such Securities at the close of business on
the record date for such interest payment) on and after the Redemption Date such
Securities shall be deemed to be no longer outstanding, interest on such
Securities shall cease to accrue, and such Securities shall be deemed paid
whether or not such Securities are delivered to the Paying Agent. Thereafter,
all rights of the Holders of such Securities shall terminate with respect to
such Security, other than the right to receive the Aggregate Redemption Payment
Amount.
7. NOTICE OF REDEMPTION. Notice of Redemption will be mailed at
least thirty (30) days but not more than sixty (60) days before the Redemption
Date to each Holder of Securities to be redeemed at its address appearing in the
security register. Securities in denominations larger than $1,000 principal
amount may be redeemed in part but only in integral multiples of $1,000
principal amount.
8. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER. Subject
to the terms and conditions of the Indenture, the Company shall become obligated
to purchase, at the option of the Holder, the Securities held by such Holder on
each of May 1, 2009, May 1, 2014 and May 1, 2019 (each, an "OPTION PURCHASE
DATE") at an Option Purchase Price, payable in cash, equal to one hundred
percent (100%) of the principal amount of the Securities to be purchased, plus
accrued and unpaid interest, if any, to, but excluding, applicable Option
Purchase Date, upon delivery of a Purchase Notice containing the information set
forth in the Indenture, at any time from the opening of business on the date
that is twenty (20) Business Days prior to the applicable Option Purchase Date
until the close of business on the Business Day immediately preceding the
applicable Option Purchase Date and upon delivery of the Securities to the
Paying Agent by the Holder as set forth in the Indenture.
Holders have the right to withdraw any Purchase Notice by delivering to
the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
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If the Paying Agent (other than the Company) holds on the applicable
Option Purchase Date money sufficient to pay the aggregate Option Purchase
Price, and accrued and unpaid interest, if any, to, but excluding, such Option
Purchase Date, payable in respect of Securities on such Option Purchase Date,
then (unless there shall be a Default in the payment of such aggregate Option
Purchase Price or such accrued and unpaid interest) on and after such Option
Purchase Date such Securities shall be deemed to be no longer outstanding and
interest on them shall cease to accrue, and such Securities shall be deemed paid
whether or not such Securities are delivered to the Paying Agent. Thereafter,
all other rights of the Holders of such Securities shall terminate with respect
to such Securities, other than the right to receive the Option Purchase Price
plus such accrued and unpaid interest.
9. REPURCHASE AT OPTION OF HOLDER UPON A REPURCHASE EVENT.
Subject to the terms and conditions of the Indenture, in the event of a
Repurchase Event, each Holder of the Securities shall have the right, at the
Holder's option, to require the Company to repurchase such Holder's Securities
including any portion thereof which is $1,000 in principal amount or any
integral multiple thereof on a date selected by the Company (the "REPURCHASE
DATE"), which date is no later than thirty (30) days after the date on which
notice of such Repurchase Event is mailed in accordance with the indenture, at a
price payable in cash equal to one hundred percent (100%) of the principal
amount of such Security, plus accrued and unpaid interest to, but excluding, the
Repurchase Date.
Within thirty (30) days after the occurrence of the Repurchase Event,
the Company must mail, or cause to be mailed, notice of the occurrence of such
Repurchase Event to each Holder. Such notice shall include, among other things,
a description of the procedure which a Holder must follow to exercise the
Repurchase Right. To exercise the Repurchase Right, a Holder of Securities must,
in accordance with the provisions of the Indenture, (i) deliver, no later than
the close of business on the Business Day immediately preceding the Repurchase
Date, a Purchase Notice to the Company (if it is acting as its own Paying Agent)
or to the Paying Agent; and (ii) deliver, at any time after the delivery of such
Purchase Notice, the Securities with respect to which the Holder is exercising
its Repurchase Right (together with all necessary endorsements).
A "REPURCHASE EVENT" shall be deemed to have occurred upon the
occurrence of either a "Change in Control" or a "Termination of Trading."
A "CHANGE IN CONTROL" shall be deemed to have occurred at such time as:
(i) any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as such term is used in Rule 13d-3 under the
Exchange Act), directly or indirectly, of fifty percent (50%) or more
of the total voting power of all classes of the Company's Capital Stock
entitled to vote generally in the election of directors; or
(ii) at any time the following persons cease for any
reason to constitute a majority of the Company's Board of Directors:
(1) individuals who on the Issue Date
constituted the Company's Board of Directors; and
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(2) any new directors whose election to the
Company's Board of Directors or whose nomination for election
by the Company's shareholders was approved by at least a
majority of the directors of the Company then still in office
who were either directors of the Company on the Issue Date or
whose election or nomination for election was previously so
approved; or
(iii) the Company consolidates with, or merges with or
into, another person or any person consolidates with, or merges with or
into, the Company, in any such event other than pursuant to a
transaction where the persons that "beneficially owned," directly or
indirectly, the shares of the Company's Voting Stock immediately prior
to such transaction, "beneficially own," directly or indirectly,
immediately after such transaction, shares of the continuing, surviving
or acquiring corporation's Voting Stock representing at least a
majority of the total voting power of all outstanding classes of the
Voting Stock of the continuing, surviving or acquiring corporation and
such persons "beneficially own" such shares in substantially the same
proportion as such ownership immediately prior to the transaction; or
(iv) the sale, transfer, lease, conveyance or other
disposition of all or substantially all of the property or assets of
the Company to any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), including any group
acting for the purpose of acquiring, holding, voting or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange
Act; or
(v) the Company is liquidated or dissolved or the holders
of the Company's Capital Stock approve any plan or proposal for the
liquidation or dissolution of the Company;
provided, however, that a Change in Control will not be deemed to have
occurred if either:
(1) the Closing Sale Price for each of any five
(5) Trading Days during the ten (10) Trading Days immediately
preceding the Change in Control is equal to at least one
hundred and twenty percent (120%) of the Conversion Price in
effect on such Trading Day; or
(2) in the case of a merger or consolidation,
all of the consideration (other than cash payments for
fractional shares or pursuant to statutory appraisal rights)
in the merger or consolidation constituting the Change in
Control consists of common stock and any associated rights
traded on a U.S. national securities exchange or quoted on The
Nasdaq National Market (or which will be so traded or quoted
when issued or exchanged in connection with such Change in
Control), and, as a result of such transaction or
transactions, the Securities become convertible solely into
such common stock and associated rights.
A "TERMINATION OF TRADING" shall occur if the Common Stock of the
Company (or other common stock into which the Securities are then convertible)
is neither listed for trading on a
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U.S. national securities exchange nor approved for trading on an established
automated over-the-counter trading market in the United States.
10. CONVERSION.
Conversion Based on Closing Sale Price of Common Stock. Subject to
earlier Redemption, Repurchase at Holder's Option or Repurchase Upon Repurchase
Event, Holders may surrender Securities in integral multiples of $1,000
principal amount for conversion into shares of Common Stock on any Business Day
of a calendar quarter after the calendar quarter ending June 30, 2004, if the
Closing Sale Price for each of twenty (20) or more consecutive Trading Days in a
period of thirty (30) consecutive Trading Days ending on the last Trading Day of
the immediately preceding calendar quarter exceeds one hundred and twenty five
percent (125%) of the Adjusted Conversion Price (as defined below) in effect on
the last Trading Day of the immediately preceding calendar quarter. As used
herein the "ADJUSTED CONVERSION PRICE" in effect on the last Trading Day of the
immediately preceding calendar quarter means the Conversion Price in effect on
such last Trading Day, appropriately adjusted, in the good faith determination
of the Board of Directors, which determination shall be described in a Board
Resolution, to account for any adjustments to the Conversion Rate which shall
have become effective during the period of thirty (30) consecutive Trading Days
ending on the last Trading Day of the immediately preceding calendar quarter.
Conversion Upon Satisfaction of Trading Price Condition. Subject to
earlier Redemption, Repurchase at Holder's Option or Repurchase Upon Repurchase
Event, Holders may surrender Securities in integral multiples of $1,000
principal amount for conversion into shares of Common Stock during the five (5)
Business Day period after any five (5) consecutive Trading Day period (the "NOTE
MEASUREMENT PERIOD") in which the average Trading Price per $1,000 principal
amount of the Securities was equal to or less than ninety seven percent (97%) of
the average Conversion Value (as defined below) during the Note Measurement
Period (such condition, the "TRADING PRICE CONDITION"). The Bid Solicitation
Agent shall not have any obligation to determine the Trading Price unless the
Company has requested such determination, and the Company shall have no
obligation to make such request unless a Holder of at least one million dollars
($1,000,000) in aggregate principal amount of Securities provides the Company
with reasonable evidence that the Trading Price per $1,000 principal amount of
the Securities would be equal to or less than ninety seven percent (97%) of the
product of the Closing Sale Price and the Conversion Rate. Upon receipt of such
evidence, the Company shall instruct the Bid Solicitation Agent to determine the
Trading Price per $1,000 principal amount of the Securities for each of the five
(5) successive Trading Days immediately after the date the Company receives such
evidence and on each Trading Day thereafter until the first Trading Day on which
the Trading Price Condition is no longer satisfied. Notwithstanding anything to
the contrary in this paragraph, a Security may not be surrendered for conversion
pursuant to the Trading Price Condition after May 1, 2019 if, on any Trading Day
during the applicable Note Measurement Period, the Closing Sale Price shall be
between one hundred percent (100%) and one hundred and twenty five percent
(125%) of the Conversion Price in effect on such Trading Day. For purposes of
this paragraph, the "CONVERSION VALUE" per $1,000 principal amount of
Securities, on a given Trading Day, means the product of the Closing Sale Price
on such Trading Day and the Conversion Rate in effect on such Trading Day.
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Conversion Based on Redemption. A Security, or portion of a Security,
which has been called for Redemption pursuant to PARAGRAPH 6 may be surrendered
in integral multiples of $1,000 principal amount for conversion into shares of
Common Stock; provided, however, that such Security or portion thereof may be
surrendered for conversion pursuant to this paragraph only until the close of
business on the Business Day immediately preceding the Redemption Date.
Conversion Upon Certain Distributions. Subject to earlier Redemption,
Repurchase at Holder's Option or Repurchase Upon Repurchase Event, if the
Company takes any action, or becomes aware of any event, that would require an
adjustment to the Conversion Rate pursuant to SECTIONS 10.06(b), 10.06(c),
10.06(d), 10.06(e) or 10.06(f) of the Indenture, the Securities may be
surrendered for conversion in integral multiples of $1,000 principal amount into
shares of Common Stock beginning on the date the Company mails the notice to the
Holders as provided in Section 10.11 of the Indenture (or, if earlier, the date
the Company is required to mail such notice) and at any time thereafter until
the close of business on the Business Day immediately preceding the "ex" date
(as defined in SECTION 10.06(h) of the Indenture) of the applicable transaction
or until the Company announces that such transaction will not take place.
Conversion Upon Occurrence of Certain Corporate Transactions. Subject
to earlier Redemption, Repurchase at Holder's Option or Repurchase Upon
Repurchase Event, if either (i) the Company is a party to a consolidation,
merger or binding share exchange pursuant to which the Common Stock would be
converted into cash, securities or other property, (ii) any "person" or "group"
(as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the "beneficial owner" (as such term is used in Rule 13d-3
under the Exchange Act), directly or indirectly, of fifty percent (50%) or more
of the total voting power of all classes of the Company's Capital Stock entitled
to vote generally in the election of directors, or (iii) the Company sells,
transfers, leases, conveys or otherwise disposes of all or substantially all of
the property or assets of the Company to any "person" or "group" (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act), including any group
acting for the purpose of acquiring, holding, voting or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act, then, in each
case, the Securities may be surrendered in integral multiples of $1,000
principal amount for conversion into shares of Common Stock at any time from and
after the date which is fifteen (15) days prior to the date announced by the
Company as the anticipated effective date of such transaction or event (which
anticipated effective date the Company shall disclose, in good faith, in the
written notice and public announcement referred to in SECTION 10.01(C) of the
Indenture) until the date that is fifteen (15) days after the actual effective
date of such transaction or event.
The initial Conversion Rate is 33.9153 shares of Common Stock per
$1,000 principal amount of Securities (which results in an effective initial
Conversion Price of approximately $29.49 per share) subject to adjustment in the
event of certain circumstances as specified in the Indenture. The Company will
deliver a check in lieu of any fractional share. On conversion, no payment or
adjustment for any unpaid and accrued interest on, or additional interest with
respect to, the Securities will be made, except as specified in the Indenture.
If a Holder surrenders a Security for conversion after the close of business on
the record date for the payment of an installment of interest and prior to the
related interest payment date, such Security, when surrendered for conversion,
must be accompanied by payment of an amount equal to the interest
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thereon which the registered Holder at the close of business on such record date
is to receive, unless such Security has been called for Redemption as described
in the Indenture.
To convert a Security, a Holder must (1) complete and sign the
Conversion Notice, with appropriate signature guarantee, on the back of the
Security, (2) surrender the Security to a Conversion Agent, (3) furnish
appropriate endorsements and transfer documents if required by the Registrar or
Conversion Agent, (4) pay the amount of interest, if any, the Holder must pay as
provided in the last sentence of the immediately preceding paragraph and (5) pay
any tax or duty if required pursuant to the Indenture. A Holder may convert a
portion of a Security if the portion is $1,000 principal amount or an integral
multiple of $1,000 principal amount.
Any shares of Common Stock issued upon conversion of a Security shall
bear the Private Placement Legend until after the second anniversary of the
later of the Issue Date and the last date on which the Company or any Affiliate
was the owner of such shares or the Security (or any predecessor security) from
which such shares were converted (or such shorter period of time as permitted by
Rule 144(k) under the Securities Act or any successor provision thereunder) (or
such longer period of time as may be required under the Securities Act or
applicable state securities laws, as set forth in an Opinion of Counsel, unless
otherwise agreed by the Company and the Holder thereof).
11. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form, without coupons, in denominations of $1,000 principal amount
and integral multiples of $1,000 principal amount. The transfer of Securities
may be registered and Securities may be exchanged as provided in the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or similar governmental charge that may be
imposed in connection with certain transfers or exchanges. The Company, the
Trustee and the Registrar shall not be required to register the transfer of or
exchange any Security (i) during a period beginning at the opening of business
fifteen (15) days before the mailing of a notice of redemption of the Securities
selected for Redemption under SECTION 3.04 of the Indenture and ending at the
close of business on the day of such mailing or (ii) for a period of fifteen
(15) days before the selection, pursuant to SECTION 3.03 of the Indenture, of
Securities to be redeemed or (iii) that has been selected for Redemption or for
which a Purchase Notice has been delivered, and not withdrawn, in accordance
with the Indenture, except the unredeemed or unrepurchased portion of Securities
being redeemed or repurchased in part.
12. PERSONS DEEMED OWNERS. The registered Holder of a Security may
be treated as the owner of such Security for all purposes.
13. MERGER OR CONSOLIDATION. The Company shall not consolidate
with, or merge with or into, or sell, transfer, lease, convey or otherwise
dispose of all or substantially all of the property or assets of the Company to,
another person, whether in a single transaction or series of related
transactions, unless (i) such other person is a corporation organized under the
laws of the United States, any State thereof or the District of Columbia; (ii)
such person assumes by supplemental indenture all the obligations of the Company
under the Securities and the
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Indenture; and (iii) immediately after giving effect to the transaction, no
Default or Event of Default shall exist.
14. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain
exceptions and to the provisions of the Indenture, the Indenture, the Securities
and the Subsidiary Guarantees may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the
outstanding Securities, and certain existing Defaults or Events of Default may
be waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. In accordance with the terms of the
Indenture, the Company and the Guarantors, with the consent of the Trustee, may
amend or supplement this Indenture or the Securities or the Subsidiary
Guarantees without notice to or the consent of any Securityholder: (i) to comply
with SECTIONS 5.01 and 10.12 of the Indenture; (ii) to make any changes or
modifications to the Indenture necessary in connection with the registration of
the public offer and sale of the Securities under the Securities Act pursuant to
the Registration Rights Agreement or the qualification of the Indenture under
the TIA; (iii) to secure the obligations of the Company in respect of the
Securities; (iv) to add to the covenants of the Company described in the
Indenture for the benefit of Securityholders or to surrender any right or power
conferred upon the Company; (v) to make provisions with respect to adjustments
to the Conversion Rate as required by the Indenture or to increase the
Conversion Rate in accordance with the Indenture; and (vi) to allow any
Guarantor to execute a supplemental indenture and/or a Subsidiary Guarantee with
respect to the Securities pursuant to SECTION 4.09 of the Indenture. In
addition, the Company, the Guarantors and the Trustee may enter into a
supplemental indenture without the consent of Holders of the Securities to cure
any ambiguity, defect, omission or inconsistency in the Indenture in a manner
that does not materially adversely affect the rights of any Holder. In addition,
the Company shall not release any Guarantor from any of its obligations under
such Guarantor's Subsidiary Guarantee or the Indenture except in accordance with
the terms of the Indenture, or modify the terms of any Subsidiary Guarantee in a
manner materially adverse to Holders, in each case without the consent of the
Trustee and holders of at least two-thirds (2/3) in aggregate principal amount
of the outstanding Securities. In accordance with the terms of the Indenture,
certain amendments, supplements and waivers cannot be made without the consent
of each Holder of each outstanding Security affected.
15. DEFAULTS AND REMEDIES. Subject to the provisions of the
Indenture, an "EVENT OF DEFAULT" occurs if (i) the Company fails to pay the
principal of, or premium, if any, on, any Security when the same becomes due and
payable, whether at maturity, upon Redemption, on an Option Purchase Date with
respect to a Repurchase at Holder's Option, on a Repurchase Date with respect to
a Repurchase Upon Repurchase Event or otherwise, whether or not such payment is
prohibited by ARTICLE XI of the Indenture; (ii) the Company fails to pay an
installment of interest or additional interest, on any Security when due, if
such failure continues for thirty (30) days after the date when due, whether or
not such payment is prohibited by ARTICLE XI of the Indenture; (iii) the Company
fails to timely provide a Repurchase Event Notice, or an Option Purchase Notice,
as required by the provisions of the Indenture; (iv) the Company fails to comply
with any other term, covenant or agreement set forth in the Securities or the
Indenture and such failure continues for the period, and after the notice,
specified in the Indenture; (v) the Company or any of its Subsidiaries defaults
in the payment when due, after the expiration of any applicable grace period, of
principal of, or premium, if any, or interest on, Indebtedness for money
borrowed, in the aggregate principal amount then outstanding of ten million
dollars
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($10,000,000) or more, or the acceleration of Indebtedness of the Company or any
of its Subsidiaries for money borrowed in such aggregate principal amount or
more so that it becomes due and payable prior to the date on which it would
otherwise become due and payable and such default is not cured or waived, or
such acceleration is not rescinded, within thirty (30) days after notice to the
Company by the Trustee or to the Company and the Trustee by Holders of at least
twenty five percent (25%) in the aggregate principal amount of the Securities
then outstanding, each in accordance with the Indenture; (vi) the Company or any
of its Subsidiaries fails to pay final judgments, the uninsured portion of which
aggregates in excess of ten million dollars ($10,000,000), and such judgments
are not paid, discharged or stayed within thirty (30) days; (vii) except as
permitted by the Indenture, at any time on or after the Guarantee Effectiveness
Date, any Subsidiary Guarantee of a Guarantor that is a Significant Subsidiary
of the Company, or any Subsidiary Guarantees of any group of Subsidiaries that
in the aggregate would constitute a Significant Subsidiary of the Company, shall
be held in any judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm its obligations under
such Guarantor's Subsidiary Guarantee; and (viii) certain events of bankruptcy
or insolvency involving the Company or any of its Significant Subsidiaries
(including any Guarantor that is a Significant Subsidiary of the Company) or any
group of Subsidiaries (including Guarantors) that in the aggregate would
constitute a Significant Subsidiary of the Company.
If an Event of Default (excluding an Event of Default
specified in SECTION 6.01(viii) or (ix) of the Indenture with respect to the
Company (but including an Event of Default specified in SECTION 6.01(viii) or
(ix) of the Indenture solely with respect to a Significant Subsidiary of the
Company (including any Guarantor that is a Significant Subsidiary of the
Company) or any group of Subsidiaries (including Guarantors) that in the
aggregate would constitute a Significant Subsidiary of the Company)) occurs and
is continuing, the Trustee by notice to the Company or the Holders of at least
twenty five percent (25%) in aggregate principal amount of the Securities then
outstanding by notice to the Company and the Trustee, may declare the Securities
to be immediately due and payable in full. Upon such declaration, the principal
of, premium, if any, and any accrued and unpaid interest on, all Securities
shall be due and payable immediately. If an Event of Default specified in
SECTION 6.01(viii) or (ix) of the Indenture with respect to the Company
(excluding, for purposes of this sentence, an Event of Default specified in
SECTION 6.01(viii) or (ix) of the Indenture solely with respect to a Significant
Subsidiary of the Company (including any Guarantor that is a Significant
Subsidiary of the Company) or any group of Subsidiaries (including Guarantors)
that in the aggregate would constitute a Significant Subsidiary of the Company)
occurs, the principal of, and accrued and unpaid interest on, all the Securities
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in aggregate principal amount of the Securities then outstanding
by written notice to the Trustee may rescind or annul an acceleration and its
consequences if (A) the rescission would not conflict with any order or decree,
(B) all existing Events of Default, except the nonpayment of principal or
interest that has become due solely because of the acceleration, have been cured
or waived and (C) all amounts due to the Trustee under SECTION 7.07 if the
Indenture have been paid.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Holders of a majority in aggregate principal
amount of the Securities then
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outstanding may 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 it. However, the Trustee may refuse to follow any direction that
conflicts with law or the Indenture, is unduly prejudicial to the rights of
other Holders or would involve the Trustee in personal liability unless the
Trustee is offered indemnity reasonably satisfactory to it; provided, that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
If a Default or Event of Default occurs and is continuing as
to which the Trustee has received notice pursuant to the provisions of the
Indenture, the Trustee shall mail to each Holder a notice of the Default or
Event of Default within thirty (30) days after it occurs unless such Default or
Event of Default has been cured or waived. Except in the case of a Default or
Event of Default in payment of any amounts due with respect to any Security, the
Trustee may withhold the notice if, and so long as it in good faith determines
that, withholding the notice is in the best interests of Holders. The Company
must deliver to the Trustee an annual compliance certificate.
16. SUBORDINATION. The Securities are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full of all Senior Indebtedness of the Company. Each Holder, by
accepting a Security, agrees to the subordination provisions of the Indenture
and authorizes the Trustee to give them effect.
17. GUARANTEE. To the extent provided in, and in accordance with,
the Indenture, the Securities will be guaranteed jointly and severally, on a
senior subordinated basis by the Guarantors. The Guarantees will be subordinated
in right of payment to all existing and future Senior Indebtedness of the
Guarantors.
18. REGISTRATION RIGHTS. The Holders are entitled to registration
rights as set forth in the Registration Rights Agreement. The Holders shall be
entitled to receive additional interest in certain circumstances, all as set
forth in the Registration Rights Agreement.
19. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee under the
Indenture, or any banking institution serving as successor Trustee thereunder,
in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for, the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not Trustee.
20. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee or shareholder, as such, of the Company or any
Guarantor shall have any liability for any obligations of the Company or any
Guarantor under the Securities or any Subsidiary Guarantees or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder, by accepting a Security, waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
21. AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent
in accordance with the Indenture.
22. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety),
A-14
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT
CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
Matria Healthcare, Inc.
1850 Parkway Place
Marietta, GA 30067
A-15
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
- --------------------------------------------
- --------------------------------------------------------------------------------
(please print or type name and address)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, and hereby irrevocably
constitutes and appoints
- --------------------------------------------------------------------------------
Attorney to transfer the Security on the books of the Company with full power of
substitution in the premises.
Dated:
--------------------------- --------------------------------
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Security in
every particular without alteration or
enlargement or any change whatsoever and be
guaranteed by a guarantor institution
participating in the Securities Transfer
Agents Medallion Program or in such other
guarantee program acceptable to the Trustee.
Signature Guarantee:
-----------------------------------------------
A-16
In connection with any transfer of this Security occurring prior to the date
which is the earlier of (i) the date of the declaration by the Commission of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended, covering resales of this Security (which effectiveness shall not have
been suspended or terminated at the date of the transfer) and (ii) the Resale
Restriction Termination Date, the undersigned confirms that it is making, and it
has not utilized any general solicitation or general advertising in connection
with, the transfer:
[Check One]
(1) ____ to the Company or any Subsidiary thereof, or
(2) ____ pursuant to, and in compliance with, the exemption from
registration provided by Rule 144A under the Securities Act of
1933, as amended, or
(3) ____ pursuant to, and in compliance with, the exemption from
registration provided by Rule 144 under the Securities Act of
1933, as amended, or
(4) ____ pursuant to, and in compliance with, an exemption from
registration under the Securities Act of 1933, as amended,
other than Rule 144A or Rule 144, or
(5) ____ pursuant to an effective registration statement under the
Securities Act of 1933, as amended,
and, unless the box below is checked, the undersigned confirms that this
Security is not being transferred to an "affiliate" of the Company (an
"Affiliate") as defined in Rule 144 under the Securities Act of 1933, as
amended:
[ ] The transferee is an Affiliate of the Company. (If the
Security is transferred to an Affiliate, the restrictive legend must remain on
the Security for at least two (2) years following the date of the transfer.)
Unless one of the items (1) through (5) is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if item
(3) or (4) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Securities, in their sole discretion, such
written legal opinions, certifications and other information as the Trustee or
the Company have reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended. If item (2)
is checked, the purchaser must complete the certification below.
If none of the foregoing items are checked, the Trustee or Registrar shall not
be obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in the Indenture shall have been satisfied.
Dated: Signed:
------------------- --------------------------------------------
(Sign exactly as name appears on the other
side of this Security)
Signature Guarantee:
-----------------------------------------------------------
A-17
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Security for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, as amended,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A and acknowledges that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
--------------------- ----------------------------------------------
NOTICE: To be executed by an executive officer
A-18
CONVERSION NOTICE
To convert this Security into Common Stock of the, check the box: [ ]
To convert only part of this Security, state the principal amount to be
converted (must be in multiples of $1,000):
$__________________
If you want the stock certificate made out in another person's name, fill in the
form below:
- --------------------------------------------------------------------------------
(Insert other person's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type other person's name, address and zip code)
- --------------------------------------------------------------------------------
Date: Signature(s):
-------------- --------------------------------------------
--------------------------------------------
(Sign exactly as your name(s) appear(s) on
the other side of this Security)
Signature(s) guaranteed by:
-----------------------------------------------------
(All signatures must be guaranteed by a guarantor
institution participating in the Securities Transfer
Agents Medallion Program or in such other guarantee
program acceptable to the Trustee.)
A-19
PURCHASE NOTICE
Certificate No. of Security:
--------------
If you want to elect to have this Security purchased by the Company
pursuant to SECTION 3.08 of the Indenture, check the box:
If you want to elect to have this Security purchased by the Company
pursuant to SECTION 3.09 of the Indenture, check the box:
If you want to elect to have only part of this Security purchased by
the Company pursuant to SECTIONS 3.08 or 3.09 of the Indenture, as applicable,
state the principal amount to be so purchased by the Company:
$
---------------------------------------
(in an integral multiple of $1,000)
Date: Signature(s):
------------------ -------------------------------
--------------------------------------------
(Sign exactly as your name(s) appear(s) on
the other side of this Security)
Signature(s) guaranteed by:
--------------------------------------------
(All signatures must be guaranteed by a
guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program
acceptable to the Trustee.)
A-20
SCHEDULE A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY(a)
The following exchanges of a part of this Global Security for an
interest in another Global Security or for Securities in certificated form, have
been made:
Principal amount of
Amount of decrease Amount of Increase in this Global Signature or
in Principal amount Principal amount of Security following authorized signatory
of this Global this Global Security such decrease of Trustee or Note
Date of Exchange Security or increase Custodian
- ---------------------
(a) This is included in Global Securities only.
A-21
EXHIBIT B-1
FORM OF PRIVATE PLACEMENT LEGEND
THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A
"QUALIFIED INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION
WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES THAT IT WILL NOT DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING
TRANSACTIONS INVOLVING THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT, AND
(3) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST
HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW, EXCEPT ONLY
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME
EFFECTIVE UNDER THE SECURITIES ACT,
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(C) ABOVE, A
DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM
THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY
TRANSFER IN ACCORDANCE WITH (3)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE
THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR
OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE
PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
B-1-1
EXHIBIT B-2
FORM OF LEGEND FOR GLOBAL SECURITY
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE
INDENTURE.
B-2-1
EXHIBIT B-3
FORM OF LEGEND REGARDING REGISTRATION RIGHTS AGREEMENT AND
SUBSIDIARY GUARANTEES
THIS SECURITY SHALL BE ENTITLED TO THE BENEFITS OF THAT CERTAIN
REGISTRATION RIGHTS AGREEMENT, DATED MAY 5, 2004, AMONG MATRIA
HEALTHCARE, INC., UBS SECURITIES LLC AND THE OTHER PARTIES NAMED
THEREIN.
THIS SECURITY SHALL BE ENTITLED TO THE BENEFITS OF THE SUBSIDIARY
GUARANTEES REFERRED TO IN THAT CERTAIN INDENTURE, DATED MAY 5, 2004,
AMONG MATRIA HEALTHCARE, INC., THE GUARANTORS NAMED THEREIN AND WELLS
FARGO BANK, N.A.
B-3-1
EXHIBIT C
Form of Notice of Transfer Pursuant to Registration Statement
Matria Healthcare, Inc.
1850 Parkway Place
Marietta, GA 30067
Attention: General Counsel
Wells Fargo Bank, N.A.
213 Court Street, Suite 703
Middletown, CT 06457
Attn: Corporate Trust Services
Re: Matria Healthcare, Inc. (the "COMPANY") 4.875% Convertible
Senior Subordinated Notes due 2024 (the "SECURITIES")
Ladies and Gentlemen:
Please be advised that _____________ has transferred $___________
aggregate principal amount of the Securities and ________ shares of the Common
Stock, $0.01 par value per share, of the Company issued on conversion of the
Securities ("STOCK") pursuant to an effective Shelf Registration Statement on
Form S-3 (File No. 333-________).
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933 as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the
Securities or Stock is named as a "Selling Security Holder" in the Prospectus
dated _________, or in amendments or supplements thereto, and that the aggregate
principal amount of the Securities and the number of shares of Stock transferred
are [a portion of] the Securities and Stock listed in such Prospectus, as
amended or supplemented, opposite such owner's name.
Very truly yours,
---------------------------
(Name)
C-1
EXHIBIT D
Form of Opinion of Counsel in Connection with Registration of Securities
Wells Fargo Bank, N.A.
213 Court Street, Suite 703
Middletown, CT 06457
Attn: Corporate Trust Services
Re: Matria Healthcare, Inc. (the "COMPANY") 4.875% Convertible
Senior Subordinated Notes due 2024
Ladies and Gentlemen:
Reference is made to the Company's 4.875% Convertible Senior
Subordinated Notes due 2024 (together with the Subsidiary Guarantees (as defined
in the Indenture referred to below), the "SECURITIES") issued pursuant to a
certain Indenture (the "INDENTURE") dated as of May 5, 2004 by and among the
Company, the Guarantors named therein and Wells Fargo Bank, N.A., as trustee
(the "TRUSTEE"). The Company issued $75,000,000 principal amount of Securities
on May 5, 2004 [and an additional $_____________ on ___________ [IF THE INITIAL
PURCHASER'S OPTION IS EXERCISED]] in transactions exempt from registration under
the Securities Act of 1933, as amended (the "SECURITIES ACT"). The Company has
filed with the Securities and Exchange Commission (the "SEC") [a] [Amendment No.
[_] to the] Registration Statement on Form S-3 (File No. 333-______) (the
"REGISTRATION STATEMENT") relating to the registration under the Securities Act
of $______________ principal amount of the Securities and the shares of Common
Stock of the Company (the "SHARES") issuable upon conversion of the Securities
being registered. The Registration Statement was declared effective by order of
the SEC dated _____________.
We have acted as counsel for the Company in connection with the
issuance of the Securities and the preparation and filing of the Registration
Statement and are familiar with the Securities, the Indenture, the Registration
Statement, the above-mentioned SEC order and such other documents as are
necessary to render this opinion.
Based on the foregoing, it is our opinion that (1) the Registration
Statement has become effective under the Securities Act and, to our knowledge,
no stop order suspending the effectiveness of the Registration Statement has
been issued, (2) assuming that the Securities covered by the Registration
Statement and the Shares issuable upon conversion of such Securities are sold by
a relevant Holder specified in the Registration Statement in a manner specified
in the Registration Statement, such sale of the Securities and Shares issuable
upon conversion of the Securities will have been duly registered under the
Securities Act and (3) the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
Yours truly,
D-1
EXHIBIT E
Form of Notation of Guarantee
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, effective on and after the Guarantee Effectiveness Date (if any), to
the extent set forth, and subject to the provisions provided, in the Indenture
(the "INDENTURE"), dated May 5, 2004, among Matria Healthcare, Inc., the
Guarantors named therein and Wells Fargo Bank, N.A., as trustee (the "TRUSTEE"),
(a) the due and punctual payment of the principal of, premium, if any, and
interest or additional in interest, if any, on the Securities (including,
without limitation, any "additional interest" (as defined in the Indenture) in
respect of shares of Common Stock issued upon conversion of a Security or issued
pursuant to ARTICLE III of the Indenture), whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal and premium, if any, and, to the extent permitted by law, interest or
additional interest, if any, on the Securities or such shares, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee under the Indenture or the Securities or the Registration Rights
Agreement, all in accordance with the terms of the Indenture, the Securities and
the Registration Rights Agreement; and (b) in case of any extension of time of
payment or renewal of any Securities, any such shares or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Securities and to the Trustee pursuant to the Subsidiary Guarantees
and the Indenture are expressly set forth in ARTICLE XII of the Indenture, and
reference is hereby made to the Indenture for the precise terms of the
Subsidiary Guarantees. Each Holder of a Security, by accepting the same, (a)
agrees to, and shall be bound by, such provisions, (b) authorizes and directs
the Trustee, on behalf of such Holder, to take such action as may be necessary
or appropriate to effectuate the subordination of the Subsidiary Guarantees as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such
Holder for such purpose. For purposes hereof, "Holder" shall be deemed to
include any holder of shares of Common Stock issued upon conversion of a
Security or issued pursuant to ARTICLE III of the Indenture.
Each Guarantor, and, by its acceptance of Securities, each Holder,
hereby confirms that it is the intention of all such parties that the Subsidiary
Guarantee of each Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of each Guarantor shall be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under ARTICLE XI of the Indenture, result in the obligations of such
Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer
or conveyance.
Notwithstanding anything herein to the contrary, the Guarantees hereof
shall become operative on the Guarantee Effectiveness Date (if any) and shall
remain operative, except as otherwise provided in the Indenture, on and after
such date (it being understood that the Guarantees hereof shall not become
operative if there shall be no Guarantee Effectiveness Date).
Capitalized terms used herein without definition shall have the
respective meanings ascribed to them in the Indenture.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
E-1
IN WITNESS WHEREOF, the [Guarantor] has caused this Subsidiary
Guarantee to be duly executed as of this __________________________.
[Guarantor]
By:
---------------------------------
Name:
Title:
E-2
EXHIBIT F
Form of Supplemental Indenture to be Delivered by Subsequent Guarantors
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
________________, among __________________ (the "GUARANTEEING SUBSIDIARY"), a
subsidiary of Matria Healthcare, Inc. (or its permitted successor), a Delaware
corporation (the "COMPANY"), the Company, the other Guarantors (as defined in
the Indenture referred to herein) and Wells Fargo Bank, N.A., as trustee under
the Indenture referred to herein (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "INDENTURE"), dated as of May 5, 2004, providing for
the issuance of the Company's 4.875% Convertible Senior Subordinated Notes due
2024 (the "SECURITIES");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall guarantee all of
the Company's Obligations under the Securities, the Indenture and the
"Registration Rights Agreement" (as defined in the Indenture) on the terms and
conditions set forth herein (the "SUBSIDIARY GUARANTEE"); and
WHEREAS, pursuant to SECTION 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Securities as follows:
1. DEFINITIONS AND CONSTRUCTION. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.
The terms "herein," "hereof," "hereto," "hereinafter" and similar terms, as used
in this Supplemental Indenture, shall in each case refer to this Supplemental
Indenture as a whole and not to any particular section, paragraph, sentence or
other subdivision of this Supplemental Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees that ARTICLE XII of the Indenture shall apply to the Guaranteeing
Subsidiary to the same effect as if the Guaranteeing Subsidiary had been named
as a "Guarantor" in the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, shareholder of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or the Guaranteeing Subsidiary under the Securities, any Subsidiary Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder, by
accepting a
F-1
Security, waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities.
7. NEW YORK LAW TO GOVERN. The laws of the State of New York,
without regard to principles of conflicts of law, shall govern this Supplemental
Indenture, the Securities and the Subsidiary Guarantees.
8. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same Supplemental Indenture.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
F-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[GUARANTEEING SUBSIDIARY]
By:
------------------------------------
Name:
Title:
MATRIA HEALTHCARE, INC.
By:
------------------------------------
Name:
Title:
[EXISTING GUARANTORS]
By:
------------------------------------
Name:
Title:
WELLS FARGO BANK, N.A.
By:
------------------------------------
Name:
Title:
F-3
SCHEDULE 1
Schedule of Guarantors
1. Quality Oncology, Inc.
2. Diabetes Self Care, Inc.
3. Facet Technologies LLC
4. Diabetes Management Solutions, Inc.
S1-1