<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 3, 2000
REGISTRATION NO. 333-94807
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
MAIL.COM, INC.
(Exact name of the registrant as specified in its charter)
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DELAWARE 7310 13-3787073
(State or other jurisdiction of (Primary standard industrial (I.R.S. employer identification number)
incorporation or organization) classification code number)
</TABLE>
11 BROADWAY, 6TH FLOOR
NEW YORK, NY 10004
(212) 425-4200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
GARY MILLIN
MAIL.COM, INC.
11 BROADWAY, 6TH FLOOR
NEW YORK, NY 10004
(212) 425-4200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------------
WITH COPIES TO:
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RONALD A. FLEMING, JR., ESQ. ROD J. HOWARD, ESQ. RICHARD R. PLUMRIDGE, ESQ.
WINTHROP, STIMSON, PUTNAM & ROBERTS BROBECK PHLEGER & HARRISON LLP BROBECK PHLEGER & HARRISON LLP
ONE BATTERY PARK PLAZA TWO EMBARCADERO PLACE, 2200 GENG ROAD 370 INTERLOCKEN BOULEVARD, SUITE 500
NEW YORK, NY 10004 PALO ALTO, CA 94303 BROOMFIELD, CO 80020
(212) 858-1000 (650) 424-0160 (303) 410-2000
</TABLE>
--------------------------
If the securities being registered on this form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. / /
If this form is filed to register additional securities for an offering
pursuant to rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. /X/
Registration No. 333-94807
<PAGE>
The sole purpose of this post-effective amendment is to file with the Commission
certain exhibits, as indicated in Item 21 of Part II Information Not Required in
Prospectus and the Exhibit Index.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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(a) Exhibits.
2.1 Agreement and Plan of Merger dated as of December 11, 1999 by and
among Mail.com, Inc., Mast Acquisition Corp. and NetMoves
Corporation. (Incorporated by reference to Exhibit 2.1 of Mail.com,
Inc.'s Current Report on Form 8-K filed December 16, 1999)
2.2 Form of Company Voting Agreement dated as of December 11, 1999 by and
between Mail.com, Inc. and certain directors and officers of NetMoves
Corporation. (Incorporated by reference to Exhibit 2.2 of Mail.com,
Inc.'s Current Report on Form 8-K filed on December 16, 1999)
3.1 Amended and Restated Certificate of Incorporation. (Incorporated by
reference to Exhibit 3.1 of the Registrant's Registration Statement
on Form S-1 (File No. 333-74353) (the "IPO Registration Statement"))
3.2 Bylaws. (Incorporated by reference to Exhibit 3.2 of the IPO
Registration Statement)
4.1 Specimen common stock certificate. (Incorporated by reference to
Exhibit 4.1 of the IPO Registration Statement)
5.1 Opinion of Winthrop, Stimson, Putnam & Roberts regarding the validity
of the securities to be issued.*
8.1 Opinion of Winthrop, Stimson, Putnam & Roberts regarding certain tax
aspects of the merger.*
8.2 Opinion of Brobeck, Phleger & Harrison LLP regarding certain tax
aspects of the merger.*
10.1 Employment Agreement between Mail.com, Inc. and Gerald Gorman dated
April 1, 1999. (Incorporated by reference to Exhibit 10.1 of the IPO
Registration Statement)
10.2 Employment Agreement between Mail.com, Inc. and Gary Millin dated
April 1, 1999. (Incorporated by reference to Exhibit 10.2 of the IPO
Registration Statement)
10.3 Employment Agreement between Mail.com, Inc. and Lon Otremba dated
April 1, 1999. (Incorporated by reference to Exhibit 10.3 of the IPO
Registration Statement)
10.4 Employment Agreement between Mail.com, Inc. and Debra McClister dated
April 1, 1999. (Incorporated by reference to Exhibit 10.4 of the IPO
Registration Statement)
10.5 Employment Agreement between Mail.com, Inc. and Charles Walden dated
February 4, 1999. (Incorporated by reference to Exhibit 10.5 of the
IPO Registration Statement)
10.6 Employment Agreement between Mail.com, Inc. and David Ambrosia dated
May 19, 1999. (Incorporated by reference to Exhibit 10.6 of the IPO
Registration Statement)
10.7 Stock Option Agreement between Mail.com and Charles Walden dated
January 1, 1998. (Incorporated by reference to Exhibit 10.7 of the
IPO Registration Statement)
10.8 Stock Option Agreement between Mail.com, Inc. and Gary Millin dated
December 31, 1996. (Incorporated by reference to Exhibit 10.8 of the
IPO Registration Statement)
10.9 Stock Option Agreement between Mail.com, Inc. and Gary Millin dated
June 1, 1996. (Incorporated by reference to Exhibit 10.9 of the IPO
Registration Statement)
10.10 Stock Option Agreement between Mail.com, Inc. and Gary Millin dated
February 1, 1997. (Incorporated by reference to Exhibit 10.10 of the
IPO Registration Statement)
</TABLE>
3
<PAGE>
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10.11 Stock Option Agreement between Mail.com, Inc. and Gerald Gorman dated
December 31, 1996. (Incorporated by reference to Exhibit 10.11 of
the IPO Registration Statement)
10.12 Stock Option Agreement between Mail.com, Inc. and Gerald Gorman dated
June 1, 1996. (Incorporated by reference to Exhibit 10.12 of the IPO
Registration Statement)
10.13 Stock Option Agreement between Mail.com, Inc. and Lon Otremba dated
June 30, 1999. (Incorporated by reference to Exhibit 10.13 of the IPO
Registration Statement)
10.14 1996 Employee Stock Option Plan. (Incorporated by reference to
Exhibit 10.14 of the IPO Registration Statement)
10.15 1997 Employee Stock Option Plan. (Incorporated by reference to
Exhibit 10.15 of the IPO Registration Statement)
10.16 1998 Employee Stock Option Plan. (Incorporated by reference to
Exhibit 10.16 of the IPO Registration Statement)
10.17 1999 Employee Stock Option Plan. (Incorporated by reference to
Exhibit 10.17 of the IPO Registration Statement)
10.18 Lease between Mail.com, Inc. and Braun Management and six amendments
thereto, the most recent dated May 21, 1998. (Incorporated by
reference to Exhibit 10.18 of the IPO Registration Statement)
10.19 Lease between Mail.com, Inc. and Spitfire Marketing Systems Inc.
dated August 14, 1998. (Incorporated by reference to Exhibit 10.19
of the IPO Registration Statement)
10.20 Space License Agreement and three amendments thereto between
Mail.com, Inc. and Telehouse International Corporation of America,
Inc., the most recent amendment dated March 9, 1999. (Incorporated by
reference to Exhibit 10.20 of the IPO Registration Statement)
10.21 Lease between Mail.com, Inc. and 55 Madison Associates dated
September 15, 1998. (Incorporated by reference to Exhibit 10.21 of
the IPO Registration Statement)
10.22 Lease Agreement between Mail.com, Inc. and Leastec Sylvan Credit
dated June 20, 1996. (Incorporated by reference to Exhibit 10.22 of
the IPO Registration Statement)
10.23 Master Lease Agreement between Mail.com, Inc. and RCC dated July 17,
1998. (Incorporated by reference to Exhibit 10.23 of the IPO
Registration Statement)
10.24 Lease Agreement between Mail.com, Inc. and Pacific Atlantic Systems
Leasing, dated January 22, 1999. (Incorporated by reference to
Exhibit 10.24 of the IPO Registration Statement)
10.25 Class A Preferred Stock Purchase Agreement dated May 27, 1997.
(Incorporated by reference to Exhibit 10.25 of the IPO Registration
Statement)
10.26 Waiver, Consent and Amendment to Class A Preferred Stock Purchase
Agreement and Investors' Rights Agreement, dated July 31, 1998.
(Incorporated by reference to Exhibit 10.26 of the IPO Registration
Statement)
10.27 Accession Agreement among Mail.com, Inc. and Primus Capital Fund IV
Limited Partnership and the Primus Executive Fund Limited Partnership
dated August 31, 1998. (Incorporated by reference to Exhibit 10.27 of
the IPO Registration Statement)
10.28 Letter Agreement among Gerald Gorman, Primus Capital Fund Limited
Partnership and the Primus Executive Fund Limited Partnership dated
August 31, 1998. (Incorporated by reference to Exhibit 10.28 of the
IPO Registration Statement)
10.29 Class E Preferred Stock Investors' Rights Agreement dated March 10,
1999. (Incorporated by reference to Exhibit 10.29 of the IPO
Registration Statement)
</TABLE>
4
<PAGE>
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10.30 Observer Rights Agreement among the Company, Primus, et. al., and
Sycamore Ventures dated August 31, 1998. (Incorporated by reference
to Exhibit 10.30 of the IPO Registration Statement)
10.31 Investors' Rights Agreement between NBC Multimedia, Inc., CNET, Inc.
and Mail.com, Inc. dated March 1, 1999. (Incorporated by reference
to Exhibit 10.31 of the IPO Registration Statement)
10.32 Lycos Term Sheet Agreement dated October 8, 1997 and the amendments
thereto. (Incorporated by reference to Exhibit 10.32 of the IPO
Registration Statement)
10.33 CNET Warrants dated March 1, 1999. (Incorporated by reference to
Exhibit 10.33 of the IPO Registration Statement)
10.34 NBC Multimedia Warrants dated March 1, 1999. (Incorporated by
reference to Exhibit 10.34 of the IPO Registration Statement)
10.35 Stock Purchase Agreement between Mail.com, Inc. and CNN Interactive
dated July 7, 1998. (Incorporated by reference to Exhibit 10.35 of
the IPO Registration Statement)
10.36 Agreement between CNET, Inc., and Mail.com, Inc. dated May 13, 1998.
(Incorporated by reference to Exhibit 10.36 of the IPO Registration
Statement)
10.37 Letter Agreement between CNET, Inc., Snap Internet Portal Service and
Mail.com, Inc. dated as of June 16, 1998. (Incorporated by reference
to Exhibit 10.37 of the IPO Registration Statement)
10.38 Letter Agreement between CNET, Inc., Snap Internet Portal Service,
NBC Multimedia, Inc. and Mail.com, Inc. dated as of February 8, 1999.
(Incorporated by reference to Exhibit 10.38 of the IPO Registration
Statement)
10.39 Agreement between NBC Multimedia, Inc. and Mail.com, Inc. dated
February 8, 1998. (Incorporated by reference to Exhibit 10.39 of the
IPO Registration Statement)
10.40 Marketing Agreement between DLJ Direct, Inc. and Mail.com, Inc. dated
March 26, 1999. (Incorporated by reference to Exhibit 10.40 of the
IPO Registration Statement)
10.41 Equipment Financing Agreement between Pentech Financial Services,
Inc. and Mail.com, Inc. dated May 1, 1999. (Incorporated by
reference to Exhibit 10.41 of the IPO Registration Statement)
10.42 AT&T Corp. Warrant dated May 26, 1999. (Incorporated by reference to
Exhibit 10.42 of the IPO Registration Statement)
10.43 Investor Rights Agreement between Mail.com, Inc. and AT&T Corp. dated
May 26, 1999. (Incorporated by reference to Exhibit 10.43 of the IPO
Registration Statement)
10.44 Letter Agreement between AT&T Corp. and Mail.com, Inc. dated May 26,
1999. (Incorporated by reference to Exhibit 10.44 of the IPO
Registration Statement)
10.45 Equipment Financing Lease--EMC Corporation. (Incorporated by
reference to Exhibit 99.1 of Mail.com, Inc.'s Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1999)
10.46 Equipment Financing Lease--Pentech Financial Services, Inc.
(Incorporated by reference to Exhibit 99.2 of Mail.com, Inc.'s
Quarterly Report on Form 10-Q for the quarterly period ended June 30,
1999)
10.47 Equipment Financing Lease--Pentech Financial Services, Inc.
(Incorporated by reference to Exhibit 99.3 of Mail.com, Inc.'s
Quarterly Report on Form 10-Q for the quarterly period ended June 30,
1999)
10.48 Investor Rights Agreement dated July 14, 1999 between Mail.com, Inc.
and 3Cube, Inc. (Incorporated by reference to Exhibit 99.4 of
Mail.com, Inc.'s Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1999)
10.49 Agreement and Plan of Merger dated as of August 20, 1999 among
Mail.com, Inc., AG Acquisition
</TABLE>
5
<PAGE>
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Corp., The Allegro Group, Inc. and the Shareholders of The Allegro
Group, Inc. (Incorporated by reference to Exhibit 2.1 of Mail.com,
Inc.'s Current Report on Form 8-K filed August 23, 1999)
10.50 Sublease Agreement between Mail.com, Inc. and Depository Trust
Company. (Incorporated by reference to Exhibit 10.ii(D)(1) of
Mail.com, Inc.'s Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1999)
10.51 Data Center Office Lease with AT&T. (Incorporated by reference to
Exhibit 10.ii(D)(2) of Mail.com, Inc.'s Quarterly Report on Form 10-Q
for the quarterly period ended September 30, 1999)
10.52 Lease Agreement between Mail.com and Forsyth/McArthur Associates.
(Incorporated by reference to Exhibit 10.ii(D)(3) of Mail.com, Inc.'s
Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1999)
10.53 Mail.com, Inc. Allegro Group Stock Option Plan. (Incorporated by
reference to Exhibit 10.iii(A)(1) of Mail.com, Inc.'s Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
1999)
10.54 Mail.com, Inc. TCOM Stock Option Plan. (Incorporated by reference to
Exhibit 10.iii(A)(2) of Mail.com, Inc.'s Quarterly Report on Form
10-Q for the quarterly period ended September 30, 1999)
10.55 Indenture dated as of January 26, 2000 by and between Mail.com, Inc.
and American Stock Transfer & Trust Company, as Trustee.
10.56 Registration Agreement dated as of January 26, 2000 by and between
Mail.com, Inc., Salomon Smith Barney Inc., PaineWebber Incorporated,
SG Cowen Securities Corporation and Sands Brothers & Co., Ltd.
21.1 Subsidiaries of Mail.com, Inc.*
23.1 Consent of KPMG LLP.*
23.2 Consent of PricewaterhouseCoopers, LLP.*
23.3 Consent of Winthrop, Stimson, Putnam & Roberts. (Included in Exhibit
8.1)
23.4 Consent of Brobeck, Phleger & Harrison LLP. (Included in Exhibit
8.2)
24.1 Power of Attorney.*
99.1 Form of proxy card for NetMoves Corporation Special Meeting.*
99.2 Opinion of Lehman Brothers (included as Appendix C to the proxy
statement/prospectus filed as a part of the Registration Statement on
Form S-4 filed on January 18, 2000 (File No. 333-94807)).
</TABLE>
* Previously filed.
(b) Financial Statement Schedules.
None.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant has duly caused this Post-Effective Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on this
3rd day of February, 2000.
MAIL.COM, INC.
By: /s/ Gary Millin
--------------------------------
Name: Gary Millin
Title: President
7
<PAGE>
INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT NO. PAGE
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2.1 Agreement and Plan of Merger dated as of December 11, 1999 by and
among Mail.com, Inc., Mast Acquisition Corp. and NetMoves
Corporation. (Incorporated by reference to Exhibit 2.1 of
Mail.com, Inc.'s Current Report on Form 8-K filed on December 16,
1999)
2.2 Form of Company Voting Agreement dated as of December 11, 1999 by
and between Mail.com, Inc. and certain directors and officers of
NetMoves Corporation. (Incorporated by reference to Exhibit 2.2
of Mail.com, Inc.'s Current Report on Form 8-K filed on December
16, 1999)
3.1 Amended and Restated Certificate of Incorporation. (Incorporated by
reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-1 (File No. 333-74353) (the "IPO Registration
Statement"))
3.2 Bylaws. (Incorporated by reference to Exhibit 3.2 of the IPO
Registration Statement)
4.1 Specimen common stock certificate. (Incorporated by reference to
Exhibit 4.1 of the IPO Registration Statement)
5.1 Opinion of Winthrop, Stimson, Putnam & Roberts regarding the
validity of the securities to be issued.*
8.1 Opinion of Winthrop, Stimson, Putnam & Roberts regarding certain
tax aspects of the merger.*
8.2 Opinion of Brobeck, Phleger & Harrison LLP regarding certain tax
aspects of the merger.*
10.1 Employment Agreement between Mail.com, Inc. and Gerald Gorman dated
April 1, 1999. (Incorporated by reference to Exhibit 10.1 of the
IPO Registration Statement)
10.2 Employment Agreement between Mail.com, Inc. and Gary Millin dated
April 1, 1999. (Incorporated by reference to Exhibit 10.2 of the
IPO Registration Statement)
10.3 Employment Agreement between Mail.com, Inc. and Lon Otremba dated
April 1, 1999. (Incorporated by reference to Exhibit 10.3 of the
IPO Registration Statement)
10.4 Employment Agreement between Mail.com, Inc. and Debra McClister
dated April 1, 1999. (Incorporated by reference to Exhibit 10.4
of the IPO Registration Statement)
10.5 Employment Agreement between Mail.com, Inc. and Charles Walden
dated February 4, 1999. (Incorporated by reference to Exhibit
10.5 of the IPO Registration Statement)
10.6 Employment Agreement between Mail.com, Inc. and David Ambrosia
dated May 19, 1999. (Incorporated by reference to Exhibit 10.6
of the IPO Registration Statement)
10.7 Stock Option Agreement between Mail.com, Inc. and Charles Walden
dated January 1, 1998. (Incorporated by reference to Exhibit
10.7 of the IPO Registration Statement)
10.8 Stock Option Agreement between Mail.com, Inc. and Gary Millin dated
December 31, 1996. (Incorporated by reference to Exhibit 10.8 of
the IPO Registration Statement)
10.9 Stock Option Agreement between Mail.com, Inc. and Gary Millin dated
June 1, 1996. (Incorporated by reference to Exhibit 10.9 of the
IPO Registration Statement)
10.10 Stock Option Agreement between Mail.com, Inc. and Gary Millin dated
February 1, 1997. (Incorporated by reference to Exhibit 10.10 of
the IPO Registration Statement)
10.11 Stock Option Agreement between Mail.com, Inc. and Gerald Gorman
dated December 31, 1996. (Incorporated by reference to Exhibit
10.11 of the IPO Registration Statement)
</TABLE>
8
<PAGE>
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<CAPTION>
EXHIBIT NO. PAGE
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10.12 Stock Option Agreement between Mail.com, Inc. and Gerald Gorman
dated June 1, 1996. (Incorporated by reference to Exhibit 10.12
of the IPO Registration Statement)
10.13 Stock Option Agreement between Mail.com, Inc. and Lon Otremba dated
June 30, 1999. (Incorporated by reference to Exhibit 10.13 of
the IPO Registration Statement)
10.14 1996 Employee Stock Option Plan. (Incorporated by reference to
Exhibit 10.14 of the IPO Registration Statement)
10.15 1997 Employee Stock Option Plan. (Incorporated by reference to
Exhibit 10.15 of the IPO Registration Statement)
10.16 1998 Employee Stock Option Plan. (Incorporated by reference to
Exhibit 10.16 of the IPO Registration Statement)
10.17 1999 Employee Stock Option Plan. (Incorporated by reference to
Exhibit 10.17 of the IPO Registration Statement)
10.18 Lease between Mail.com, Inc. and Braun Management and six
amendments thereto, the most recent dated May 21, 1998.
(Incorporated by reference to Exhibit 10.18 of the IPO
Registration Statement)
10.19 Lease between Mail.com, Inc. and Spitfire Marketing Systems Inc.
dated August 14, 1998. (Incorporated by reference to Exhibit
10.19 of the IPO Registration Statement)
10.20 Space License Agreement and three amendments thereto between
Mail.com, Inc., and Telehouse International Corporation of
America, Inc., the most recent amendment dated March 9, 1999.
(Incorporated by reference to Exhibit 10.20 of the IPO
Registration Statement)
10.21 Lease between Mail.com, Inc. and 55 Madison Associates dated
September 15, 1998. (Incorporated by reference to Exhibit 10.21
of the IPO Registration Statement)
10.22 Lease Agreement between Mail.com, Inc. and Leastec Sylvan Credit
dated June 20, 1996. (Incorporated by reference to Exhibit 10.22
of the IPO Registration Statement)
10.23 Master Lease Agreement between Mail.com, Inc. and RCC dated July
17, 1998. (Incorporated by reference to Exhibit 10.23 of the IPO
Registration Statement)
10.24 Lease Agreement between Mail.com, Inc. and Pacific Atlantic
Systems Leasing, dated January 22, 1999. (Incorporated by
reference to Exhibit 10.24 of the IPO Registration Statement)
10.25 Class A Preferred Stock Purchase Agreement dated May 27, 1997.
(Incorporated by reference to Exhibit 10.25 of the IPO
Registration Statement)
10.26 Waiver, Consent and Amendment to Class A Preferred Stock Purchase
Agreement and Investors' Rights Agreement, dated July 31, 1998.
(Incorporated by reference to Exhibit 10.26 of the IPO
Registration Statement)
10.27 Accession Agreement among Mail.com, Inc. and Primus Capital Fund
IV Limited Partnership and the Primus Executive Fund Limited
Partnership dated August 31, 1998. (Incorporated by reference to
Exhibit 10.27 of the IPO Registration Statement)
10.28 Letter Agreement among Gerald Gorman, Primus Capital Fund Limited
Partnership and the Primus Executive Fund Limited Partnership
dated August 31, 1998. (Incorporated by reference to Exhibit
10.28 of the IPO Registration Statement)
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE
<S> <C>
10.29 Class E Preferred Stock Investors' Rights Agreement dated March 10,
1999. (Incorporated by reference to Exhibit 10.29 of the IPO
Registration Statement)
10.30 Observer Rights Agreement among the Company, Primus, et. al., and
Sycamore Ventures dated August 31, 1998. (Incorporated by
reference to Exhibit 10.30 of the IPO Registration Statement)
10.31 Investors' Rights Agreement between NBC Multimedia, Inc., CNET,
Inc. and Mail.com, Inc. dated March 1, 1999. (Incorporated by
reference to Exhibit 10.31 of the IPO Registration Statement)
10.32 Lycos Term Sheet Agreement dated October 8, 1997 and the amendments
thereto. (Incorporated by reference to Exhibit 10.32 of the IPO
Registration Statement)
10.33 CNET Warrants dated March 1, 1999. (Incorporated by reference to
Exhibit 10.33 of the IPO Registration Statement)
10.34 NBC Multimedia Warrants dated March 1, 1999. (Incorporated by
reference to Exhibit 10.34 of the IPO Registration Statement)
10.35 Stock Purchase Agreement between Mail.com, Inc. and CNN Interactive
dated July 7, 1998. (Incorporated by reference to Exhibit 10.35
of the IPO Registration Statement)
10.36 Agreement between CNET, Inc., and Mail.com, Inc. dated May 13,
1998. (Incorporated by reference to Exhibit 10.36 of the IPO
Registration Statement)
10.37 Letter Agreement between CNET, Inc., Snap Internet Portal Service
and Mail.com, Inc. dated as of June 16, 1998. (Incorporated by
reference to Exhibit 10.37 of the IPO Registration Statement)
10.38 Letter Agreement between CNET, Inc., Snap Internet Portal Service,
NBC Multimedia, Inc. and Mail.com, Inc. dated as of February 8,
1999. (Incorporated by reference to Exhibit 10.38 of the IPO
Registration Statement)
10.39 Agreement between NBC Multimedia, Inc. and Mail.com, Inc. dated
February 8, 1998. (Incorporated by reference to Exhibit 10.39 of
the IPO Registration Statement)
10.40 Marketing Agreement between DLJ Direct, Inc. and Mail.com, Inc.
dated March 26, 1999. (Incorporated by reference to Exhibit
10.40 of the IPO Registration Statement)
10.41 Equipment Financing Agreement between Pentech Financial Services,
Inc. and Mail.com, Inc. dated May 1, 1999. (Incorporated by
reference to Exhibit 10.41 of the IPO Registration Statement)
10.42 AT&T Corp. Warrant dated May 26, 1999. (Incorporated by reference
to Exhibit 10.42 of the IPO Registration Statement)
10.43 Investor Rights Agreement between Mail.com, Inc. and AT&T Corp.
dated May 26, 1999. (Incorporated by reference to Exhibit 10.43
of the IPO Registration Statement)
10.44 Letter Agreement between AT&T Corp. and Mail.com, Inc. dated May
26, 1999. (Incorporated by reference to Exhibit 10.44 of the IPO
Registration Statement)
10.45 Equipment Financing Lease--EMC Corporation. (Incorporated by
reference to Exhibit 99.1 of Mail.com, Inc.'s Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1999)
10.46 Equipment Financing Lease--Pentech Financial Services, Inc.
(Incorporated by reference to Exhibit 99.2 of Mail.com, Inc.'s
Quarterly Report on Form 10- Q for the quarterly period
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE
<S> <C>
ended June 30, 1999)
10.47 Equipment Financing Lease--Pentech Financial Services, Inc.
(Incorporated by reference to Exhibit 99.3 of Mail.com, Inc.'s
Quarterly Report on Form 10- Q for the quarterly period ended
June 30, 1999)
10.48 Investor Rights Agreement dated July 14, 1999 between Mail.com,
Inc. and 3Cube, Inc. (Incorporated by reference to Exhibit 99.4
of Mail.com, Inc.'s Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1999)
10.49 Agreement and Plan of Merger dated as of August 20, 1999 among
Mail.com, Inc., AG Acquisition Corp., The Allegro Group, Inc. and
the Shareholders of The Allegro Group, Inc. (Incorporated by
reference to Exhibit 2.1 of Mail.com, Inc.'s Current Report on
Form 8-K filed August 23, 1999)
10.50 Sublease Agreement between Mail.com, Inc. and Depository Trust
Company. (Incorporated by reference to Exhibit 10.ii(D)(1) of
Mail.com, Inc.'s Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1999)
10.51 Data Center Office Lease with AT&T. (Incorporated by reference to
Exhibit 10.ii(D)(2) of Mail.com, Inc.'s Quarterly Report on Form
10-Q for the quarterly period ended September 30, 1999)
10.52 Lease Agreement between Mail.com and Forsyth/McArthur Associates.
(Incorporated by reference to Exhibit 10.ii(D)(3) of Mail.com,
Inc.'s Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1999)
10.53 Mail.com, Inc. Allegro Group Stock Option Plan. (Incorporated by
reference to Exhibit 10.iii(A)(1) of Mail.com, Inc.'s Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
1999)
10.54 Mail.com, Inc. TCOM Stock Option Plan. (Incorporated by reference
to Exhibit 10.iii(A)(2) of Mail.com, Inc.'s Quarterly Report on
Form 10-Q for the quarterly period ended September 30, 1999)
10.55 Indenture dated as of January 26, 2000 by and between Mail.com,
Inc. and American Stock Transfer & Trust Company, as Trustee.
10.56 Registration Agreement dated as of January 26, 2000 by and between
Mail.com, Inc., Salomon Smith Barney Inc., PaineWebber
Incorporated, SG Cowen Securities Corporation and Sands Brothers
& Co., Ltd.
21.1 Subsidiaries of Mail.com, Inc.*
23.1 Consent of KPMG LLP.*
23.2 Consent of PricewaterhouseCoopers, LLP.*
23.3 Consent of Winthrop, Stimson, Putnam & Roberts. (Included in
Exhibit 8.1)
23.4 Consent of Brobeck, Phleger & Harrison LLP. (Included in
Exhibit 8.2)
24.1 Power of Attorney.*
99.1 Form of proxy card for NetMoves Corporation Special Meeting.*
99.2 Opinion of Lehman Brothers (included as Appendix C to the proxy
statement/prospectus filed as a part of the Registration Statement
on Form S-4 filed on January 18, 2000 (File No. 333-94807)).
</TABLE>
* Previously Filed
11
<PAGE>
Exhibit 10.55
EXECUTION COPY
Mail.com, Inc.
to
American Stock Transfer & Trust Company
as Trustee
-----------
Indenture
Dated as of January 26, 2000
7.00% Convertible Subordinated Notes due 2005
<PAGE>
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. ......................................................................1
Section 1.02. Other Definitions...................................................................5
Section 1.03. Incorporation by Reference of Trust Indenture Act...................................6
Section 1.04. Rules of Construction...............................................................6
ARTICLE II
THE SECURITIES
Section 2.01. Form and Dating.....................................................................7
Section 2.02. Execution, Authentication and Delivery..............................................8
Section 2.03. Registrar, Paying Agent and Conversion Agent........................................8
Section 2.04. Paying Agent to Hold Money in Trust.................................................8
Section 2.05. Noteholder Lists....................................................................8
Section 2.06. Transfer and Exchange...............................................................9
Section 2.07. Replacement Securities.............................................................11
Section 2.08. Outstanding Securities.............................................................11
Section 2.09. Treasury Securities................................................................11
Section 2.10. Temporary Securities; Exchange of Global Security for Definitive Securities........12
Section 2.11. Cancelation........................................................................12
Section 2.12. Payment of Interest: Interest Rights Preserved.....................................12
Section 2.13. Computation of Interest............................................................13
Section 2.14. CUSIP Number.......................................................................13
Section 2.15. Regulation S.......................................................................13
Section 2.16. Persons Deemed Owners..............................................................14
ARTICLE III
REDEMPTION
Section 3.01. Notices to Trustee.................................................................14
Section 3.02. Selection of Securities to be Redeemed.............................................14
Section 3.03. Notice of Redemption...............................................................14
Section 3.04. Effect of Notice of Redemption.....................................................15
Section 3.05. Deposit of Redemption Price........................................................15
Section 3.06. Securities Redeemed in Part........................................................15
Section 3.07. Optional Redemption and Provisional Redemption.....................................16
Section 3.08. Designated Event Offer.............................................................16
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ARTICLE IV
COVENANTS
Section 4.01. Payment of Securities..............................................................17
Section 4.02. SEC Reports........................................................................18
Section 4.03. Compliance Certificate.............................................................18
Section 4.04. Stay, Extension and Usury Law......................................................18
Section 4.05. Corporate Existence................................................................19
Section 4.06. Taxes..............................................................................19
Section 4.07. Designated Event...................................................................19
Section 4.08. Investment Company Act.............................................................19
ARTICLE V
CONVERSION
Section 5.01. Conversion Privilege...............................................................19
Section 5.02. Conversion Procedure...............................................................19
Section 5.03. Fractional Shares..................................................................20
Section 5.04. Taxes on Conversion................................................................20
Section 5.05. Company to Provide Stock...........................................................20
Section 5.06. Adjustment of Conversion Price.....................................................21
Section 5.07. No Adjustment......................................................................24
Section 5.08. Other Adjustments..................................................................24
Section 5.09. [Intentionally Left Blank].........................................................24
Section 5.10. [Intentionally Left Blank].........................................................24
Section 5.11. Notice of Adjustment...............................................................24
Section 5.12. Notice of Certain Transactions.....................................................24
Section 5.13. Effect of Reclassifications, Consolidations, Mergers, Continuances or Sales on
Conversion Privilege........................................................24
Section 5.14. Trustee's Disclaimer...............................................................25
Section 5.15. Cancelation of Converted Securities................................................25
Section 5.16. Restriction on Class A common stock Issuable Upon Conversion.......................25
ARTICLE VI
SUBORDINATION
Section 6.01. Agreement to Subordinate...........................................................26
Section 6.02. No Payment on Securities if Senior Debt in Default.................................26
Section 6.03. Distribution on Acceleration of Securities; Dissolution and Reorganization;
Subrogation of Securities.......................................................27
Section 6.04. Reliance by Senior Debt on Subordination Provisions................................29
Section 6.05. No Waiver of Subordination Provisions..............................................29
Section 6.06. Trustee's Relation to Senior Debt..................................................29
Section 6.07. Other Provisions Subject Hereto....................................................30
ARTICLE VII
SUCCESSORS
Section 7.01. Merger, Consolidation or Sale of Assets............................................30
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Section 7.02. Successor Corporation Substituted..................................................30
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Events of Default..................................................................31
Section 8.02. Acceleration.......................................................................32
Section 8.03. Other Remedies.....................................................................32
Section 8.04. Waiver of Past Defaults............................................................32
Section 8.05. Control by Majority................................................................32
Section 8.06. Limitation on Suits................................................................33
Section 8.07. Rights of Noteholders to Receive Payment...........................................33
Section 8.08. Collection Suit by Trustee.........................................................33
Section 8.09. Trustee May File Proofs of Claim...................................................33
Section 8.10. Priorities.........................................................................34
Section 8.11. Undertaking for Costs..............................................................34
Section 8.12. Restoration of Rights and Remedies.................................................34
Section 8.13. Rights and Remedies Cumulative.....................................................35
Section 8.14. Delay or Omission Not Waiver.......................................................35
ARTICLE IX
TRUSTEE
Section 9.01. Duties of Trustee..................................................................35
Section 9.02. Rights of Trustee..................................................................35
Section 9.03. Individual Rights of Trustee.......................................................36
Section 9.04. Trustee's Disclaimer...............................................................36
Section 9.05. Notice of Defaults.................................................................36
Section 9.06. Reports by Trustee to Noteholders..................................................37
Section 9.07. Compensation and Indemnity.........................................................37
Section 9.08. Replacement of Trustee.............................................................37
Section 9.09. Successor Trustee by Merger, Etc...................................................38
Section 9.10. Eligibility; Disqualification......................................................38
Section 9.11. Preferential Collection of Claims Against Company..................................38
ARTICLE X
DISCHARGE OF INDENTURE
Section 10.01. Termination of the Company's Obligations..........................................38
Section 10.02. Repayment to Company..............................................................39
Section 10.03. Reinstatement.....................................................................40
ARTICLE XI
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 11.01. Without Consent of Noteholders....................................................40
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Section 11.02. With Consent of Noteholders.......................................................40
Section 11.03. Compliance with Trust Indenture Act...............................................41
Section 11.04. Revocation and Effect of Consents.................................................41
Section 11.05. Notation on or Exchange of Securities.............................................42
Section 11.06. Trustee Protected.................................................................42
Section 11.07. Trustee to Sign Supplemental Indentures...........................................42
Section 11.08. Payment for Consent...............................................................43
ARTICLE XII
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls......................................................43
Section 12.02. Notices...........................................................................43
Section 12.03. Communication by Noteholders with Other Noteholders...............................43
Section 12.04. Certificate and Opinion as to Conditions Precedent................................44
Section 12.05. Statements Required in Certificate or Opinion.....................................44
Section 12.06. Rules by Trustee and Agents.......................................................44
Section 12.07. Legal Holidays....................................................................44
Section 12.08. No Recourse Against Others........................................................45
Section 12.09. Counterparts......................................................................45
Section 12.10. Variable Provisions...............................................................45
Section 12.11. GOVERNING LAW.....................................................................45
Section 12.12. No Adverse Interpretation of Other Agreements.....................................45
Section 12.13. Successors........................................................................46
Section 12.14. Severability......................................................................46
Section 12.15. Table of Contents, Headings, Etc..................................................46
EXHIBIT A -- FORM OF CONVERTIBLE SUBORDINATED NOTE................................................A-1
EXHIBIT B -- FORM OF TRANSFER CERTIFICATE.........................................................B-1
EXHIBIT C -- FORM OF ACCREDITED INVESTOR TRANSFEREE CERTIFICATE...................................C-1
EXHIBIT D -- FORM OF RESTRICTED COMMON STOCK LEGEND...............................................D-1
EXHIBIT E -- FORM OF TRANSFER CERTIFICATE FOR TRANSFER OF
RESTRICTED COMMON STOCK.........................................................E-1
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INDENTURE dated as of January 26, 2000 between Mail.com, Inc., a
Delaware corporation (the "Company"), and American Stock Transfer & Trust
Company, a New York banking corporation and trust company, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the holders of the Company's 7.00% Convertible
Subordinated Notes due 2005 (the "Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS.
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such person,
whether through the ownership of voting securities or by agreement or otherwise.
"AGENT" means any Registrar, Paying Agent or Conversion Agent.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"BOARD OF DIRECTORS" means the board of directors of the Company or any
authorized committee of such board of directors.
"BOARD RESOLUTION" means a copy of a resolution of the Board of
Directors 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 delivery to the Trustee.
"BUSINESS DAY" means any day that is not a Legal Holiday.
"CAPITAL STOCK" means any and all shares, interests, participations,
rights or other equivalents (however designated) of equity interests in any
entity, including, without limitation, corporate stock and partnership
interests.
"CHANGE OF CONTROL" means any event where: (i) any "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other
than one or more of the Permitted Holders, is or becomes the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of shares
representing more than 50% of the combined voting power of the then outstanding
securities entitled to vote generally in elections of directors of the Company
("Voting Stock"); (ii) the Company consolidates with or merges into any other
person, or any other person merges into the Company, and, in the case of any
such transaction, the outstanding Class A common stock of the Company is
reclassified into or exchanged for any other property or securities, unless the
stockholders of the Company immediately before such transaction own, directly or
indirectly immediately following such transaction, at least a majority of the
combined voting power of the then outstanding voting securities entitled to vote
generally in elections of directors of the corporation resulting from such
transaction in substantially the same respective proportions as their ownership
of the Voting Stock immediately before such transaction; (iii) the Company or
the Company and its Subsidiaries, taken as a whole, sells, assigns, conveys,
transfers or leases all or substantially all of the assets of the Company or of
the Company and its Subsidiaries, taken as a whole, as applicable (other than to
one or more wholly owned Subsidiaries of the Company); (iv) any time the
Continuing Directors do not constitute a majority of the Board of Directors of
the Company (or, if applicable, a successor corporation to the Company); or (v)
the stockholders of the Company shall have approved any plan of liquidation or
dissolution of the Company; provided, however, that (a) a Change of Control
shall not be deemed to have occurred if the Daily Market Price per share of the
Class A common stock for any five trading days within the period of 10
consecutive trading days beginning immediately after the later of the Change of
Control or the public announcement of the Change of Control shall equal or
exceed 105% of the Conversion Price of the Notes in effect on each such trading
day; provided further that if the Change of Control results in the
reclassification, conversion, exchange of outstanding shares of common stock of
the Company, such 10 consecutive trading day period shall be measured as
<PAGE>
ending immediately before the Change of Control; and (b) a Change of Control
under clause (i), (ii) or (iii) above shall not be deemed to have occurred if at
least 90% of the consideration in the Change of Control transaction consists of
shares of Capital Stock traded on a U.S. national securities exchange or quoted
on Nasdaq, and as a result of such transaction, the Securities become
convertible solely into such Capital Stock.
"CLASS A COMMON STOCK" means the Class A common stock, par value $.01
per share, of the Company as the same exists at the date of this Indenture or as
such stock may be constituted from time to time.
"CLOSING DATE" means January 26, 2000.
"COMPANY" means the party named as such above until a successor
replaces it in accordance with Article VII and thereafter means the successor.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of this Indenture or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board of Directors at the
time of such nomination or election or (iii) was nominated for election or
elected to such Board of Directors with the approval of Gerald Gorman; provided
that Gerald Gorman at the time of such nomination or election owns shares
representing more than 50% of the combined voting power of the then outstanding
Voting Stock.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 40 Wall Street, 46th floor, New York, New York 10005, Attention: Corporate
Trust Department.
"DAILY MARKET PRICE" means the last reported per share sale price,
regular way on such day, or, if no sale takes place on such day, the average of
the reported closing per share bid and asked prices on such day, regular way, in
either case as reported on the Nasdaq National Market or, if such Class A common
stock is not quoted or admitted to trading on such quotation system, on the
principal national securities exchange or quotation system on which such Class A
common stock may be listed or admitted to trading or quoted, or, if not listed
or admitted to trading or quoted on any national securities exchange or
quotation system, the average of the closing per share bid and asked prices of
such Class A common stock on the over-the-counter market on the day in question
as reported by the National Quotation Bureau Incorporated, or similar generally
accepted reporting service, or, if not so available in such manner, as furnished
by any Nasdaq member firm selected from time to time by the Board of Directors
of the Company for that purpose, or, if not so available in such manner, as
otherwise determined in good faith by the Board of Directors of the Company.
"DAMAGES PAYMENT DATE" has the meaning set forth in the Registration
Agreement.
"DEFAULT" means any event that is or, with the passage of time or the
giving of notice or both, would be an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees and their
respective successors.
"DESIGNATED EVENT" means the occurrence of a Change of Control or a
Termination of Trading.
"DESIGNATED SENIOR DEBT" means (i) any Senior Debt which as of the
Closing Date, has an aggregate principal amount outstanding of at least
$15,000,000 and (ii) any Senior Debt, which at the date of determination, has an
aggregate principal amount outstanding of, or commitments to lend up to, at
least $15,000,000 and is specifically designated by the Company in the
instrument evidencing or governing such Senior Debt as "Designated Senior Debt"
for purposes of this Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of 1934.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession
of the United States, which are in effect from time to time.
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"GLOBAL SECURITIES LEGEND" means the legend labeled as such and that is
set forth in Exhibit A hereto.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness; and such term, when used as a verb, shall have correlative
meaning.
"INDEBTEDNESS" means, with respect to any Person, all Obligations,
whether or not contingent, of such Person (i)(a) for borrowed money (including,
but not limited to, any indebtedness secured by a security interest, mortgage or
other lien on the assets of such Person which is (1) given to secure all or part
of the purchase price of property subject thereto, whether given to the vendor
of such property or to another, or (2) existing on property at the time of
acquisition thereof), (b) evidenced by a note, debenture, bond or other written
instrument, (c) under a lease required to be capitalized on the balance sheet of
the lessee under GAAP or under any lease or related document (including a
purchase agreement) which provides that such Person is contractually obligated
to purchase or to cause a third party to purchase such leased property, (d) in
respect of letters of credit, bank guarantees or bankers' acceptances (including
reimbursement obligations with respect to any of the foregoing), (e) with
respect to Indebtedness secured by a mortgage, pledge, lien, encumbrance, charge
or adverse claim affecting title or resulting in an encumbrance to which the
property or assets of such Person are subject, whether or not the Obligation
secured thereby shall have been assumed or Guaranteed by or shall otherwise be
such Person's legal liability, (f) in respect of the balance of the deferred and
unpaid purchase price of any property or assets, and (g) under interest rate or
currency swap agreements, cap, floor and collar agreements, spot and forward
contracts and similar agreements and arrangements; (ii) with respect to any
Obligation of others of the type described in the preceding clause (i) or under
clause (iii) below assumed by or Guaranteed in any manner by such Person or in
effect Guaranteed by such Person through an agreement to purchase (including,
without limitation, "take or pay" and similar arrangements), contingent or
otherwise (and the Obligations of such Person under any such assumptions,
Guarantees or other such arrangements); and (iii) any and all deferrals,
renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any of the foregoing.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time by one or more indentures supplemental hereto entered into pursuant to
the applicable provisions hereof, including for all purposes of this Indenture
any supplemental indenture and the provisions of the TIA that are deemed to be a
part of and govern this Indenture and any supplemental indenture.
"INITIAL PURCHASERS" means Salomon Smith Barney Inc., PaineWebber
Incorporated, SG Cowen Securities Corporation and Sands Brothers & Co., Ltd.
"INTEREST PAYMENT DATE" means, when used with respect to the
Securities, each February 1 and August 1.
"ISSUANCE DATE" means January 26, 2000.
"JUNIOR SECURITIES" means securities of the Company as reorganized or
readjusted or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided for in this Indenture with respect to Securities, to the payment in
full without diminution or modification by such plan of all Senior Debt.
"LIQUIDATED DAMAGES" has the meaning specified in paragraph 12 of the
form of Security which is attached as Exhibit A hereto.
"MATERIAL SUBSIDIARY" means any Subsidiary of the Company which at the
date of determination is a "significant subsidiary" as defined in Rule 1-02(w)
of Regulation S-X under the Securities Act and the Exchange Act (as such
Regulation is in effect on January 26, 2000).
"MATURITY DATE" and "FINAL MATURITY DATE" mean, when used with respect
to the Securities, February 1, 2005.
"NOTEHOLDER" or "HOLDER" means a person in whose name a Security is
registered.
"NYSE" means the New York Stock Exchange.
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"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFERING MEMORANDUM" means the offering memorandum relating to the
Securities dated January 21, 2000.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers, one
of whom must be the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer or the Treasurer of the Company, and
delivered to the Trustee that meets the requirements of this Indenture.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
acceptable to the Trustee that meets the requirements of Sections 12.04 and
12.05 hereof. The counsel may be an employee of or counsel to the Company or the
Trustee unless otherwise expressly stated herein.
"PERMITTED HOLDERS" means, collectively, Gerald Gorman and his estate,
spouse, legatees, heirs, ancestors and lineal descendants, the legal
representatives of any of the foregoing and the trustees of any bona fide trusts
of which one or more of the foregoing are the sole beneficiaries or the grantor,
or any corporation, trust, partnership or other entity of which one or more of
the foregoing "beneficially owns" (as defined in Rule 13d-3 under the Exchange
Act) at least 662/3 % of the total voting power of such corporation, trust,
partnership or other entity.
"PERSON" and "PERSON" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization, limited liability company or government or any agency or political
subdivision thereof.
"REGISTRATION AGREEMENT" means the Registration Agreement relating to
the Securities and Class A common stock issuable upon conversion of such
Securities dated January 26, 2000, between the Company and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from time
to time.
"REPRESENTATIVE" means the trustee, agent or representative (if any)
for an issue of Senior Debt.
"RESTRICTED COMMON STOCK LEGEND" means the legend labeled as such and
that is set forth in Exhibit D hereto.
"RESTRICTED DEFINITIVE SECURITIES LEGEND" means the legend labeled as
such and that is set forth in Exhibit A hereto.
"RESTRICTED GLOBAL SECURITIES LEGEND" means the legend labeled as such
and that is set forth in Exhibit A hereto.
"RESTRICTED SECURITIES LEGEND" means the Restricted Definitive
Securities Legend or the Restricted Global Securities Legend or both, as the
context may require.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Securities described in the preamble above that
are issued, authenticated and delivered under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933.
"SENIOR DEBT" means the principal of, premium, if any, on, interest on
and other amounts due on Indebtedness of the Company, whether outstanding on the
date of this Indenture or hereafter created, incurred, assumed or Guaranteed by
the Company (including all deferrals, renewals, extensions, refinancings and
refundings of, or amendments, modifications or supplements to, any of the
foregoing), unless, in the instrument creating or evidencing or pursuant to
which such Indebtedness is outstanding, it is expressly provided that such
Indebtedness is not senior in right of payment to, or ranks PARI PASSU in right
of payment with, the Securities. Senior Debt includes, with respect to the
obligations described above, interest accruing, pursuant to the terms of such
Senior Debt, on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not post-filing interest is
allowed in such proceeding, at the rate specified in the instrument governing
the relevant obligation. Notwithstanding anything to the contrary in the
foregoing, Senior Debt shall not include: (a) Indebtedness of or amounts owed by
the Company for compensation to employees, or for goods, services or materials
purchased in the
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ordinary course of business; (b) Indebtedness of the Company to a Subsidiary of
the Company; or (c) any liability for federal, state, local or other taxes owed
or owing by the Company.
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in the
Registration Agreement.
"SUBSIDIARY" of a Person means any corporation, association or other
business entity of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof.
"TERMINATION OF TRADING" means an event where the Class A common stock
(or other securities into which the Securities are then convertible) is neither
approved for trading on the Nasdaq National Market or other established
automated over-the-counter trading market in the United States nor listed for
trading on the NYSE or another United States national securities exchange.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) and the rules and regulations thereunder as in effect on the date
on which this Indenture is qualified under the Trust Indenture Act of 1939
except as required by Section 11.03 hereof; provided that if the Trust Indenture
Act of 1939 or the rules and regulations thereunder are amended after such date,
"TIA" means, if so required by such amendment, the Trust Indenture Act of 1939,
as so amended.
"TRADING DAY" shall mean (a)if the applicable security is quoted on the
Nasdaq National Market, a day on which trades may be made thereon, (b) if the
applicable security is listed or admitted for trading on the NYSE or another
national securities exchange, a day on which the NYSE or such other national
securities exchange is open for business or (c) if the applicable security is
not so listed, admitted for trading or quoted, any day other than a Legal
Holiday.
"TRUST OFFICER" means 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, and who shall have
direct responsibility for the administration of this Indenture or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor.
Section 1.02. OTHER DEFINITIONS.
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"Agent Members"................................................................................... 2.01
"Bankruptcy Law".................................................................................. 8.01
"Cedel Bank"...................................................................................... 2.01
"Commencement Date"............................................................................... 3.08
"Conversion Agent"................................................................................ 2.03
"Conversion Date"................................................................................. 5.02
"Conversion Price"................................................................................ 5.01
"Conversion Shares"............................................................................... 5.06
"Current Market Price"............................................................................ 5.06
"Custodian"....................................................................................... 8.01
"Default Rate".................................................................................... 2.13
"Defaulted Interest............................................................................... 2.12
"Definitive Securities"........................................................................... 2.01
"Designated Event Offer".......................................................................... 4.07
"Designated Event Payment"........................................................................ 4.07
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DEFINED IN
TERM SECTION
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"Designated Event Payment Date"................................................................... 3.08
"Distribution Date"............................................................................... 5.06
"Distribution Record Date"........................................................................ 5.06
"Excess Payment".................................................................................. 5.06
"Euroclear"....................................................................................... 2.01
"Event of Default"................................................................................ 8.01
"Global Security"................................................................................. 2.01
"Legal Holiday"................................................................................... 12.07
"Non-Global Purchasers"........................................................................... 2.01
"Officer"......................................................................................... 12.10
"Paying Agent".................................................................................... 2.03
"Payment Blockage Notice"......................................................................... 6.02
"Payment Blockage Period"......................................................................... 6.02
"Payment Default"................................................................................. 8.01
"Purchase Agreement".............................................................................. 2.01
"Purchase Date"................................................................................... 5.06
"QIBs"............................................................................................ 2.01
"Registrar"....................................................................................... 2.03
"Regulation S".................................................................................... 2.01
"Rights".......................................................................................... 5.06
"Rule 144A"....................................................................................... 2.01
"Tender Period"................................................................................... 3.08
</TABLE>
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Securities means the Company or any other obligor on
the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP consistently applied;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and words in the
plural include the singular; and
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(e) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
Section 2.01. FORM AND DATING. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
which is hereby incorporated in and expressly made a part of this Indenture.
The Securities may have notations, legends or endorsements required by
law, stock exchange rule, agreements to which the Company is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). The Company shall furnish any such legend not
contained in Exhibit A to the Trustee in writing. Each Security shall be dated
the date of its authentication. The terms and provisions of the Securities set
forth in Exhibit A are part of the terms of this Indenture and to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
(a) GLOBAL SECURITIES. The Securities are being offered and sold by the
Company pursuant to a Purchase Agreement relating to the Securities, dated
January 20, 2000, among the Company and the Initial Purchasers (the "Purchase
Agreement").
Securities offered and sold (i) in reliance on Regulation S under the
Securities Act ("Regulation S") or (ii) to "qualified institutional buyers" as
defined in Rule 144A ("QIBs") in reliance on Rule 144A under the Securities Act
("Rule 144A"), each as provided in the Purchase Agreement, shall be issued in
the form of one or more permanent global Securities in definitive, fully
registered form without interest coupons with the Global Securities Legend and
Restricted Global Securities Legend set forth in Exhibit A hereto (each, a
"Global Security"). Any Global Security shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Trustee, at its New
York office, as custodian for the Depositary, and registered in the name of the
Depositary or a nominee of the Depositary for the accounts of participants in
the Depositary (and, in the case of Securities held in accordance with
Regulation S, registered with the Depositary for the accounts of designated
agents holding on behalf of the Euroclear System ("Euroclear") or Cedel Bank,
societe anonyme ("Cedel Bank")), duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate principal amount of a
Global Security may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary or its nominee as
hereinafter provided.
(b) BOOK-ENTRY PROVISIONS. This Section 2.01(b) shall apply only to a
Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(b) and the written order of the Company, authenticate and
deliver initially one or more Global Securities that (i) shall be registered in
the name of Cede & Co. or other nominee of such Depositary and (ii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Trustee as custodian for the Depositary pursuant to
a FAST Balance Certificate Agreement between the Depositary and the Trustee.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or by the Trustee as the custodian of the
Depositary or under such 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 such 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 Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations and Instructions to Participants" of Cedel shall be applicable to
interests in any Global Securities that are held by participants through
Euroclear or Cedel. The Trustee shall have no obligation to notify holders of
any such procedures or to monitor or enforce compliance with the same.
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(c) DEFINITIVE SECURITIES. Except as provided in Section 2.06 and 2.10,
owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Securities in definitive form.
Purchasers of Securities who are not QIBs and did not purchase Securities sold
in reliance on Regulation S under the Securities Act (referred to herein as the
"Non-Global Purchasers") will receive certificated Securities in definitive form
bearing the Restricted Definitive Securities Legend set forth in Exhibit A
hereto ("Definitive Securities"). Definitive Securities will bear the Restricted
Definitive Securities Legend set forth on Exhibit A unless removed in accordance
with Section 2.06(b).
Section 2.02. EXECUTION, AUTHENTICATION AND DELIVERY. Two Officers
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 entitled to any benefits under this Indenture
or the Registration Agreement or otherwise be valid until authenticated by the
manual signature of an authorized signatory 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 two Officers, the Trustee
shall authenticate the Securities for original issue up to an aggregate
principal amount of $100,000,000 (plus up to an additional $25,000,000 aggregate
principal amount which may be issued from time to time upon exercise by the
Initial Purchasers of the over-allotment option set forth in the Purchase
Agreement) and deliver such authenticated Securities as directed in such order.
The aggregate principal amount of Securities outstanding at any time shall not
exceed such amount except as provided in Section 2.07.
The Trustee may appoint one or more authenticating agents 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 agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03. REGISTRAR, PAYING AGENT AND CONVERSION AGENT. The Company
shall maintain in the Borough of Manhattan, The City of New York, State of New
York (i) an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar"), (ii) an office or agency where
Securities may be presented for payment (the "Paying Agent"), (iii) an office or
agency where Securities may be presented for conversion (the "Conversion Agent")
and (iv) an office or agency where notices to or demands upon the Company in
respect of the Securities and this Indenture may be sent. The Registrar shall
keep a register of the Securities and of their transfer and exchange. The
Company has initially appointed the Trustee (at 40 Wall Street, 46th floor, New
York, New York 10005) as its Registrar, Paying Agent and Conversion Agent in New
York. The Company may appoint one or more co-registrars, one or more additional
paying agents and one or more additional conversion agents in such other
locations as it shall determine. 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 may
change any Paying Agent, Registrar or Conversion Agent without prior notice to
any Noteholder. The Company shall notify the Trustee of the name and address of
any newly-appointed Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar, Paying Agent or Conversion
Agent, the Trustee shall act as such.
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Noteholders or the Trustee
all money held by the Paying Agent for the payment of principal of, premium, if
any, on, interest on and Liquidated Damages, if any, on, the Securities, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any money disbursed by it. Upon payment over to the Trustee, the Paying
Agent (if other than the Company or an Affiliate of the Company) shall have no
further liability for the money. If the Company or an Affiliate of the Company
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Noteholders all money held by it as Paying Agent.
Section 2.05. NOTEHOLDER 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 Noteholders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days
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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 Noteholders, and the Company
shall otherwise comply with TIA Section 312(a).
Section 2.06. TRANSFER AND EXCHANGE. Where Securities are presented to
the Registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of other denominations, such Registrar
shall register the transfer or make the exchange if the requirements set forth
in this Indenture and as otherwise may be reasonably required by the Registrar
with respect to such transactions are met. To permit registrations of transfers
and exchanges, the Company shall issue and the Trustee shall authenticate
Securities at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 2.10, 3.06, 3.08, 5.02 or 11.05 hereof not
involving any transfer of the Securities).
The Company shall not be required (i) to issue, register the transfer
of, or exchange Securities during a period beginning at the opening of business
15 days before the day of mailing of notice of redemption of Securities under
Section 3.03 hereof and ending at the close of business on the day of such
mailing, or (ii) to exchange or register the transfer of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
(a) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, or of any
beneficial interest therein, shall only be made in accordance with Sections
2.01(b) and 2.10 and this Section 2.06(a); provided, however, that beneficial
interests in a Global Security may be transferred to persons who take delivery
thereof in the form of a beneficial interest in the Global Security in
accordance with the transfer restrictions set forth under the heading "Notice to
Investors" in the Offering Memorandum and, if applicable, in the Restricted
Global Securities Legend.
(i) Except for transfers or exchanges made in accordance with
any of clauses (ii) through (v) of this Section 2.06(a) and Section
2.10, transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to nominees of the
Depositary or to a successor of the Depositary or such successor's
nominee.
(ii) GLOBAL SECURITY TO DEFINITIVE SECURITY. If an owner of a
beneficial interest in a Global Security deposited with the Depositary
or with the Trustee as custodian for the Depositary wishes at any time
to transfer its interest in such Global Security to a Person who is
required to take delivery thereof in the form of a Definitive Security,
such owner may, subject to the rules and procedures of Euroclear or
Cedel Bank, if applicable, and the Depositary, cause the exchange of
such interest for one or more Definitive Securities of any authorized
denomination or denominations and of the same aggregate principal
amount. Upon receipt by the Registrar of (1) instructions from
Euroclear or Cedel Bank, if applicable, and the Depositary directing
the Trustee to authenticate and deliver one or more Definitive
Securities of the same aggregate principal amount as the beneficial
interest in the Global Security to be exchanged, such instructions to
contain the name or names of the designated transferee or transferees,
the authorized denomination or denominations of the Definitive
Securities to be so issued and appropriate delivery instructions, (2) a
certificate substantially in the form of Exhibit B attached hereto
given by the owner of such beneficial interest, (3) a certificate
substantially in the form of Exhibit C attached hereto given by the
person acquiring the Definitive Securities for which such interest is
being exchanged, to the effect set forth therein, and (4) such other
certifications or other information and, in the case of transfers not
pursuant to Rule 144A and Regulation S under the Securities Act, legal
opinions as the Company may reasonably require 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, then Euroclear or Cedel Bank, if applicable, or the
Registrar, as the case may be, will instruct the Depositary to reduce
or cause to be reduced such Global Security by the aggregate principal
amount of the beneficial interest therein to be exchanged and to debit
or cause to be debited from the account of the Person making such
transfer the beneficial interest in the Global Security that is being
transferred, and concurrently with such reduction and debit the Company
shall execute, and the Trustee shall authenticate and deliver, one or
more Definitive Securities of the same aggregate principal amount in
accordance with the instructions referred to above.
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(iii) DEFINITIVE SECURITY TO DEFINITIVE SECURITY. If a holder
of a Definitive Security wishes at any time to transfer such Definitive
Security (or portion thereof) to a Person who is required to take
delivery thereof in the form of a Definitive Security, such holder may,
subject to the restrictions on transfer set forth herein and in such
Definitive Security, cause the transfer of such Definitive Security (or
any portion thereof in a principal amount equal to an authorized
denomination) to such transferee. Upon receipt by the Registrar of (1)
such Definitive Security, duly endorsed as provided herein, (2)
instructions from such holder directing the Trustee to authenticate and
deliver one or more Definitive Securities of the same aggregate
principal amount as the Definitive Security (or portion thereof) to be
transferred, such instructions to contain the name or names of the
designated transferee or transferees, the authorized denomination or
denominations of the Definitive Securities to be so issued and
appropriate delivery instructions, (3) a certificate from the holder of
the Definitive Security to be transferred in substantially the form of
Exhibit B attached hereto, (4) a certificate substantially in the form
of Exhibit C attached hereto given by the person acquiring the
Definitive Securities (or portion thereof), to the effect set forth
therein, and (5) such other certifications or other information and, in
the case of transfers not pursuant to Rule 144A and Regulation S under
the Securities Act, legal opinions as the Company may reasonably
require 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, then the Registrar, shall cancel or
cause to be canceled such Definitive Security and concurrently
therewith, the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Securities in the
appropriate aggregate principal amount, in accordance with the
instructions referred to above and, if only a portion of a Definitive
Security is transferred as aforesaid, concurrently therewith Company
shall execute and the Trustee shall authenticate and deliver to the
transferor a Definitive Security in a principal amount equal to the
principal amount which has not been transferred. A holder of a
Definitive Security may at any time exchange such Definitive Security
for one or more Definitive Securities of other authorized denominations
and in the same aggregate principal amount and registered in the same
name by delivering such Definitive Security, duly endorsed as provided
herein, to the Trustee together with instructions directing the Trustee
to authenticate and deliver one or more Definitive Securities in the
same aggregate principal amount and registered in the same name as the
Definitive Security to be exchanged, and the Registrar thereupon shall
cancel or caused to be canceled such Definitive Security and
concurrently therewith the Company shall execute and Trustee shall
authenticate and deliver, one or more Definitive Securities in the same
aggregate principal amount and registered in the same name as the
Definitive Security being exchanged.
(iv) DEFINITIVE SECURITY TO GLOBAL SECURITY. If a holder of a
Definitive Security wishes at any time to transfer such Definitive
Security (or portion thereof) to a Person who is not required to take
delivery thereof in the form of a Definitive Security, such holder
shall, subject to the restrictions on transfer set forth herein and in
such Definitive Security and the rules of the Depositary and Euroclear
and Cedel Bank, as applicable, cause the exchange of such Definitive
Security for a beneficial interest in the Global Security. Upon receipt
by the Registrar of (1) such Definitive Security, duly endorsed as
provided herein, (2) instructions from such holder directing the
Trustee to increase the aggregate principal amount of the Global
Security deposited with the Depository or with the Trustee as custodian
for the Depository by the same aggregate principal amount at maturity
as the Definitive Security to be exchanged, such instructions to
contain the name or names of a member of, or participant in, the
Depository that is designated as the transferee, the account of such
member or participant and other appropriate delivery instructions, (3)
the assignment form on the back of the Definitive Security completed in
full (certifying in effect that such transfer complies with Rule 144A
or Regulation S under the Securities Act or is otherwise being made to
a Person who is not required to take delivery of such Security in the
form of a Definitive Security) and (4) such other certifications or
other information and, in the case of transfers not pursuant to Rule
144A and Regulation S under the Securities Act, legal opinions as the
Company may reasonably require 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, then the Trustee,
shall cancel or cause to be canceled such Definitive Security and
concurrently therewith shall increase the aggregate principal amount of
the Global Security by the same aggregate principal amount as the
Definitive Security canceled.
(v) OTHER EXCHANGES. In the event that a Global Security is
exchanged for Securities in definitive registered form pursuant to
Section 2.10 prior to the effectiveness of a Shelf Registration
Statement with respect to such Securities, such Securities may be
exchanged only in accordance with such procedures as are substantially
consistent with the provisions of clauses (ii) and (iii) above
(including the certification requirements intended to ensure that such
transfers comply with Rule 144A or Regulation S under the Securities
Act, as the case may be) and such other procedures as may from time to
time be adopted by the Company.
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(b) Except in connection with a Shelf Registration Statement
contemplated by and in accordance with the terms of the Registration Agreement,
if Securities are issued upon the registration of transfer, exchange or
replacement of Securities bearing a Restricted Securities Legend, or if a
request is made to remove such a Restricted Securities Legend on Securities, the
Securities so issued shall bear the Restricted Securities Legend, or a
Restricted Securities Legend shall not be removed, as the case may be, unless
there is delivered to the Company such satisfactory evidence, which, in the case
of a transfer made not pursuant to Rule 144A and Regulation S under the
Securities Act, may include an opinion of counsel given in accordance with the
federal securities laws, as may be reasonably required by the Company, that
neither the legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the Securities Act or that
such Securities are not "restricted" within the meaning of Rule 144 under the
Securities Act. Upon provision to the Company of such satisfactory evidence, the
Trustee, at the written direction of the Company, shall authenticate and deliver
Securities that do not bear the legend. The Company shall not otherwise be
entitled to require the delivery of a legal opinion in connection with any
transfer or exchange of Securities.
(c) Neither the Trustee nor any Agent shall have any responsibility for
any actions taken or not taken by the Depositary.
(d) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary's
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation as is
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture and to examine the same to determine substantial compliance as
to form with the express requirements hereof.
Section 2.07. REPLACEMENT SECURITIES. If the holder of a Security
claims that the Security has been lost, destroyed or wrongfully taken or if such
Security is mutilated and is surrendered to the Registrar, the Company shall
issue and the Trustee shall authenticate a replacement Security if the Trustee's
and the Company's requirements (as shall have been previously communicated to
the Trustee in a written letter of standing instruction) are met. If required by
the Trustee, the Registrar or the Company, an indemnity bond must be furnished
sufficient in the judgment of each of the foregoing to protect the Company, the
Trustee, any Agent or any authenticating agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge for its expenses in
replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be redeemed or
purchased by the Company pursuant to Article III hereof or converted into shares
of Class A common stock pursuant to Article V hereof, the Company in its
discretion may, instead of issuing a new Security, pay, redeem or convert such
Security, as the case may be.
Every replacement Security is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder. The provisions
of this Section 2.07 are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement of mutilated,
destroyed, lost or stolen Securities.
Section 2.08. OUTSTANDING SECURITIES. The Securities outstanding at any
time are all the Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation, and those described in
this Section as not outstanding.
If a Security is replaced, paid, redeemed or converted, it ceases to be
outstanding unless, in the case of a replaced Security, the Trustee receives
proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If Securities are considered paid under Section 4.01 hereof, they cease
to be outstanding and interest (and Liquidated Damages, if any) on them ceases
to accrue.
Except as set forth in Section 2.09 hereof, a Security does not cease
to be outstanding because the Company or an Affiliate of the Company holds the
Security.
Section 2.09. TREASURY SECURITIES. In determining whether the
Noteholders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or an
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Affiliate of the Company shall be considered as though they are not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which a Trust Officer actually knows are so owned shall be so disregarded.
Section 2.10. TEMPORARY SECURITIES; EXCHANGE OF GLOBAL SECURITY FOR
DEFINITIVE SECURITIES.
(a) 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
and shall be reasonably acceptable to the Trustee. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities.
(b) Except for transfers made in accordance with Section 2.06(a), a
Global Security deposited with the Depositary or with the Trustee as custodian
for the Depositary pursuant to Section 2.01 shall be transferred to the
beneficial owners thereof in the form of certificated Securities in definitive
form only if such transfer complies with Section 2.06 and (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such Depositary ceases to be a
"clearing agency" registered under the Exchange Act and a successor Depositary
is not appointed by the Company within 90 days of such notice, or (ii) an Event
of Default has occurred and is continuing.
(c) Any Global Security or interest thereon that is transferable to the
beneficial owners thereof in the form of certificated Securities in definitive
form shall, if held by the Depositary, be surrendered by the Depositary to the
Trustee, without charge, and the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Security, an equal aggregate
principal amount of Securities of authorized denominations in the form of
certificated Securities in definitive form. Any portion of a Global Security
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depositary shall direct. Any Securities in the
form of certificated Securities in definitive form delivered in exchange for an
interest in the Global Security shall, except as otherwise provided by Section
2.06(b), bear the Restricted Definitive Securities Legend set forth in Exhibit A
hereto.
(d) Prior to any transfer pursuant to Section 2.10(b), the registered
holder of a Global Security may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a holder is entitled to take under this
Indenture or the Securities.
(e) The Company will make available to the Trustee a reasonable supply
of certificated Securities in definitive form without interest coupons.
Section 2.11. CANCELATION. The Company at any time may deliver
Securities to the Registrar for cancelation. The Registrar, Paying Agent and
Conversion Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, redemption, conversion, exchange or payment. The
Trustee shall promptly cancel all Securities surrendered for registration of
transfer, redemption, conversion, exchange, payment, replacement or cancelation
and shall dispose of all such canceled Securities in accordance with its
customary procedures. The Company may not issue new Securities to replace
Securities that it has paid or that have been delivered to the Registrar for
cancelation or that any holder has converted.
All Securities which are redeemed by the Company or any of its
Subsidiaries or Affiliates prior to the final maturity date of the Securities
shall be delivered to the Trustee for cancelation and the Company may not hold
or resell any such Securities or issue any new Securities to replace any such
Securities or any Securities that any holder has converted pursuant to this
Indenture.
Section 2.12. PAYMENT OF INTEREST: INTEREST RIGHTS PRESERVED. Interest
(including Liquidated Damages, if any) on any Security which is payable, and is
punctually paid or duly provided for on any February 1 or August 1 shall be paid
to the Person in whose name such Security (or one or more predecessor
Securities) is registered at the close of business on the record date for such
interest payment, which shall be the January 15 or July 15 (whether or not a
Business Day) immediately preceding such interest payment date.
Any interest and Liquidated Damages, if any, on any Security which is
payable, but is not punctually paid or duly provided for, on any interest
payment date (herein collectively called "Defaulted Interest") shall forthwith
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cease to be payable to the registered holder on the relevant record date, and,
except as hereinafter provided, such Defaulted Interest and any interest payable
on such Defaulted Interest may be paid by the Company, at its election, as
provided in subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest, and any interest payable on such Defaulted Interest, to the
Persons in whose names the Securities are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on the Securities and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest (including Liquidated
Damages, if any) or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this subsection (a).
Thereupon, the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall be not more than 15 calendar
days and not less than 10 calendar days prior to the date of the
proposed payment and not less than 10 calendar days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record date
therefor to be sent, first-class mail, postage prepaid, to each holder
at such holder's address as it appears in the register for the
Securities, not less than 10 calendar days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities are registered at the close of business on such special
record date and shall no longer be payable pursuant to the following
subsection (b).
(b) The Company may make payment of any Defaulted Interest,
and any interest payable on such Defaulted Interest, on the Securities
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 2.12, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, or in substitution for, any other Security, shall carry the
rights to interest (and Liquidated Damages, if any) accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 2.13. COMPUTATION OF INTEREST. Interest on the Securities shall
be computed on the basis of a 360-day year consisting of twelve 30-day months.
In the event that any principal of or premium, if any, or interest or Liquidated
Damages, if any, on the Securities is not paid when due, then to the extent
permitted by law, such overdue principal, premium, if any, interest and
Liquidated Damages, if any, shall bear interest until paid at the Default Rate,
compounded semi-annually. As used herein, the term "Default Rate" means, as of
any date and whether or not any Securities are outstanding on such date, a rate
per annum equal to (i) the rate borne by the Securities plus (ii) if a
Registration Default (as defined in the Registration Agreement) has occurred and
is continuing on such date, the per annum rate of interest at which Liquidated
Damages on the Securities are being computed on such date or, if no Securities
are outstanding on such date, the per annum rate of interest at which Liquidated
Damages on the Securities would have been computed on such date if the
Securities were outstanding.
Section 2.14. CUSIP NUMBER. The Company in issuing the Securities may
use a "CUSIP" number in notices of redemption or exchange as a convenience to
holders; provided that any such notice may state that no representation is made
as to the correctness or accuracy of the CUSIP number printed in the notice or
on the Securities and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company shall promptly
notify the Trustee of any change in the CUSIP number.
Section 2.15. REGULATION S. The Company agrees that it will refuse to
register any transfer of Securities or any shares of Class A common stock issued
upon conversion of Securities that is not made in accordance with the provisions
of Regulation S under the Securities Act, pursuant to a registration statement
which has been declared effective under the Securities Act or pursuant to an
available exemption from the registration requirements of the Securities Act;
provided that the provisions of this paragraph shall not be applicable to any
Securities which do not bear a Restricted Securities Legend or to any shares of
Class A common stock evidenced by certificates which do not bear a Restricted
Common Stock Legend.
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Section 2.16. PERSONS DEEMED OWNERS. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any Agent of
the Company may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
and premium, if any, and (subject to Sections 2.06 and 2.13 above) interest and
Liquidated Damages, if any, on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any Agent shall be affected by notice to the contrary.
ARTICLE III
REDEMPTION
Section 3.01. NOTICES TO TRUSTEE. If the Company elects to redeem
Securities pursuant to Section 3.07 hereof, it shall notify the Trustee in
writing of the redemption date and the principal amount of Securities to be
redeemed. The Company shall give each notice provided for in this Section 3.01
at least 45 days before the redemption date (unless a shorter notice period
shall be satisfactory to the Trustee).
Section 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If less than all
the Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed by a method that complies with the requirements of the quotation system
or principal national securities exchange, if any, on which the Securities are
admitted for trading or listed, as applicable, or, if the Securities are not so
admitted for trading or listed, on a pro rata basis, by lot or by such other
method as the Trustee considers fair and appropriate. The Trustee shall make the
selection not more than 60 days and not less than 30 days before the redemption
date from Securities outstanding not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities that
have denominations larger than $1,000. Securities and portions of them it
selects shall be in principal amounts of $1,000 or integral multiples of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be called
for redemption.
If any Security selected for partial redemption is converted in part
after such selection, the converted portion of such Security shall be deemed (so
far as may be) to be the portion to be selected for redemption. The Securities
(or portions thereof) so selected shall be deemed duly selected for redemption
for all purposes hereof, notwithstanding that any such Security is converted in
whole or in part before the mailing of the notice of redemption. Upon any
redemption of less than all the Securities, the Company and the Trustee may,
solely for purposes of this Section 3.02, treat as outstanding any Securities
surrendered for conversion during the period 15 days next preceding the mailing
of a notice of redemption and need not treat as outstanding any Security
authenticated and delivered during such period in exchange for the unconverted
portion of any Security converted in part during such period.
Section 3.03. NOTICE OF REDEMPTION. At least 30 days but not more than
60 days before a redemption date, the Company shall mail a notice of redemption
to each holder whose Securities are to be redeemed at such holder's registered
address.
The notice shall identify the Securities to be redeemed (including the
CUSIP number) and shall state:
(a) the redemption date;
(b) the redemption price and the amount of accrued and unpaid
interest and Liquidated Damages, if any, to be paid;
(c) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the redemption date, upon cancelation of such Security, a new Security
or Securities in principal amount equal to the unredeemed portion will
be issued in the name of the holder thereof;
(d) the name and address of the Paying Agent;
(e) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price plus accrued
interest and Liquidated Damages, if any;
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(f) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, by law or otherwise,
interest and Liquidated Damages, if applicable, on Securities called
for redemption cease to accrue on and after the redemption date;
(g) the paragraph of the Securities pursuant to which the
Securities called for redemption are being redeemed; and
(h) any other information necessary to enable holders to
comply with the notice of redemption.
Such notice shall also state the current Conversion Price and the date
on which the right to convert such Securities or portions thereof into Class A
common stock of the Company will expire.
At the Company's request, the Trustee shall give notice of redemption
in the Company's name and at the Company's expense. In such event, the Company
shall provide the Trustee with the information required by this Section 3.03 in
a timely manner; provided that the Company shall give the Trustee not less than
60 days' written notice unless the Trustee consents to a shorter period.
Section 3.04. 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 price set forth in the Security plus interest and
Liquidated Damages, if any, accrued and unpaid to the redemption date; provided
that accrued interest and Liquidated Damages which are due and payable on any
interest payment date which is on or prior to the redemption date shall be
payable to the holders of such Securities, or one or more predecessor
Securities, registered as such at the close of business on the relevant record
date; and provided further that if a redemption date is not a Business Day,
payment shall be made on the next succeeding Business Day and no interest shall
accrue for the period from such redemption date to such succeeding Business Day
unless the Company shall default in the payment due on such Business Day. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in such notice. Failure to give notice or any defect in the notice
to any holder shall not affect the validity of the notice to any other holder.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given. In any case, failure to give such
notice to any holder or any defect in the notice to any holder of any Security
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Securities.
Section 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m. (New
York City time) on the redemption date, the Company shall deposit with the
Trustee or the Paying Agent in immediately available funds, money sufficient to
pay the redemption price of and accrued and unpaid interest and Liquidated
Damages, if applicable, to but not including the redemption date on all
Securities to be redeemed on that date (subject to the right of holders of
record on the relevant record date to receive interest (and Liquidated Damages,
if applicable) due on an interest payment date). The Trustee or such Paying
Agent shall return to the Company any money not required for that purpose.
So long as the Company complies with the preceding paragraph and the
other provisions of this Article III and unless the Paying Agent is prohibited
from making such payment pursuant to the terms of this Indenture, by law or
otherwise, interest (and Liquidated Damages, if any) on the Securities to be
redeemed on the applicable redemption date shall cease to accrue from and after
such redemption date and such Securities or portions thereof shall be deemed not
to be entitled to any benefit under this Indenture except to receive payment on
the redemption date of the redemption price plus interest and Liquidated
Damages, if any, accrued and unpaid to the redemption date. If any Security
called for redemption shall not be so paid upon surrender for redemption, then,
from the redemption date until such redemption price (including, without
limitation, accrued interest and Liquidated Damages, if any) is paid in full,
the Company shall pay interest, to the extent permitted by law, on the unpaid
principal of and premium, if any, interest and Liquidated Damages, if any, on
such Security at the Default Rate, compounded semiannually.
Section 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a Security
that is redeemed in part, the Company shall issue and the Trustee shall
authenticate for the holder at the expense of the Company a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
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Section 3.07. OPTIONAL REDEMPTION AND PROVISIONAL REDEMPTION. The
Company may redeem all or any portion of the Securities, upon the terms and at
the redemption prices set forth in each of the Securities. Any redemption
pursuant to this Section 3.07 shall be made pursuant to the provisions of
Section 3.01 through 3.06 hereof.
Section 3.08. DESIGNATED EVENT OFFER.
(a) In the event that, pursuant to Section 4.07 hereof, a Designated
Event Offer is commenced, the Company shall follow the procedures in this
Section 3.08.
(b) The Designated Event Offer shall remain open for a period specified
by the Company which shall be no less than 30 days and no more than 60 days from
and including the date of the mailing of notice in accordance with Section
3.08(e) hereof (the "Commencement Date"), except to the extent that a longer
period is required by applicable law (the "Tender Period"). On the day (the
"Designated Event Payment Date") immediately following the last day of the
Tender Period, the Company shall purchase the principal amount of Securities
duly surrendered for repurchase and not withdrawn.
(c) If a Designated Event Payment Date is after a record date and
before the related interest payment date, accrued interest and Liquidated
Damages, if any, to the related interest payment date will be paid to the
persons in whose names the Securities (or one or more predecessor Securities)
are registered at the close of business on such record date, notwithstanding the
repurchase of any such Securities on such Designated Event Payment Date, and no
additional interest or Liquidated Damages, if any, will be payable to
Noteholders who tender Securities for purchase on such Designated Event Payment
Date.
(d) The Company shall provide the Trustee with written notice of the
Designated Event Offer at least 10 Business Days before the Commencement Date.
(e) Within 30 days following any Designated Event, unless the Company
is entitled to and has previously elected to redeem all of the outstanding
Securities at its option and has previously given holders notice of its
intention to redeem all of the outstanding Securities in accordance with Article
III of this Indenture, the Company or the Trustee (at the request and expense of
the Company) shall send, by first-class mail, a notice to each of the
Noteholders, which shall govern the terms of the Designated Event Offer and
shall state:
(i) that the Designated Event Offer is being made pursuant to
this Section 3.08 and Section 4.07 hereof and that all Securities
validly tendered will be accepted for payment;
(ii) the purchase price (as determined in accordance with
Section 4.07 hereof, subject to Section 3.08(c) hereof), the length of
time the Designated Event Offer will remain open and the Designated
Event Payment Date;
(iii) that any Security or portion thereof not validly
tendered or accepted for payment will continue to accrue interest and
Liquidated Damages, if applicable, and will continue to have conversion
rights;
(iv) that, unless the Company defaults in the payment of the
Designated Event Payment, any Security or portion thereof accepted for
payment pursuant to the Designated Event Offer shall cease to accrue
interest and Liquidated Damages, if applicable, from and after the
Designated Event Payment Date and will cease to have conversion rights
after the Designated Event Payment Date;
(v) that Noteholders electing to have a Definitive Security or
portion thereof purchased pursuant to any Designated Event Offer will
be required to surrender the Definitive Security, with the form
entitled "Option of Noteholder To Elect Purchase" on the reverse of the
Security completed, to a Paying Agent at the address specified in the
notice (which shall include an address in the Borough of Manhattan, The
City of New York) prior to the close of business on the third Business
Day preceding the Designated Event Payment Date;
(vi) that Noteholders will be entitled to withdraw their
election if a Paying Agent receives, not later than the close of
business on the second Business Day preceding the Designated Event
Payment Date, a letter or facsimile transmission setting forth the name
of the Noteholder, the principal amount of the
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Securities or portion thereof delivered for purchase and a statement
that such Noteholder is withdrawing his election to have such
Securities or portions thereof purchased; and
(vii) for Noteholders whose Securities are being purchased
only in part, the Company shall issue and the Trustee shall
authenticate for Noteholders (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security
surrendered.
In addition, the notice shall contain all instructions, other
information and materials that the Company shall reasonably deem necessary to
enable such Noteholders to tender Securities pursuant to the Designated Event
Offer or to withdraw tendered Securities. If the Company is not required to mail
such notice because, as provided above, it has previously given notice of its
intention to redeem the Securities in whole but the Company thereafter defaults
in the payment of the redemption price (including accrued interest and
Liquidated Damages, if any) on any of the Securities on the relevant redemption
date, then the Company shall be required to give notice pursuant to this Section
3.08(e) no later than the second Business Day following such redemption date, in
which case the Tender Period shall be 30 days except to the extent that a longer
period is required by applicable law. In the event that the Company is required
by applicable law to extend the Tender Period beyond the Designated Event
Payment Date set forth in such notice, the Company will, as promptly as
possible, issue a press release and send notice to holders announcing such
extension and the new Designated Event Payment Date, which press release and
notice shall state the new deadlines for surrendering and withdrawing
Securities.
(f) Prior to 10:00 a.m (New York City Time) on the Designated Event
Payment Date, the Company shall irrevocably deposit with the Trustee or the
Paying Agent in immediately available funds an amount equal to the Designated
Event Payment in respect of all Securities or portions thereof validly tendered
and not withdrawn, such funds to be held for payment in accordance with the
terms of this Section 3.08. On the Designated Event Payment Date, the Company
shall, to the extent lawful, (i) accept for payment the Securities or portions
thereof validly tendered pursuant to the Designated Event Offer, (ii) deliver or
cause to be delivered to the Trustee the Securities so accepted and (iii)
deliver to the Trustee an Officers' Certificate identifying the Securities or
portions thereof tendered and not withdrawn to the Company and stating that such
Securities have been accepted for payment by the Company in accordance with the
terms of this Section 3.08. The Paying Agent shall promptly (but in any case not
later than five calendar days after the Designated Event Payment Date) mail or
deliver to each holder of Notes so accepted for payment an amount equal to the
Designated Event Payment for such Securities, and the Trustee shall promptly
authenticate and mail or otherwise deliver to each such Noteholder a new
Security equal in principal amount to any unpurchased portion of the Security
surrendered; provided that each new Security shall be in an integral multiple of
$1,000. Any Securities not so accepted shall be promptly mailed or otherwise
delivered by or on behalf of the Company to the holders thereof. The Company
will publicly announce the results of the Designated Event Offer on, or as soon
as practicable after, the Designated Event Payment Date.
(g) The Designated Event Offer shall be made by the Company in
compliance with all applicable provisions of the Exchange Act and any other
securities laws and regulations (including, without limitation, Rules 13e-4 and
14e-1 under the Exchange Act) to the extent such laws and regulations are
applicable in connection with the repurchase of the Securities in connection
with a Designated Event.
ARTICLE IV
COVENANTS
Section 4.01. PAYMENT OF SECURITIES. The Company shall pay the
principal of, premium, if any, and interest (and Liquidated Damages, if
applicable) on the Securities on the dates and in the manner provided in the
Securities and this Indenture. Principal, premium, if any, and interest (and
Liquidated Damages, if applicable) shall be considered paid on the date due if
the Paying Agent (other than the Company or an Affiliate of the Company) holds
on that date money designated for and sufficient to pay all principal, premium,
if any and interest (and Liquidated Damages, if any) then due and such Paying
Agent is not prohibited from paying such money to the Noteholders on that date
pursuant to the terms of this Indenture. To the extent lawful, the Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (and on overdue principal,
premium, if any, and Liquidated Damages, if applicable (in each case without
regard to any applicable grace period)), at the Default Rate, compounded
semiannually.
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Section 4.02. SEC REPORTS. The Company will comply with the
requirements of TIA Section 314(a). In addition, whether or not required by the
rules and regulations of the SEC, so long as any Securities are outstanding, the
Company will file with the SEC and furnish (without exhibits) to the Trustee and
to the holders of Securities all quarterly and annual financial information
required to be contained in a filing with the SEC on Forms 10-Q and 10-K,
including a "Management's Discussion and Analysis of Financial Conditions and
Results of Operations" and, with respect to annual consolidated financial
statements only, a report on the annual consolidated financial statements by the
Company's certified independent accountants. The Company shall not be required
to file any report or other information with the SEC if the SEC does not permit
such filing. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt thereof 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.
In addition, so long as any of the Securities or shares of Class A
common stock issued or issuable upon conversion of the Securities are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act and if the Company at any time is not subject to and in
compliance with either Section 13 or 15(d) of the Exchange Act or it is not
exempt from such reporting requirements pursuant to and in compliance with Rule
12g3-2(b) under the Exchange Act, the Company will provide to each holder and
beneficial owner of such restricted securities, and to any prospective purchaser
designated by any such holder or beneficial owner, upon request of such holder,
beneficial owner or prospective purchaser, the information required pursuant to
Rule 144A(d)(4) of the Securities Act.
Section 4.03. COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, an
Officers' Certificate stating that a review of the activities of the Company and
its subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under, and
complied with the covenants and conditions contained in, this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of such Officer's knowledge the Company has kept, observed, performed and
fulfilled each and every covenant, and complied with the covenants and
conditions contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which such Officer may have knowledge) and that to the best
of such Officer's knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of, or premium, if any,
interest or Liquidated Damages, if any, on, the Securities are prohibited.
One of the Officers signing such Officers' Certificate shall be either
the Company's principal executive officer, principal financial officer or
principal accounting officer.
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon, but in any event within five Business
Days after, becoming aware of:
(a) any Default, Event of Default or default in the
performance of any covenant, agreement or condition contained in this
Indenture; or
(b) any default under any other credit agreement, mortgage,
indenture or instrument of the nature described in Section 8.01(e),
an Officers' Certificate specifying such Default, Event of Default or default
and what action the Company is taking or proposing to take with respect thereto.
Immediately upon the occurrence of any event giving rise to an
obligation of the Company to pay Liquidated Damages with respect to the
Securities in accordance with paragraph 12 of the form thereof and the
Registration Agreement or the termination of any such obligation, the Company
shall give the Trustee notice of such commencement or termination of the
obligation to pay Liquidated Damages with regard to the Securities and the
amount thereof (except in the event of a termination) and of the event giving
rise to such commencement or termination (such notice to be contained in an
Officers' Certificate), and prior to receipt of such Officers' Certificate the
Trustee shall be entitled to assume that no such commencement or termination has
occurred, as the case may be, unless the Trustee has actual knowledge of such
commencement or termination.
Section 4.04. STAY, EXTENSION AND USURY LAW. The Company 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
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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 (to the extent 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.
Section 4.05. CORPORATE EXISTENCE. Except as provided in Article VII
hereof, 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 rights
(charter and statutory), licenses and franchises of the Company; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries taken as a whole and that the loss thereof is
not adverse in any material respect to the Noteholders.
Section 4.06. TAXES. The Company shall pay, and shall cause each of its
Material Subsidiaries to pay, prior to delinquency, all taxes, assessments and
governmental levies, except such as are contested in good faith and by
appropriate proceedings and for which adequate reserves in accordance with GAAP
or other appropriate provisions have been made or if the failure to pay such
taxes would not, in the aggregate, have a material adverse effect on the
Company.
Section 4.07. DESIGNATED EVENT. Upon the occurrence of a Designated
Event, each holder of Securities will have the right, in accordance with this
Section 4.07 and Section 3.08 hereof, to require the Company to repurchase all
or any part (in an integral multiple of $1,000) of such holder's Securities
pursuant to the terms of an offer made as provided in Section 3.08 (the
"Designated Event Offer") at a purchase price equal to 100% of the principal
amount thereof, plus (subject to Section 3.08(c)) accrued and unpaid interest
and Liquidated Damages, if any, thereon to the Designated Event Payment Date
(the "Designated Event Payment").
Section 4.08. INVESTMENT COMPANY ACT. As long as any Securities are
outstanding, the Company will conduct its business and operations so as not to
become an "investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act"), and will take all steps
required in order for it to continue not to be an "investment company" and not
to be required to be registered under the Investment Company Act, including, if
necessary, redeployment of the assets of the Company.
ARTICLE V
CONVERSION
Section 5.01. CONVERSION PRIVILEGE. A holder of any Security may
convert the principal amount thereof (or any portion thereof that is an integral
multiple of $1,000) into fully paid and nonassessable shares of Class A common
stock of the Company at any time after 90 days following the Issuance Date and
prior to the close of business on the Business Day immediately preceding the
final maturity date of the Security at the Conversion Price then in effect,
except that, with respect to any Security called for redemption, such conversion
right shall terminate at the close of business on the Business Day immediately
preceding the redemption date (unless the Company shall default in making the
redemption payment when it becomes due, in which case the conversion right shall
terminate at the close of business on the date on which such default is cured).
(b) The number of shares of Class A common stock issuable upon
conversion of a Security is determined by dividing the principal amount of the
Security converted by the Conversion Price in effect on the Conversion Date.
"Conversion Price" means $18.95, as the same may be adjusted from time
to time as provided in this Article V.
Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of it. A holder of Securities is
not entitled to any rights of a holder of Class A common stock until such holder
of Securities has converted such Securities into Class A common stock, and only
to the extent that such Securities are deemed to have been converted into Class
A common stock under this Article V.
Section 5.02. CONVERSION PROCEDURE. To convert a Security, a holder
must satisfy the requirements in paragraph 11 of the Securities. The date on
which the holder satisfies all of those requirements is the conversion
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date (the "Conversion Date"). As promptly as practicable on or after the
Conversion Date, the Company shall issue and deliver to the Trustee a
certificate or certificates for the number of whole shares of Class A common
stock issuable upon the conversion and a check or other payment for any
fractional share in an amount determined pursuant to Section 5.03. Such
certificate or certificates will be sent by the Trustee to the Conversion Agent
for delivery to the holder. The Person in whose name the certificate is
registered shall become the stockholder of record on the Conversion Date and, as
of such date, such Person's rights as a Noteholder with respect to the converted
Security shall cease and such converted Security shall no longer be deemed
outstanding; provided, however, that, except as otherwise provided in this
Section 5.02, no surrender of a Security on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the Person
entitled to receive the shares of Class A common stock upon such conversion as
the stockholder of record of such shares of Class A common stock on such date,
but such surrender shall be effective to constitute the Person entitled to
receive such shares of Class A common stock as the stockholder of record thereof
for all purposes at the close of business on the next succeeding day on which
such stock transfer books are open; provided further, however, that such
conversion shall be at the Conversion Price in effect on the date that such
Security shall have been surrendered for conversion, as if the stock transfer
books of the Company had not been closed.
No payment or adjustment will be made for accrued and unpaid interest
or Liquidated Damages on a converted Security or for dividends or distributions
on, or Liquidated Damages, if any, attributable to, shares of Class A common
stock issued upon conversion of a Security, except that, if any holder
surrenders a Security for conversion after the close of business on any record
date for the payment of an installment of interest and prior to the opening of
business on the next succeeding interest payment date, then, notwithstanding
such conversion, accrued and unpaid interest and Liquidated Damages, if
applicable, payable on such Security on such interest payment date shall be paid
on such interest payment date to the person who was the holder of such Security
(or one or more predecessor Securities) at the close of business on such record
date. In the case of any Security surrendered for conversion after the close of
business on a record date for the payment of an installment of interest and
prior to the opening of business on the next succeeding interest payment date,
then, unless such Security has been called for redemption on a redemption date
or is to be repurchased on a Designated Event Payment Date, such Security, when
surrendered for conversion, must be accompanied by payment in an amount equal to
the interest and Liquidated Damages, if applicable, payable on such interest
payment date on the principal amount of such Security so converted. Holders of
Class A common stock issued upon conversion will not be entitled to receive any
dividends payable to holders of Class A common stock as of any record time
before the close of business on the Conversion Date.
If a holder converts more than one Security at the same time, the
number of whole shares of Class A common stock issuable upon the conversion
shall be based on the total principal amount of Securities converted.
Upon surrender of a Definitive 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.
Section 5.03. FRACTIONAL SHARES. The Company will not issue fractional
shares of Class A common stock upon conversion of a Security. In lieu thereof,
the Company will pay an amount in cash based upon the Daily Market Price of the
Class A common stock on the Trading Day prior to the Conversion Date.
Section 5.04. TAXES ON CONVERSION. The issuance of certificates for
shares of Class A common stock upon the conversion of any Security shall be made
without charge to the converting Noteholder for such certificates or for any tax
in respect of the issuance of such certificates, and such certificates shall be
issued in the respective names of, or in such names as may be directed by, the
holder or holders of the converted Security; provided, however, that in the
event that certificates for shares of Class A common stock are to be issued in a
name other than the name of the holder of the Security converted, such Security,
when surrendered for conversion, shall be accompanied by an instrument of
assignment or transfer, in form satisfactory to the Company, duly executed by
the registered holder thereof or his duly authorized attorney; and provided
further, however, that the Company shall not be required to pay any tax which
may be payable in respect of any transfer involved in the issuance and delivery
of any such certificates in a name other than that of the holder of the
converted Security, and the Company shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid or is
not applicable.
Section 5.05. COMPANY TO PROVIDE STOCK. The Company shall at all times
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Class A common stock, solely for the purpose of issuance
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upon conversion of Securities as herein provided, a sufficient number of shares
of Class A common stock to permit the conversion of all outstanding Securities
for shares of Class A common stock.
All shares of Class A common stock which may be issued upon conversion
of the Securities shall be duly authorized, validly issued, fully paid and
nonassessable when so issued. In the case of the conversion of a Global
Security, such conversion shall be subject to any Applicable Procedures. The
Company shall take such action from time to time as shall be necessary so that
par value of the Class A common stock shall at all times be equal to or less
than the Conversion Price then in effect.
The Company shall from time to time take all action necessary so that
the Class A common stock which may be issued upon conversion of Securities,
immediately upon their issuance (or, if such Class A common stock is subject to
restrictions on transfer under the Securities Act, upon their resale pursuant to
an effective Shelf Registration Statement or in a transaction pursuant to which
the certificate evidencing such Class A common stock shall no longer bear the
Restricted Common Stock Legend), will be listed on the Nasdaq National Market or
such other interdealer quotation system and market or principal securities
exchanges, if any, on which other shares of Class A common stock of the Company
are then listed or quoted.
Section 5.06. ADJUSTMENT OF CONVERSION PRICE. The Conversion Price
shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Class A
common stock to holders of Class A common stock (or any event treated as such
for U.S. Federal income tax purposes), (2) make a distribution in shares of
Class A common stock to holders of Class A common stock (or any event treated as
such for U.S. Federal income tax purposes), (3) subdivide its outstanding shares
of Class A common stock into a greater number of shares of Class A common stock
or (4) combine its outstanding shares of Class A common stock into a smaller
number of shares of Class A common stock, the Conversion Price 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 Class A common stock which he would have owned immediately
following such action had such Securities been converted immediately prior
thereto. Any adjustment made pursuant to this subsection (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, options or warrants to all
holders of Class A common stock entitling them to subscribe for or purchase
shares of Class A common stock (or securities convertible into Class A common
stock) at a price per share (or having a conversion price per share) less than
the Current Market Price per share (as determined pursuant to subsection (f)
below) of the Class A common stock on the record date for determining the
holders of the Class A common stock entitled to receive such rights, options or
warrants, the Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to such record date by a fraction of which the numerator shall be the
number of shares of Class A common stock outstanding as of the close of business
on such record date plus the number of shares of Class A common stock which the
aggregate offering price of the total number of shares of Class A common stock
so offered (to the holders of outstanding Class A common stock) for subscription
or purchase (or the aggregate conversion price of the convertible securities so
offered) would purchase at such Current Market Price (as determined pursuant to
subsection (f) below), and of which the denominator shall be the number of
shares of Class A common stock outstanding on such record date plus the number
of additional shares of Class A common stock so offered for subscription or
purchase (or into which the convertible securities so offered are convertible).
Such adjustments shall become effective immediately after such record date. For
the purposes of this subsection (b), the number of shares of Class A common
stock at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of such Class A common stock. The Company
shall not issue any rights, options or warrants in respect of shares of Class A
common stock held in the treasury of the Company. In determining whether any
rights, options or warrants entitle the holders to subscribe for or purchase
shares of Class A common stock at less than the Current Market Price, and in
determining the aggregate offering price of such shares of Class A common stock,
there shall be taken into account any consideration received by the Company for
such rights, warrants, or options, the value of such consideration, if any,
other than cash, to be determined by the Board of Directors.
(c) In case the Company shall distribute to all holders of Class A
common stock shares of Capital Stock of the Company (other than Class A common
stock), evidences of indebtedness, cash, rights, options or warrants entitling
the holders thereof to subscribe for or purchase securities (other than rights,
options or warrants described in subsection (b) above) or other assets
(including securities of Persons other than the Company but
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excluding (i) dividends or distributions paid exclusively in cash except as
described in subsection (d) below, (ii) dividends and distributions described in
subsection (a) above and (iii) distributions in connection with the
consolidation, merger or transfer of assets covered by Section 5.13), then in
each such case the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction of which the
numerator shall be the Current Market Price (determined as provided in
subsection (f) below) of the Class A common stock on the record date mentioned
below less the fair market value on such record date (as determined by the Board
of Directors, whose determination shall be conclusive evidence of such fair
market value and described in a Board Resolution delivered to the Trustee) of
the portion of the evidences of indebtedness, shares of Capital Stock, cash,
rights, options, warrants or other assets so distributed applicable to one share
of Class A common stock (determined on the basis of the number of shares of the
Class A common stock outstanding on the record date), and of which the
denominator shall be such Current Market Price of the Class A common stock. Such
adjustment shall become effective immediately after the record date for the
determination of the holders of Class A common stock entitled to receive such
distribution. Notwithstanding the foregoing, in case the Company shall
distribute rights, options or warrants to subscribe for additional shares of the
Company's Capital Stock (other than rights, options or warrants referred to in
subsection (b) above) ("Rights") to all holders of Class A common stock, the
Company may, in lieu of making any adjustment pursuant to the foregoing
provisions of this Section 5.06(c), make proper provision so that each holder of
a Security who converts such Security (or any portion thereof) 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 Class A common stock issuable 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 Class A common stock
equal to the number of Conversion Shares is 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 Class A 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.
(d) In case the Company shall, by dividend or otherwise, at any time
make a distribution to all holders of its Class A common stock exclusively in
cash (including any distributions of cash out of current or retained earnings of
the Company but excluding any cash that is distributed as part of a distribution
requiring a Conversion Price adjustment pursuant to paragraph (c) of this
Section) in an aggregate amount that, together with the sum of (x) the aggregate
amount of any other distributions made exclusively in cash to all holders of
Class A common stock within the 12 months preceding the date fixed for
determining the stockholders entitled to such distribution (the "Distribution
Record Date") and in respect of which no Conversion Price adjustment pursuant to
paragraph (c) or (e) of this Section or this paragraph (d) has been made plus
(y) the aggregate amount of all Excess Payments in respect of any tender offers
or other negotiated transactions by the Company or any of its Subsidiaries for
Class A common stock concluded within the 12 months preceding the Distribution
Record Date and in respect of which no Conversion Price adjustment pursuant to
paragraphs (c) or (e) of this Section or this paragraph (d) has been made,
exceeds 12 1/2% of the product of the Current Market Price per share (determined
as provided in paragraph (f) of this Section) of the Class A common stock on the
Distribution Record Date multiplied by the number of shares of Class A common
stock outstanding on the Distribution Record Date (excluding shares held in the
treasury of the Company), the Conversion Price shall be reduced so that the same
shall equal the price determined by multiplying such Conversion Price in effect
immediately prior to the effectiveness of the Conversion Price reduction
contemplated by this paragraph (d) by a fraction of which the numerator shall be
the Current Market Price per share (determined as provided in paragraph (f) of
this Section) of the Class A common stock on the Distribution Record Date less
the sum of the aggregate amount of cash and the aggregate Excess Payments so
distributed, paid or payable within such 12-month period (including, without
limitation, the distribution in respect of which such adjustment is being made)
applicable to one share of Class A common stock (which shall be determined by
dividing the sum of the aggregate amount of cash and the aggregate Excess
Payments so distributed, paid or payable with respect to outstanding shares of
Class A common stock within such 12 months (including, without limitation, the
distribution in respect of which such adjustment is being made) by the number of
shares of Class A common stock outstanding on the Distribution Record Date) and
the denominator shall be such Current Market Price per share (determined as
provided in paragraph (f) of this Section) of the Class A common stock on the
Distribution Record Date, such reduction to become effective immediately prior
to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the
Company or any Subsidiary of the Company for all or any portion of the Class A
common stock shall be consummated, if an Excess Payment is
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made in respect of such tender offer or other negotiated transaction and the
aggregate amount of such Excess Payment, together with the sum of (x) the
aggregate amount of any distributions, by dividend or otherwise, to all holders
of the Class A common stock made in cash (including any distributions of cash
out of current or retained earnings of the Company) within the 12 months
preceding the date of payment of such current negotiated transaction
consideration or expiration of such current tender offer, as the case may be
(the "Purchase Date"), and as to which no adjustment in the Conversion Price
pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e)
has been made plus (y) the aggregate amount of all Excess Payments in respect of
any other tender offers or other negotiated transactions by the Company or any
of its Subsidiaries for Class A common stock concluded within the 12 months
preceding the Purchase Date and in respect of which no adjustment in the
Conversion Price pursuant to paragraph (c) or (d) of this Section or this
paragraph (e) has been made, exceeds 12 1/2% of the product of the Current
Market Price per share (determined as provided in paragraph (f) of this Section)
of the Class A common stock on the Purchase Date multiplied by the number of
shares of Class A common stock outstanding on the Purchase Date (including any
tendered shares but excluding any shares held in the treasury of the Company),
the Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying such Conversion Price in effect immediately prior to
the effectiveness of the Conversion Price reduction contemplated by this
paragraph (e) by a fraction of which the numerator shall be the Current Market
Price per share (determined as provided in paragraph (f) of this Section) of the
Class A common stock on the Purchase Date less the sum of the aggregate amount
of cash and the aggregate Excess Payments so distributed, paid or payable within
such 12 month period (including, without limitation, the Excess Payment in
respect of which such adjustment is being made) applicable to one share of Class
A common stock (which shall be determined by dividing the sum of the aggregate
amount of cash and the aggregate Excess Payments so distributed, paid or payable
with respect to out standing shares of Class A common stock within such 12
months (including, without limitation, the Excess Payment in respect of which
such adjustment is being made) by the number of shares of Class A common stock
outstanding on the Purchase Date) and the denominator shall be such Current
Market Price per share (determined as provided in paragraph (f) of this Section)
of the Class A common stock on the Purchase Date, such reduction to become
effective immediately prior to the opening of business on the day following the
Purchase Date.
(f) The "Current Market Price" per share of Class A common stock on any
date shall be deemed to be the average of the Daily Market Prices for the
shorter of (i) 30 consecutive Business Days ending on the last full Trading Day
on the exchange or market referred to in determining such Daily Market Prices
prior to the time of determination or (ii) the period commencing on the date
next succeeding the first public announcement of the issuance of such rights or
such warrants or such other distribution or such tender offer or other
negotiated transaction through such last full Trading Day on the exchange or
market referred to in determining such Daily Market Prices prior to the time of
determination.
(g) "Excess Payment" means the excess of (i) the aggregate of the cash
and fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value and
described in a Board Resolution delivered to the Trustee) of other consideration
paid by the Company or any of its Subsidiaries with respect to the shares
acquired in a tender offer or other negotiated transaction over (ii) the Daily
Market Price on the Trading Day immediately following the completion of the
tender offer or other negotiated transaction multiplied by the number of
acquired shares.
(h) The Company reserves the right to make such reductions in the
Conversion Price in addition to those required in the foregoing provisions as it
considers to be advisable in order that any event treated for United States
federal income tax purposes as a dividend of stock or stock rights will not be
taxable to the recipients.
(i) The Company from time to time may decrease the Conversion Price by
any amount for any period of at least 20 days (which decrease is irrevocable
during such period), in which case the Company shall give at least 15 days'
notice of such decrease, if the Board of Directors has made a determination that
such decrease would be in the best interests of the Company, which determination
shall be conclusive; provided however that in no case shall the Company decrease
the Conversion Price to less than 80% of the Current Market Price. No such
decrease shall be taken into account for purposes of determining whether the
Current Market Price of the Class A common stock exceeds the Conversion Price by
105% in connection with an event which otherwise would be a Change of Control.
(j) In any case in which this Section 5.06 shall require that an
adjustment be made immediately following a record date for an event, the Company
may elect to defer, until such event, issuing to the holder of any Security
converted after such record date the shares of Class A common stock and other
Capital Stock of the Company issuable upon such conversion over and above the
shares of Class A common stock and other Capital Stock of the Company issuable
upon such conversion on the basis of the Conversion Price prior to adjustment;
and,
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in lieu of the shares the issuance of which is so deferred, the Company shall
issue or cause its transfer agents to issue due bills or other appropriate
evidence of the right to receive such shares.
Section 5.07. NO ADJUSTMENT. No adjustment in the Conversion Price
shall be required until cumulative adjustments amount to 1.0% or more of the
Conversion Price as last adjusted; provided, however, that any adjustments which
by reason of this Section 5.07 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article V shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be. No adjustment need be made for
rights to purchase Class A common stock pursuant to a Company plan for
reinvestment of dividends or interest. No adjustment need be made for a change
in the par value or no par value of the Class A common stock.
Section 5.08. OTHER ADJUSTMENTS.
(a) In the event that, as a result of an adjustment made pursuant to
Section 5.06 above, the holder of any Security thereafter surrendered for
conversion shall become entitled to receive any shares of Capital Stock of the
Company other than shares of its Class A common stock, thereafter the Conversion
Price of such other shares so receivable upon conversion of any Securities 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 Class A common stock
contained in this Article V.
(b) In the event that any shares of Class A common stock issuable upon
exercise of any of the rights, options or warrants referred to in Section
5.06(b) and Section 5.06(c) hereof are not delivered prior to the expiration of
such rights, options, or warrants, the Conversion Price shall be readjusted to
the Conversion Price which would otherwise have been in effect had the
adjustment made upon the issuance of such rights, options or warrants been made
on the basis of delivery of only the number of such rights, options and warrants
which were actually exercised.
(c) In any case in which Section 5.06 shall require that an adjustment
be made immediately following a record date for a dividend or distribution and
the dividend or distribution does not occur, the Conversion Price shall again be
adjusted to the Conversion Price that would then be in effect if such dividend
or distribution had not been declared.
Section 5.09. [INTENTIONALLY LEFT BLANK].
Section 5.10. [INTENTIONALLY LEFT BLANK].
Section 5.11. NOTICE OF ADJUSTMENT. Whenever the Conversion Price is
adjusted, the Company shall promptly mail (or cause the Trustee to mail at the
Company's expense) to Noteholders 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.
Section 5.12. NOTICE OF CERTAIN TRANSACTIONS. In the event that:
(a) the Company takes any action which would require an
adjustment in the Conversion Price;
(b) the Company takes any action that would require a
supplemental indenture pursuant to Section 5.13; or
(c) there is a dissolution or liquidation of the Company;
the Company shall mail (or cause the Trustee to mail at the Company's expense)
to Noteholders at the addresses appearing on the Registrar's books and the
Trustee a notice stating the proposed record or effective date, as the case may
be. The Company shall mail the notice at least 15 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 (a), (b) or (c) of this
Section 5.12.
Section 5.13. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS, MERGERS,
CONTINUANCES OR SALES ON CONVERSION PRIVILEGE. If any of the following shall
occur, namely: (i) any reclassification or change of outstanding shares of Class
A common stock issuable upon conversion of Securities (other than a change in
par value, or from par value
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to no par value, or from no par value to par value, or as a result of a
subdivision or combination), (ii) any consolidation or merger to which the
Company is a party other than a merger in which the Company is the continuing
corporation 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, outstanding shares of Class A common stock, (iii) any
continuance in a new jurisdiction 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) in, outstanding shares of Class
A common stock, or (iv) any sale or conveyance of all or substantially all of
the property of the Company (determined on a consolidated basis), then the
Company, or such successor or purchasing corporation, as the case may be, shall,
as a condition precedent to such reclassification, change, consolidation,
merger, continuance, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture in form satisfactory to the Trustee providing that 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, continuance, sale or conveyance by a holder of the number
of shares of Class A common stock deliverable upon conversion of such Security
immediately prior to such reclassification, change, consolidation, merger,
continuance, sale or conveyance. Such supplemental indenture shall provide for
adjustments of the Conversion Price which shall be as nearly equivalent as may
be practicable to the adjustments of the Conversion Price provided for in this
Article V. The foregoing, however, shall not in any way affect the right a
holder of a Security may otherwise have, pursuant to clause (ii) of the last
sentence of subsection (c) of Section 5.06, to receive Rights upon conversion of
a Security. If, in the case of any such consolidation, merger, continuance, sale
or conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Class A common stock includes shares of
stock or other securities and property of a corporation or other business entity
other than the successor or purchasing corporation, as the case may be, in such
consolidation, merger, continuance, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation or other business
entity and shall contain such additional provisions to protect the interests of
the holders of the Securities as the Board of Directors of the Company shall
reasonably consider necessary by reason of the foregoing. The provision of this
Section 5.13 shall similarly apply to successive consolidations, mergers,
continuances, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 5.13, the Company shall promptly file with the Trustee
(x) 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, continuance, sale or
conveyance and any adjustment to be made with respect thereto and (y) an Opinion
of Counsel stating that all conditions precedent relating to such transaction
have been complied with, and shall promptly mail (or cause the Trustee to mail
at the Company's expense) notice thereof to all holders.
Section 5.14. TRUSTEE'S DISCLAIMER. The Trustee has no duty to
determine when an adjustment under this Article V should be made, how it should
be made or what such adjustment should be or whether a supplemental indenture is
required by this Article V, but may accept as conclusive evidence of the
correctness of any such adjustment, and shall be protected in relying in good
faith upon the Officers' Certificate with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 5.11. 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
Company's failure to comply with any provisions of this Article V, except as
provided in Article IX.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 5.13, but, except as provided in Article IX, 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 5.13.
Section 5.15. CANCELATION OF CONVERTED SECURITIES. All Securities
delivered for conversion shall be delivered to the Trustee to be canceled by or
at the direction of the Trustee, which shall dispose of the same as provided in
Section 2.11.
Section 5.16. RESTRICTION ON CLASS A COMMON STOCK ISSUABLE UPON
CONVERSION. (a) Shares of Class A common stock to be issued upon conversion of
Securities prior to the effectiveness of a Shelf Registration Statement shall be
physically delivered in certificated form to the holders converting such
Securities and the certificate representing such shares of Class A common stock
shall bear the Restricted Common Stock Legend unless removed in accordance with
Section 5.16(c).
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(b) If (i) shares of Class A common stock to be issued upon conversion
of a Security prior to the effectiveness of a Shelf Registration Statement are
to be registered in a name other than that of the holder of such Security or
(ii) shares of Class A common stock represented by a certificate bearing the
Restricted Common Stock Legend are transferred subsequently by such holder,
then, unless the Shelf Registration Statement has become effective and such
shares are being transferred pursuant to the Shelf Registration Statement, the
holder must deliver to the transfer agent for the Class A common stock a
certificate in substantially the form of Exhibit E as to compliance with the
restrictions on transfer applicable to such shares of Class A common stock and
neither the transfer agent nor the registrar for the Class A common stock shall
be required to register any transfer of such Class A common stock not so
accompanied by a properly completed certificate.
(c) Except in connection with a Shelf Registration Statement, if
certificates representing shares of Class A common stock are issued upon the
registration of transfer, exchange or replacement of any other certificate
representing shares of Class A common stock bearing the Restricted Common Stock
Legend, or if a request is made to remove such Restricted Common Stock Legend
from certificates representing shares of Class A common stock, the certificates
so issued shall bear the Restricted Common Stock Legend, or the Restricted
Common Stock Legend shall not be removed, as the case may be, unless there is
delivered to the Company such satisfactory evidence, which, in the case of a
transfer not made pursuant to Rule 144A or Regulation S under the Securities
Act, may include an opinion of counsel pursuant to the federal securities laws,
as may be reasonably required by the Company, that neither the legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A, Rule 144, Regulation S or
another applicable exemption under the Securities Act or that such shares of
Class A common stock are securities that are not "restricted" within the meaning
of Rule 144 under the Securities Act. Upon provision to the Company of such
reasonably satisfactory evidence, the Company shall cause the transfer agent for
the Class A common stock to countersign and deliver certificates representing
shares of Class A common stock that do not bear the legend.
ARTICLE VI
SUBORDINATION
Section 6.01. AGREEMENT TO SUBORDINATE. The Company, for itself and its
successors, and each Noteholder, by his acceptance of Securities, agree that the
payment of the principal of and premium, if any, interest, Liquidated Damages,
if any, and any other amounts due on the Securities is subordinated in right of
payment, to the extent and in the manner stated in this Article VI, to the prior
payment in full of all existing and future Senior Debt. Anything herein to the
contrary notwithstanding, the provisions of this Article VI shall not be
applicable with respect to any Liquidated Damages payable in respect of shares
of Class A common stock issued on conversion of Securities.
Section 6.02. NO PAYMENT ON SECURITIES IF SENIOR DEBT IN DEFAULT.
Anything in this Indenture to the contrary notwithstanding, no payment on
account of principal of or premium, if any, interest or Liquidated Damages, if
any on or other amounts due on the Securities (including the making of a deposit
pursuant to Section 3.05 or 3.08(f)), and no redemption, purchase, or other
acquisition of the Securities, shall be made by or on behalf of the Company
unless (i) full payment of all amounts then due for principal of and interest
on, and of all other amounts then due on, all Senior Debt has been made or duly
provided for pursuant to the terms of the instruments governing such Senior Debt
and (ii) at the time for, and immediately after giving effect to, such payment,
redemption, purchase or other acquisition, there shall not exist under any
Senior Debt, or any agreement pursuant to which any Senior Debt is issued, any
default which shall not have been cured or waived and which default shall have
resulted in the full amount of such Senior Debt being declared due and payable.
In addition, if the Trustee shall receive written notice from the holders of
Designated Senior Debt or their Representative (a "Payment Blockage Notice")
that there has occurred and is continuing under such Designated Senior Debt, or
any agreement pursuant to which such Designated Senior Debt is issued, any
default, which default shall not have been cured or waived, giving the holders
of such Designated Senior Debt the right to declare such Designated Senior Debt
immediately due and payable, then, anything in this Indenture to the contrary
notwithstanding, no payment on account of the principal of or premium, if any,
interest or Liquidated Damages, if any, on or any other amounts due on the
Securities (including, without limitation, the making of a deposit pursuant to
Section 3.05 or 3.08(f)), and no redemption, purchase or other acquisition of
the Securities, shall be made by or on behalf of the Company during the period
(the "Payment Blockage Period") commencing on the date of receipt of the Payment
Blockage Notice and ending (unless earlier terminated by notice given to the
Trustee by the holders or the Representative of the holders of such Designated
Senior Debt) on the earlier of (a) the date on which such default shall have
been cured or waived or (b) 180 days from the receipt of the Payment Blockage
Notice. Notwithstanding the provisions described in the immediately preceding
sentence (but subject to the provisions contained in Section 6.01 and the first
sentence
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of this Section 6.02), unless the holders of such Designated Senior Debt or the
Representative of such holders shall have accelerated the maturity of such
Designated Senior Debt, the Company may resume payments on the Securities after
the end of such Payment Blockage Period. Not more than one Payment Blockage
Notice may be given in any consecutive 365-day period, irrespective of the
number of defaults with respect to Senior Debt during such period.
In the event that, notwithstanding the provisions of this Section 6.02,
payments are made by or on behalf of the Company in contravention of the
provisions of this Section 6.02, such payments shall be held by the Trustee, any
Paying Agent or the holders, as applicable, in trust for the benefit of, and
shall be paid over to and delivered to, the Representatives of the holders of
Senior Debt or the trustee under the indenture or other agreement (if any),
pursuant to which any instruments evidencing any Senior Debt may have been
issued for application to the payment of all Senior Debt ratably according to
the aggregate amounts remaining unpaid to the extent necessary to pay all Senior
Debt in full in accordance with the terms of such Senior Debt, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
The Company shall give prompt written notice to the Trustee and any
Paying Agent of any default or event of default under any Senior Debt or under
any agreement pursuant to which any Senior Debt may have been issued.
Section 6.03. DISTRIBUTION ON ACCELERATION OF SECURITIES; DISSOLUTION
AND REORGANIZATION; SUBROGATION OF SECURITIES.
(a) If the Securities are declared due and payable because of the
occurrence of an Event of Default, the Company shall give prompt written notice
to the holders of all Senior Debt or to the Representatives or trustee(s) for
such Senior Debt of such acceleration. The Company may not pay the principal of,
or premium, if any, interest or Liquidated Damages, if any, on, or any other
amounts due on, the Securities until five Business Days after such holders,
Representatives or trustee(s) of Senior Debt receive such notice and,
thereafter, the Company may pay the principal of, and premium, if any, interest
and Liquidated Damages, if any, on, and any other amounts due on, the Securities
only if the provisions of this Article VI permit such payment.
(b) Upon (i) any acceleration of the principal amount due on the
Securities because of an Event of Default or (ii) any direct or indirect
distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
or any other dissolution, winding up, liquidation or reorganization of the
Company):
(1) the holders of all Senior Debt shall first be entitled to
receive payment in full of the principal thereof, the interest thereon
and any other amounts due thereon before the holders are entitled to
receive payment on account of the principal of, or premium, if any,
interest or Liquidated Damages, if any, on, or any other amounts due
on, the Securities (other than payments of Junior Securities);
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (other
than Junior Securities), to which the holders or the Trustee would be
entitled (other than in respect of amounts payable to the Trustee
pursuant to Section 9.07) except for the provisions of this Article,
shall be paid by the liquidating trustee or agent or other Person
making such a payment or distribution, directly to the holders of
Senior Debt (or their Representative(s) or trustee(s) acting on their
behalf), ratably according to the aggregate amounts remaining unpaid on
account of the principal of and interest on and other amounts due on
the Senior Debt held or represented by each, to the extent necessary to
make payment in full of all Senior Debt remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such
Senior Debt; and
(3) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than Junior
Securities), shall be received by the Trustee (other than in respect of
amounts payable to the Trustee pursuant to Section 9.07) or the holders
before all Senior Debt is paid in full, such payment or distribution
shall be held in trust for the benefit of, and be paid over to upon
request by a holder of Senior Debt, to the holders of the Senior Debt
remaining unpaid or their Representatives or trustee(s) acting on their
behalf, ratably as aforesaid, for application to the payment of such
Senior Debt until all such Senior Debt shall have been paid in full,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Debt.
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Subject to the payment in full of all Senior Debt, the holders shall be
subrogated to the rights of the holders of Senior Debt to receive payments and
distributions of cash, property or securities of the Company, applicable to the
Senior Debt until the principal of, and premium, if any, interest and Liquidated
Damages, if any, on, and all other amounts payable in respect of the Securities
shall be paid in full and, for purposes of such subrogation, no such payments or
distributions to the holders of Senior Debt of cash, property or securities
which otherwise would have been payable or distributable to holders shall, as
between the Company, its creditors other than the holders of Senior Debt, and
the holders, be deemed to be a payment by the Company to or on account of the
Senior Debt, it being understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the holders,
on the one hand, and the holders of Senior Debt, on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall (i) impair, as between the Company and
its creditors other than the holders of Senior Debt, the obligation of the
Company, which is absolute and unconditional, to pay to the holders the
principal of, premium, if any, on, and interest and Liquidated Damages, if any,
on, the Securities as and when the same shall become due and payable in
accordance with the terms of the Securities, (ii) affect the relative rights of
the holders and creditors of the Company other than holders of Senior Debt or,
as between the Company and the Trustee, the obligations of the Company to the
Trustee, or (iii) prevent the Trustee or the holders from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Debt in respect of cash, property and securities of the Company received
upon the exercise of any such remedy.
Upon distribution of assets of the Company referred to in this Article,
the Trustee, subject to the provisions of Section 9.01 hereof, and the holders
shall be entitled to rely upon a certificate 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, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt. Nothing contained in this Article or elsewhere in this
Indenture, or in any of the Securities, shall prevent the good faith application
by the Trustee of any moneys which were deposited with it hereunder, prior to
its receipt of written notice of facts which would prohibit such application,
for the purpose of the payment of or on account of the principal of, premium, if
any, on, interest or Liquidated Damages, if any, on, the Securities unless,
prior to the date on which such application is made by the Trustee, the Trustee
shall be charged with actual notice under Section 6.03(d) hereof of the facts
which would prohibit the making of such application.
(c) The provisions of this Article shall not be applicable to any cash,
properties or securities received by the Trustee or by any holder of the
Securities when received as a holder of Senior Debt and nothing in Section 9.11
hereof or elsewhere in this Indenture shall deprive the Trustee or such holder
of the Securities of any of its rights as such holder of Senior Debt.
(d) The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment of
money to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article. The Trustee, subject to the provisions of Section
9.01 hereof, shall be entitled to assume that no such fact exists unless the
Company or any holder of Senior Debt or any trustee therefor has given actual
notice thereof to the Trustee. Notwithstanding the provisions of this Article or
any other provisions of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any fact which would prohibit the making of any
payment of moneys to or by the Trustee in respect of the Securities pursuant to
the provisions in this Article, unless, and until two Business Days after, the
Trustee shall have received written notice thereof from the Company or any
holder or holders of Senior Debt or from any trustee or Representative therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 9.01 hereof, shall be entitled in all respects
conclusively to assume that no such facts exist; provided that if on a date not
less than two Business Days immediately preceding the date upon which, by the
terms hereof, any such moneys may become payable for any purpose (including,
without limitation, to pay the principal of, premium, if any, on, interest or
Liquidated Damages, if any, on, any Security), the Trustee shall not have
received with respect to such moneys the notice provided for in this Section
6.03(d), then anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such prior
date.
The Trustee shall be entitled to rely conclusively on the delivery to
it of a written notice by a Person representing himself to be a holder of Senior
Debt (or a trustee or Representative on behalf of such holder) to
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establish that such notice has been given by a holder of Senior Debt (or a
trustee or Representative on behalf of any such holder or holders). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt held by such Person, the extent to which such
person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment; nor shall the Trustee be charged with knowledge or the curing or
waiving of any default of the character specified in Section 6.02 hereof or that
any event or any condition preventing any payment in respect of the Securities
shall have ceased to exist, unless and until the Trustee shall have received
written notice to such effect.
(e) The provisions of this Section 6.03 applicable to the Trustee shall
(unless the context requires otherwise) also apply to any Paying Agent for the
Company.
Section 6.04. RELIANCE BY SENIOR DEBT ON SUBORDINATION PROVISIONS. Each
holder of any Security by his acceptance thereof acknowledges and agrees that
the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration for each holder of any Senior Debt, whether such
Senior Debt was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Debt, and such holder of Senior Debt shall be deemed conclusively to have relied
on such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Debt. Notice of any default in the payment of
any Senior Debt, except as expressly stated in this Article, and notice of
acceptance of the provisions hereof are, to the extent permitted by law, hereby
expressly waived. Except as otherwise expressly provided herein, no waiver,
forbearance or release by any holder of Senior Debt under such Senior Debt or
under this Article shall constitute a release of any of the obligations or
liabilities of the Trustee or holders of the Securities provided in this
Article.
Section 6.05. NO WAIVER OF SUBORDINATION PROVISIONS. Except as
otherwise expressly provided herein, no right of any present or future holder of
any Senior Debt to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of, or notice to, the Trustee or the holders of the Securities, without
incurring responsibility to the holders of the Securities and without impairing
or releasing the subordination provided in this Article VI or the obligations
hereunder of the holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
of, or renew or alter, Senior Debt, or otherwise amend or supplement in any
manner Senior Debt or any instrument evidencing the same or any agreement under
which Senior Debt is outstanding; (ii) sell, exchange, release or otherwise
dispose of any property pledged, mortgaged or otherwise securing Senior Debt;
(iii) release any person liable in any manner for the collection of Senior Debt;
and (iv) exercise or refrain from exercising any rights against the Company or
any other Person.
Section 6.06. TRUSTEE'S RELATION TO SENIOR DEBT. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article in respect of any Senior Debt at any time held by it, to the same extent
as any holder of Senior Debt, and nothing in Section 9.11 hereof or elsewhere in
this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations, as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not owe any fiduciary duty to the holders
of Senior Debt but shall have only such obligations to such holders as are
expressly set forth in this Article.
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding up or liquidation or
reorganization under any applicable Bankruptcy Law of the Company (whether in
bankruptcy,
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insolvency or receivership proceedings or otherwise), the timely filing of a
claim for the unpaid balance of such holder's Securities in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file a claim or proof of debt in the form required in such proceedings
prior to 30 days before the expiration of the time to file such claims or
proofs, then any holder or holders of Senior Debt or their Representative or
Representatives shall have the right to demand, sue for, collect, receive and
receipt for the payments and distributions in respect of the Securities which
are required to be paid or delivered to the holders of Senior Debt as provided
in this Article and to file and prove all claims therefor and to take all such
other action in the name of the holders or otherwise, as such holders of Senior
Debt or Representative thereof may determine to be necessary or appropriate for
the enforcement of the provisions of this Article.
Section 6.07. OTHER PROVISIONS SUBJECT HERETO. Except as expressly
stated in this Article, notwithstanding anything contained in this Indenture to
the contrary, all the provisions of this Indenture and the Securities are
subject to the provisions of this Article VI. However, nothing in this Article
shall apply to or adversely affect the claims of, or payment to, the Trustee
pursuant to Section 9.07 or the right of any holder of Class A common stock
issued upon conversion of Securities to receive Liquidated Damages, if any, in
respect of such shares of Class A common stock . Notwithstanding the foregoing,
the failure to make a payment on account of principal of, premium, if any, on,
or interest or Liquidated Damages, if any, on, the Securities by reason of any
provision of this Article VI shall not be construed as preventing the occurrence
of an Event of Default under Section 8.01.
ARTICLE VII
SUCCESSORS
Section 7.01. MERGER, CONSOLIDATION OR SALE OF ASSETS. The Company will
not consolidate or merge with or into any person (whether or not the Company is
the surviving corporation), continue in a new jurisdiction or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets unless:
(a) the Company is the surviving corporation (in the case of a
merger) or the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person which acquires by
sale, assignment, transfer, lease, conveyance or other disposition the
properties and assets of the Company is a corporation organized and
existing under the laws of the United States, any state thereof or the
District of Columbia; provided that in the event of the continuation of
the Company in the new jurisdiction, the Company must remain a
corporation organized and existing under the laws of the United States,
any state thereof or the District of Columbia;
(b) the corporation formed by or surviving any such
consolidation or merger (if other than the Company) or the corporation
to which such sale, assignment, transfer, lease, conveyance or other
disposition will have been made assumes all the obligations of the
Company, pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee, under the Securities, the Registration
Agreement and the Indenture;
(c) such sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the Company's
properties or assets shall be as an entirety or virtually as an
entirety to one corporation and such corporation shall have assumed all
the obligations of the Company, pursuant to a supplemental indenture in
form reasonably satisfactory to the Trustee, under the Securities, the
Registration Agreement and the Indenture;
(d) immediately after such transaction no Default or Event of
Default exists; and
(e) the Company or such corporation shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such transaction and the supplemental indenture, if
required, comply with the Indenture and that all conditions precedent
in the Indenture relating to such transaction have been satisfied.
Section 7.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
or merger or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 7.01 hereof, the successor corporation (if other than
the Company) formed by such consolidation or into or with which the Company is
merged or the corporation to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted for
and may exercise
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every right and power of, the Company under this Indenture with the same effect
as if such successor Person has been named as the Company herein; provided,
however, that the predecessor Company in the case of a sale, assignment,
transfer, lease, conveyance or other disposition shall not be released from the
obligation to pay the principal of, premium, if any, on and interest and
Liquidated Damages, if any, on the Securities.
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. EVENTS OF DEFAULT. An "Event of Default" occurs if:
(a) the Company defaults in the payment of any interest or Liquidated
Damages on any Security when the same becomes due and payable and the default
continues for a period of 30 days; or
(b) the Company defaults in the payment of any principal of or premium, if
any, on any Security when the same becomes due and payable, whether at maturity,
upon redemption or otherwise (including, without limitation, failure by the
Company to purchase Securities tendered for purchase pursuant to a Designated
Event Offer as and when required pursuant to Section 3.08 or Section 4.07
hereof); or
(c) the Company fails to commence a Designated Event Offer within 30 days
of the Company's knowledge of a Designated Event or to observe or perform any
covenant or agreement contained in Section 7.01 hereof; or
(d) the Company fails to observe or perform any other covenant or agreement
contained in this Indenture or the Securities required by it to be performed and
the failure continues for a period of 60 days after the receipt of written
notice by the Company from the Trustee or by the Company and the Trustee from
the holders of at least 25% in aggregate principal amount of the then
outstanding Securities stating that such notice is a "Notice of Default"; or
(e) a default under any credit agreement, mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any Subsidiary of the
Company (or the payment of which is Guaranteed by the Company or any of its
Subsidiaries), whether such Indebtedness or Guarantee exists on the date of this
Indenture or is created hereafter, which default (i) is caused by a failure to
pay when due any principal of or interest on such Indebtedness within the grace
period, if any, provided for in such Indebtedness (which failure continues
beyond any applicable grace period) (a "Payment Default") or (ii) results in the
acceleration of such Indebtedness prior to its express maturity (without such
acceleration being rescinded or annulled) and, in each case, the principal
amount of such Indebtedness, together with the principal amount of any other
such Indebtedness under which there is a Payment Default or the maturity of
which has been so accelerated, aggregates $15,000,000 or more and which Payment
Default is not cured or which acceleration is not annulled within 30 days after
written receipt by the Company from the Trustee or by the Company and the
Trustee from any holder of Securities stating that such notice is a "Notice of
Default"; or
(f) a final, non-appealable judgment or final non-appealable judgments
(other than any judgment as to which a reputable insurance company has accepted
full liability) for the payment of money are entered by a court or courts of
competent jurisdiction against the Company or any Subsidiaries of the Company
and remain unstayed, unbonded or undischarged for a period (during which
execution shall not be effectively stayed) of 60 days, provided that the
aggregate of all such judgments exceeds $15,000,000; or
(g) the Company or any Material Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding; or
(ii) consents to the entry of an order for relief against the Company
or any Material Subsidiary in an involuntary case or proceeding; or
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(iii) consents to the appointment of a Custodian of the Company or
any Material Subsidiary or for all or any substantial part of its property;
or
(iv) makes a general assignment for the benefit of its creditors; or
(v) take corporate or similar action to effect any of the foregoing;
or
(h) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any Material Subsidiary in
an involuntary case or proceeding; or
(ii) appoints a Custodian of the Company or any Material Subsidiary
or for all or any substantial part of the property of the Company or any
Material Subsidiary; or
(iii) orders the liquidation of the Company or any Material
Subsidiary;
and in each case referred to in this paragraph (h) the order or decree remains
unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign bankruptcy, insolvency or similar law. The term "Custodian"
means any custodian, receiver, trustee, assignee, sequestor, liquidator or
similar official under any Bankruptcy Law.
Section 8.02. ACCELERATION. If an Event of Default (other than an Event of
Default specified in clauses (g) and (h) of Section 8.01 hereof with respect to
the Company) occurs and is continuing, the Trustee by notice to the Company, or
the Noteholders of at least 25% in principal amount of the then outstanding
Securities by notice to the Company and the Trustee, may declare all the
Securities to be due and payable. Upon such declaration, the principal of,
premium, if any, on and accrued and unpaid interest and Liquidated Damages, if
applicable, on the Securities shall be due and payable immediately. If an Event
of Default specified in clause (g) or (h) of Section 8.01 hereof occurs with
respect to the Company, the principal of, premium, if any, on and accrued and
unpaid interest and Liquidated Damages, if any, on 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 Noteholder. The Noteholders of a majority
in aggregate principal amount of the then outstanding Securities by notice to
the Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree, if all amounts payable to the
Trustee pursuant to Section 9.07 hereof have been paid and if all existing
Events of Default have been cured or waived as provided for herein except
nonpayment of principal, premium, if any, interest or Liquidated Damages, if
any, that has become due solely because of the acceleration.
Section 8.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of, premium, if any, on or interest and Liquidated Damages, if any,
on, 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 Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 8.04. WAIVER OF PAST DEFAULTS. Subject to Section 8.07 hereof, the
Noteholders of a majority in aggregate principal amount of the then outstanding
Securities by notice to the Trustee may waive an existing Default or Event of
Default and its consequences except a continuing Default or Event of Default in
the payment of the Designated Event Payment, or principal of, premium, if any,
on, or interest or Liquidated Damages, if any, on, any Security or in respect of
a covenant in or other provision of this Indenture or the Securities which
cannot be amended or waived without the consent of each Noteholder affected.
When a Default or Event of Default is waived, it is cured and ceases; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereon.
Section 8.05. CONTROL BY MAJORITY. The Noteholders of a majority in
principal amount of the then outstanding Securities may direct the time, method
and place of conducting any proceeding for any remedy
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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, that may be unduly prejudicial to the rights of other
Noteholders, or that may involve the Trustee in personal liability; provided
that the Trustee may take any other action deemed appropriate by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification reasonably
satisfactory to it against all losses and expenses caused by taking or not
taking such action.
Section 8.06. LIMITATION ON SUITS. A Noteholder may pursue a remedy with
respect to this Indenture or the Securities only if:
(a) the Noteholder gives to the Trustee a written notice of a
continuing Event of Default;
(b) the Noteholders of at least 25% in principal amount of the then
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(c) such Noteholder or Noteholders offer and, if requested, provide
to the Trustee indemnity reasonably satisfactory to the Trustee against any
loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Noteholders of a majority in
principal amount of the then outstanding Securities do not give the Trustee
a direction inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the rights of another
Noteholder or to obtain a preference or priority over another Noteholder.
Section 8.07. RIGHTS OF NOTEHOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Noteholder of a Security to
receive payment of principal of, premium, if any on, and interest and Liquidated
Damages, if any, on the Security, on or after the respective due dates expressed
in the Security and this Indenture, 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 Noteholder made pursuant to this Section.
Section 8.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default specified
in Section 8.01(a) or (b) 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 of principal, premium, if any, interest and Liquidated
Damages, if any, remaining unpaid on the Securities and, to the extent permitted
by law, interest on overdue principal, premium, if any, interest and Liquidated
Damages, if any and such further amount as shall be sufficient to cover the
costs and, to the extent lawful, expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due under Section 9.07 hereof.
Section 8.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee shall be
entitled and empowered, without regard to whether the Trustee or any holder
shall have made any demand or performed any other act pursuant to the provisions
of this Article and without regard to whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise, by intervention in any proceedings relative to the Company or any
other obligor upon the Securities, or to the creditors or property or assets of
the Company or any such other obligor or otherwise, to take any and all actions
authorized under the TIA in order to have claims of the holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be entitled and
empowered in such instances:
(a) to file and prove a claim or claims for the whole amount of
principal and premium, if any, interest, Liquidated Damages, if any, and
any other amounts owing and unpaid in respect of the Securities, and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including all amounts owing to the
Trustee and each predecessor Trustee pursuant to Section 9.07 hereof) and
of the holders allowed in any judicial proceedings relating to the Company
or other obligor upon the Securities property of the Company or any such
other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or
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other bankruptcy or insolvency proceedings or Person performing similar
functions in comparable proceedings, and
(c) to participate as a member, voting or otherwise, of any official
committee of creditors approved in such matter and to collect and receive
any moneys or other property or assets payable or deliverable on any such
claims, and to distribute all amounts received with respect to the claims
of the holders and of the Trustee on their behalf; and any trustee,
receiver, or liquidator, custodian or other similar official is hereby
authorized by each of the holders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of payments directly
to the holders, to pay to the Trustee such amounts as shall be sufficient
to cover all amounts owing to the Trustee and each predecessor Trustee
pursuant to Section 9.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for 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 of any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
person.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
holders of the Securities, and it shall not be necessary to make any holders of
the Securities parties to any such proceedings.
Section 8.10. PRIORITIES. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 9.07 hereof,
including payment of all compensation, expense and liabilities incurred,
and all advances made, by the Trustee and the costs and expenses of
collection;
SECOND: to the holders of Senior Debt to the extent required by
Article VI;
THIRD: to the Noteholders, for amounts due and unpaid on the
Securities for principal, premium, if any, interest and Liquidated Damages,
if any, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Securities for principal, premium, if
any, interest and Liquidated Damages, if any; and
FOURTH: to the Company or to such other party as a court of competent
jurisdiction shall direct.
Except as otherwise provided in Section 2.12 hereof, the Trustee may fix a
record date and payment date for any payment to Noteholders made pursuant to
this Section 8.10. At least 15 days before such record date, the Company shall
mail to each holder and the Trustee a notice that states the record date, the
payment date and amount to be paid. The Trustee may mail such notice in the name
and at the expense of the Company.
Section 8.11. UNDERTAKING FOR COSTS. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a holder pursuant to Section 8.07 hereof, or a
suit by Noteholders of more than 10% in principal amount of the then outstanding
Securities.
Section 8.12. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
holder of Securities has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such holder, then and in every such case the Company, the Trustee and the
holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the holders shall continue as though
no such proceeding has been instituted.
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Section 8.13. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
in Section 2.07 hereof, no right or remedy conferred herein, upon or reserved to
the Trustee or to the holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent (to
the extent permitted by law) the concurrent assertion or employment of any other
appropriate right or remedy.
Section 8.14. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall (to the extent permitted by law) impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article VIII or by
law to the Trustee or to the holders may (to the extent permitted by law) be
exercised from time to time and as often as may be deemed expedient, by the
Trustee or by the holders, as the case may be.
ARTICLE IX
TRUSTEE
Section 9.01. 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 such Person's
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 others; and (ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and, if required by the terms hereof, conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the applicable requirements, if any,
of this Indenture. The Trustee may reasonably consult with its legal counsel and
rely upon advice from such counsel with respect to legal matters.
(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) this paragraph does not limit the effect of paragraph (b) of this
Section 9.01; (ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not
be liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 8.05 hereof.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 9.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any holders, unless such holder shall have offered to the Trustee
security and indemnity reasonably satisfactory to it against any loss, liability
or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 9.02. RIGHTS OF TRUSTEE.
(a) Subject to the provisions of Section 9.01(a) hereof, the Trustee may
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.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
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reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel of its choice and the advice of such counsel or any Opinion
of Counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(e) The Trustee shall not be charged with knowledge of any Event of Default
under subsection (c), (d), (e), (f) or (g) of Section 8.01 unless either (1) a
Trust Officer assigned to its corporate trust department shall have actual
knowledge thereof, or (2) the Trustee shall have received notice thereof in
accordance with Section 12.02 hereof from the Company or any holder; provided
that the Trustee shall comply with the "automatic stay" provisions contained in
U.S. Bankruptcy Law, if applicable.
(f) Prior to the occurrence of an Event of Default hereunder and after the
curing and waiving of all Events of Default, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debentures, note, other evidence of indebtedness or other
paper or document unless requested in writing to do so by the holders of not
less than a majority in aggregate principal amount of the Securities then
outstanding; provided that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against expenses or
liabilities as a condition to proceeding; the reasonable expenses of every such
examination shall be paid by the Company or, if advanced by the Trustee, shall
be repaid by the Company upon demand. The Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any covenants,
conditions, or agreements on the part of the Company, except as otherwise set
forth herein, but the Trustee may, in its discretion, make such further inquiry
or investigation into such facts or matters as it may see fit and if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company personally or
by agent or attorney at the sole cost of the Company.
(g) The Trustee shall not be required to give any bond or surety in respect
of the performance of its powers and duties hereunder.
(h) 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 to each Agent employed to act hereunder.
Section 9.03. 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 an Affiliate with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights.
However, in the event that the Trustee acquires any conflicting interest (as
defined in the TIA) it must eliminate such conflict within 90 days, apply to the
SEC for permission to continue as Trustee or resign. Any Agent may do the same
with like rights and duties. The Trustee is also subject to Sections 9.10 and
9.11 hereof.
Section 9.04. 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 of the Company in this Indenture or
any statement in the Securities (other than its certificate of authentication)
or for compliance by the Company with the Registration Agreement.
Section 9.05. NOTICE OF DEFAULTS. If a Default or Event of Default occurs
and is continuing and if it is known to the Trustee, the Trustee shall mail to
Noteholders a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default relating to the
failure to pay any principal of or premium, if any, interest or Liquidated
Damages (including a Designated Event Payment), if any, on any Security, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Noteholders.
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Section 9.06. REPORTS BY TRUSTEE TO NOTEHOLDERS. Within 60 days after the
reporting date stated in Section 12.10, the Trustee shall mail to Noteholders a
brief report dated as of such reporting date that complies with TIA Section
313(a) if and to the extent required by such Section 313(a). The Trustee also
shall comply with TIA Section 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA
Section 313(c).
A copy of each report at the time of its mailing to Noteholders shall be
filed with the SEC and each stock exchange on which the Securities are listed.
The Company shall notify the Trustee when the Securities are listed on any stock
exchange and of any delisting thereof.
Section 9.07. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time such compensation for its services hereunder as shall
be agreed upon from time to time in writing by the Company and the Trustee. 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 disbursements, expenses and advances incurred or made
by it in connection with the performance of its duties hereunder. Such
disbursements and expenses may include the reasonable disbursements,
compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and each predecessor
Trustee against any and all loss, damage, claim, liability or expense incurred
by it in connection with the performance of its duties hereunder except as set
forth in the next paragraph. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. Failure by the Trustee to notify the
Company shall not release the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. If in the
reasonable opinion of Trustee's counsel, a conflict of interest exists between
the Trustee and the Company with respect to such claim, the Trustee may have
separate counsel and the Company shall pay the reasonable fees, disbursements
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through the Trustee's negligence or bad faith.
The obligations of the Company under this Section 9.07 shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of the
Indenture.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien on all money or property held or collected by the Trustee in
its capacity as Trustee, except money or property held in trust to pay principal
of, or premium, if any, interest or Liquidated Damages, if any, on, particular
Securities. Such lien shall survive the satisfaction or discharge of the
indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 8.01(g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 9.08. REPLACEMENT OF TRUSTEE. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Noteholders of a majority
in principal amount of the then outstanding Securities may remove the Trustee by
so notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 9.10 hereof, unless the
Trustee's duty to resign is stayed as provided in TIA Section 310(b);
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the
Noteholders of a majority in principal amount of the then outstanding Securities
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Noteholders of at least 10% in principal amount of the then outstanding
Securities may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 9.10 hereof, unless the
Trustee's duty to resign is stayed as provided in TIA Section 310(b), any
Noteholder who has been a bona fide holder of a Security for at least six months
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 Noteholders. 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 9.07 hereof.
Notwithstanding the resignation or replacement of the Trustee pursuant to this
Section 9.08, the Company's obligations under Section 9.07 hereof shall continue
for the benefit of the retiring trustee with respect to expenses and liabilities
incurred by it prior to such resignation or replacement.
Section 9.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the
Trustee shall have.
Section 9.10. ELIGIBILITY; DISQUALIFICATION. This Indenture shall always
have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and
(5). The Trustee shall always have a combined capital and surplus as stated in
Section 12.10 hereof. The Trustee is subject to TIA Section 310(b); provided,
however, that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Section 9.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee is subject to 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 therein.
ARTICLE X
DISCHARGE OF INDENTURE
Section 10.01. TERMINATION OF THE COMPANY'S OBLIGATIONS. This Indenture
shall cease to be of further effect (except as to any surviving rights of
conversion, registration of transfer or exchange of Securities herein
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expressly provided for and except as further provided below), and the Trustee,
on demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.07 and (ii) Securities
for whose payment money has theretofore been deposited in trust) have been
delivered to the Trustee for cancelation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancelation
(A) have become due and payable, or
(B) will become due and payable at the final maturity date
within one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of clause (A), (B) or (C) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds, in trust for such purpose, cash in an amount
sufficient to pay and discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancelation, for principal,
premium, if any, interest and Liquidated Damages, if any, to the date of
such deposit (in the case of Securities which have become due and payable)
or to the final maturity date or redemption date, as the case may be, in
all other cases;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.07, the obligations of
the Company to pay Liquidated Damages under this Indenture, the Securities and
the Registration Agreement and, if money shall have been deposited with the
Trustee pursuant to subclause (ii) of clause (a) of this Section, the provisions
of Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.11 (second paragraph only),
2.13, 2.15, 3.08, 4.02 (second paragraph only), 4.04, 4.07 and 4.08, Article V
and this Article X, shall survive; and, notwithstanding the satisfaction and
discharge of this Indenture, the Company agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred by the Trustee and
to compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture, the Registration
Agreement or the Securities. Thereupon, the Trustee upon request of the Company,
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture, except for those surviving obligations specified above.
Subject to the provisions of Section 10.02, the Trustee shall hold in
trust, for the benefit of the holders, all money deposited with it pursuant to
this Section 10.01 and shall apply the deposited money in accordance with this
Indenture and the Securities to the payment of the principal of, and premium, if
any, interest and Liquidated Damages, if any, on the Securities. Money so held
in trust shall not be subject to the subordination provisions of Article VI.
Section 10.02. REPAYMENT TO COMPANY. The Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess money or securities held by
them at any time.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such payment shall
have become due; provided, however, that the Company shall have first caused
notice of such payment to the Company to be mailed to each Noteholder entitled
thereto no less than 30 days prior to such payment or within such period shall
have published such notice in a financial newspaper of widespread circulation
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published in The City of New York, including, without limitation, The Wall
Street Journal (national edition). After payment to the Company, the Trustee and
the Paying Agent shall have no further liability with respect to such money and
Noteholders entitled to the money must look to the Company for payment as
general creditors unless any applicable abandoned property law designates
another person.
Section 10.03. REINSTATEMENT. If the Trustee or any Paying Agent is unable
to apply any money in accordance with the second paragraph of Section 10.01 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, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 10.01 until such time as the Trustee or such Paying Agent is
permitted to apply all such money in accordance with Section 10.01; PROVIDED,
HOWEVER, that if the Company has made any payment of the principal of or
premium, if any, interest or Liquidated Damages, if any, on 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 any such payment from
the money held by the Trustee or such Paying Agent.
ARTICLE XI
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 11.01. WITHOUT CONSENT OF NOTEHOLDERS. The Company and the Trustee
may amend or supplement this Indenture or the Securities without the consent of
any Noteholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Sections 5.13 and 7.01 hereof;
(c) to provide for uncertificated Securities in addition to
certificated Securities;
(d) to make any change that does not adversely affect the legal
rights hereunder of any Noteholder;
(e) to qualify this Indenture under the TIA or to comply with the
requirements of the SEC in order to maintain the qualification of the
Indenture under the TIA;
(f) to make any change that provides any additional rights or
benefits to the holders of Securities; or
(g) to evidence and provide for the acceptance under the Indenture of
a successor Trustee.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 11.07 hereof,
the Trustee shall join with the Company in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
An amendment under this Section may not make any change that adversely
affects the rights under Article VI of any holder of Senior Debt then
outstanding unless the holders of such Senior Debt (or any group or
representative thereof authorized to give a consent) consent to such change.
Section 11.02. WITH CONSENT OF NOTEHOLDERS. Except as provided below in
this Section 11.02, the Company and the Trustee may amend or supplement this
Indenture or the Securities with the written consent (including consents
obtained in connection with any tender or exchange offer for Securities) of the
Noteholders of at least a majority in principal amount of the then outstanding
Securities. Subject to Sections 8.04 and 8.07 hereof, the Noteholders of a
majority in principal amount of the Securities then outstanding may also by
their written consent (including consents obtained in connection with any tender
offer or exchange offer for Securities) waive any existing Default or Event of
Default as provided in Section 8.04 or waive compliance in a particular instance
by the
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Company with any provision of this Indenture or the Securities. However, without
the consent of each Noteholder affected, an amendment, supplement or waiver
under this Section may not (with respect to any Securities held by a
nonconsenting Noteholder):
(a) reduce the amount of Securities whose Noteholders must consent to
an amendment, supplement or waiver;
(b) reduce the rate of, or change the time for payment of, interest
or Liquidated Damages on any Security;
(c) reduce the principal of or change the fixed maturity of any
Security or alter the redemption provisions with respect thereto
(including, without limitation, the amount of any premium payable upon
redemption);
(d) make any Security payable in money other than that stated in the
Security;
(e) make any change in Section 8.04, 8.07 or 11.02 hereof (this
sentence);
(f) waive a default in the payment of the Designated Event Payment or
any principal of, or premium, if any, or interest or Liquidated Damages, if
any, on, any Security (other than a rescission of acceleration pursuant to
Section 8.02 hereof and a waiver of nonpayment of principal, premium, if
any, interest or Liquidated Damages, if any, that have become due solely
because of such acceleration of the Securities);
(g) at any time after a Designated Event has occurred, change the
time at which the related repurchase or redemption offer must be made or at
which the Securities must be repurchased or redeemed pursuant to such
offer;
(h) waive a redemption or repurchase payment payable on any Security;
(i) make any change in the rights of holders of Securities to receive
payment of principal of, or premium, if any, or interest or Liquidated
Damages, if any, on, the Securities;
(j) modify the conversion or subordination provisions in a manner
adverse to the holders of the Securities;
(k) impair the right of Noteholders to convert Securities into Class
A common stock of the Company or otherwise to receive any cash, securities
or other property receivable by a holder upon conversion of Securities; or
(l) impair the right of Noteholders to institute suit for enforcement
of any payment on or with respect to any Security.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Securities as aforesaid, and upon receipt by the
Trustee of the documents described in Section 11.07 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental Indenture.
To secure a consent of the Noteholders under this Section 11.02, it shall
not be necessary for the Noteholders to approve the particular form of any
proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
Section 11.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to this
Indenture or the Securities shall be set forth in a supplemental indenture that
complies with the TIA as then in effect.
Section 11.04. REVOCATION AND EFFECT OF CONSENTS. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Noteholder of a
Security is a continuing consent by the Holder and every subsequent
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Holder of a Security or portion of a Security that evidences the same debt as
the consenting Noteholder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Noteholder may
revoke the consent as to such Holder's Security or portion of a Security if the
Trustee receives the notice of revocation before the date on which the Trustee
receives an Officers' Certificate certifying that the Holders of the requisite
principal amount of Securities have consented to the amendment, supplement or
waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Noteholders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those persons who were
Noteholders at such record date (or their duly designated proxies), and only
those persons, shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such persons
continue to be Noteholders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Securities required hereunder for such
amendment, supplement or waiver to be effective shall have also been given and
not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective it shall bind
every Noteholder, unless it is of the type described in any of clauses (a)
through (l) of Section 11.02 hereof. In such case, the amendment, supplement or
waiver shall bind each Noteholder who has consented to it and every subsequent
Noteholder that evidences the same debt as the consenting Noteholder's Security.
Upon the execution of any supplemental indenture under this Article XI,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. After a supplemental indenture becomes effective, the
Company shall mail to holders a notice briefly describing such amendment. The
failure to give such notice to all holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Article.
Section 11.05. NOTATION ON OR EXCHANGE OF SECURITIES. The Trustee may place
an appropriate notation about an amendment, supplement or waiver on any Security
thereafter authenticated. The Company in exchange for all Securities may issue
and the Trustee shall authenticate new Securities that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new security shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 11.06. TRUSTEE PROTECTED. The Trustee shall sign all supplemental
indentures, except that the Trustee may, but need not, sign any supplemental
indenture that adversely affects its rights, duties or immunities.
Section 11.07. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Company may not
sign a supplemental Indenture until the Board of Directors approves it. In
executing any supplemental indenture, the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and to receive and (subject to Section
9.01) shall be fully protected in relying upon, in addition to the documents
required by Section 12.04, an Officers' Certificate and an Opinion of Counsel
stating that:
(a) such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution, delivery and
performance of such supplemental indenture have been satisfied;
(b) the Company has all necessary corporate power and authority to
execute and deliver the supplemental indenture and that the execution,
delivery and performance of such supplemental indenture has been duly
authorized by all necessary corporate action of the Company;
(c) the execution, delivery and performance of the supplemental
indenture do not conflict with, or result in the breach of or constitute a
default under any of the terms, conditions or provisions of (i) this
Indenture, (ii) the charter documents or by-laws of the Company, or (iii)
any material agreement or instrument to which the Company is subject and of
which such counsel is aware;
(d) to the knowledge of legal counsel writing such Opinion of
Counsel, the execution, delivery and performance of the supplemental
indenture do not conflict with, or result in the breach of any
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of the terms, conditions or provisions of (i) any law or regulation
applicable to the Company, or (ii) any material order, writ, injunction or
decree of any court or governmental instrumentality applicable to the
Company;
(e) such supplemental indenture has been duly and validly executed
and delivered by the Company, and this Indenture together with such
supplemental indenture constitutes a legal, valid and binding obligation of
the Company enforceable against the Company, in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and general equitable principles (whether considered in a proceeding at law
or in equity); and
(f) this Indenture together with such amendment or supplement
complies with the TIA.
Section 11.08. PAYMENT FOR CONSENT. Neither the Company nor any Affiliate
of the Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE XII
MISCELLANEOUS
Section 12.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
automatically deemed to be incorporated in this Indenture by the TIA, the
incorporated provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
Section 12.02. NOTICES. Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first-class mail (registered or certified, return receipt requested),
telecopier (promptly confirmed in writing) or overnight air courier guaranteeing
next day delivery to the other's address stated in Section 12.10 hereof. The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Noteholder shall be mailed by first-class
mail, postage prepaid to his address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Noteholder or any defect in it shall not
affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it;
a notice or communication, however, shall not be effective unless, in the case
of the Trustee, actually received.
If the Company mails a notice or communication to Noteholders, it shall
mail a copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
In case by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail any notice as required by the
Indenture, then such method of notification as shall be made with the approval
of the Trustee shall constitute a sufficient mailing of such notice.
Section 12.03. COMMUNICATION BY NOTEHOLDERS WITH OTHER NOTEHOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders 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).
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Section 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
In any case where several matters are required by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
by, an Officer or Officer of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate of opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Any Officers' Certificate, statement or Opinion of Counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or
representation by an accountant (who may be an employee of the Company), or firm
of accountants, unless such Officer or counsel, as the case may be, knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representation with respect to the accounting matters upon which his or her
certificate, statement or opinion may be based as aforesaid is erroneous.
Section 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Section 4.03) shall
include:
(a) a statement that the Persons signing such certificate or
rendering such opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, such Person has
made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
Section 12.06. RULES BY TRUSTEE AND AGENTS. The Trustee may make reasonable
rules for action by, or a meeting of, Noteholders. The Registrar or Paying Agent
may make reasonable rules and set reasonable requirements for its functions.
Section 12.07. LEGAL HOLIDAYS. A "Legal Holiday" is a Saturday, a Sunday or
a day on which banking institutions in the State of New York are not required to
be open. 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 or Liquidated Damages shall accrue for the intervening period
unless the Company shall default in making the
44
<PAGE>
payment due on such next succeeding day. If any other operative date for
purposes of this Indenture shall occur on a Legal Holiday then for all purposes
the next succeeding day that is not a Legal Holiday shall be such operative
date.
Section 12.08. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Noteholder 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.
Section 12.09. COUNTERPARTS. This Indenture may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Section 12.10. VARIABLE PROVISIONS. "Officer" means the Chairman of the
Board, the Chief Executive Officer, the President, any Vice-President, the Chief
Financial Officer, the Treasurer, the Secretary, any Assistant Treasurer, any
Assistant Secretary or the Controller of the Company.
The Company initially appoints the Trustee as Paying Agent, Registrar and
Conversion Agent, and the Trustee hereby accepts such appointments.
The first certificate pursuant to Section 4.03 hereof shall be for the
fiscal year ending on December 31, 2000.
The reporting date for Section 9.06 hereof is July 1 of each year. The
first reporting date is July 1, 2000.
The Trustee shall always have a combined capital and surplus of at least
$10,000,000 or shall be a member of a bank holding system the aggregate combined
capital and surplus of which is $10,000,000 as set forth in its most recent
published annual report of condition; provided that the Trustee's separate
capital and surplus shall at all times be at least the amount required by
Section 310(a)(2) of the TIA.
The Company's address for purposes of the Indenture is:
Mail.com, Inc.
11 Broadway, 6th Floor
New York, New York 10004
Attention: Chief Financial Officer
Telephone No.: (212) 425-4200
Telecopier No.: (212) 425-3487
The Trustee's address is:
American Stock Transfer & Trust Company
40 Wall Street, 46th floor
New York, New York 10005
Attn: Corporate Trust Department
Telephone No.: (718) 921-8200
Telecopier No.: (718) 236-4588
The Company or the Trustee may change its address for purposes of this
Indenture by written notice to the other.
Section 12.11. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THIS INDENTURE AND THE SECURITIES, WITHOUT REGARD, TO THE EXTENT
PERMITTED BY LAW, TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 12.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or an Affiliate. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
45
<PAGE>
Section 12.13. SUCCESSORS. All agreements of the Company in this Indenture
and the Securities shall bind its successor. All agreements of the Trustee in
this Indenture shall bind its successor.
Section 12.14. SEVERABILITY. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, then (to the extent
permitted by law) the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 12.15. TABLE OF CONTENTS, HEADINGS, ETC. The Table of Contents and
headings of the Articles and Sections of this Indenture and the Securities have
been inserted for convenience of reference only, are not to be considered a part
hereof or thereof, and shall in no way modify or restrict any of the terms or
provisions hereof or thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
MAIL.COM, INC., as Company,
By /s DAVID AMBROSIA
-------------------------------------
Name: David Ambrosia
Title: Executive Vice President and
General Counsel
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Trustee,
By /s/ HERBERT J. LEMMER
-------------------------------------
Name: Herbert J. Lemmer
Title: Vice President
46
<PAGE>
EXHIBIT A
FORM OF CONVERTIBLE SUBORDINATED NOTE
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, 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 DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Global Securities Legend--For Inclusion in Global Securities Only]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY THERETO) OR (Y) BY ANY HOLDER THAT
WAS AN "AFFILIATE" OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (4) TO AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT ("INSTITUTIONAL ACCREDITED INVESTOR") THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION AND THAT, PRIOR TO
SUCH TRANSFER, DELIVERS TO THE COMPANY AND THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER MAY BE
OBTAINED FROM THE TRUSTEE) , (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE
SECURITIES ACT OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER OR (2) AN INSTITUTIONAL ACCREDITED INVESTOR AND
THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION OR (3) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN
THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF
RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER
HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH
REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY EXCEPT AS PERMITTED BY THE SECURITIES ACT.
[Restricted Definitive Security Legend--For Inclusion in Definitive Securities
Only]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR
A-1
<PAGE>
OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF
(OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT WAS AN
"AFFILIATE" OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE
DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO THE COMPANY, (2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY), (4) TO AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT
("INSTITUTIONAL ACCREDITED INVESTOR") (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) THAT
IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION AND
THAT, PRIOR TO SUCH TRANSFER, DELIVERS TO THE COMPANY AND THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH
LETTER MAY BE OBTAINED FROM THE TRUSTEE), (5) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY) OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. PRIOR TO A TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER PURSUANT TO
CLAUSE (6) ABOVE), THE HOLDER OF THIS SECURITY MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION
AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS
SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER OR (2) AN INSTITUTIONAL
ACCREDITED INVESTOR AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES
AND NOT FOR DISTRIBUTION OR (3) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN
ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE
UPON CONVERSION OF THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES ACT.
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<PAGE>
No. CUSIP No. [*Global Security: ]
[**Definitive Security: ]
7.00% Convertible Subordinated Note due 2005
Mail.com, Inc.
Mail.com, Inc., a Delaware corporation (the "Company"), promises to pay to
_________________________________________________________________ or registered
assigns, the principal sum [indicated on Schedule A hereof] * [of _________
Dollars ($_________)]** on February 1, 2005.
Interest Payment Dates: February 1 and August 1, commencing August 1, 2000.
Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
[Signature Page Follows]
- --------
* Applicable to Global Securities only.
** Applicable to Definitive Securities only.
<PAGE>
IN WITNESS WHEREOF, Mail.com, Inc. has caused this Security to be signed
manually or by facsimile by its duly authorized Officers.
MAIL.COM, INC.,
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities described in the within-mentioned Indenture.
AMERICAN STOCK TRANSFER & TRUST COMPANY, as Trustee,
by
----------------------------------
Authorized Signatory
A-2
<PAGE>
MAIL.COM, INC.
7.00% Convertible Subordinated Note due 2005
1. INTEREST. Mail.com, Inc., a Delaware corporation (the "Company"), is the
issuer of the 7.00% Convertible Subordinated Notes due 2005 (the "Securities"),
of which this Security is a part. The Company promises to pay interest on the
Securities in cash semiannually on each February 1 and August 1, commencing on
August 1, 2000, to holders of record at the close of business on the immediately
preceding January 15 or July 15, as the case may be.
Interest on the Securities will accrue from the most recent date to which
interest has been paid, or if no interest has been paid, from January 26, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal of and premium, if any, interest, and Liquidated Damages, if any, on
the Securities (in each case without regard to any applicable grace period) at
the Default Rate, compounded semiannually.
2. METHOD OF PAYMENT. The Company will pay interest and Liquidated Damages,
if any, on the Securities (except Defaulted Interest) to the Persons who are
registered holders of the Securities at the close of business on the record date
for the applicable interest payment date even though Securities are canceled
after the record date and on or before the interest payment date. The Noteholder
hereof must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal, premium, if any, interest and
Liquidated Damages, if any, in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may pay interest by check payable in such money. It may mail an interest
check to a holder's registered address.
3. PAYING AGENT AND REGISTRAR. The Trustee will act as Paying Agent,
Registrar and Conversion Agent. The Company may change any Paying Agent,
Registrar, or Conversion Agent without prior notice.
4. INDENTURE. The Company issued the Securities under an indenture, dated
as of January 26, 2000 (the "Indenture"), between the Company and American Stock
Transfer & Trust Company, as Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb) as in effect on the
date of the Indenture. The Securities are subject to, and qualified by, all such
terms, certain of which are summarized hereon, and Noteholders are referred to
the Indenture and such Act for a statement of such terms. The Securities are
general unsecured obligations of the Company limited to an aggregate principal
amount of up to $125,000,000. The Indenture does not limit the ability of the
Company or any of its Subsidiaries to incur indebtedness or to grant security
interests or liens in respect of their assets.
5. PROVISIONAL REDEMPTION. Prior to February 5, 2003, the Company may, at
its option and to the extent permitted by applicable law, redeem the Securities,
in whole or in part, at any time or from time to time (in any integral multiple
of $1,000) at the following redemption prices (expressed as percentages of the
principal amount), plus accrued and unpaid interest and Liquidated Damages, if
any, to, but excluding, the date of redemption (the "Provisional Redemption
Date") (subject to the rights of holders of record on the relevant record date
to receive interest and Liquidated Damages, if any, due on the corresponding
Interest Payment Date), if the Daily Market Price of the Class A common stock
equals or exceeds the following percentages of the Conversion Price then in
effect for at least 20 out of 30 consecutive days on which the Nasdaq National
Market is open for the transaction of business prior to the date notice is
delivered pursuant to Section 3.03 of the Indenture:
<TABLE>
<CAPTION>
PERCENTAGE OF
PERIOD REDEMPTION PRICE CONVERSION PRICE
- ------ ---------------- ----------------
<S> <C> <C>
January 26, 2000 through
January 31, 2001 ................. 107.00% 170%
February 1, 2001 through
January 31, 2002 ................. 105.60% 160%
February 1, 2002 through
February 4, 2003 ................. 104.20% 150%
</TABLE>
On or after the Provisional Redemption Date, interest and Liquidated
Damages, if any, will cease to accrue on the Securities, or portions thereof,
called for redemption unless the Company shall default in the payment of the
redemption price and accrued interest and Liquidated Damages, if any, payable on
the redemption date on the Securities to be redeemed. If the Company undertakes
a Provisional Redemption, holders of Securities that the Company calls for
redemption will also receive a payment (the "Additional Payment") in an amount
equal to the present value of the aggregate value of the interest payments that
would thereafter have been payable on the Securities from the Provisional
A-3
<PAGE>
Redemption Date to, but excluding, February 5, 2003 (the "Additional Period").
The present value will be calculated using the bond equivalent yield on U.S.
Treasury notes or bills having a term nearest in length to that of the
Additional Period as of the day immediately preceding the date on which a notice
of Provisional Redemption is mailed.
6. OPTIONAL REDEMPTION. Except as specified in paragraph 5, the Securities
are not redeemable at the Company's option prior to February 5, 2003. On such
date and thereafter, the Securities will be subject to redemption at the option
of the Company, in whole or in part, at any time or from time to time (in any
integral multiple of $1,000), at the following redemption prices (expressed as
percentages of the principal amount), if redeemed during the period beginning
February 1 of the years indicated (February 5 in the case of 2003) and ending on
January 31 of the following year:
<TABLE>
<CAPTION>
Year Redemption Price
<S> <C>
2003.............................. 102.80%
2004.............................. 101.40%
</TABLE>
in each case plus accrued and unpaid interest and Liquidated Damages, if any, to
(but excluding) the redemption date (the "Optional Redemption Date") (subject to
the right of holders of record on the relevant record date to receive interest
and Liquidated Damages, if any, due on the corresponding interest payment date).
On or after the Optional Redemption Date, interest and Liquidated Damages, if
any, will cease to accrue on the Securities, or portions thereof, called for
redemption unless the Company shall default in the payment of the redemption
price and accrued interest and Liquidated Damages, if any, payable on the
redemption date on the Securities to be redeemed.
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each holder of the
Securities to be redeemed at his address of record. Securities in denominations
larger than $1,000 may be redeemed in part but only in integral multiples of
$1,000. In the event of a redemption of less than all of the Securities, the
Securities will be chosen for redemption by the Trustee in accordance with the
Indenture. Unless the Company defaults in making such redemption payment
(including accrued interest and Liquidated Damages, if any), or a Paying Agent
is prohibited from making such payment pursuant to the Indenture, by law or
otherwise, interest and Liquidated Damages, if applicable, cease to accrue on
the Securities or portions of them called for redemption on and after the
redemption date.
If this Security is redeemed subsequent to a record date with respect to
any interest payment date specified above and on or prior to such interest
payment date, then any accrued interest and Liquidated Damages, if any, will be
paid to the person in whose name this Security is registered at the close of
business on such record date.
8. MANDATORY REDEMPTION. The Company will not be required to make mandatory
redemption payments with respect to the Securities. There are no sinking fund
payments with respect to the Securities.
9. REPURCHASE AT OPTION OF HOLDER. If there is a Designated Event, the
Company shall be required to offer to purchase on the Designated Event Payment
Date all outstanding Securities at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to the Designated Event Payment Date (subject to the right of
holders of record on the relevant record date to receive interest and Liquidated
Damages, if any, due on the corresponding interest payment date); provided that,
on the terms and subject to the conditions set forth in the Indenture, the
Company shall not be required to offer to purchase the Securities as aforesaid
if the Company has given notice of redemption of all of the outstanding
Securities to holders in accordance with the Indenture. Holders of Securities
that are subject to an offer to purchase will receive a Designated Event Offer
from the Company prior to any related Designated Event Payment Date and holders
of Definitive Securities may elect to have such Securities or portions thereof
in authorized denominations purchased by completing the form entitled "Option of
Noteholder to Elect Purchase" appearing below. Holders of Securities other than
Definitive Securities may elect to have such Securities purchased in accordance
with the procedures of the Depositary as set forth in the Designated Event Offer
materials. Noteholders have the right to withdraw their election by delivering a
written notice of withdrawal to the Company or the Paying Agent in accordance
with the terms of the Indenture.
10. SUBORDINATION. The payment of the principal of, premium, if any, on,
interest and Liquidated Damages, if any, on and any other amounts due on the
Securities is subordinated in right of payment to all existing and future Senior
Debt of the Company, as described in the Indenture. Each Noteholder, by
accepting a Security, agrees to such subordination and authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination so provided and appoints the Trustee as its
attorney-in-fact for such purpose.
A-4
<PAGE>
11. CONVERSION. The holder of any Security has the right, exercisable at
any time after 90 days following the Issuance Date and prior to the close of
business on the Business Day immediately preceding the final maturity date of
the Security, to convert the principal amount thereof (or any portion thereof
that is an integral multiple of $1,000) into shares of Class A common stock at
the initial Conversion Price of $18.95 per share, subject to adjustment under
certain circumstances as provided in the Indenture, except that if a Security is
called for redemption, the conversion right will terminate at the close of
business on the Business Day immediately preceding the date fixed for redemption
(unless the Company shall default in making the redemption payment, including
interest and Liquidated Damages, if any, when it becomes due, in which case the
conversion right shall terminate at the close of business on the date on which
such default is cured).
Beneficial owners of interests in Global Securities may exercise their
right of conversion by delivering to the Depositary the appropriate instructions
for conversion pursuant to the Depositary's procedures and, in the case of
conversions through Euroclear or Cedel Bank, in accordance with Euroclear's or
Cedel Bank's normal operating procedures when application has been made to make
the underlying Class A common stock eligible for trading on Cedel Bank or
Euroclear. To convert a certificated Security, the holder must (1) complete and
sign a notice of election to convert substantially in the form set forth below
(or complete and manually sign a facsimile thereof) and deliver such notice to a
Conversion Agent, (2) surrender the Security to a Conversion Agent, (3) furnish
appropriate endorsements or transfer documents if required by the Conversion
Agent and (4) pay any transfer or similar tax, if required by the Conversion
Agent. Upon conversion, no adjustment or payment will be made for accrued and
unpaid interest or Liquidated Damages, if any, on the Securities so converted or
for dividends or distributions on, or Liquidated Damages, if any, attributable
to, any Class A common stock issued on conversion of the Securities, except
that, if any Noteholder surrenders a Security for conversion after the close of
business on a record date for the payment of interest and prior to the opening
of business on the next interest payment date, then, notwithstanding such
conversion, the interest payable on such interest payment date will be paid on
such interest payment date to the person who was the registered holder of such
Security on such record date. Any Securities surrendered for conversion during
the period after the close of business on any record date for the payment of
interest and before the opening of business on the next succeeding interest
payment date (except Securities called for redemption on a redemption date or to
be repurchased on a Designated Event Payment Date during such period) must be
accompanied by payment in an amount equal to the interest and Liquidated
Damages, if any, payable on such interest payment date on the principal amount
of Securities so converted. The number of shares of Class A common stock
issuable upon conversion of a Security is determined by dividing the principal
amount of the Security converted by the Conversion Price in effect on the
Conversion Date. No fractional shares will be issued upon conversion but a cash
adjustment will be made for any fractional interest.
A Definitive Security in respect of which a holder has delivered an "Option
of Noteholder to Elect Purchase" form appearing below exercising the option of
such holder to require the Company to purchase such Security may be converted
only if the notice of exercise is withdrawn as provided above and in accordance
with the terms of the Indenture. The above description of conversion of the
Securities is qualified by reference to, and is subject in its entirety to, the
more complete description thereof contained in the Indenture.
12. REGISTRATION AGREEMENT. The holder of this Security is entitled to the
benefits of a Registration Agreement, dated January 26, 2000, between the
Company and the Initial Purchasers (the "Registration Agreement"). Pursuant to
the Registration Agreement the Company has agreed for the benefit of the holders
of the Securities and the Class A common stock issued and issuable upon
conversion of the Securities, that (i) it will, at its cost, within 180 days
after the Closing Date, file a shelf registration statement (the "Shelf
Registration Statement") with the Securities and Exchange Commission (the
"Commission") with respect to resales of the Securities and the Class A common
stock issuable upon conversion thereof, (ii) the Company will use its reasonable
best efforts to cause such Shelf Registration Statement to be declared effective
by the Commission under the Securities Act within 240 days after the Closing
Date and (iii) the Company will keep such Shelf Registration Statement
continuously effective under the Securities Act until the earliest of (a) the
second anniversary of the Closing Date or, if later, the second anniversary of
the last date on which any Securities are issued upon exercise of the Initial
Purchasers' over-allotment option, (b) the date on which the Securities or the
Class A common stock issuable upon conversion thereof may be sold to Persons who
are not "affiliates" (as defined in Rule 144) of the Company pursuant to
paragraph (k) of Rule 144 (or any successor provision) promulgated by the
Commission under the Securities Act, (c) the date as of which the Securities or
the Class A common stock issuable upon conversion thereof have been transferred
pursuant to Rule 144 under the Securities Act (or any similar provision then in
force) and (d) the date as of which all the Securities or the Class A common
stock issuable upon conversion thereof have been sold pursuant to such Shelf
Registration Statement.
If the Shelf Registration Statement (i) is not filed with the Commission on
or prior to 180 days, or has not been declared effective by the Commission
within 240 days, after the Closing Date or (ii) is filed and declared effective
but shall thereafter cease to be effective (without being succeeded immediately
by a replacement shelf registration statement
A-5
<PAGE>
filed and declared effective) or cease to be usable (including, without
limitation, as a result of a Suspension Period as defined below) for the offer
and sale of Transfer Restricted Securities (as defined below) for a period of
time (including any Suspension Period) which shall exceed 120 days in the
aggregate in any 12-month period during the period beginning 240 days after the
Closing Date and ending on or prior to the second anniversary of the Closing
Date or, if later, the second anniversary of the last date on which any
Securities are issued upon exercise of the Initial Purchasers' over-allotment
option (each such event referred to in clauses (i) and (ii) being referred to
herein as a "Registration Default"), the Company will pay liquidated damages
("Liquidated Damages") to each holder of Transfer Restricted Securities which
has complied with its obligations under the Registration Agreement. The amount
of Liquidated Damages payable during any period in which a Registration Default
shall have occurred and be continuing is that amount which is equal to
one-quarter of one percent (25 basis points) per annum per $1,000 principal
amount of Securities and $2.50 per annum per 52.7704 shares of Class A common
stock (subject to adjustment from time to time in the event of a stock split,
stock recombination, stock dividend and the like) constituting Transfer
Restricted Securities for the first 90 days during which a Registration Default
has occurred and is continuing and one-half of one percent (50 basis points) per
annum per $1,000 principal amount of Securities and $5.00 per annum per 52.7704
shares of Class A common stock (subject to adjustment as set forth above)
constituting Transfer Restricted Securities for any additional days during which
such Registration Default has occurred and is continuing. The Company will pay
all accrued Liquidated Damages by wire transfer of immediately available funds
or by federal funds check on each Damages Payment Date, and Liquidated Damages
will be calculated on the basis of a 360-day year consisting of twelve 30-day
months. Following the cure of a Registration Default, Liquidated Damages will
cease to accrue with respect to such Registration Default.
"Transfer Restricted Securities" means each Security and each share of
Class A common stock issued on conversion thereof until the date on which such
Security or share, as the case may be, (i) has been transferred pursuant to the
Shelf Registration Statement or another registration statement covering such
Security or share which has been filed with the Commission pursuant to the
Securities Act, in either case after such registration statement has become and
while such registration statement is effective under the Securities Act, (ii)
has been transferred pursuant to Rule 144 under the Securities Act (or any
similar provision then in force), or (iii) may be sold or transferred pursuant
to Rule 144(k) under the Securities Act (or any similar provision then in
force).
Pursuant to the Registration Agreement, the Company may suspend the use of
the prospectus which is a part of the Shelf Registration Statement for a period
not to exceed 60 days in any three-month period or for three periods not to
exceed an aggregate of 120 days in any twelve-month period under certain
circumstances (each, a "Suspension Period"); provided that the existence of a
Suspension Period will not prevent the occurrence of a Registration Default or
otherwise limit the obligation of the Company to pay Liquidated Damages.
The above description of certain provisions of the Registration Agreement
is qualified by reference to, and is subject in its entirety to, the more
complete description thereof contained in the Registration Agreement.
13. DENOMINATIONS, TRANSFER, EXCHANGE AND REPLACEMENT. The Securities are
in registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered, and
Securities may be exchanged, as provided in the Indenture. The Registrar may
require a Noteholder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not exchange or register the
transfer of any Security or portion of a Security selected for redemption
(except the unredeemed portion of any Security being redeemed in part). Also, it
need not exchange or register the transfer of any Security for a period
beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of Securities and ending at the close of business on the
day of such mailing. Replacement Securities for lost, stolen or mutilated
Securities may be issued in accordance with the terms of the Indenture.
14. PERSONS DEEMED OWNERS. The registered Noteholder of a Security may be
treated as its owner for all purposes.
15. UNCLAIMED MONEY. If money for the payment of principal of or premium,
if any, interest or Liquidated Damages, if any, on Securities remains unclaimed
for two years, the Trustee and the Paying Agent shall pay the money back to the
Company at its written request. After that, Noteholders of Securities entitled
to the money must look to the Company for payment, unless an abandoned property
law designates another person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
16. DEFAULTS AND REMEDIES. The Securities shall have the Events of Default
as set forth in Section 8.01 of the Indenture. Subject to certain limitations in
the Indenture, if an Event of Default occurs and is continuing, the
A-6
<PAGE>
Trustee by notice to the Company or the Noteholders of at least 25% in aggregate
principal amount of the then outstanding Securities by notice to the Company and
the Trustee may declare all the Securities to be due and payable immediately,
except that in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all unpaid principal, premium, if any, and accrued and
unpaid interest and Liquidated Damages, if any, on the Securities shall become
due and payable immediately without further action or notice. Upon acceleration
as described in either of the preceding sentences, the subordination provisions
of the Indenture preclude any payment being made to Noteholders for at least 5
Business Days except as otherwise provided in the Indenture.
The Noteholders of a majority in principal amount of the Securities then
outstanding by written notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal, premium, if any, Liquidated Damages, if any, and
interest that has become due solely because of the acceleration. Noteholders may
not enforce the Indenture or the Securities except as provided in the Indenture.
Subject to certain limitations, Noteholders of a majority in principal amount of
the then outstanding Securities issued under the Indenture may direct the
Trustee in its exercise of any trust or power. The Company must furnish
compliance certificates to the Trustee annually. The above description of Events
of Default and remedies is qualified by reference to, and subject in its
entirety to, the more complete description thereof contained in the Indenture.
17. AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the consent of
the Noteholders of at least a majority in principal amount of the then
outstanding Securities (including consents obtained in connection with a tender
offer or exchange offer for Securities), and any existing default may be waived
with the consent of the Noteholders of a majority in principal amount of the
then outstanding Securities (including consents obtained in connection with a
tender offer or exchange offer for Securities). Without the consent of any
Noteholder, the Indenture or the Securities may be amended, among other things,
to cure any ambiguity, defect or inconsistency, to provide for assumption by a
successor of the Company's obligations to Noteholders, to make any change that
does not adversely affect the rights of any Noteholder, to qualify the Indenture
under the TIA, or to comply with the requirements of the SEC in order to
maintain the qualification of the Indenture under the TIA.
18. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual or
any other capacity, may become the owner or pledgee of the Securities and may
otherwise deal with the Company or an Affiliate of the Company with the same
rights it would have, as if it were not Trustee, subject to certain limitations
provided for in the Indenture and in the TIA. Any Agent may do the same with
like rights.
19. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Noteholder, 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.
20. GOVERNING LAW; INDENTURE TO CONTROL. THE INTERNAL LAWS OF THE STATE OF
NEW YORK SHALL GOVERN THE INDENTURE AND THE SECURITIES WITHOUT REGARD, TO THE
EXTENT PERMITTED BY LAW, TO CONFLICT OF LAW PROVISIONS THEREOF. IN THE EVENT OF
ANY CONFLICT BETWEEN THE PROVISIONS OF THIS SECURITY ON THE ONE HAND AND THE
INDENTURE OR THE REGISTRATION AGREEMENT, ON THE OTHER HAND, THE PROVISIONS OF
THE INDENTURE OR THE REGISTRATION AGREEMENT, AS THE CASE MAY BE, SHALL CONTROL.
21. AUTHENTICATION. The Securities shall not be valid until authenticated
by the manual signature of an authorized signatory of the Trustee or an
authenticating agent.
22. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as: TEN COM (for tenants in common), TEN ENT
(for tenants by the entireties), JT TEN (for joint tenants with right of
survivorship and not as tenants in common), CUST (for Custodian), and U/G/M/A
(for Uniform Gifts to Minors Act).
23. DEFINITIONS. Capitalized terms not defined in this Security have the
meanings given to them in the Indenture.
The Company will furnish to any Noteholder of the Securities upon written
request and without charge a copy of the Indenture and the Registration
Agreement. Request may be made to:
A-7
<PAGE>
Mail.com, Inc.
Attention: Chief Financial Officer
11 Broadway, 6th Floor
New York, New York 10004
A-8
<PAGE>
CERTIFICATE OF TRANSFER
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
- -----------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Your Signature:______________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
Date: ___________________
Medallion Signature Guarantee: _____________________________
[FOR INCLUSION ONLY IF THIS SECURITY BEARS A RESTRICTED SECURITIES LEGEND] In
connection with any transfer of any of the Securities evidenced by this
certificate which are "restricted securities" (as defined in Rule 144 (or any
successor thereto) under the Securities Act), the undersigned confirms that such
Securities are being transferred:
CHECK ONE BOX BELOW
(1) / / to the Company; or
(2) / / pursuant to and in compliance with Rule 144A under
the Securities Act of 1933; or
(3) / / pursuant to and in compliance with Regulation S
under the Securities Act of 1933; or
(4) / / to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain
representations and agreements (the form of which
letter can be obtained from the Trustee); or
(5) / / pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144
thereunder.
Unless one of the boxes is checked, the Registrar 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 box (3), (4) or (5) is checked, the Trustee may
require, prior to registering any such transfer of the Securities, such
certifications and other information, and if box (5) is checked such
legal opinions, as the Company has reasonably requested in writing, by
delivery to the Trustee of a standing letter of instruction, 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; provided that this paragraph shall not be
A-9
<PAGE>
applicable to any Securities which are not "restricted securities" (as
defined in Rule 144 (or any successor thereto) under the Securities
Act).
Your Signature:______________________________________________________
(Sign exactly as your name appears on the other side of this Security)
Date: __________________
Medallion Signature Guarantee: ________________________________
A-10
<PAGE>
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security shall be $_______. The
following increases or decreases in the principal amount of this Global Security
have been made:
<TABLE>
<CAPTION>
=============================================================================================================
Amount of increase
in Principal Amount Signature of
of this Global authorized
Security including Amount of decrease Principal Amount of signatory of
upon exercise of in Principal Amount this Global Security Trustee or
over-allotment of this Global following such Securities
Date Made option Security decrease or increase Custodian
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
=============================================================================================================
</TABLE>
<PAGE>
OPTION OF NOTEHOLDER TO ELECT PURCHASE
If you want to elect to have this Security or a portion thereof repurchased
by the Company pursuant to Section 3.08 or 4.07 of the Indenture, check the box:
/ /
If the purchase is in part, indicate the portion ($1,000 or any integral
multiple thereof) to be purchased:
- ------------
Your Signature:_________________________________________________
(Sign exactly as your name appears on the other side of this
Security)
Date: ____________
Medallion Signature Guarantee: _______________________
<PAGE>
ELECTION TO CONVERT
To Mail.com, Inc.:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or the portion below designated, into Class A
common stock of Mail.com, Inc. in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon conversion, together with any check in payment for fractional
shares, be issued in the name of and delivered to the undersigned, unless a
different name has been indicated below. If shares are to be issued in the name
of a person other than the undersigned, the undersigned will pay all transfer
taxes payable with respect thereto.
The undersigned agrees to be bound by the terms of the Registration
Agreement relating to the Class A common stock issued upon conversion of the
Securities.
If you want to convert this Security in whole, check the box below. If you
want to convert this Security in part, indicate the portion of this Security to
be converted in the space provided below.
In whole / / or Portion of Security to be converted
($1,000 or any integral multiple thereof):
$______________
Date: ______________ Your Signature:______________________________________
(Sign exactly as your name appears on
the other side of this Security)
Medallion Signature Guarantee:_____________________________________
Please print or typewrite your name and address, including zip code, and social
security or other identifying number:
If the Class A common stock is to be issued and delivered to someone other than
you, please print or typewrite the name and address, including zip code, and
social security or other identifying number of that person:
A-2
<PAGE>
EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM GLOBAL SECURITY OR DEFINITIVE SECURITY
TO DEFINITIVE SECURITY
(Transfers pursuant to Section 2.06(a)(ii) or
Section 2.06(a)(iii) of the Indenture)
American Stock Transfer & Trust Company, as Registrar
Attn: Corporate Trust Department
Re: Mail.com, Inc. 7.00% Convertible Subordinated Notes
DUE 2005 (THE "SECURITIES")
Reference is hereby made to the Indenture dated as of January 26, 2000 (the
"Indenture") between Mail.com, Inc. and American Stock Transfer & Trust Company,
as Trustee. Capitalized terms used but not defined herein shall have the
meanings given them in the Indenture.
This letter relates to U.S. $ aggregate principal amount of Securities
which are held [in the form of a [Definitive] [Global Security (CUSIP No.
_____________)]* in the name of [name of transferor] (the "Transferor") to
effect the transfer of the Securities.
In connection with such request, and in respect of such Securities, the
Transferor does hereby certify that such Securities are being transferred in
accordance with (i) the transfer restrictions set forth in the Securities and
the Indenture and (ii) to a transferee that the Transferor reasonably believes
is an institutional "accredited investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the U.S. Securities Act of 1933, as amended)
(an "Institutional Accredited Investor") which is acquiring such Securities for
its own account or for one or more accounts, each of which is an Institutional
Accredited Investors, over which it exercises sole investment discretion and
(iii) in accordance with applicable securities laws of any state of the United
States.
[Name of Transferor],
By
------------------------------------------
Name:
Title:
Dated:
cc: Mail.com, Inc.
Attn: Secretary
11 Broadway, 6th Floor
New York, New York 10004
- --------
* Insert, if appropriate.
B-1
<PAGE>
EXHIBIT C
FORM OF ACCREDITED INVESTOR TRANSFEREE CERTIFICATE
(Transfers pursuant to Section 2.06(a)(ii) and Section 2.06(a)(iii))
American Stock Transfer & Trust Company, as Registrar
Attn: Corporate Trust Department
Re: Mail.com, Inc. 7.00% Convertible Subordinated Notes
DUE 2005 (THE "SECURITIES")
Reference is hereby made to the Indenture dated as of January 26, 2000 (the
"Indenture") between Mail.com, Inc., a Delaware corporation (the "Company"), and
American Stock Transfer & Trust Company, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given them in the
Indenture.
In connection with our proposed purchase of $ aggregate principal
amount of the Securities, which are convertible into shares of Class A common
stock ("Class A common stock") of the Company, we confirm that:
1. We understand that the Securities and the Class A common stock
issuable upon conversion thereof have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be
sold except as permitted in the following sentence. We understand and
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, (x) that such Securities are being
transferred to us in a transaction not involving any public offering within
the meaning of the Securities Act, (y) that if we should resell, pledge or
otherwise transfer any such Securities or any shares of Class A common
stock issuable upon conversion thereof prior to the later of (I) the
expiration of the holding period under Rule 144(k) (or any successor
thereto) under the Securities Act which is applicable to such Securities or
shares of Class A common stock , as the case may be, or (II) within three
months after we cease to be an affiliate (within the meaning of Rule 144
under the Securities Act) of the Company, such Securities or the Class A
common stock issuable upon conversion thereof may be resold, pledged or
transferred only (i) to the Company, (ii) so long as such Securities are
eligible for resale pursuant to Rule 144A under the Securities Act ("Rule
144A"), to a person whom we reasonably believe is a "qualified
institutional buyer" (as defined in Rule 144A) ("QIB") that purchases for
its own account or for the account of a QIB to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A (as
indicated by the box checked by the transferor on the Certificate of
Transfer on the reverse of the certificate for the Securities), it being
understood that the Class A common stock is not eligible for resale
pursuant to Rule 144A, (iii) in an offshore transaction (as defined in
Regulation S under the Securities Act) in accordance with Regulation S
under the Securities Act (as indicated by the box checked by the transferor
on the Certificate of Transfer on the reverse of the certificate for the
Securities or on a comparable Certificate of Transfer for the Class A
common stock issuable upon conversion thereof), (iv) to an institution that
is an "accredited investor" as defined in Rule 501 (a) (1), (2), (3) or (7)
under the Securities Act (an "Institutional Accredited Investor") (as
indicated by the box checked by the transferor on the Certificate of
Transfer on the reverse of the certificate for the Securities or on a
comparable Certificate of Transfer for the Class A common stock issuable
upon conversion thereof) that is acquiring the securities for its own
account or for the account of one or more other Institutional Accredited
Investors over which it exercises sole investment discretion and that prior
to such transfer, delivers a signed letter to the Company and the Trustee
(or the transfer agent in the case of Class A common stock issuable upon
conversion thereof) certifying that it and each such account is such an
Institutional Accredited Investor and is acquiring the Securities or the
Class A common stock issuable upon conversion thereof for investment
purposes and not for distribution and agreeing to the restrictions on
transfer of the Securities or the Class A common stock issuable upon
conversion thereof, (v) pursuant to an exemption from registration under
the Securities Act provided by Rule 144 (if applicable) under the
Securities Act (as indicated by the box checked transferor on the
Certificate of Transfer on the reverse of the certificate for the
Securities or a comparable Certificate of Transfer for the Class A common
stock issuable upon conversion thereof), or (vi) pursuant to an effective
registration statement under the Securities Act, in each case in accordance
with any applicable securities laws of any state of the United States, and
we will notify any purchaser of the Securities or the Class A common stock
issuable upon conversion thereof from us of the above resale restrictions,
if then applicable. We further understand that in connection with any
transfer of the Securities or the Class A common stock issuable upon
conversion thereof (other than a transfer pursuant to clause (vi) above) by
us that the Company and the Trustee (or the transfer agent in the case of
Class A common stock issuable upon conversion thereof) may request, and if
so requested we will furnish, such certificates and other information and,
in the case of a transfer pursuant to clause (v) above, a legal opinion as
they may reasonably require to confirm that any such transfer complies with
the foregoing restrictions. Finally, we understand that in any case we will
not directly or indirectly engage in any hedging transactions with regard
to
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<PAGE>
the Securities or the Class A common stock issuable upon conversion of
the Securities except as permitted by the Securities Act.
2. We are able to fend for ourselves in connection with our purchase
of the Securities, we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment and
can afford the complete loss of such investment.
3. We understand that the Company and others will rely upon the truth
and accuracy of the foregoing acknowledgments, representations, agreements
and warranties and we agree that if any of the acknowledgments,
representations, agreements or warranties made or deemed to have been made
by us by our purchase of the Securities, for our own account or for one or
more accounts as to each of which we exercise sole investment discretion,
are no longer accurate, we shall promptly notify the Company.
4. With respect to the certificates representing Securities we are
purchasing, we understand that such certificates will be in definitive
registered form and that the notification requirement referred to in (1)
above requires that, until the expiration of the holding period with
respect to sales of the Securities under clause (k) of Rule 144 under the
Securities Act, that such Securities will bear a legend substantially to
the following effect:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD UNDER RULE 144(k) (OR ANY SUCCESSOR THERETO) UNDER THE SECURITIES ACT
WHICH IS APPLICABLE TO THIS SECURITY OR (Y) BY ANY HOLDER THAT WAS AN
"AFFILIATE" (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE
COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER,
IN EITHER CASE OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON THE REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION
S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (4) TO AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT ("INSTITUTIONAL ACCREDITED INVESTOR") (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION AND THAT, PRIOR TO SUCH TRANSFER, DELIVERS TO
THE COMPANY AND THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY
EVIDENCED HEREBY (THE FORM OF WHICH LETTER MAY BE OBTAINED FROM THE TRUSTEE, (5)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY) OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES. PRIOR TO A TRANSFER OF THIS SECURITY (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE (6) ABOVE), THE HOLDER OF THIS SECURITY MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES
AND OTHER INFORMATION AND, IN THE CASE OF A TRANSFER PURSUANT TO CLAUSE (5)
ABOVE, A LEGAL OPINION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY
TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE
BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER OR (2) AN
INSTITUTIONAL ACCREDITED INVESTOR AND THAT IT IS HOLDING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NOT A U.S. PERSON AND IS
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902
C-2
<PAGE>
UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL
NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO
THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
EXCEPT AS PERMITTED BY THE SECURITIES ACT."
5. With respect to certificates representing shares of Class A common
stock issuable upon conversion of the Securities, we understand that the
notification requirement referred to in (1) above requires that, until the
expiration of the holding period with respect to sales of such Class A
common stock under clause (k) of Rule 144 under the Securities Act, such
certificates will bear a legend substantially to the effect set forth as
Exhibit D to the Indenture and that a copy of such legend may be obtained
from the Trustee.
6. We are acquiring the Securities purchased by us for investment
purposes, and not for distribution, for our own account or for one or more
accounts as to each of which we exercise sole investment discretion and we
are and each such account is an Institutional Accredited Investor.
7. You and the Company are entitled to rely on this letter and you
and the Company are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
--------------------------------------
(Name of Purchaser)
By:
--------------------------------------
Dated:
-----------------------------------
cc: Mail.com, Inc.
Attn: Chief Financial Officer
11 Broadway, 6th Floor
New York, New York 10004
C-3
<PAGE>
EXHIBIT D
FORM OF RESTRICTED COMMON STOCK LEGEND
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS AN "AFFILIATE" OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING
THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO THE COMPANY, (2) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (3) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT ("INSTITUTIONAL ACCREDITED
INVESTOR") THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION, AND THAT, PRIOR TO SUCH TRANSFER, DELIVERS TO THE COMPANY AND THE
TRANSFER AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY, (4)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. PRIOR TO A TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER PURSUANT TO
CLAUSE (5) ABOVE), THE HOLDER OF THIS SECURITY MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE COMPANY AND THE TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF
THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A,
(2) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NOT A U.S.
PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT
SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S
UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR
INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY
EXCEPT AS PERMITTED BY THE SECURITIES ACT."
D-1
<PAGE>
EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
OF RESTRICTED COMMON STOCK
(Transfers pursuant to Section 5.16(c) of the Indenture)
[NAME AND ADDRESS OF COMMON STOCK TRANSFER AGENT]
Re: Mail.com, Inc. 7.00% Convertible Subordinated Notes
DUE 2005 (THE "SECURITIES")
Reference is hereby made to the Indenture dated as of January 26, 2000 (the
"Indenture") between Mail.com, Inc. and American Stock Transfer & Trust Company,
as Trustee. Capitalized terms used but not defined herein shall have the
meanings given them in the Indenture.
This letter relates to _________ shares of Class A common stock represented
by the accompanying certificate(s) that were issued upon conversion of
Securities and which are held in the name of [name of transferor] (the
"Transferor") to effect the transfer of such Class A common stock.
In connection with the transfer of such shares of Class A common stock the
undersigned confirms that such shares of Class A common stock are being
transferred:
CHECK ONE BOX BELOW
(1) / / to the Company; or
(2) / / pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(3) / / to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933) that has furnished to the transfer agent a signed letter
containing certain representations and agreements (the form of
which letter can be obtained from the Company or transfer
agent); or
(4) / / pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
Unless one of the boxes is checked, the transfer agent will refuse to
register any of the Class A common stock evidenced by this certificate in the
name of any person other than the registered holder thereof; provided, however,
that if box (2), (3) or (4) is checked, the transfer agent may require, prior to
registering any such transfer of the Class A common stock such certifications
and other information, and if box (4) is checked such legal opinions, as the
Company has reasonably requested in writing, by delivery to the transfer agent
of a standing letter of instruction, 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.
[Name of Transferor],
By
--------------------------------------
Name:
Title:
Dated:
cc: Mail.com, Inc.
Attn: Secretary
11 Broadway, 6th Floor
New York, New York 10004
E-1
<PAGE>
EXHIBIT 10.56
MAIL.COM, INC.
7.00% Convertible Subordinated Notes due 2005
REGISTRATION AGREEMENT
New York, New York
January 26, 2000
Salomon Smith Barney Inc.
PaineWebber Incorporated
SG Cowen Securities Corporation
Sands Brothers & Co., Ltd.
As Representatives of the Initial Purchasers
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Mail.com, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell (such issuance and sale, the "Initial Placement") to the several
parties named in Schedule I to the Purchase Agreement (the "Initial Purchasers")
for whom you (the "Representatives") are acting as representatives, upon the
terms set forth in a purchase agreement dated January 20, 2000 (the "Purchase
Agreement"), $100,000,000 aggregate principal amount (plus up to an additional
$25,000,000 aggregate principal amount to cover over-allotments, if any) of its
7.00% Convertible Subordinated Notes due 2005 (the "Securities"). The Securities
will be convertible into shares of Class A common stock, par value $.01 per
share, of the Company at the conversion price set forth in the Offering
Memorandum (as defined herein), as the same may be adjusted from time to time
pursuant to the Indenture referred to below. As an inducement to you to enter
into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Company agrees with you, (i) for your benefit and
(ii) for the benefit of the holders from time to time of the Securities and the
Class A common stock issuable upon conversion of the Securities (including you),
as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized terms shall have the following
meanings:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
"AFFILIATE" of any specified person means any other person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of
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<PAGE>
such person, whether through the ownership of voting securities or by agreement
or otherwise.
"BUSINESS DAY" has the meaning set forth in the Indenture.
"CLOSING DATE" means January 26, 2000.
"CLASS A COMMON STOCK" means the Class A common stock, par value $.01
per share, of the Company, as it exists on the date of this Agreement and any
other shares of capital stock or other securities of the Company into which such
Class A common stock may be reclassified or changed, together with any and all
other securities which may from time to time be issuable upon conversion of
Securities.
"DAMAGES PAYMENT DATE" means, with respect to the Securities or the
Class A common stock issuable upon conversion thereof, as applicable, each
Interest Payment Date; and in the event that any Security, or portion thereof,
is called for redemption or surrendered for purchase by the Company and not
withdrawn pursuant to a Designated Event Offer (as defined in the Indenture),
the relevant redemption date or Designated Event Payment Date (as defined in the
Indenture), as the case may be, shall also be a Damages Payment Date with
respect to such Security, or portion thereof, unless the Indenture provides that
accrued and unpaid interest on the Security (or portion thereof) to be redeemed
or repurchased, as the case may be, is to be paid to the person who was the
Holder thereof on a record date prior to such redemption date or Designated
Event Payment Date, as the case may be, in which case the Damages Payment Date
shall be the date on which interest is payable to such Record Holder.
"DEFAULT RATE" has the meaning set forth in the Indenture.
"DTC" has the meaning set forth in Section 3(k) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"FINAL MATURITY DATE" means February 1, 2005.
"HOLDER" means a person who is a holder or beneficial owner (including
the Initial Purchasers) of any Securities or shares of Class A common stock
issued upon conversion of Securities; provided that, unless otherwise expressly
stated herein, only registered holders of Securities or Class A common stock
issued on conversion thereof shall be counted for purposes of calculating any
proportion of holders entitled to take any action or give notice pursuant to
this Agreement.
"INDENTURE" means the Indenture relating to the Securities dated as of
January 26, 2000, between the Company and American Stock Transfer & Trust
Company, as trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"INITIAL PLACEMENT" has the meaning set forth in the preamble hereto.
"INITIAL PURCHASERS" has the meaning set forth in the preamble hereto.
"INTEREST PAYMENT DATE" shall mean each February 1 and August 1.
"LIQUIDATED DAMAGES" has the meaning set forth in Section 2(e) hereof.
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<PAGE>
"MAJORITY HOLDERS" means the Holders of a majority of the then
outstanding aggregate principal amount of Securities registered under a Shelf
Registration Statement; PROVIDED that Holders of Class A common stock issued
upon conversion of Securities shall be deemed to be Holders of the aggregate
principal amount of Securities from which such Class A common stock was
converted; and provided, further, that Securities or Class A common stock which
have been sold or otherwise transferred pursuant to the Shelf Registration
Statement shall not be included in the calculation of Majority Holders.
"MAJORITY UNDERWRITING HOLDERS" means, with respect to any Underwritten
Offering, the Holders of a majority of the then outstanding aggregate principal
amount of Securities registered under any Shelf Registration Statement whose
Securities are or are to be included in such Underwritten Offering; provided
that Holders of Class A common stock issued upon conversion of Securities should
be deemed to be Holders of the aggregate principal amount of Securities from
which such Class A common stock was converted.
"MANAGING UNDERWRITERS" means the Underwriter or Underwriters that
shall administer an Underwritten Offering, as selected by the Majority Holders.
"NASD" has the meaning set forth in Section 3(i) hereof.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"OFFERING MEMORANDUM" means the Final Memorandum as defined in the
Purchase Agreement.
"PERSON" and "PERSON" have the meaning set forth in the Indenture.
"PROSPECTUS" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or Class A common stock issuable upon
conversion thereof covered by such Shelf Registration Statement, and all
amendments and supplements to such prospectus, including all documents
incorporated or deemed to be incorporated by reference in such prospectus.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble hereto.
"RECORD HOLDER" means (i) with respect to any Damages Payment Date
which occurs on an Interest Payment Date, each person who is registered on the
books of the registrar as the holder of Securities at the close of business on
the record date with respect to such Interest Payment Date and (ii) with respect
to any Damages Payment Date relating to the Class A common stock issued upon
conversion thereof, each person who is a holder of record of such Class A common
stock fifteen days prior to the Damages Payment Date.
"REGISTRATION DEFAULT" has the meaning set forth in Section 2(e)
hereof.
"REPRESENTATIVES" has the meaning set forth in the preamble hereto.
"RULE 144" means Rule 144 (or any successor provision) under the Act.
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<PAGE>
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning set forth in the preamble hereto.
"SHELF REGISTRATION" means a registration effected pursuant to Section
2 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in Section 2(c)
hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 2 hereof which covers all
of the Securities and the Class A common stock issuable upon conversion thereof,
as applicable, on Form S-3 or on another appropriate form for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 under the Act, or any
similar rule that may be adopted by the SEC, and all amendments and supplements
to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein.
"SUSPENSION PERIOD" has the meaning set forth in Section 2(d) hereof.
"TRANSFER RESTRICTED SECURITIES" means each Security and each share of
Class A common stock issued upon conversion thereof until the date on which such
Security or share of Class A common stock, as the case may be, (i) has been
transferred pursuant to the Shelf Registration Statement or another registration
statement covering such Security or share of Class A common stock which has been
filed with the SEC pursuant to the Act, in either case after such registration
statement has become effective and while such registration statement is
effective under the Act, (ii) has been transferred pursuant to Rule 144 under
the Act (or any similar provision then in force), or (iii) may be sold or
transferred pursuant to Rule 144(k) under the Act (or any successor provision
then in force).
"TRUSTEE" means the trustee with respect to the Securities under the
Indenture.
"UNDERWRITER" means any underwriter of Securities or Class A common
stock issuable upon conversion thereof in connection with an offering thereof
under a Shelf Registration Statement.
"UNDERWRITTEN OFFERING" means an offering in which the Securities or
Class A common stock issued upon conversion thereof are sold to an Underwriter
or with the assistance of an Underwriter for reoffering to the public.
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included", or "stated" in the Shelf
Registration Statement, any preliminary Prospectus or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act, after the date of such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein.
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<PAGE>
2. SHELF REGISTRATION STATEMENT.
(a) The Company shall prepare and, not later than 180 days following
the Closing Date, shall file with the SEC a Shelf Registration Statement with
respect to resales of the Securities and the Class A common stock issuable upon
conversion thereof by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement and thereafter shall use its best efforts to cause such
Shelf Registration Statement to be declared effective under the Act within 240
days after the Closing Date; provided that if any Securities are issued upon
exercise of the over-allotment option granted to the Initial Purchasers in the
Purchase Agreement and the date on which such Securities are issued occurs after
the Closing Date, the Company will take such steps, prior to the effective date
of the Shelf Registration Statement, to ensure that such Securities and Class A
common stock issuable upon conversion thereof are included in the Shelf
Registration Statement on the same terms as the Securities issued on the Closing
Date. Subject to Section 2(d), the Company shall supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for the Shelf
Registration Statement, if required by the Act, the Exchange Act or the SEC.
(b) (1) Not less than 30 calendar days prior to the effectiveness of
the Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the Holders of Securities and Class A common stock issued upon
conversion thereof. No Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement, and no Holder shall be
entitled to use the Prospectus forming a part thereof for resales of Securities
or Class A common stock issued upon conversion thereof at any time, unless such
Holder has returned a completed and signed Notice and Questionnaire to the
Company by the deadline for responses set forth therein; PROVIDED, HOWEVER, that
Holders of Securities or Class A common stock issued upon conversion thereof
shall have at least 20 calendar days from the date on which the Notice and
Questionnaire is first mailed to such Holders to return a completed and signed
Notice and Questionnaire to the Company.
(2) After the Shelf Registration Statement has become
effective, the Company shall, upon the request of any Holder of Securities or
Class A common stock issued or issuable upon conversion thereof that has not
returned a completed Notice and Questionnaire, promptly send a Notice and
Questionnaire to such Holder. The Company shall not be required to take any
action to name such Holder as a selling securityholder in the Shelf Registration
Statement or to enable such Holder to use the Prospectus forming a part thereof
for resales of Securities or Class A common stock issued or issuable upon
conversion thereof until such Holder has returned a completed and signed Notice
and Questionnaire to the Company, whereupon the Company will be required to take
such action.
(c) The Company shall keep the Shelf Registration Statement
continuously effective under the Act in order to permit the Prospectus forming
part thereof to be usable by all Holders until the earliest of (i) the second
anniversary of the Closing Date or, if later, the second anniversary of the last
date on which any Securities are issued upon exercise of the Initial Purchasers'
over-allotment option, (ii) the date on which all the Securities and Class A
common stock issued or issuable upon conversion thereof may be sold by
non-affiliates ("affiliates" for such purpose having the meaning set forth in
Rule 144) of the Company pursuant to paragraph (k) of Rule 144 (or any successor
provision) promulgated by the SEC under the Act, (iii) the date as of which all
the Securities and Class A common stock issued or issuable upon conversion
thereof have
5
<PAGE>
been transferred pursuant to Rule 144 under the Securities Act (or any similar
provision then in force) and (iv) such date as of which all the Securities and
the Class A common stock issued or issuable upon conversion thereof have been
sold pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Company will, subject to
Section 2(d), prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep the
Shelf Registration Statement continuously effective for the Shelf Registration
Period; subject to Section 2(d), cause the related Prospectus to be supplemented
by any required supplement, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) under the Act; and, comply in all
material respects with the provisions of the Act with respect to the disposition
of all securities covered by the Shelf Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Shelf Registration Statement as so amended or
such Prospectus as so supplemented.
(d) The Company may suspend the use of the Prospectus for a period not
to exceed 60 days in any three-month period or for three periods not to exceed
an aggregate of 120 days in any twelve-month period (the "Suspension Period")
for valid business reasons, to be determined by the Company in its sole
reasonable judgment (not including avoidance of the Company's obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the SEC, pending corporate developments and similar
events; provided that the Company promptly thereafter complies with the
requirements of Section 3(j) hereof, if applicable; provided, that the existence
of a Suspension Period will not prevent the occurrence of a Registration Default
or otherwise limit the obligation of the Company to pay Liquidated Damages. The
Company shall provide notice to the Holders of a Suspension Period as required
under Section 3(c)(1)(iv) hereof.
(e) If (i) the Shelf Registration Statement is not filed with the SEC
on or prior to 180 days after the Closing Date, (ii) the Shelf Registration
Statement has not been declared effective by the SEC within 240 days after the
Closing Date, or (iii) the Shelf Registration Statement is filed and declared
effective but shall thereafter cease to be effective (without being succeeded
immediately by a replacement shelf registration statement filed and declared
effective) or usable (including as a result of a Suspension Period) for the
offer and sale of Transfer Restricted Securities for a period of time (including
any Suspension Period) which shall exceed 120 days in the aggregate in any
twelve-month period during the period beginning 240 days after the Closing Date
and ending on the second anniversary of the Closing Date or, if later, the
second anniversary of the last date on which any Securities are issued upon
exercise of the Initial Purchasers' over-allotment option (each such event
referred to in clauses (i) through (iii), a "Registration Default"), the Company
will pay liquidated damages ("Liquidated Damages") to each Holder of Transfer
Restricted Securities who has complied with such Holder's obligations under this
Agreement. The amount of Liquidated Damages payable during any period in which a
Registration Default has occurred and is continuing is the amount which is equal
to one-quarter of one percent (25 basis points) per annum per $1,000 principal
amount of Securities and $2.50 per annum per 52.7704 shares of Class A common
stock (subject to adjustment in the event of a stock split, stock recombination,
stock dividend and the like) constituting Transfer Restricted Securities for the
first 90 days during which a Registration Default has occurred and is continuing
and one-half of one percent (50 basis points) per annum per $1,000 principal
amount of Securities and $5.00 per annum per 52.7704 shares of Class A common
stock (subject to adjustment as set forth above) constituting Transfer
Restricted Securities for any additional days during which a Registration
Default has occurred and is continuing (in each case subject to
6
<PAGE>
further adjustment from time to time in the event of a stock split, stock
recombination, stock dividend and the like), it being understood that all
calculations pursuant to this and the preceding sentence shall be carried out
to five decimals. Following the cure of all Registration Defaults, Liquidated
Damages will cease to accrue with respect to such Registration Default. All
accrued Liquidated Damages shall be paid by wire transfer of immediately
available funds or by federal funds check by the Company on each Damages
Payment Date and Liquidated Damages will be calculated on the basis of a
360-day year consisting of twelve 30-day months. In the event that any
Liquidated Damages are not paid when due, then to the extent permitted by
law, such overdue Liquidated Damages, if any, shall bear interest until paid
at the Default Rate, compounded semi-annually. The parties hereto agree that
the Liquidated Damages provided for in this Section 2(e) constitute a
reasonable estimate of the damages that may be incurred by Holders by reason
of a Registration Default.
(f) All of the Company's obligations (including, without limitation,
the obligation to pay Liquidated Damages) set forth in the preceding paragraph
which are outstanding or exist with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
(g) Immediately upon the occurrence or the termination of a
Registration Default, the Company shall give the Trustee, in the case of notice
with respect to the Securities, and the transfer and paying agent for the Class
A common stock, in the case of notice with respect to Class A common stock
issued or issuable upon conversion thereof, notice of such commencement or
termination, of the obligation to pay Liquidated Damages with regard to the
Securities and Class A common stock and the amount thereof and of the event
giving rise to such commencement or termination (such notice to be contained in
an Officers' Certificate (as such term is defined in the Indenture)), and prior
to receipt of such Officers' Certificate the Trustee and such transfer and
paying agent shall be entitled to assume that no such commencement or
termination has occurred, as the case may be.
(h) Until the later of the second anniversary of the Closing Date and
the second anniversary of the Settlement Date, the Company will not, and will
not permit any Affiliates under the Company's control to, resell any Securities
or Class A common stock issuable upon conversion thereof that have been or may
be acquired by any of them.
3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall furnish to you, not less than 5 Business
Days prior to the filing thereof with the SEC, a copy of any Shelf
Registration Statement, and each amendment thereof (excluding
amendments caused by the filing by the Company with the SEC of a report
required by the Exchange Act), a copy of any Prospectus, and each
amendment or supplement, if any, to the Prospectus included therein and
shall use its reasonable best efforts to reflect in each such document,
when so filed with the SEC, such comments as Salomon Smith Barney Inc.
reasonably may propose. Salomon Smith Barney Inc. shall promptly
furnish to the Company any comments it may have to such documents
mentioned in the foregoing sentence.
(b) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part
thereof
7
<PAGE>
and any amendment or supplement thereto comply in all material respects
with the Act and the rules and regulations thereunder, (ii) any
Shelf Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii)
any Prospectus forming part of any Shelf Registration Statement, and
any amendment or supplement to such Prospectus, does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; PROVIDED
that the Company makes no representation or agreement with respect
to information with respect to you, any Underwriter or any Holder
required to be included in any Shelf Registration or Prospectus
pursuant to the Act or the rules and regulations thereunder and
which information is included therein in reliance upon and in
conformity with information furnished to the Company in writing by
you, any Underwriter or any such Holder.
(c) (1) The Company, as promptly as reasonably practicable,
shall advise you and each Holder that has returned a completed and
signed Notice and Questionnaire to the Company and, if requested by you
or any such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the SEC and when the
Shelf Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the SEC for amendments or
supplements to the Shelf Registration Statement or the
Prospectus or for additional information;
(iii) of the determination by the Company that a
post-effective amendment to the Shelf Registration Statement
would be appropriate; and
(iv) of the commencement or termination of any
Suspension Period
(which advised in the case of clauses 3(a)(ii)-(iv) shall be
accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made).
(2) The Company shall advise you and each Holder that
has returned a completed and signed Notice and Questionnaire to the
Company and, if requested by you or any such Holder, confirm such
advice in writing:
(i) of the issuance by the SEC of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities included in any Shelf
Registration Statement for sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose;
and
8
<PAGE>
(iii) of the suspension of the use of the Prospectus
pursuant to Section 2(d) hereof or of the happening of any
event that requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and the Shelf
Registration Statement or the Prospectus, as the case may be,
does not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading
(which advice shall be accompanied by an instruction to suspend the use
of the Prospectus until the requisite changes have been made).
(d) The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Shelf
Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the
Securities for offer or sale in any jurisdiction at the earliest
possible time.
(e) The Company shall furnish to each Holder of Securities and
the Class A common stock issued upon conversion thereof included within
the coverage of any Shelf Registration Statement, if the Holder so
requests in writing, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules and all materials
incorporated therein by reference, and, if the Holder so requests in
writing, all exhibits (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities or the Class A common stock issued
upon conversion thereof included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and, except during the continuance
of any Suspension Period, the Company consents during the Shelf
Registration Period to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders in connection with
the offering and sale of the Securities or the Class A common stock
issued upon conversion thereof covered by the Prospectus or any
amendment or supplement thereto.
(g) Prior to any offering of Securities or the Class A common
stock issued upon conversion thereof pursuant to any Shelf Registration
Statement, the Company shall register or qualify or cooperate with the
Holders of Securities and the Class A common stock issued upon
conversion thereof included therein and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Securities or Class A
common stock for offer and sale, as the case may be, under the
securities or blue sky laws of such jurisdictions as any such Holders
reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities and the Class A common stock issued
upon conversion thereof covered by such Shelf Registration Statement;
PROVIDED, HOWEVER, that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified or to (B) take
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<PAGE>
any action which would subject it to general service of process in any
such jurisdiction where it is not then so subject.
(h) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Securities or the Class A common stock issued upon conversion thereof
to be sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such denominations and registered in such
names as Holders may request prior to sales of Securities or the Class
A common stock issued upon conversion thereof pursuant to such Shelf
Registration Statement.
(i) Subject to the exceptions contained in (A) and (B) of
subsection (g) hereof, the Company shall use its best efforts to cause
the Securities and Class A common stock issued upon conversion thereof
covered by the applicable Shelf Registration Statement to be registered
with or approved by such other federal, state and local governmental
agencies or authorities, and self-regulatory organizations in the
United States as may be necessary to enable the Holders to consummate
the disposition of such Securities and Class A common stock issued upon
conversion thereof as contemplated by the Shelf Registration Statement;
without limitation to the foregoing, the Company shall make all filings
and provide all such information as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") in connection with
the offering under the Shelf Registration Statement of the Securities
and Class A common stock issued upon conversion thereof (including,
without limitation, such as may be required by NASD Rule 2710 or 2720),
and shall cooperate with each Holder in connection with any filings
required to be made with the NASD by such Holder in that regard.
(j) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above and subject to Section 3(a) hereof, the Company
shall promptly prepare and file with the SEC a post-effective amendment
to any Shelf Registration Statement or an amendment or supplement to
the related Prospectus or any document incorporated therein by
reference or file a document which is incorporated or deemed to be
incorporated by reference in such Shelf Registration Statement or
Prospectus, as the case may be, so that, as thereafter delivered to
purchasers of the Securities or the Class A common stock issued upon
conversion thereof included therein, the Shelf Registration Statement
and the Prospectus, in each case as then amended or supplemented, will
not include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein (in the case of the Prospectus in light of
the circumstances under which they were made) not misleading and in the
case of a post-effective amendment, cause it to become effective as
promptly as practicable; provided that the Company's obligations under
this paragraph (j) shall be suspended if the Company has suspended the
use of the Prospectus in accordance with Section 2(d) hereof and given
notice of such suspension to Holders, it being understood that the
Company's obligations under this Subsection (j) shall be automatically
reinstated at the end of such Suspension Period.
(k) The Company shall use its reasonable best efforts to
cause The Depository Trust Company ("DTC") on the first Business Day
following the effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the
10
<PAGE>
Securities any designation indicating that the Securities are
"restricted securities", which efforts shall include delivery to DTC
of a letter executed by the Company substantially in the form of
Exhibit B hereto and (ii) any other stop or restriction on DTC's
system with respect to the Securities. In the event the Company is
unable to cause DTC to take actions described in the immediately
preceding sentence, the Company shall take such actions as Salomon
Smith Barney Inc. may reasonably request to provide, as soon as
practicable, a CUSIP number for the Securities registered under such
Shelf Registration Statement and to cause such CUSIP number to be
assigned to such Securities (or to the maximum aggregate principal
amount of the Securities to which such number may be assigned). Upon
compliance with the foregoing requirements of this Section 3(k), the
Company shall provide the Trustee with global certificates for such
Securities in a form eligible for deposit with DTC.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the SEC and shall make generally
available to its security holders as soon as practicable but in any
event not later than 15 months after (i) the effective date of the
applicable Shelf Registration Statement, (ii) the effective date of
each post-effective amendment to any Shelf Registration Statement, and
(iii) the date of each filing by the Company with the SEC of an Annual
Report on Form 10-K that is incorporated by reference or deemed to be
incorporated by reference in the Shelf Registration Statement, an
earnings statement satisfying the provisions of Section 11(a) of the
Act and Rule 158 promulgated by the SEC thereunder.
(m) The Company shall use its best efforts to cause the
Indenture to be qualified under the TIA (as defined in the Indenture)
in a timely manner.
(n) The Company shall cause all Class A common stock issued or
issuable upon conversion of the Securities to be listed on each
quotation system or securities exchange on which the Class A common
stock is then listed no later than the date the applicable Shelf
Registration Statement is declared effective and, in connection
therewith, to make such filings as may be required under the Exchange
Act and to have such filings declared effective as and when required
thereunder.
(o) The Company may require each Holder of Securities or the
Class A common stock issued upon conversion thereof to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such
Securities or Class A common stock sought by the Notice and
Questionnaire and such additional information as may, from time to
time, be required by the Act and the rules and regulations promulgated
thereunder, and the obligations of the Company to any Holder hereunder
shall be expressly conditioned on the compliance of such Holder with
such request.
(p) The Company shall, if reasonably requested, use its best
efforts to promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement (i) such
information as the Majority Holders provide or, if the Securities or
Class A common stock are being sold in an Underwritten Offering, as
the Managing Underwriters or the Majority Underwriting Holders
reasonably agree should be included therein and provide to
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<PAGE>
the Company in writing for inclusion in the Shelf Registration
Statement or Prospectus, and (ii) such information as a Holder may
provide from time to time to the Company in writing for inclusion in
a Prospectus or any Shelf Registration Statement concerning such
Holder and the distribution of such Holder's Securities and Class A
common stock and, in either case, shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as
practicable after being notified in writing of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment, provided that the Company shall not be required to take
any action under this Section 3(p) that is not, in the reasonable
opinion of counsel for the Company, in compliance with applicable
law.
(q) The Company shall enter into such customary agreements
(including underwriting agreements) and, subject to this Agreement[and
the registration rights of certain holders of shares of the Company's
capital stock as referenced in the Offering Memorandum], take all other
appropriate actions as may be reasonably requested in order to expedite
or facilitate the registration or the disposition of the Securities or
the Class A common stock issued or issuable upon conversion thereof,
and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification and contribution
provisions and procedures no less favorable than those set forth in
Section 5 (or such other reasonable and customary provisions and
procedures acceptable to the Majority Underwriting Holders and the
Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 5). The plan of distribution in the
Shelf Registration Statement and the Prospectus included therein shall
permit resales of the Securities or Class A common stock issuable upon
conversion thereof to be made by selling security holders through
underwriters, brokers and dealers, and shall also include such other
information as Salomon Smith Barney Inc. may reasonably request.
(r) The Company shall (i) make reasonably available for
inspection by the Holders of Securities and the Class A common stock
issued upon conversion thereof registered or to be registered under a
Shelf Registration Statement, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by the Holders or any such
Underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
as is customary for due diligence examinations in connection with
public offerings; (ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably requested by
the Holders or any such Underwriter, attorney, accountant or agent in
connection with any such Shelf Registration Statement as is customary
for similar due diligence examinations; PROVIDED, HOWEVER, that any
information that is designated in writing by the Company, in its sole
discretion, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such Underwriter,
attorney, accountant or agent, unless disclosure thereof is made in
connection with a court, administrative or regulatory proceeding or
required by law, or such information has become available to the public
generally through the Company or through a third party without an
accompanying obligation of confidentiality; provided, further, that if
the foregoing inspection and information gathering specified in
subsections (i) and (ii) would, in the Company's reasonable judgment,
disrupt the Company's conduct of business, such inspections and
information gathering shall be coordinated on behalf of the Holders
and the other parties entitled thereto by one counsel reason ably
acceptable to the Company designated by or on behalf of the Majority
Holders (or, in the case of an Underwritten Offering, the Majority
Underwriting
12
<PAGE>
Holders and the Managing Underwriters); (iii) make such
representations and warranties TO the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to
Underwriters and covering matters including, but not limited to,
those set forth in the Purchase Agreement; (iv) obtain opinions of
counsel to the Company and updates thereof (which counsel and
opinions, in form, scope and substance, shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder and the Underwriters, if any, covering such matters
as are customarily covered in opinions requested in public offerings
and such other matters as may be reasonably requested by such
Holders and Underwriters; (v) obtain "cold comfort" letters and
updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each selling Holder of
Securities and Class A common stock issued upon conversion thereof
registered thereunder (provided such Holder furnishes the
accountants with such representations as the accountants customarily
require in similar situations) and the Underwriters, if any, in
customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with primary underwritten
offerings; and (vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders or, in the case of
an Underwritten Offering, the Majority Underwriting Holders, and the
Managing Underwriters, if any, including those to evidence
compliance with Section 3(j) and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company. The foregoing actions set forth in clauses
(iii), (iv), (v) and (vi) of this Section 3(r) shall be performed at
(A) the effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
(s) Each Holder agrees that, upon receipt of notice of the
happening of an event described in Sections 3(c)(1)(ii) through and
including 3(c)(1)(iv) and Sections 3(c)(2)(i) through and including
3(c)(2)(iii), each Holder shall forthwith discontinue (and shall cause
its agents and representatives to discontinue) disposition of the
Securities and the Class A common stock issuable upon conversion
thereof and will not resume disposition of such Securities or the Class
A common stock until such Holder has received copies of an amended or
supplemented Prospectus contemplated by Section 3(j) hereof, or until
such Holder is advised in writing by the Company that the use of the
Prospectus may be resumed or that the relevant Suspension Period has
been terminated, as the case may be, provided that, the foregoing shall
not prevent the sale, transfer or other disposition of Securities or
Class A common stock issuable upon conversion thereof by a Holder in a
transaction which is exempt from, or not subject to, the registration
requirements of the Act, so long as such Holder does not and is not
required to deliver the applicable Prospectus or Shelf Registration
Statement in connection with such sale, transfer or other disposition,
as the case may be; and provided, further, that the provisions of this
paragraph (s) shall not prevent the occurrence of a Registration
Default or otherwise limit the obligation of the Company to pay
Liquidated Damages.
(t) Anything herein to the contrary notwithstanding, the
Company will not be required to pay the costs and expenses of, or to
participate in the marketing or "road show" presentations of, more than
one Underwritten Offering initiated at
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<PAGE>
the request of the Holders of Securities or shares of Class A common
stock issued or issuable upon conversion thereof, or to effect more
than one Underwritten Offering at the request of such Holders. The
Company will not be required to pay the costs and expenses of, or to
participate in the marketing or "road show" presentations of, an
Underwritten Offering unless Holders of at least the Minimum Amount
(as defined below) of Securities or Class A common stock issued or
issuable on conversion thereof have requested that such Securities
or shares of Class A common stock be included in such an
Underwritten Offering. For purposes of this Agreement, the "Minimum
Amount" means 25% of the aggregate principal amount of Securities
originally issued under the Indenture; provided that, for purposes
of computing the Minimum Amount, Holders of Class A common stock
issued upon conversion of Securities shall be deemed to be holders
of the aggregate principal amount of Securities which were converted
into those shares of Class A common stock. Only Holders of
Securities or shares of Class A common stock issued or issuable upon
conversion thereof which are Transfer Restricted Securities shall be
entitled to include such Securities or shares of Class A common
stock in an Underwritten Offering and only Transfer Restricted
securities shall be included in the computation of the Minimum
Amount. The Underwritten Offering initiated by Holders as aforesaid
shall include both Securities and Class A common stock if so
requested by the Holders. Upon receipt by the Company, from Holders
of at least the Minimum Amount of Securities or Class A common stock
issued or issuable upon conversion thereof, of a request for an
Underwritten Offering, the Company will, within 10 days thereafter,
mail notice to all Holders of Securities and shares of Class A
common stock issued upon conversion thereof stating that: (i) the
Company has received a request from the Holders of the requisite
amount of Securities or Class A common stock issued or issuable on
conversion thereof to effect an Underwritten Offering on behalf of
such Holders; (ii) under the terms of this Agreement, all Holders of
Securities and shares of Class A common stock issued or issuable
upon conversion thereof which are Transfer Restricted Securities may
include their Securities and shares of Class A common stock in such
Underwritten Offering, subject to the terms and conditions set forth
in this Agreement and subject to the right of the Managing
Underwriters to reduce, in light of market conditions and other
similar factors, the aggregate principal amount of Securities and
number of shares of Class A common stock included in such
Underwritten Offering; (iii) all Holders electing to include
Securities or shares of Class A common stock in such Underwritten
Offering must notify the Company in writing of such election (the
"Election"), and setting forth an address and facsimile number to
which such written elections may be sent and the deadline (which
shall be 12:00 midnight on the 30th calendar day after such notice
is mailed to Holders or, if not a Business Day, the next succeeding
Business Day (the "Deadline")) by which such elections must be
received by the Company; and (iv) setting forth such other
instructions as shall be necessary to enable Holders to include
their Securities and shares of Class A common stock in such
Underwritten Offering. No Holder shall be entitled to participate in
an Underwritten Offering unless such Holder notifies the Company of
such Election by the Deadline. Notwithstanding anything to the
contrary contained herein, if the Managing Underwriters for an
Underwritten Offering to be effected pursuant to this Section 3(t)
advise the Holders of the Securities and shares of the Class A
common stock to be included in such Underwritten Offering that,
because of the aggregate principal amount of Securities or number of
shares of Class A common stock that such Holders have requested be
included in the Underwritten Offering, the success of the offering
would likely be materially adversely affected by the inclusion of
all of the Securities and shares of Class A
14
<PAGE>
common stock requested to be included, then the principal amount of
Securities and the number of shares of Class A common stock to be
offered for the accounts of Holders shall be reduced pro rata,
according to the aggregate principal amount of Securities and number
of shares of Class A common stock, respectively, requested for
inclusion by each such Holder, to the extent necessary to reduce the
size of the offering to the size recommended by the Managing
Underwriter. Notwithstanding anything to the contrary contained
herein, (i) except as may be required by the terms of the
registration rights of certain holders of the Company's capital
stock pursuant to agreements referenced in the Offering Memorandum,
neither the Company nor any Person, other than a Holder of
Securities or shares of Class A common stock issued or issuable upon
conversion thereof and only with respect to its Transfer Restricted
Securities, shall be entitled to include any securities in the
Underwritten Offering and (ii) in connection with any Underwritten
Offering, the rights granted under this Agreement shall be subject
in all respects to the terms of the registration rights of certain
holders of the company's capital stock pursuant to agreements
referenced in the Offering Memorandum.
4. REGISTRATION EXPENSES. The Company shall bear all expenses incurred
in connection with the performance of its obligations under Sections 2 and 3
hereof and shall reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders and reasonably
acceptable to the Company to act as counsel for the Holders in connection
therewith. Notwithstanding the provisions of this Section 4, each Holder shall
bear the expenses of any broker's commission, agency fee or underwriter's
discount or commission.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) (i) The Company agrees to indemnify and hold harmless each Holder
of Securities and each Holder of Class A common stock issued upon conversion
thereof covered by any Shelf Registration Statement (including the Initial
Purchasers), the directors, officers, employees and agents of each such Holder
and each person who controls any such Holder within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon (A) any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any such Holder or any Initial Purchaser
specifically for inclusion therein; (B) use of a Shelf Registration Statement or
the related Prospectus during a period when a stop order has been issued in
respect of such Shelf Registration Statement or any proceedings for that purpose
have
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<PAGE>
been initiated or use of a Prospectus when use of such Prospectus has been
suspended pursuant to Section 2(d) or 3(s), PROVIDED, in each case, that the
Company shall have timely advised such Holder, in accordance with Section 3(c)
of this Agreement, of such stop order, initiation of proceedings or suspension;
or (C) if the Holder fails to deliver a Prospectus as then amended or
supplemented, PROVIDED that the Company shall have timely delivered to such
Holder such Prospectus, as then amended or supplemented. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(ii) The Company also agrees to indemnify and to contribute to
Losses, as provided in Section 5(d), of any Underwriters of Securities or Class
A common stock issued upon conversion thereof registered under a Shelf
Registration Statement, their officers and directors and each person who
controls any such Underwriter within the meaning of either the Act or the
Exchange Act on substantially the same basis as that of the indemnification of
the Initial Purchasers and the selling Holders provided in this Section 5(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 3(q) hereof. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Holder of Securities or Class A common stock issued upon
conversion thereof covered by a Shelf Registration Statement (including the
Initial Purchasers) severally and not jointly agrees to indemnify and hold
harmless (i) the Company, (ii) each of its directors, (iii) each of its officers
who signs such Shelf Registration Statement and (iv) each person who controls
the Company within the meaning of either the Act or the Exchange Act to the same
extent as the foregoing indemnity from the Company to each such Holder, but only
with reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); PROVIDED, HOWEVER, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest;
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying
16
<PAGE>
party and the indemnified party shall have concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified party, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional
release of such indemnified party from all liability arising out of such
claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 5 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have an obligation to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses"), as incurred, to which such indemnified party may be
subject in such proportion as is appropriate to reflect the relative benefits
received by such indemnifying party, on the one hand, and such indemnified
party, on the other hand, from the Initial Placement and the Shelf Registration
Statement which resulted in such Losses; PROVIDED, HOWEVER, that in no case
shall the Initial Purchasers be responsible, in the aggregate, for any amount in
excess of the purchase discount or commission applicable to the Securities, as
set forth in the Offering Memorandum, nor shall any Underwriter be responsible
for any amount in excess of the underwriting discount or commission applicable
to the Securities and Class A common stock issued upon conversion thereof
purchased by such Underwriter under the Shelf Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set forth in
the Offering Memorandum and (y) the total amount of Liquidated Damages that the
Company was not required to pay as a result of registering the Securities and
Class A common stock issued upon conversion thereof covered by the Shelf
Registration Statement which resulted in such Losses. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts
and commissions as set forth on the cover page of the Offering Memorandum,
and benefits received by any other Holders shall be deemed to be equal to the
value of receiving Securities or the Class A common stock issuable upon
conversion thereof registered under the Act. Benefits received by any
Underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Shelf Registration Statement (or the applicable Prospectus supplement) which
resulted in such Losses. Relative fault shall be determined by reference to
whether any untrue statement or omission or alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand. The parties agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method
17
<PAGE>
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section
5, each person who controls a Holder within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Shelf
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, and each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
officer and director of each Underwriter shall have the same rights to
contribution as such Underwriter, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, any
Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 5 hereof, and will survive the sale by a Holder
of Securities or shares of Class A common stock covered by a Shelf Registration
Statement.
6. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, entered into nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Majority Holders; PROVIDED that with respect to any matter that directly or
indirectly affects the rights of the Initial Purchasers hereunder, the Company
shall obtain the written consent of each of the Initial Purchasers against which
such amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Class A common
stock are being sold pursuant to a Shelf Registration Statement and that does
not directly or indirectly affect the rights of other Holders may be given by
the Majority Holders, determined on the basis of Securities or Class A common
stock issued upon conversion thereof being sold rather than registered under
such Shelf Registration Statement.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight delivery:
(1) if to you, initially at the address set forth in the
Purchase Agreement;
(2) if to any other Holder, at the most current address given
by such Holder to the Company in accordance with the provisions of this
Section 6(c), which address initially is, with respect to each Holder,
the address of such Holder
18
<PAGE>
maintained by the Registrar under the Indenture or, in the case of
Class A common stock, the address maintained by the registrar of the
Class A common stock, with a copy in like manner to Salomon Smith
Barney Inc.; and
(3) if to the Company, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand or air courier, and when sent, if sent
by first-class mail or telecopier.
The Initial Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders. The Company hereby agrees to extend the
benefits of this Agreement to any Holder and Underwriter and any such Holder and
Underwriter may specifically enforce the provisions of this Agreement as if an
original party hereto. In the event that any other person shall succeed to the
Company under the Indenture as provided in Article VII thereof, then such
successor shall enter into an agreement, in form and substance reasonably
satisfactory to the Initial Purchasers, whereby such successor shall assume all
of the Company's obligations under this Agreement.
(e) COUNTERPARTS. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE, WITHOUT REGARD, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TO THE CONFLICTS OF LAW RULES THEREOF.
(h) SEVERABILITY. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(i) SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or the Class A common stock issuable upon conversion thereof is required
hereunder, Securities or the Class A common stock issued upon conversion thereof
held by the Company or its Affiliates (other than subsequent Holders of
Securities or the Class A common stock issued upon conversion thereof if such
subsequent Holders are deemed to be Affiliates
19
<PAGE>
solely by reason of their holdings of such Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage.
20
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
MAIL.COM, INC.
/s/ DAVID AMBROSIA
---------------------------
Name: David Ambrosia
Title: Executive Vice
Presidend and
General Counsel
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
SALOMON SMITH BARNEY INC.
PAINEWEBBER INCORPORATED
SG COWEN SECURITIES CORPORATION
SANDS BROTHERS & CO., LTD.
As representatives of the Initial Purchasers
named in Schedule I to the Purchase
Agreement.
BY: SALOMON SMITH BARNEY INC.
By /s/ ALAN RIFKIN
---------------------------------
Name: Alan Rifkin
Title: Vice President
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<PAGE>
EXHIBIT A
Mail.com, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
Reference is hereby made to the Registration Agreement (the
"Registration Agreement") between Mail.com, Inc., a Delaware corporation (the
"Company"), and the Initial Purchasers named therein. Pursuant to the
Registration Agreement, the Company has filed or will file with the United
States Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (the "Shelf Registration Statement") for the registration
and resale under Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"), of the Company's 7.00% Convertible Subordinated Notes due
2005 (the "Securities"), and the shares of the Company's Class A common stock,
par value $.01 per share (the "Class A common stock"), issuable upon conversion
thereof. A copy of the Registration Agreement is attached hereto. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Agreement.
Each holder and beneficial owner of Transfer Restricted Securities is
entitled to have its Transfer Restricted Securities included in the Shelf
Registration Statement. In order to have Transfer Restricted Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the following
address, for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]: [NAME AND ADDRESS OF
COUNSEL]. Holders or beneficial owners of Transfer Restricted Securities who do
not complete, execute and return this Notice and Questionnaire by such date (i)
will not be named as selling securityholders in the Shelf Registration Statement
and (ii) may not use the Prospectus forming a part thereof for resales of
Transfer Restricted Securities, subject, however, to the Company's obligations
under Section 2(b)(2) of the Registration Agreement.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
ELECTION
The undersigned (the "Selling Securityholder") hereby elects to include
in the Shelf Registration Statement the Transfer Restricted Securities held or
beneficially owned by it and listed below in Item (3)(b). The undersigned, by
signing and returning this
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Notice and Questionnaire, agrees to be bound with respect to such Transfer
Restricted Securities by the terms and conditions of this Notice and
Questionnaire and the Registration Agreement, including, without limitation, the
indemnification set forth in Section 5 of the Registration Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
QUESTIONNAIRE
(1) (a) Full legal name of Selling Securityholder:
(b) Full legal name of registered holder (if not the same as in (a)
above) of Transfer Restricted Securities listed in (3) below (if the Transfer
Restricted Securities are held through a broker-dealer or other third party and,
as a result, you do not know the legal name of the registered holder, please
complete Item (1)(c) below):
(c) Full legal name of broker-dealer or other third party through which
Transfer Restricted Securities listed in (3) below are held:
(2) Address for notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial ownership of Transfer Restricted Securities.
EXCEPT AS SET FORTH BELOW IN THIS ITEM (3), THE UNDERSIGNED DOES NOT
BENEFICIALLY OWN ANY SECURITIES OR SHARES OF CLASS A COMMON STOCK WHICH
CONSTITUTE TRANSFER RESTRICTED SECURITIES.
(a) Principal amount of Securities constituting Transfer Restricted
Securities beneficially owned:
Number of shares of Class A common stock, if any, constituting Transfer
Restricted Securities (include only shares of Class A common stock which have
actually been issued, not shares issuable upon future conversion of Securities):
The undersigned also may be deemed to beneficially own such number of
shares of Class A common stock as may be issued from time to time upon
conversion of the Securities listed in Item (3)(a) above.
(b) Principal amount of Securities and number of shares of outstanding
Class A common stock constituting Transfer Restricted Securities which the
undersigned wishes to be included in the Shelf Registration Statement:
Unless otherwise indicated in the space provided below, all Securities,
all shares of Class A common stock listed in response to Item (3)(a) above, and
all shares of Class A common stock issuable upon conversion of the Securities
listed in response to Item (3)(b)above, will be included in the Shelf
Registration Statement. If the undersigned
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<PAGE>
does not wish all such Securities or shares of Class A common stock
to be so included, please indicate below the number of such shares to be
included:
(4) Beneficial ownership of other securities of the Company:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED SELLING
SECURITYHOLDER IS NOT THE BENEFICIAL OR REGISTERED OWNER OF ANY SHARES OF CLASS
A COMMON STOCK OR ANY OTHER SECURITIES OF THE COMPANY, OTHER THAN SECURITIES AND
SHARES OF CLASS A COMMON STOCK LISTED ABOVE IN ITEM (3).
State any exceptions here:
(5) Relationships with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITYHOLDER NOR ANY
OF ITS OFFICERS, DIRECTORS OR 5% OR GREATER STOCKHOLDERS HAS HELD ANY POSITION
OR OFFICE OR HAS HAD ANY OTHER MATERIAL RELATIONSHIP WITH THE COMPANY (OR ITS
PREDECESSORS OR AFFILIATES)DURING THE PAST THREE YEARS.
State any exceptions here:
(6) Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITYHOLDER
INTENDS TO DISTRIBUTE THE TRANSFER RESTRICTED SECURITIES LISTED ABOVE IN ITEM
(3) ONLY AS FOLLOWS (IF AT ALL): SUCH TRANSFER RESTRICTED SECURITIES MAY BE SOLD
FROM TIME TO TIME BY THE UNDERSIGNED SELLING SECURITYHOLDER (i) TO OR THROUGH
UNDERWRITERS, BROKERS OR DEALERS; (ii) DIRECTLY TO ONE OR MORE OTHER PURCHASERS;
(iii) THROUGH AGENTS ON A BEST-EFFORTS BASIS OR OTHERWISE; OR (iv) THROUGH A
COMBINATION OF ANY SUCH METHODS OF SALE. SUCH TRANSFER RESTRICTED SECURITIES MAY
BE SOLD FROM TIME TO TIME IN ONE OR MORE TRANSACTIONS AT A FIXED PRICE OR
PRICES, WHICH MAY BE CHANGED, AT MARKET PRICES PREVAILING AT THE TIME OF SALE,
AT PRICES RELATED TO SUCH PREVAILING MARKET PRICES, AT VARYING PRICES DETERMINED
AT THE TIME OF SALE, OR AT NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN
TRANSACTIONS (WHICH MAY INVOLVE CROSSES OR BLOCK TRANSACTIONS) (i) ON ANY
NATIONAL SECURITIES EXCHANGE OR QUOTATION SERVICE ON WHICH THE TRANSFER
RESTRICTED SECURITIES MAY BE LISTED OR QUOTED AT THE TIME OF SALE, (ii) IN THE
OVER-THE-COUNTER MARKET, (iii) IN TRANSACTIONS OTHERWISE THAN ON SUCH EXCHANGES
OR SERVICES OR IN THE OVER-THE-COUNTER MARKET, OR (iv) THROUGH THE WRITING OF
OPTIONS. IN CONNECTION WITH SALES OF THE TRANSFER RESTRICTED SECURITIES OR
OTHERWISE, THE SELLING SECURITYHOLDER MAY ENTER INTO HEDGING TRANSACTIONS WITH
BROKERS-DEALERS OR OTHERS, WHICH MAY IN TURN ENGAGE IN SHORT SALES OF THE
TRANSFER RESTRICTED SECURITIES IN THE COURSE OF HEDGING THE POSITIONS THEY
ASSUME. THE SELLING SECURITYHOLDER MAY ALSO SELL TRANSFER RESTRICTED SECURITIES
SHORT AND DELIVER TRANSFER RESTRICTED SECURITIES TO CLOSE OUT SUCH SHORT
POSITIONS, OR LOAN OR PLEDGE TRANSFER RESTRICTED SECURITIES TO BROKERS-DEALERS
OR OTHERS THAT IN TURN MAY SELL SUCH SECURITIES. THE SELLING SECURITYHOLDER MAY
PLEDGE OR GRANT A SECURITY INTEREST IN SOME OR ALL OF THE TRANSFER RESTRICTED
SECURITIES OWNED BY IT AND, IF IT DEFAULTS IN THE PERFORMANCE OF ITS SECURED
OBLIGATIONS, THE PLEDGEES OR SECURED PARTIES MAY OFFER AND SELL THE TRANSFER
RESTRICTED SECURITIES FROM TIME TO TIME
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<PAGE>
PURSUANT TO THE PROSPECTUS. THE SELLING SECURITYHOLDER ALSO MAY TRANSFER AND
DONATE SHARES IN OTHER CIRCUMSTANCES IN WHICH CASE THE TRANSFEREES, DONEES,
PLEDGEES OR OTHER SUCCESSORS IN INTEREST WILL BE THE SELLING STOCKHOLDERS FOR
PURPOSES OF THE PROSPECTUS. THE SELLING SECURITYHOLDER MAY SELL SHORT THE
CLASS A COMMON STOCK AND MAY DELIVER THE PROSPECTUS IN CONNECTION WITH SUCH
SHORT SALES AND USE THE SHARES COVERED BY THE PROSPECTUS TO COVER SUCH SHORT
SALES.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, particularly Regulation M and the prospectus delivery
requirements under the Securities Act.
In the event that the Selling Securityholder transfers all or any
portion of the Transfer Restricted Securities listed in Item (3) above after the
date on which such information is provided to the Company (other than a
transaction as a result of which such securities shall no longer be Transfer
Restricted Securities), the Selling Securityholder agrees to notify the
transferees at the time of the transfer of its rights and obligations under this
Notice and Questionnaire and the Registration Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
The Selling Securityholder agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Registration
Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
Mail.com, Inc.
11 Broadway
New York, New York 10004
Attention: Chief Financial Officer
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Transfer Restricted
Securities beneficially owned by such Selling Securityholder and listed in Item
(3)(b) above). This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
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<PAGE>
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Selling Securityholder
(Print/type full legal name
of beneficial owner of
Transfer Restricted
Securities).
By:
------------------------
Name:
Title:
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<PAGE>
EXHIBIT B
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004
Re: 7% Convertible Subordinated Notes due 2005 (the "Securities")
of Mail.com, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has
declared effective a Registration Statement on Form S-3 under the Securities Act
of 1933, as amended, with regard to all of the Securities referenced above.
Accordingly, there is no longer any restriction as to whom such Securities may
be sold and any restrictions on the CUSIP designation are no longer appropriate
and may be removed. I understand that upon receipt of this letter, DTC will
remove any stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can of further
assistance.
Very truly yours,
By:
------------------------
Authorized Officer
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