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CORRECTED
CERTIFICATE OF DESIGNATIONS
OF
PREFERRED STOCK
OF
RANGE RESOURCES CORPORATION
Designated As
$2.03 Convertible Exchangeable Preferred Stock, Series D
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Pursuant to Section 103(f) of the
General Corporation Law of the State of Delaware
----------------
Range Resources Corporation, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware does
hereby certify:
1. The name of the corporation is Range Resources Corporation.
2. That a Certificate of Designations designating the $2.03 Convertible
Exchangeable Preferred Stock, Series D (the "Series D Stock") that was filed at
11 a.m. on October 10, 2000 contains an error in that part of the second full
sentence of Section 3(a) was inadvertently dropped.
3. That no shares of the Series D Stock have been issued.
4. That the corrected Certificate of Designations, in its entirety, is
as follows:
The undersigned DO HEREBY CERTIFY that the following resolution was
duly adopted by the Board of Directors of Range Resources Corporation, a
Delaware corporation (the "Corporation"), at a meeting duly convened and held,
at which a quorum was present and acting throughout:
"RESOLVED, that pursuant to the authority conferred on the Board of
Directors of the Corporation by the Corporation's Certificate of Incorporation,
the issuance of a series of preferred stock, $1.00 par value per share, of the
Corporation which shall consist of 725,075 shares of preferred stock be, and the
same hereby is, authorized; and the President and Secretary or Assistant
Secretary of the Corporation be, and they hereby are, authorized and directed to
execute and file with the Secretary of State of the State of Delaware the
Certificate of Designations of Preferred Stock of the Corporation fixing the
designations, powers, preferences and rights of the shares of such series, and
the qualifications, limitations or restrictions thereof (in addition to the
designations, powers, preferences and rights, and the qualifications,
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limitations or restrictions thereof, set forth in the Certificate of
Incorporation which may be applicable to the Company's Preferred Stock), as
follows:
1. NUMBER OF SHARES; DESIGNATION. A total of 725,075 shares of
Preferred Stock, par value $1.00 per share, of the Corporation are hereby
designated as $2.03 Convertible Exchangeable Preferred Stock, Series D (the
"Series"). The number of authorized shares of the Series may be reduced by the
Board of Directors of the Corporation by the filing of a certificate pursuant to
the provisions of the General Corporation Law of the State of Delaware (the
"GCL") stating that the reduction has been so authorized. In addition, the
number of authorized shares of the Series may be increased by the Board of
Directors of the Corporation, but it shall be a condition to the issuance of any
additional shares of the Series so authorized that such shares be registered
under the Securities Act of 1933, as amended, and admitted to trading on the
Private Offerings, Resale and Trading through Automated Linkages ("Portal")
Market, if the shares of the Series are then listed on Portal, or listed on the
Nasdaq Stock Market or other national securities exchange on which shares of the
Series may then be listed.
2. RANK. The Series shall, with respect to payment of dividends,
redemption payments and rights upon liquidation, dissolution or winding up of
the affairs of the Corporation, rank (a) senior and prior to (i) the Common
Stock, par value $.01 per share, of the Corporation (the "Common Stock") , and
(ii) any series of preferred stock of the Corporation which is stated to be
junior to the Series with respect to the payment of dividends or redemption,
payment and rights upon liquidation, dissolution or winding up of the affairs of
the Corporation (all shares identified in this clause (a) which are junior to
the shares of the Series with respect to the payment of dividends are
hereinafter referred to as "Junior Dividend Shares" and all shares identified in
this clause (a) which are junior to the shares of the Series with respect to
redemption, payment and rights upon liquidation, dissolution or winding up of
the affairs of the Corporation being hereinafter referred to as "Junior
Liquidation Shares"); (b) pari passu with (i) the Corporation's issued and
outstanding shares of 7 1/2% Cumulative Convertible Exchangeable Preferred Stock
Series A, 7 1/2% Cumulative Convertible Exchangeable Preferred Stock Series B
(collectively, the "Existing Preferred Shares"), (ii) the $2.03 Convertible
Exchangeable Preferred Stock, Series C (the "Series C") (iii) any additional
series of convertible preferred stock that may in the future be issued by the
Corporation, except and to the extent any such convertible preferred stock is
stated to be junior to the series in the related Certificate of Designations or
amendment to the Company's Certificate of Incorporation and (iv) any Series of
preferred stock that is not convertible for other securities of the Corporation
but only to the extent such preferred stock is stated to be pari passu with the
Series in the related Certificate of Designations or amendments to the
Corporation's Certificate of Incorporation (all shares identified in this clause
(b) which are pari passu with the shares of the Series with respect to the
payment of dividends are hereinafter referred to as "Parity Dividend Shares" and
all shares identified in this clause (b) which are pari passu with the shares of
the Series with respect to redemption, payment and rights upon liquidation,
dissolution or winding up of the affairs of the Corporation being hereinafter
referred to as "Parity Liquidation Shares"); and (c) junior and subordinate to
any additional series of preferred stock which may in the future be issued by
the Corporation that is not convertible for other securities of the Corporation,
except and to the extent any such non-convertible preferred stock is stated to
be junior to or pari passu with the Series in the related Certificate of
Designations or amendment to the Company's Certificate of Incorporation (all
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shares identified in this clause (c) which are senior to the shares of the
Series with respect to the payment of dividends are hereinafter referred to as
"Senior Dividend Shares" and all shares identified in this clause (c) which are
senior to the shares of the Series with respect to redemption, payment and
rights upon liquidation, dissolution or winding up of the affairs of the
Corporation being hereinafter referred to as "Senior Liquidation Shares").
3. DIVIDENDS.
(a) The dividend rate on shares of the Series shall be $2.03 per share
per annum. Dividends on shares of the Series shall be fully cumulative,
accruing, without interest, from the day after the most recent Dividend Payment
Date (as defined below), or if no such Dividend Payment Date has yet occurred,
from October 1, 2000, and shall be payable quarterly in arrears, when, as and if
declared by the Board of Directors out of funds legally available for the
payment of dividends or by the issuance of additional fully paid and
nonassessable whole shares of Common Stock pursuant to Section 3(b) (the
"Additional Shares"), on March 31, June 30, September 30 and December 31 of each
year, commencing December 31, 2000 (the "Dividend Payment Dates"), except that
if such date is not a business day then the dividend shall be payable on the
first immediately succeeding business day (as used herein, the term "business
day" shall mean any day except a Saturday, Sunday or day on which banking
institutions are legally authorized to close in New York, New York) (each such
period being hereinafter referred to as a "Quarterly Dividend Period"). Each
dividend shall be paid to the holders of record of shares of the Series as they
appear on the stock register of the Corporation on the record date, not less
than 10 or more than 60 days preceding the payment date thereof, as shall be
fixed by the Board of Directors of the Corporation. Dividends payable for each
Quarterly Dividend Period shall be computed by dividing the annual dividend by
four (rounded to the nearest cent). Dividends payable for any partial Quarterly
Dividend Period shall be computed on the basis of 360-day year of twelve 30-day
months. Dividends on account of arrearages for any past Quarterly Dividend
Period may be declared and paid at any time, without reference to any regular
dividend payment date, to holders of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board of Directors of
the Corporation. No interest shall be payable with respect to any dividend
payment that may be in arrears. Holders of Shares of the Series called for
redemption between the close of business on a dividend payment record date and
the close of business on the corresponding dividend payment date shall, in lieu
of receiving such dividend on the dividend payment date fixed therefor, receive
such dividend payment on the date fixed for redemption, together with all other
accrued and unpaid dividends to the date fixed for redemption. The holders of
shares of the Series shall be not be entitled to any dividends except as
provided for in this paragraph 3.
(b) At the option of the Company, dividends, when declared by the Board
of Directors, may be paid in whole or in part, by the issuance of Additional
Shares instead of in cash, to the extent authorized but unissued shares of
Common Stock are legally available therefor, in respect of any and all Dividend
Payment Dates. If a dividend is to be paid in Additional Shares, the number of
Additional Shares to be issued in payment of the dividend with respect to each
outstanding share of the Series shall be determined by dividing (a) the amount
of the accumulated dividend payable to each registered holder of shares of the
Series on the basis of all shares held of record by such holder as of the record
date for such dividend, whether
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evidenced by one or more certificates, by (b) the average of the Current Market
Price as of the three (3) most recent trading days prior to the Dividend Payment
Date, and multiplying the result thereof by 1.05. Any partial shares shall be
paid in cash by the Company, and upon payment in Additional Shares as herein
provided, the dividend shall be deemed paid in full and shall not accumulate.
The payment in Common Stock option set forth in this paragraph 3(b) shall expire
after December 31, 2001.
(c) No dividends, except as described in the next succeeding sentence,
shall be declared or paid or set apart for payment on any Parity Dividend Shares
for any period unless full cumulative dividends have been or contemporaneously
are declared and paid or declared and set aside for payment for all accrued
dividends with respect to the Series through the most repeat Quarterly Dividend
Period ending on or prior to the date of payment, or setting apart for payment,
of such dividends on such Parity Dividend Shares. Unless dividends accrued and
payable but unpaid on shares of the Series and any Parity Dividend Shares at the
time outstanding have been paid in full, all dividends declared by the
Corporation upon shares of the Series or Parity Dividend Shares shall be
declared pro rata with respect to all such shares, so that the amounts of any
dividends declared on shares of the Series and the Parity Dividend Shares shall
in all cases bear to each other the same ratio that, at the time of the
declaration, all accrued but unpaid dividends on shares of the Series and the
other Parity Dividend Shares, respectively, bear to each other.
(d) If at any time the Corporation has failed to pay or set apart for
payment all accrued dividends on any shares of the Series through the then most
recent Quarterly Dividend Period, the Corporation shall not, and shall not
permit any corporation or other entity directly or indirectly controlled by the
Corporation to:
(i) declare or pay or set aside for payment any dividend or other
distribution on or with respect to any Junior Dividend Shares, whether
in cash, securities, obligations or otherwise (other than dividends or
distributions paid in shares of, or options, warrants or rights to
subscribe for or purchase shares which are both Junior Dividend Shares
and Junior Liquidation Shares); or
(ii) redeem, purchase or otherwise acquire, or set apart money for
a sinking or other analogous fund for the redemption, purchase or other
acquisition of, any shares of same Series (unless all of the shares of
the Series are concurrently redeemed), Parity Dividend Shares, Junior
Dividend Shares, Parity Liquidation Shares or Junior Liquidation Shares
for any consideration (except by conversion into or exchange for shares
which are both Junior Liquidation Shares and Junior Dividend Shares)
unless, in each such case, all dividends accrued on shares of the Series through
the most recent Quarterly Dividend Period and on any Parity Dividend Shares have
been or contemporaneously are declared and paid in full or declared and a sum
sufficient for the payment thereof set aside for such payment.
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(e) Any reference to "distribution" contained in this paragraph 3 shall
not be deemed to include any distribution made in connection with any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary.
4. LIQUIDATION.
(a) The liquidation value of Shares of the Series, in case of the
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, shall be $25.00 per share, plus an amount equal to the dividends
accrued and unpaid thereon, whether or not declared, to the payment date (such
aggregate amount being hereinafter referred to as the "Liquidation Amount").
(b) In the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, the holders of shares of the
Series (i) shall not be entitled to receive the liquidation value of the shares
held by them until the liquidation value of all Senior Liquidation Shares shall
have been paid in full and (ii) shall be entitled to receive the liquidation
value of such shares held by them in preference to and in priority over any
distributions upon the Junior Liquidation Shares. Upon payment in full of the
liquidation value to which the holders of shares of the Series are entitled, the
holders of shares of the Series will not be entitled to any further
participation in any distribution of assets by the Corporation. If the assets of
the Corporation are not sufficient to pay in full the liquidation value payable
to the holders of shares of the Series and the liquidation value payable to the
holders of any Parity Liquidation Shares, the holders of all such shares shall
share ratably in such distribution of assets in accordance with the amounts that
would be payable on the distribution if the amounts to which the holders of
shares of the Series and the holders of Parity Liquidation Shares are entitled
were paid in full.
(c) Neither a consolidation or merger of the Corporation with or into
any other entity, nor a merger of any other entity with or into the Corporation,
nor a sale or transfer of all or any part of the Corporation assets for cash or
securities or other property shall be considered a liquidation, dissolution or
winding-up of the Corporation within the meaning of this paragraph 4.
(d) Written notice of any liquidation, dissolution or winding up of the
Corporation, stating the payment date or dates when and the place or places
where the amounts distributable in such circumstances shall be payable, shall be
given by first class mail, postage prepaid, not less than 30 days prior to any
payment date stated therein, to the holders of record of shares of the Series at
their respective addresses as the same shall appear on the books of the transfer
agent with respect to the Series.
5. OPTIONAL REDEMPTIONS FOR CASH.
(a) The shares of the Series are not redeemable by the Corporation prior to
November 1, 2000. Subject to the restrictions in paragraph 3 above, shares of
the Series will be redeemable at the option of the Corporation, in whole or in
part, from and after November 1, 2000 at the following redemption prices per
share:
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DURING THE 12-MONTH PERIOD
COMMENCING NOVEMBER 1. REDEMPTION PRICE
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2000 $25.75
2001 $25.50
2002 $25.25
2003 and thereafter $25.00
in each case, together with an amount equal to the dividends accrued and unpaid
thereon, whether or not declared, to the redemption date. The redemption price
set forth above shall be paid in immediately available funds.
(b) Not less than 30 nor more than 60 days prior to the date fixed for
any redemption of share of the Series pursuant to this paragraph 5, a notice
specifying the time and place of the redemption and the number of shares to be
redeemed shall be given by first class mail, postage prepaid, to the holders of
record of the shares of the Series to be redeemed at their respective addresses
as the same shall appear on the books of the transfer agent for the Series,
calling upon each holder of record to surrender to the Corporation at such place
as shall be designated in such notice on the redemption date such holder's
certificate or certificates presenting the number of shares specified in the
notice of redemption. Neither failure to mail such notice, nor any defect
therein or in the mailing thereof, to any particular holder shall affect the
sufficiency of the notice or the validity of the proceedings for redemption with
respect to any other holder. Any notice mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the holder
receives the notice. On or after the redemption date, each holder of shares of
the Series to be redeemed shall present and surrender such holder's certificate
or certificates for such shares to the Corporation at the place designated in
the redemption notice and thereupon the redemption price of the shares shall be
paid to or on the order of the person whose name appears on such certificate or
certificates as the owner thereof, and each surrendered certificate shall be
canceled. In case less than all the shares represented by any such certificate
are redeemed, a new certificate shall be issued to the holder representing the
unredeemed shares of the Series.
(c) If a notice of redemption has been given pursuant to this paragraph
5 and if, on or before the date fixed for redemption, the funds necessary for
such redemption shall have been set aside by the Corporation, separate and apart
from its other funds, in trust for the pro rata benefit of the holders of the
shares of the Series so called for redemption, then, notwithstanding that any
certificates for such shares have not been surrendered for cancellation, on the
redemption date dividends shall cease to accrue on the shares of the Series to
be redeemed, and at the close of business on the redemption date the holders of
such shares shall cease to be stockholders with respect to those shares, shall
have no interest in or claims against the Corporation by virtue thereof and
shall have no voting or other rights with respect thereto, except the right to
receive the moneys payable upon such redemption, without interest thereon, upon
surrender (and endorsement, if required by the Corporation) of their
certificates, and the shares evidenced thereby shall no longer be outstanding.
Subject to applicable escheat laws, any moneys so set aside by the Corporation
and unclaimed at the end of two years from the redemption date shall revert to
the general funds of the Corporation, after which reversion the
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holders of such shares so called for redemption shall look only to the general
finds of the Corporation for the payment of the redemption price. Any interest
accrued on funds so deposited shall be paid to the Corporation from time to
time.
(d) If a notice of redemption has been given pursuant to this paragraph
5, and any holder of shares of the Series shall, prior to the close of business
on the date fixed for redemption, give written notice to the Corporation
pursuant to paragraph 7 or 11 below of the conversion of any or all of the
shares to be redeemed held by the holder, then such redemption shall not become
effective as to such shares to be converted and such conversion shall become
effective as provided in paragraph 7 or 11 below, whereupon any funds deposited
by the Corporation, or on its behalf, with a payment agent or segregated and
held in trust by the Corporation for the redemption of such shares shall
(subject to any right of the holder of such shares to receive the dividend
payable thereon as provided in paragraph 7 or 11 below) immediately upon such
conversion be returned to the Corporation or, if then held in trust by the
Corporation, shall be discharged from the trust.
(e) In every case of redemption of less than all of the outstanding
shares of the Series pursuant to this paragraph 5, the shares to be redeemed
shall be selected pro rata or by lot or in such other manner as the Board of
Directors may determine, as may be prescribed by resolution of the Board of
Directors of the Corporation, provided that only whole shares shall be selected
for redemption. Notwithstanding the foregoing, the Corporation shall not redeem
any of the shares of the Series at any time outstanding until all dividends
accrued and in arrears upon all shares of the Series then outstanding shall have
been paid for all past dividend periods.
6. NOTE EXCHANGE.
(a) Subject to the restrictions in paragraph 5 above and paragraph 6(e)
below, shares of the Series shall be exchangeable at the option of the
Corporation, in whole but not in part, on any March 31, June 30, September 30 or
December 31 on or after December 31, 2000 and prior to December 31, 2004 through
the issuance, in redemption of and in exchange for the shares of the Series, of
the Corporation's 8.125% Convertible Subordinated Notes due 2005 (the "Notes")
in the manner provided in this paragraph 6. The Notes will be subject to the
terms and conditions of an indenture (the "Indenture") with Computershare
Investor Services, L.L.C., as Trustee, in substantially the form attached hereto
as Exhibit A and incorporated by reference herein. The Notes shall be
convertible into Common Stock of the Corporation at the Conversion Price (as
determined pursuant to paragraph 7 below) applicable to the Series at the time
of exchange, subject to further adjustment as provided in the Indenture. If, for
any reason, prior to the execution and delivery of the Indenture, either the
Corporation or Computershare Investor Services, L.L.C. does not desire that
Computershare Investor Services, L.L.C. act as Trustee under the Indenture, the
Corporation may, in its sole discretion, appoint another entity to act as
Trustee under the Indenture, provided that the other entity meets the
qualification requirements to act as Trustee under the Indenture and the Trust
Indenture Act of 1939, as amended.
(b) The Notes will be issued solely in redemption of and in exchange
for shares of the Series at the rate of its principal amount of Notes for each
share of the Series outstanding on the Note Exchange Date (as defined in
paragraph 6(c)).
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(c) Not less than 30 nor more than 60 days prior to the date fixed for
the issue of Notes in redemption of and in exchange for shares of the Series
pursuant to this paragraph 6, a notice shall be given by first class mail,
postage prepaid, to the holders of record of shares of the Series at their
respective addresses as the same shall appear on the books of the transfer agent
for the Series, specifying the effective date of the exchange for the Notes (the
"Note Exchange Date") and the place where certificates for shares of the Series
are to be surrendered for Notes and stating that dividends on shares of the
Series will cease to accrue on the Note Exchange Date. Neither failure to mail
such notice, nor any defect therein or in the mailing thereof, to any particular
holder shall affect the sufficiency of the notice or the validity of the
proceedings for redemption and exchange with respect to any other holder. Any
notice mailed in the manner herein provided shall be conclusively presumed to
have been duly given whether or not the holder receives the notice.
(d) If notice of redemption and exchange has been given pursuant to
this paragraph 6 then (unless the Corporation shall default in issuing Notes in
redemption of and in exchange for shares of the Series or shall fail to pay or
set aside accrued and unpaid dividends on shares of the Series as provided in
paragraph 6(e) and notwithstanding that any certificates for shares of the
Series have not been surrendered for exchange), on the Note Exchange Date, the
holders of such shares shall cease to be stockholders with respect to the shares
and shall have no interest in or claims against the Corporation by virtue
thereof (except the right to receive Notes in exchange therefor and such accrued
and unpaid dividends thereon to the Note Exchange Date), shall have no voting,
conversion or other rights with respect to such shares, and the shares of the
Series shall no longer be outstanding. Upon the surrender (and endorsement, if
required by the Corporation) of the certificates for shares of the Series in
accordance with such notice, such certificates shall be exchanged for Notes and
such accrued and unpaid dividends in accordance with this paragraph 6. If notice
of redemption and exchange has been given pursuant to this paragraph 6 and any
holder of shares of the Series shall, prior to the close of business on the Note
Exchange Date, gives written notice to the Corporation pursuant to paragraph 7
or 11 below of the conversion of any or all of the shares to be redeemed and
exchanged held by the holder, then the redemption and exchange shall not become
effective as to the shares to be converted and the conversion shall become
effective as provided in paragraph 7 or 11 below, whereupon any funds deposited
by the Corporation, or on its behalf, with a paying agent or segregated and held
in trust by the Corporation for the redemption and exchange of such shares
shall, subject to any right of the holder of the shares to receive the dividend
payable thereon (as provided in paragraph 7 or 11 below) immediately upon the
conversion be returned to the Corporation or, if then held in trust by the
Corporation, shall be discharged from the trust.
(e) Prior to giving notice of intention to exchange, the Corporation
and the Trustee shall execute and deliver the Indenture, with such changes
therein as may be required by law, Nasdaq National Market rule or the rules of
any securities exchange on which the Notes are to be listed. The Corporation
will cause the Notes to be authenticated on or before the Note Exchange Date.
Additionally, prior to giving notice of intention to exchange the Corporation
shall (i) register the Notes for trading through the Depository Trust Company,
(ii) list the Notes for inclusion in the principal trading market in which the
shares of the Series were trading immediately prior to such exchange, and (iii)
arrange for the qualification of the Notes under applicable securities and blue
sky laws, to the extent necessary under such laws. If on the Note Exchange Date
the Corporation has failed to pay or set aside, separate and apart from its
other
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funds, in trust for the pro rata benefit of the holders of shares of the Series,
all dividends accrued and unpaid on the shares of the Series to the Note
Exchange Date then no shares of the Series shall be redeemed or exchanged for
Notes.
7. CONVERSION.
(a) Holders of shares of the Series will have the right, exercisable at
any time prior to redemption or exchange of such shares (as described in
paragraphs 5 or 6 above), to convert shares of the Series into shares of Common
Stock (calculated as to each conversion to the nearest 1/100th of a share) at
the conversion price of $9.50, subject to adjustment as described below (the
"Conversion Price"). The number of shares of Common Stock into which each share
of the Series shall be convertible shall be determined by dividing the
Liquidation Preference of such share by the Conversion Price then in effect. In
the case of shares of the Series called for redemption or to be exchanged for
the Notes, conversion rights will expire at the close of business on the
redemption date or the Note Exchange Date, as the case may be. No payment or
adjustment for accrued dividends on the shares of the Series is to be made on
conversion, but holders of record of shares of the Series on a record date fixed
for the payment of a dividend on such shares shall be entitled to receive the
divided notwithstanding the conversion of the shares prior to the dividend
payment date. A share of the Series may not be converted in part.
(b) In order to exercise the conversion right, the holder of each share
of the Series to be converted shall surrender the certificate representing such
share, duly endorsed or assigned to the Corporation or in blank, at the office
of the transfer agent for the Series in New York, New York, and shall give
written notice to the Corporation in the form set forth on the reverse of the
stock certificates for the shares of the Series that such holder elects to
convert the shares represented by such certificate or a portion thereof. Such
notice shall also state the name or names (with address) in which the
certificate or certificates for the shares of Common Stock which shall be
issuable upon such conversion shall be issued, and shall be accompanied by funds
in an amount sufficient to pay any transfer or similar tax required by the
provisions of paragraph 7(e) below. Each share surrendered for conversion shall,
unless the shares issuable on conversion are to be issued in the same name as
the name in which such share of the Series is registered, be duly endorsed by,
or be accompanied by instruments of transfer (in each case, in form reasonably
satisfactory to the Corporation), duly executed by the holder or such holder's
duly authorized attorney-in-fact.
(c) As promptly as practicable after the surrender of certificates for
shares of the Series for conversion and the receipt of such notice and funds, if
any, as aforesaid, the Corporation shall issue and shall deliver to such holder,
or on such holder's written order, a certificate or certificates for the number
of shares of Common Stock issuable upon the conversion of such shares of the
Series in accordance with the provisions of this paragraph 7, and a check or
cash in respect of any fractional interest in respect of a share of Common Stock
arising upon such conversion, as provided in paragraph 7(d) below. Each
conversion with respect to any shares of the Series shall be deemed to have been
effected immediately prior to the close of business on the date on which the
certificates for shares of the Series shall have been surrendered (accompanied
by the funds, if any, required by paragraph 7(e) below) and such notice shall
have been received by the Corporation as aforesaid, and the person or persons
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entitled to receive the Common Stock issuable upon such conversion shall be
deemed for all purposes to be the record holder or holder of such Common Stock
upon that date.
(d) No fractional shares of Common Stock or scrip representing
fractional shares shall be issued upon conversion of shares of the Series. If
more than one share of the Series shall be surrendered for conversion at one
time by the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
shares of the Series so surrendered. Instead of any fractional share of Common
Stock otherwise issuable upon conversion of any shares of the Series, the
Corporation shall pay a cash adjustment in respect to such fraction in an amount
equal to the same fraction of the Current Market Price (as defined in paragraph
12 below) of the Common Stock at the close of business on the day of conversion.
(e) If a holder converts shares of the Series, the Corporation shall
pay any and all documentary, stamp or similar issue or transfer tax payable in
respect of the issue or delivery of the shares of the Series (or any other
securities issued on account thereof pursuant hereto) or Common Stock upon the
conversion; provided, however, the Corporation shall not be required to pay any
such tax that may be payable because any such shares are issued in a name other
than the name of the holder.
(f) The Corporation shall reserve out of its authorized but unissued
Common Stock or its Common Stock held in treasury enough shares of Common Stock
to permit the conversion of all of the outstanding shares of the Series. The
Corporation shall from time to time, in accordance with the GCL, increase the
authorized amount of its Common Stock if at any time the authorized amount of
its Common Stock remaining unissued shall not be sufficient to permit the
conversion of all shares of the Series at the time outstanding. If any shares of
Common Stock required to be reserved for issuance upon conversion of shares of
the Series hereunder require registration with or approval of any governmental
authority under any federal or state law before the shares may be issued upon
conversion, the Corporation shall in good faith and as expeditiously as possible
endeavor to cause the shares to be so registered or approved. All shares of
Common Stock delivered upon conversion of the shares of the Series will, upon
delivery, be duly authorized and validly issued, fully paid and nonassessable,
free from all taxes, liens and charges with respect to the issue thereof.
(g) The Conversion Price shall be subject to adjustment from time to
time as follows:
(i) In the event that the Corporation shall (A) pay a dividend or
make a distribution on its Common Stock in shares of its Common Stock,
(B) split or subdivide its outstanding Common Stock into a greater
number of shares, (C) combine its outstanding Common Stock into a
smaller number of shares, or (D) issue any shares of Capital Stock by
reclassification of its Common Stock, the Conversion Price in effect
immediately prior thereto shall be adjusted so that the holder of each
share of the Series thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock or other
securities of the Corporation that such holder would have owned or have
been entitled to receive after the occurrence of any of the events
described above had such share
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of the Series been converted immediately prior to the occurrence of
such event. An adjustment made pursuant to this paragraph 7(g)(i) shall
become effective immediately after the close of business on the record
date in the case of a dividend or distribution (except as provided in
paragraph 7(k) below) and shall become effective immediately after the
close of business on the effective date in the case of a subdivision,
split, combination or reclassification. Any shares of Common Stock
issuable in payment of a dividend shall be deemed to have been issued
immediately prior to the close of business on the record date for such
dividend for purposes of calculating the number of outstanding shares
of Common Stock under clauses (ii) and (iii) below.
(ii) In the event that the Corporation shall commit to issue or
distribute Capital Stock or issue rights, warrants or options entitling
the holder thereof to subscribe for or purchase Capital Stock at a
price per share less than the Current Market Price per share on the
earliest of (i) the date the Corporation shall enter into a firm
contract for such issuance or distribution, (ii) the record date for
the determination of stockholders entitled to receive any such rights,
warrants or options, if applicable, or (iii) the date of actual
issuance or distribution of any such Capital Stock or rights, warrants
or options, (provided that the issuance of Capital Stock upon the
exercise of warrants or options will not cause an adjustment in the
Conversion Price if no such adjustment would have been required at the
time such warrant or option was issued), then the Conversion Price in
effect immediately prior to such earliest date shall be adjusted so
that the Conversion Price shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to such
earliest date by:
(x) if such Capital Stock is Common Stock, the fraction whose
numerator shall be the number of shares of Common Stock outstanding
on such date plus the number of shares which the aggregate offering
price of the total number of shares so offered would purchase at
such Current Market Price (such amount, with respect to any such
rights, warrants or options, determined by multiplying the total
number of shares subject thereto by the exercise price of such
rights, warrants or options and dividing the product so obtained by
the Current Market Price), and of which the denominator shall be
the number of shares of Common Stock outstanding on such date plus
the number of additional shares of Common Stock to be issued or
distributed or receivable upon exercise of any such warrant, right
or option; or
(y) if such Capital Stock is other than Common Stock, the
fraction whose numerator shall be the Current Market Price per
share of Common Stock on such date minus an amount equal to (A) the
sum of (I) the Current Market Price per share of such class of
Capital Stock multiplied by the number of shares of such class of
Capital Stock to be so issued minus (II) the offering price per
share of such Capital Stock multiplied by the number of shares of
such class of Capital Stock to be so
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<PAGE> 12
issued (B) divided by the number of shares of Common Stock
outstanding on such date and whose denominator is the Current
Market Price of the Common Stock on such date.
Such adjustment shall be made successively whenever any such Capital Stock,
rights. warrants or options are issued or distributed at a price below the
Current Market Price therefor as in effect on the date of issuance or
distribution. In determining whether any rights, warrants or options entitle the
holders to subscribe for or purchase shares of Capital Stock at less than such
Current Market Price, and in determining the aggregate offering price of shares
of Capital Stock so issued or distributed, there shall be taken into account any
consideration received by the Corporation for such Capital Stock, rights,
warrants or options, the value of such consideration, if other than cash, to be
determined by the Board of Directors, whose determination shall be conclusive
and described in a certificate filed with the Trustee. If any right, warrant or
option to purchase Capital Stock, the issuance of which resulted in an
adjustment in the Conversion Price pursuant to this subsection (b), shall expire
and shall not have been exercised, the Conversion Price shall immediately upon
such expiration be recomputed to the Conversion Price which would have been in
effect had the adjustment of the Conversion Price made upon the issuance of such
right, warrant or option been made on the basis of offering for subscription or
purchase only that number of shares of Capital Stock actually purchased upon the
actual exercise of such right, warrant or option.
(iii) In the event that the Corporation shall pay as a dividend or
other distribution to holders of any class of its Capital Stock
generally or to holders of any class of Capital Stock of any Subsidiary
which is not wholly owned by the Corporation evidences of indebtedness
or assets (including, without limitation, shares of Capital Stock, cash
or other securities, but excluding dividends, rights, warrants, options
and distributions for which adjustment is made as described in
subsections (i) and (ii) above), 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 per share of 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 and described in a certificate filed
with the Trustee) of the portion of the Capital Stock or assets or
evidences of indebtedness so distributed or of such rights or warrants
attributable to one share of Common Stock (the amount so attributable
equaling the aggregate fair market value of such indebtedness or
assets, as so determined by the Board of Directors, divided by the
number of shares of Common Stock outstanding on such record date), and
the denominator shall be the Current Market Price of the Common Stock
on such record date. Such adjustment shall become effective immediately
after the record date for the determination of stockholders entitled to
receive such distribution, except as provided in paragraph 7(k) below.
(iv) No adjustment in the Conversion Price shall be required unless
the adjustment would require an increase or decrease of at least 1% in
the
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<PAGE> 13
Conversion Price then in effect; provided, however, that any
adjustments that by reason of this paragraph 7(g)(iv) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this paragraph 7(g)(iv)
shall be made to the nearest cent or nearest 1/100th of a share.
(v) Notwithstanding anything to the contrary set forth in this
paragraph 7(g), no adjustment shall be made to the Conversion Price
upon (A) the issuance of shares of Common Stock pursuant to any
compensation or incentive plan for officers, directors, employees or
consultants of the Corporation which plan has been approved by the
Compensation Committee of the Board of Directors (or if there is no
such committee then serving, by the majority vote of the Directors then
serving who are not employees or officers of the Corporation, a 5% or
greater stockholder of the Corporation or an officer, employee or
Affiliate or Associate (as defined in paragraph 12) of any such 5% or
greater stockholder) and, if required by law, the requisite vote of the
stockholders of the Corporation (unless the exercise price thereof is
changed after the date hereof other than solely by operation of the
anti-dilution provisions thereof or by the Compensation Committee of
the Board of Directors or, if applicable, the Board of Directors and,
if required by law, the stockholders of the Corporation as provided in
this clause (A)) or (B) the issuance of Common Stock upon the
conversion or exercise of the Existing Preferred Shares or warrants of
the Corporation outstanding on October 31, 1995 or the Series C or the
Series, unless the conversion or exercise price thereof is changed
after October 31, 1995 (other than solely by operation of the
anti-dilution provisions thereof) or (C) the declaration, setting aside
or payment of dividends for payment to the Shares, any Parity Dividend
Shares or Senior Dividend Shares in accordance with paragraph 3 or (D)
after giving effect to the payment or setting aside of any dividends
previously or concurrently declared with respect to the Shares, any
Parity Dividend Shares or Senior Dividend Shares, the declaration,
setting aside or payment of dividends solely out of the retained
earnings of the Corporation.
(vi) The Corporation from time to time may reduce the Conversion
Price by any amount for any period of time in the discretion of the
Board of Directors. A voluntary reduction of the Conversion Price does
not change or adjust the conversion price otherwise in effect for
purposes of this paragraph 7(g).
(vii) In the event that, at any time as a result of an adjustment
made pursuant to paragraph 7(g)(i) through 7(g)(iii) above, the holder
of any share of the Series thereafter surrendered for conversion shall
become entitled to receive any shares of the Corporation other than
Shares of the Common Stock, thereafter the number of such other shares
so receivable upon conversion of any share of the Series 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 the
Common Stock contained in paragraphs 7(g)(i) through 7(g)(v) above, and
the
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<PAGE> 14
other provisions of this paragraph 7(g)(vii) with respect to the Common
Stock shall apply on like terms to any such other shares.
(h) In case of any reclassification of the Common Stock (other than in
a transaction to which paragraph 7(g)(i) applies), any consolidation of the
Corporation with, or merger of the Corporation into, any other entity, any
merger of another entity into the Corporation (other than a merger that does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Corporation), any sale or transfer of
all or substantially all of the assets of the Corporation or any compulsory
share exchange, pursuant to which share exchange the Common Stock is converted
into other securities, cash or other property, then lawful provision shall be
made as part of the terms of such transaction whereby the holder of each share
of the Series then outstanding shall have the right thereafter, during the
period such share shall be convertible, to convert such share only into the kind
and amount of securities, cash and other property receivable upon the
reclassification, consolidation, merger, sale, transfer or share exchange by a
holder of the number of shares of Common Stock of the Corporation into which a
share of the Series might have been converted immediately prior to the
reclassification, consolidation, merger, sale, transfer or share exchange. As a
condition to any such transaction, the Corporation, the person formed by the
consolidation or resulting from the merger or which acquires such assets or
which acquires the Corporation's shares, as the case may be, shall make
provisions in its certificate or articles of incorporation or other constituent
document to establish such right. The certificate or articles of incorporation
or other constituent document shall provide for adjustments which, for events
subsequent to the effective date of the certificate or articles of incorporation
or other constituent document, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this paragraph 7. The provisions
of this paragraph 7(h) shall similarly apply to successive reclassifications,
consolidations, mergers, sales, transfers or share exchanges.
(i) If:
(i) the Corporation shall take any action which would require an
adjustment in the Conversion Price pursuant to paragraph 7(g); or
(ii) the Corporation shall authorize the granting to the holders of
its Common Stock generally of rights or warrants to subscribe for or
purchase any shares of any class or any other rights or warrants; or
(iii) there shall be any reclassification or change of the Common
Stock (other than a subdivision or combination of its outstanding
Common Stock or a change in par value) or any consolidation, merger or
statutory share exchange to which the Corporation is a party and for
which approval of any stockholders of the Corporation is required, or
the sale or transfer of all or substantially all of the assets of the
Corporation; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, except as provided otherwise in paragraph 11, the Corporation shall cause
to be filed with the transfer agent for the Series and shall cause to be mailed
to the holders of shares of the Series
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<PAGE> 15
at their addresses as shown on the books of the transfer agent for the Series,
as promptly as possible, but at least 30 days prior to the applicable date
hereinafter specified, a notice stating (A) the date on which a record is to be
taken for the purpose of such dividend, distribution or granting of rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend, distribution or
rights or warrants are to be determined or (B) the date on which such
reclassification, consolidation, merger, statutory share exchange, sale,
transfer, dissolution, liquidation or winding up is expected to become effective
or occur, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reclassification, change,
consolidation, merger, statutory share exchange, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice or any defect therein
shall not affect the legality or validity of the proceedings in this paragraph
7(i).
(j) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the transfer agent for the Series a
certificate of an officer of the Corporation setting forth the Conversion Price
after the adjustment and setting forth a brief statement of the facts requiring
such adjustment and a computation thereof. The Corporation shall promptly cause
a notice of the adjusted Conversion Price to be mailed to each registered holder
of shares of the Series.
(k) In any case in which paragraph 7(g) provides that an adjustment
shall become effective immediately after a record date for an event and the date
fixed for such adjustment pursuant to paragraph 7(g) occurs after such record
date but before the occurrence of such event, the Corporation may defer until
the actual occurrence of such event (i) issuing to the holder of any shares of
the Series converted after such record date and before the occurrence of such
event the additional shares of Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the Common Stock
issuable upon such conversion before giving effect to such adjustment and (ii)
paying to such holder any amount in cash in lieu of any fraction pursuant to
paragraph 7(d).
(l) In case the Corporation shall take any action affecting the Common
Stock, other than actions described in this paragraph 7, which in the opinion of
the Board of Directors would materially adversely affect the conversion right of
the holders of the shares of the Series, the Conversion Price may be adjusted,
to the extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors may determine to be equitable in the circumstances; provided,
however, that in no event shall the Board of Directors be required to take any
such action.
(m) The Corporation will endeavor to list the shares of Common Stock
required to be delivered upon conversion of shares of the Series, prior to
delivery, upon each national securities exchange, the Nasdaq National Market or
any similar system of automated dissemination of securities prices, if any, upon
which the Common Stock is listed at the time of delivery.
8. STATUS OF SHARES. All shares of the Series that are at any time
redeemed pursuant to paragraphs 5 or 6 above or converted pursuant to paragraph
7 above or paragraph 11
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<PAGE> 16
below, and all shares of the Series that are otherwise reacquired by the
Corporation and subsequently canceled by the Board of Directors, shall have the
status of authorized but unissued shares of preferred stock, without designation
as to series, subject to reissuance by the Board of Directors as shares of any
one or more other series.
9. VOTING RIGHTS.
(a) GENERAL. Except as set forth below or otherwise required by law,
holders of shares of the Series shall vote together with the holders of the
Common Stock (and together with any other class of capital stock of the
Corporation which is stated to vote with the holders of Common Stock as a class)
with respect to all matters submitted to the stockholders of the Corporation for
vote or consent. In connection with any right to vote or give consent, each
holder of shares of the Series will have one vote for each share held; provided,
however, any shares of the Series held by the Corporation or any entity
controlled by the Corporation shall not have voting rights hereunder and shall
not be counted in determining the presence of a quorum.
(b) DIVIDEND DEFAULTS.
(i) If and whenever accrued dividends on the shares of the Series
shall not have been paid in an aggregate amount equal to or greater
than the equivalency of six quarterly dividends (whether or not
consecutive) on shares of the Series, or if any class of Parity
Dividend Shares or Senior Dividend Shares (together with the Series,
but excluding the Existing Preferred Shares, the "Preferred Class")
shall become entitled to elect directors to the Corporation's Board of
Directors based upon actual missed and unpaid dividends, then upon such
event, without the requirement of any additional action by the Board of
Directors or stockholders of the Corporation, the number of directors
constituting the Board of Directors of the Corporation shall
automatically be increased by the number of directorships equal to
one-half of the number of directorships constituting the whole Board of
Directors of the Corporation immediately prior to such event (rounded
upwards in the event of a fraction), but by not less than three, and
the holders of shares of the Preferred Class, voting together as a
single class, shall be entitled to elect the directors to fill the
resulting vacancies on the Board of Directors; provided, however, that
there shall be counted as directors elected by the Preferred Class up
to two directors elected by the Existing Preferred Shares pursuant to
the terms of the Certificates of Designations related thereto. At
elections for such directors, each holder of shares of the Preferred
Class shall be entitled to one vote for each share of the Preferred
Class held. Such right to vote as a single class to elect directors
shall, when vested, continue until all dividends in default on the
shares of the Preferred Class shall have been paid in full and, when so
paid, such right to elect directors separately as a class shall cease,
subject to the same provisions for the vesting of such right to elect
directors separately as a class in the case of future dividend
defaults. If at any time after the election of directors by the
Preferred Class, the holders of Existing Preferred Shares exercise
their right to elect up to two directors, a special
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<PAGE> 17
meeting shall be held to vote upon the persons who shall be the
remaining directors elected by the Preferred Class.
(ii) Whenever such voting right shall have vested, such right may
be exercised initially either, at a special meeting of the holders of
shares of the Preferred Class called as hereinafter provided or at any
annual meeting of stockholders held for the purpose of electing
directors, and thereafter at such meetings or by the written consent of
such holders pursuant to Section 228 of the GCL.
(iii) At any time when the voting right grained by this paragraph
9(b) shall have vested in the holders of shares of the Preferred Class
entitled to vote thereon, and if such right shall not already have been
initially exercised, an officer of the Corporation shall, upon written
request of holders of record of 10% in the aggregate, of shares of any
series of preferred stock of the Corporation then outstanding,
addressed to the Chief Financial Officer of the Corporation, call a
special meeting of holders of shares of the Preferred Class. Such
meeting shall be held at the earliest practicable date upon the notice
required for annual meetings of stockholders at the place for holding
annual meetings of stockholders of the Corporation or, if none, at a
place designated by the Chief Financial Officer of the Corporation. If
such meeting shall not be called by the proper officers of the
Corporation within 30 days after such written request is mailed to the
Chief Financial Officer of the Corporation, by registered mail,
addressed to the Chief Financial Officer of the Corporation at its
principal office (such mailing to be evidenced by the registry receipt
issued by the postal authorities), then the holders of record of 10% of
the shares of the Preferred Class then outstanding may designate in
writing any person to call such meeting at the expense of the
Corporation, and such meeting may be called by such person so
designated upon the notice required for annual meetings of stockholders
and shall be held at the same place as is elsewhere provided in this
paragraph 9(b)(iii). Any holder of shares of the Preferred Class then
outstanding that would entitled to vote at such meeting shall have
access to the stock record books of the Corporation for the purpose of
causing a meeting of stockholders to be called pursuant to the
provisions of this paragraph 9(b)(iii). Notwithstanding the provisions
of this paragraph, however, no such special meeting shall be called or
held during a period within 30 days immediately preceding the date
fixed for the next annual meeting of stockholders.
(iv) The directors elected pursuant to this paragraph 9(b) shall
serve until the next annual meeting or until their respective
successors shall be elected and shall qualify. Any director elected by
the holders of shares of the Preferred Class may be removed by, and
shall not be removed otherwise than by, the vote of the holders of a
majority of the outstanding shares of the Preferred Class who were
entitled to participate is such election of directors, voting as a
special class, at a meeting called for such purpose or by a written
consent as permitted by law and the Certificate of Incorporation and
By-laws of the Corporation. If the office of any director elected by
the holders of the shares of the Preferred Class, voting
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<PAGE> 18
as a class, becomes vacant by reason of death, resignation, retirement,
disqualification or removal from office or otherwise, the remaining
director elected by the holders of shares of the Preferred Class,
voting as a class, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred. Upon any
termination of the right of right of the holders of the Preferred Stock
to vote for directors as herein provided, the term of office of all
directors then in office elected by holders of the Preferred Class,
voting as a class, shall terminate immediately. Whenever the terms of
office of the directors elected by the holders of powers vested in the
holders of the Preferred Class shall have expired, the number of
directors shall be such number as may be provided for pursuant to the
By-laws of the Corporation irrespective of any increase made pursuant
to the provisions of this paragraph 9(b).
(v) So long as any shares of the Series are outstanding, the
By-laws shall contain no provisions that would restrict the exercise,
by the holders of shares of the Preferred Class or the Existing
Preferred Shares, of the right to elect directors under the
circumstances provided in paragraph 9(b)(i) above.
(c) So long as any shares of the Series remain outstanding, the consent
of the holders of at least a majority of the shares of the Series outstanding at
the time, given in person or by proxy either in writing (as permitted by law and
the Certificate of Incorporation and By-laws of the Corporation) or at any
special or annual meeting, shall be necessary to permit, effect or validate any
one or more of the following:
(i) the authorization, creation or issuance, or any increase in the
authorized or issued amount of any class or series of stock, or any
security convertible into stock of such class of series, ranking prior
to the Series as to dividends or the distribution of assets upon
liquidation, dissolution or winding up, other than preferred stock
which is not convertible into or exchangeable for any other securities
of the Corporation;
(ii) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the Certificate
of Incorporation (including this Certificate) or the By-laws of the
Corporation which would adversely affect any right, preference,
privilege or voting power of the Series or of the holders thereof;
provided, however, that any action permitted under the preceding clause
(i) with respect to Preferred Stock which is not convertible into or
exchangeable for any other securities of the Corporation shall not be
deemed to adversely affect such rights, preferences, privileges or
voting powers; or
(iii) the authorization of any reclassification of the shares of
the Series; or
(iv) make any change in the Indenture in a manner that adversely
affects or would adversely affect the rights of the holders of Notes
issued thereunder.
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<PAGE> 19
10. MANDATORY REDEMPTION. The shares of the Series are not subject to
mandatory redemption or sinking fund requirements.
11. SPECIAL CONVERSION RIGHTS OF HOLDERS UPON CERTAIN EVENTS FOLLOWING
A FUNDAMENTAL CHANGE OR A CHANGE OF CONTROL OF THE CORPORATION.
(a) CHANGE OF CONTROL. If a Change of Control (as defined is paragraph
11(e) below) with respect to the Corporation shall occur, and if at the time of
such occurrence the Current Market Price of the Common Stock is less than the
Conversion Price in effect at the time of such occurrence, then each holder of
shares of the Series shall have the right, at the holder's option, for a period
of 45 days after the mailing of a notice by the Corporation that a Change of
Control has occurred, to convert all, but not less than all, of such holder's
shares of the Series into Common Stock at an adjusted Conversion Price per share
equal to the Special Conversion Price. The Corporation may, at its option, in
lieu of providing Common Stock upon any such special conversion, provide the
holders who have elected to convert their shares under this paragraph 11(a) with
cash equal to the Market Value (as defined in paragraph 11(e) below) of the
Common Stock multiplied by the number of shares of Common Stock into which
shares of the Series would have been convertible immediately prior to the Change
of Control at an adjusted conversion price equal to the Special Conversion
Price, but only if the Corporation, in its notice to holders that a Change of
Control has occurred, has notified the holders of the Corporation's election to
provide such holder with cash in lieu of such Common Stock; provided, however,
that any such election by the Corporation shall apply to all shares of the
Series for which the special conversion was elected by the holders thereof.
Shares of the Series that becomes convertible pursuant to a special conversion
right shall, unless so converted, remain convertible in accordance with
paragraph 7 into the number of shares of Common Stock that the holders of the
shares would have owned immediately after the Change of Control if the holders
had converted the shares immediately before the effective date of the Change of
Control.
(b) FUNDAMENTAL CHANGE. If a Fundamental Change (as defined in
paragraph 11(e) below) with respect to the Corporation shall occur, and if at
the time of such occurrence the Current Market Price of the Common Stock is less
than the Conversion Price in effect at the time of such occurrence, then each
holder of shares of the Series shall have a special conversion right, at the
holder's option, for a period of 45 days after the mailing of a notice by the
Corporation that a Fundamental Change has occurred, to convert all, but not less
than all, of the holder's shares into the kind and amount of cash, securities,
property or other assets receivable upon the Fundamental Change by a holder of
the number of shares of Common Stock into which such shares of the Series would
have been convertible immediately prior to the Fundamental Change at an adjusted
Conversion Price equal to the Special Conversion Price. The Corporation or a
successor corporation, as the case may be, may, at its option and in lieu of
providing the consideration as required above upon such conversion, provide the
holders who have elected to convert their shares under this paragraph 11(b) with
cash equal to the Market Value of the Common Stock multiplied by the number of
shares of Common Stock into which such shares of the Series would have been
convertible immediately prior to the Fundamental Change at an adjusted
Conversion Price equal to the Special Conversion Price but only if the
Corporation, in its notice to holders that a Change of Control has occurred, has
notified the holders of the Corporation's election to provide such holder with
cash in lieu of such Common Stock; provided,
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<PAGE> 20
however, that any such election by the Corporation shall apply to all shares of
the Series for which the special conversion was elected by the holders thereof.
Shares of the Series that becomes convertible pursuant to a special conversion
right shall, unless so converted, remain convertible in accordance with
paragraph 7 into the kind and amount of cash, securities, property or other
assets that the holders of the shares would have owned immediately after the
Fundamental Change if the holders had converted the shares immediately before
the effective date of the Fundamental Change.
(c) NOTICE. Within 30 days after the occurrence of a Change in Control
or Fundamental Change, the Corporation shall mail to each registered holder of
shares of the Series a notice of the occurrence (the "Special Conversion
Notice") setting forth the following:
(i) the event constituting the Change of Control or Fundamental
Change and that such event entitles the holders of shares of the Series
to the special conversion right;
(ii) the Special Conversion Price;
(iii) the Conversion Price then in effect under paragraph 7 and the
continuing conversion rights, if any, thereunder;
(iv) the name and address of the paying agent and conversion agent;
(v) that the holders who elect to convert shares of the Series must
satisfy the requirements of paragraph 11(d) and must exercise their
conversion right within the 45 day period after the mailing of the
Special Conversion Notice by the Corporation;
(vi) the conversion date upon exercise of the applicable special
conversion right;
(vii) the exercise of such conversion right shall be irrevocable
and no dividends on shares of the Series (or portions thereof) tendered
for conversion shall accrue from and after the conversion date; and
(viii) whether the Corporation (or a successor corporation, if
applicable) has exercised its option to pay cash (specifying the amount
thereof per share) for all shares of the Series tendered for
conversion.
The Special Conversion Notice shall be given by first class mail, postage
prepaid, to the holders of record of the shares of the Series at their
respective addresses as the same shall appear on the books of the transfer agent
for the Series. No failure of the Corporation to give the foregoing notice shall
limit any holder's right to exercise the special conversion right hereunder.
(d) EXERCISE PROCEDURES. A holder of shares of the Series must exercise
a special conversion right within the 45 day period after the mailing of the
Special Conversion Notice. Such right must be exercised in accordance with
paragraph 7(b) to the extent the
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<PAGE> 21
procedures therein are consistent with the provisions of this paragraph 11.
Exercise of such conversion right shall be irrevocable, to the extent permitted
by applicable law, and dividends on shares of the Series tendered for conversion
shall cease to accrue from and after the conversion date. The conversion date
with respect to the exercise of a special conversion right arising upon a Change
of Control or Fundamental Change shall be the 45th day after the mailing of the
Special Conversion Notice. In taking any action in connection with any Change of
Control or Fundamental Change or related special conversion right, the
Corporation will comply with all applicable federal securities laws and
regulations.
(e) DEFINITIONS. The following definitions shall apply to terms used in
this paragraph 11:
(i) a "Change of Control" with respect to the Corporation shall be
deemed to have occurred at such time as any person (within the meaning
of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including a group (within the meaning of
Rule 13d-5 under the Exchange Act), together with any of its Affiliates
or Associates (as defined in paragraph 12), is or becomes the direct or
indirect beneficial owner (as defined below) of shares of capital stock
of the Corporation entitled to vote in the election of directors of the
Corporation under ordinary circumstances or to elect a majority of the
Board of Directors of the Company. Notwithstanding the foregoing, a
Change of Control will be deemed not to have occurred if (A) 85% or
more of the consideration receivable by holders of shares of the Series
upon conversion thereof immediately after such occurrence consists of
Marketable Stock or (B) immediately after such occurrence (I) the
Current Market Price of the shares of the Series or (II) the sum of the
Current Market Price of any such Marketable Stock receivable upon
conversion of shares of the Series plus any cash receivable upon such
conversion has a value on each of the five trading days immediately
after such Change of Control equal to or in excess of 105% of the
Liquidation Amount. Notwithstanding the foregoing, a Change of Control
will not be deemed to have occurred with respect to any transaction
that constitutes a Fundamental Change.
For purposes of the foregoing definition, a person shall be deemed to have
"beneficial ownership" with respect to, and shall be deemed to "beneficially
own," any securities of the Corporation in accordance with Section 13 of the
Exchange Act and the ru1es and regulations (including Rule 13d-3, Rule 13d-5 and
any successor rules) promulgated by the Securities and Exchange Commission
thereunder.
(ii) a "Fundamental Change " with respect to the Corporation means
(A) the occurrence of any transaction or series of related transactions
or event in connection with which a majority of the outstanding Common
Stock of the Corporation or shares of the Series shall be exchanged
for, converted into, acquired for or converted solely into the right to
receive cash, securities, property, or other assets (whether by means
of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) or (B)
the conveyance, sale, lease, assignment, transfer or other
21
<PAGE> 22
disposal of a majority of the Corporation's property, business or
assets; provided, however, a Fundamental Change will not include any
transaction or series of related transactions or events in which (x)
85% or more of the consideration (I) received by the holders of the
shares of the Series directly for their shares or (II) receivable upon
conversion of their shares immediately after such transaction (if their
shares are not exchanged in connection with such Fundamental Change) or
upon the conversion or exchange immediately after such transaction of
any convertible or exchangeable securities received directly for their
shares (if their shares are exchanged in connection with such
Fundamental Change) consists of Marketable Stock or (B) immediately
after the consummation of such transaction (I) the Current Market Price
of the shares of the Series (if such shares are not exchanged in
connection with such Fundamental Change), (II) the sum of the Current
Market Price of any securities for which such shares are exchanged plus
any cash received in connection with such exchange or (III) the sum of
the Current Market Price of any securities into which such shares or
securities identified in the preceding clauses (i) and (ii) may be
converted into or exchanged for plus any cash received in connection
with such conversion or exchange has a value on each of the five
consecutive trading days preceding such transaction equal to or in
excess of 105% of the Liquidation Amount.
(iii) the "Special Conversion Price" shall mean the higher of the
Market Value of the Common Stock or $5.21 per share; provided, however,
that each time the then prevailing Conversion Price shall be adjusted
as provided elsewhere herein, such dollar amount shall likewise be
adjusted so that the ratio of such dollar amount to the then prevailing
Conversion Price, after giving effect to any such adjustment, shall
always be the same as the ratio of $5.21 to the initial Conversion
Price (without giving effect to any adjustment).
(iv) the "Market Value" of the Common Stock or any other Marketable
Stock shall be the average of the last reported sales price of the
Common Stock or such other Marketable Stock, as the case may be, for
the five business days ending on the last business day preceding the
date of the Change of Control or Fundamental Change; provided, however,
that if the Marketable Stock is not traded on any national securities
exchange or similar quotation system as described in the definition of
"Marketable Stock" during such period, then the Market Value of such
Marketable Stock shall be the average of the last reported sales price
per share of such Marketable Stock during the first five business days
commencing with the first day after the date on which such Marketable
Stock was first distributed to the general public and traded on the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National
Market or any similar system of automated dissemination of quotations
of securities prices in the United States; and
(v) "Marketable Stock" shall mean Common Stock or common stock of
any corporation that is the successor to all or substantially all of
the business or assets of the Corporation as a result of a Fundamental
Change (or of the ultimate parent of such successor), which is (or
will, upon distribution thereof,
22
<PAGE> 23
be) listed or quoted on the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market or any similar system of automated
dissemination of quotation securities prices in the United States.
12. CERTAIN DEFINITIONS. As used in this Certificate, the following
terms shall have the following respective meanings:
"Additional Shares" shall have the meaning set forth in subsection
3(a).
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under common control with such
specified person. For purposes of this definition, "Control" when used with
respect to any person means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of voting
securities or otherwise; and the term "controlling" and "controlled" having
meanings correlative to the foregoing.
An "Associate" of a person means (A) any corporation or organization,
other than the Corporation or any subsidiary of the Corporation, of which the
person is an officer or partner or is, directly or indirectly, the beneficial
owner of 10% or more of any class of equity securities; (B) any trust or estate
in which the person has a substantial beneficial interest or as to which the
person serves as trustee or in a similar fiduciary capacity; and (C) any
relative or spouse of the person, or any relative of the spouse, who has the
same home as the person or who is a director or officer of the person or any of
its parents or subsidiaries.
"Common Shares" shall mean any stock of the Corporation which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation and which is not subject to redemption by the Corporation. However,
Common Shares issuable upon conversion of shares of this series shall include
only shares of the class designated as Common Shares as of the original date of
issuance of shares of the Series, or shares of the Corporation of any class or
classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding-up of
the Corporation and which are not subject to redemption by the Corporation;
provided that if at any time there shall be more than one such resulting class,
the shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from such
reclassifications bears to the total number of shares of all classes resulting
from all such reclassifications. Unless the context otherwise specifies or
requires, all references in this certificate to "Common Shares" include the
Common Stock.
"Current Market Price " means, when used with respect to any security
as of any date, the last sale price, regular way, or, in case no such sale takes
place on such date, the average of the closing bid and asked prices, regular
way, in either case as reported for consolidated transactions on the New York
Stock Exchange or, if the security is not listed or admitted to trading on the
New York Stock Exchange, as reported for consolidated transactions with respect
to securities listed on the principal national securities exchange on which such
security is listed or admitted to trading or, if the security is not listed or
admitted to trading on any national securities exchange,
23
<PAGE> 24
the last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System or such
other system then in use or, if the security is not quoted by any such
organization, the average of the closing bid and asked prices furnished by a New
York Stock Exchange member firm selected by the Company.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
duly executed on its behalf by its undersigned President and attested to by its
Secretary this ____ day of October, 2000.
Corporate Seal
-------------------------------------
John H. Pinkerton
President and Chief Executive Officer
ATTEST:
-----------------------------
Rodney Waller, Secretary
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EXHIBIT A
RANGE RESOURCES CORPORATION
COMPANY
AND
COMPUTERSHARE INVESTOR SERVICES, L.L.C.
TRUSTEE
INDENTURE
DATED AS OF ___________________
$______________
8.125% Subordinated Convertible Notes Due 2005
<PAGE> 26
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE..................................................1
SECTION 1.1 DEFINITIONS.................................................................................1
SECTION 1.2 OTHER DEFINITIONS...........................................................................7
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT...........................................7
SECTION 1.4 RULES OF CONSTRUCTION.......................................................................8
ARTICLE 2 THE DEBENTURES..............................................................................8
SECTION 2.1 FORM AND DATING.............................................................................8
SECTION 2.2 EXECUTION AND AUTHENTICATION...............................................................10
SECTION 2.3 REGISTRAR AND PAYING AGENT.................................................................10
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST........................................................11
SECTION 2.5 HOLDER LISTS...............................................................................11
SECTION 2.6 TRANSFER AND EXCHANGE......................................................................11
SECTION 2.7 REPLACEMENT NOTES..........................................................................17
SECTION 2.8 OUTSTANDING NOTES..........................................................................18
SECTION 2.9 TREASURY NOTES.............................................................................18
SECTION 2.10 TEMPORARY SECURITIES.......................................................................18
SECTION 2.11 CANCELLATION...............................................................................19
SECTION 2.12 DEFAULTED INTEREST.........................................................................20
SECTION 2.13 DEPOSIT OF MONEYS..........................................................................20
ARTICLE 3 REDEMPTION.................................................................................20
SECTION 3.1 NOTICES TO TRUSTEE.........................................................................20
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED..........................................................21
SECTION 3.3 NOTICE OF REDEMPTION.......................................................................21
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.............................................................22
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE................................................................22
SECTION 3.6 NOTES REDEEMED IN PART.....................................................................22
ARTICLE 4 COVENANTS..................................................................................22
SECTION 4.1 PAYMENT OF NOTES...........................................................................22
SECTION 4.2 STAY EXTENSION AND USURY LAWS..............................................................23
SECTION 4.3 CONTINUED EXISTENCE........................................................................23
SECTION 4.4 SEC REPORTS................................................................................23
SECTION 4.5 LIMITATION ON RESTRICTED PAYMENTS..........................................................24
SECTION 4.6 TAXES......................................................................................24
SECTION 4.7 CHANGE OF CONTROL..........................................................................24
SECTION 4.8 LIMITATION ON STOCK SPLITS, CONSOLIDATIONS AND RECLASSIFICATIONS..........................26
SECTION 4.9 LIMITATION ON DIVIDEND RESTRICTIONS AFFECTING SUBSIDIARIES.................................26
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 4.10 LIMITATION ON ADDITIONAL DEBT AFTER DEFAULT................................................27
SECTION 4.11 COMPLIANCE CERTIFICATE.....................................................................27
SECTION 4.12 FURTHER ASSURANCE TO THE TRUSTEE...........................................................28
ARTICLE 5 SUCCESSORS.................................................................................28
SECTION 5.1 WHEN COMPANY MAY MERGE OR SELL ASSETS......................................................28
SECTION 5.2 SUCCESSOR SUBSTITUTED......................................................................28
ARTICLE 6 DEFAULTS AND REMEDIES......................................................................29
SECTION 6.1 EVENTS OF DEFAULT..........................................................................29
SECTION 6.2 ACCELERATION...............................................................................30
SECTION 6.3 OTHER REMEDIES.............................................................................31
SECTION 6.4 WAIVER OF EXISTING AND PAST DEFAULTS.......................................................31
SECTION 6.5 CONTROL BY MAJORITY........................................................................31
SECTION 6.6 LIMITATION ON SUITS........................................................................31
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.......................................................32
SECTION 6.8 COLLECTION SUIT BY TRUSTEE.................................................................32
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM...........................................................32
SECTION 6.10 PRIORITIES.................................................................................32
SECTION 6.11 UNDERTAKING FOR COSTS......................................................................33
ARTICLE 7 TRUSTEE....................................................................................33
SECTION 7.1 DUTIES OF TRUSTEE..........................................................................33
SECTION 7.2 RIGHTS OF TRUSTEE..........................................................................34
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE...............................................................35
SECTION 7.4 TRUSTEE'S DISCLAIMER.......................................................................35
SECTION 7.5 NOTICE OF DEFAULTS.........................................................................35
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS..............................................................35
SECTION 7.7 COMPENSATION AND INDEMNITY.................................................................35
SECTION 7.8 REPLACEMENT OF TRUSTEE.....................................................................36
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC...........................................................37
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION..............................................................37
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..........................................38
ARTICLE 8 DISCHARGE OF INDENTURE.....................................................................38
SECTION 8.1 TERMINATION OF COMPANY'S OBLIGATIONS.......................................................38
SECTION 8.2 APPLICATION OF TRUST MONEY.................................................................39
SECTION 8.3 REPAYMENT TO COMPANY.......................................................................39
SECTION 8.4 REINSTATEMENT..............................................................................40
ARTICLE 9 AMENDMENTS.................................................................................40
SECTION 9.1 WITHOUT CONSENT OF HOLDERS.................................................................40
SECTION 9.2 WITH CONSENT OF HOLDERS....................................................................40
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT........................................................42
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS..........................................................42
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES...........................................................42
SECTION 9.6 TRUSTEE PROTECTED..........................................................................42
ARTICLE 10 CONVERSION.................................................................................43
SECTION 10.1 CONVERSION PRIVILEGE.......................................................................43
SECTION 10.2 CONVERSION PROCEDURE.......................................................................43
SECTION 10.3 CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES.................................................44
SECTION 10.4 ADJUSTMENT OF CONVERSION PRICE.............................................................44
SECTION 10.5 EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE..................................47
SECTION 10.6 TAXES ON SHARES ISSUED.....................................................................48
SECTION 10.7 RESERVATION OF SHARES; SHARES TO BE FULLY PAID; COMPLIANCE WITH GOVERNMENT REQUIREMENTS;
LISTING OF COMMON STOCK....................................................................48
SECTION 10.8 RESPONSIBILITY OF TRUSTEE REQUIREMENTS.....................................................49
SECTION 10.9 NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS.................................................49
ARTICLE 11 SUBORDINATION..............................................................................50
SECTION 11.1 AGREEMENT TO SUBORDINATE...................................................................50
SECTION 11.2 LIQUIDATION; DISSOLUTION; BANKRUPTCY.......................................................50
SECTION 11.3 COMPANY NOT TO MAKE PAYMENT WITH RESPECT TO NOTES IN CERTAIN CIRCUMSTANCES.................51
SECTION 11.4 ACCELERATION OF NOTES......................................................................51
SECTION 11.5 WHEN DISTRIBUTION MUST BE PAID OVER........................................................51
SECTION 11.6 NOTICE BY COMPANY..........................................................................51
SECTION 11.7 SUBROGATION................................................................................52
SECTION 11.8 RELATIVE RIGHTS............................................................................52
SECTION 11.9 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY...............................................52
SECTION 11.10 DISTRIBUTION OF NOTICE TO REPRESENTATIVE...................................................52
SECTION 11.11 RIGHTS OF TRUSTEE AND PAYING AGENT.........................................................52
SECTION 11.12 EFFECTUATION OF SUBORDINATION BY TRUSTEE...................................................54
SECTION 11.13 TRUST MONEYS NOT SUBORDINATED..............................................................54
ARTICLE 12 MISCELLANEOUS..............................................................................54
SECTION 12.1 TRUST INDENTURE ACT CONTROLS...............................................................54
SECTION 12.2 NOTICES....................................................................................54
SECTION 12.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS................................................55
SECTION 12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.........................................55
SECTION 12.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION OF COUNSEL...................................56
SECTION 12.6 RULES BY TRUSTEE AND AGENTS................................................................56
SECTION 12.7 LEGAL HOLIDAYS.............................................................................56
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 12.8 NO RECOURSE AGAINST OTHERS.................................................................56
SECTION 12.9 COUNTERPARTS...............................................................................57
SECTION 12.10 GOVERNING LAW..............................................................................57
SECTION 12.11 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS..............................................57
SECTION 12.12 SUCCESSORS.................................................................................57
SECTION 12.13 SEVERABILITY...............................................................................57
SECTION 12.14 TABLE OF CONTENTS, HEADINGS, ETC...........................................................57
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Transferee Letter of Representation
</TABLE>
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INDENTURE dated as of [__________________], between RANGE RESOURCES
CORPORATION, a Delaware corporation (the "Company"), and COMPUTERSHARE INVESTOR
SERVICES, L.L.C., 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 8.125%
Subordinated Convertible Notes due December 31, 2005 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"AFFILIATE" of any specified Person means (i) any other Person which,
directly or indirectly, is in control of, is controlled by or is under common
control with such specified Person or (ii) any Person who is a director or
officer (a) of such specified Person, (b) of any Subsidiary of such specified
Person or (c) of any Person described in clause (i) above. For purpose of this
definition, control of a person means the power, directly or indirectly, to
direct or cause the direction of the management and policies of such person
whether by contract or otherwise; and the terms "controlling" or "controlled"
have meanings correlative to the foregoing.
"AGENT" means any Registrar, Paying Agent, Conversion Agent or
co-registrar or any successor thereto.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or any
committee of the Board duly authorized to act under the Indenture.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL STOCK" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in the common or preferred equity (however designated) of such Person,
including, without limitation, partnership interests.
"CAPITALIZED LEASE OBLIGATION" means, with respect to any person for
any period, an obligation of such Person to pay rent or other amounts under a
lease that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of such obligation shall be the capitalized
amount shown on the balance sheet of such Person as determined in accordance
with GAAP.
"CHANGE OF CONTROL" means the occurrence of any of the following
events: (i) any person (as the term "person" is used in Section 13(d) or Section
14(d) of the Exchange Act) is or becomes the direct or indirect beneficial owner
of shares of the Company's Capital Stock representing greater than 50% of the
total voting power of all shares of Capital Stock of the Company entitled to
vote in the election of directors under ordinary circumstances or sufficient
1
<PAGE> 31
to elect a majority of the Board of Directors or (ii) the Company sells,
transfers or otherwise disposes of all or substantially all of the assets of the
Company. Notwithstanding the foregoing, a Change of Control will not include any
transaction or series of related transactions in which (a) 85% or more of the
consideration receivable by the Holders upon conversion of their Notes
immediately after the occurrence of such Change of Control consists of Common
Stock that is listed on a national securities exchange or approved for quotation
on the Nasdaq Stock Market or (b) immediately after the occurrence of such
Change of Control (i) the Current Market Price of the Notes or (ii) the sum of
the Current Market Price of any such Common Stock receivable upon conversion of
the Notes immediately after such occurrence that is listed on a national
securities exchange or approved for quotation on the Nasdaq Stock Market plus
any cash receivable upon such conversion has a value on each of the five trading
days immediately after the occurrence of such Change of Control equal to or in
excess of 105% of the principal amount of such Notes.
"COMMON STOCK" as applied to the Capital Stock of any corporation,
means the common equity (however designated) of such Person, and with respect to
the Company, means the Common Stock, par value $.01 per share, or any successor
class of common equity into which either such class of common stock may
hereafter be converted.
"COMPANY" means Range Resources Corporation, a Delaware corporation,
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter "COMPANY" shall mean such successor.
"CONVERSION AGENT" means the Trustee or any successor entity thereto.
"CURRENT MARKET PRICE" means, when used with respect to any security as
of any date, the last sale price, regular way, or, in case no such sale takes
place on such date, the average of the closing bid and asked prices, regular
way, in either case as reported for consolidated transactions on the New York
Stock Exchange or, if the security is not listed or admitted to trading on the
New York Stock Exchange, as reported for consolidated transactions with respect
to securities listed on the principal national securities exchange on which such
security is listed or admitted to trading or, if the security is not listed or
admitted to trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System or such other system then in use or,
if the security is not quoted by any such organization, the average of the
closing bid and asked prices furnished by a New York Stock Exchange member firm
selected by the Company. "CURRENT MARKET PRICE" means, when used with respect to
any Property other than a security as of any date, the market value of such
Property on such date as determined by the Board of Directors of the Company in
good faith, which shall be entitled to rely for such purposes on the advice of
any firm of investment bankers or appraisers having familiarity with such
Property.
"DEBT" with respect to any Person as of any date means and includes
(without duplication) (i) the principal of and premium, if any, in respect of
indebtedness of such Person, contingent or otherwise, for borrowed money,
including, without limitation, all interest, fees and
2
<PAGE> 32
expenses owed with respect thereto (whether or not the recourse of the lender is
to the whole of the assets of such person or only to a portion thereof), or
evidenced by bonds, notes, debentures or similar instruments, or representing
the deferred and unpaid balance of the purchase price of any property or
interest therein or services, if and to the extent such indebtedness would
appear as a liability (other than a liability for accounts payable and accrued
expenses incurred in the ordinary course of business) upon a balance sheet of
such Person prepared on a consolidated basis in accordance with GAAP, (ii) all
obligations issued or contracted for as payment in consideration of the purchase
by such Person of Capital Stock or substantially all of the assets of another
Person or as a result of a merger or a consolidation (other than any earn-outs
or installment payments), (iii) all Capitalized Lease Obligations of such
Person, (iv) all obligations of such Person in respect of letters of credit or
similar instruments or reimbursement of letters of credit or similar instruments
(whether or not such items would appear on the balance sheet of such Person),
(v) all net obligations of such Person in respect of interest rate protection
and foreign currency hedging arrangements, (vi) all guarantees by such Person of
items that would constitute Debt under this definition (whether or not such
items would appear on such balance sheet), and (vii) the amount of all
obligations of such Person with respect to the redemption, repayment or other
repurchase of any Disqualified Stock, but only to the extent such obligations
arise on or prior to March 31, 2006; provided, however, that Debt issued at a
discount from par shall be treated as if issued at par. The amount of Debt of
any person at any date shall be the outstanding balance on such date of all
unconditional obligations as described above and the maximum determinable
liability, upon the occurrence of the liability giving rise to the obligation,
of any contingent obligations referred to in clauses (i), (iv), (vi) and (vii)
above at such date.
"DEFAULT" means any event which is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Notes issued in global form,
the Person specified in Section 2.3 as the Depositary with respect to the Notes,
until a successor shall have been appointed and become such pursuant to the
applicable provisions of this Indenture, and, thereafter "DEPOSITARY" shall mean
or include such successor.
"DISQUALIFIED STOCK" means any Capital Stock which, by its terms or by
the terms of any security into which it is convertible or for which it is
exchangeable at the option of the holder thereof or mandatorily (except to the
extent that such exchange or conversion right cannot be exercised or such
mandatory conversion cannot occur prior to March 31, 2006), is, or upon the
happening of an event or the passage of time would be, (a) required to be
redeemed or repurchased by the Company or any of its Subsidiaries, including at
the option of the holder, in whole or in part, or has, or upon the happening of
an event or passage of time would have, a redemption or similar payment due
prior to March 31, 2006 or (b) exchangeable or convertible into debt securities
of the Company or any of its Subsidiaries at the option of the holder thereof or
mandatorily, except to the extent that such exchange or conversion right cannot
be exercised or such mandatory conversion cannot occur on or prior to March 31,
2006.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
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<PAGE> 33
"GAAP" means, as of any date, generally accepted accounting principles
in the United States and does not include any interpretations or regulations
that have been proposed but that have not become effective.
"HOLDER" means a Person in whose name a Note is registered on the
Register.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INTEREST PAYMENT DATE" means March 31, June 30, September 30 and
December 31 of each year.
"LEGAL HOLIDAY" means a Saturday, Sunday or any day on which banking
institutions in the state in which the principal corporate trust office of the
Trustee are required or authorized by law or other governmental action to be
closed.
"NOTES CUSTODIAN" means, with respect to the Notes issued in global
form, initially, the Trustee and any successor entity thereto or such other
Person as appointed by the Company from time to time in accordance with the
provisions of this Indenture.
"OFFICER" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Assistant Secretary or any Vice President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers, one
of whom must be the Chairman of the Board, the President, the Treasurer or a
Vice-President of the Company, that meets the requirements of Sections 12.4 and
12.5 hereof.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee that meets the requirements of Sections
12.4 and 12.5 hereof. The counsel may be an employee of or counsel to the
Company or the Trustee.
"PERMITTED DEBT" means (i) Debt owed by the Company to any wholly owned
Subsidiary of the Company, (ii) Debt owed by any wholly owned Subsidiary of the
Company to the Company or any wholly owned Subsidiary of the Company and (iii)
Refinancing Debt.
"PERSON" means any individual, corporation, partnership, association,
trust or any other entity or organization, including a government or political
subdivision or any agency or instrumentality thereof.
"PREFERRED STOCK" means, with respect to any Person, Capital Stock of
such Person of any class or classes (however designated) which is preferred as
to the payments of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over any other class of the Capital Stock of such Person.
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<PAGE> 34
"PRINCIPAL" of a debt security means the principal of the security plus
the premium, if any, on the security.
"PROPERTY" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included on the
most recent consolidated balance sheet of such Person in accordance with GAAP.
"QUALIFIED STOCK" means Capital Stock of the Company that is not
Disqualified Stock.
"REFINANCING DEBT" means Debt that refunds, refinances or extends any
Notes or other Debt existing on the date hereof or hereafter incurred by the
Company or its Subsidiaries pursuant to the terms of this Indenture, but only to
the extent that (i) the Refinancing Debt is subordinated to the Notes to the
same extent as the Debt being refunded, refinanced or extended, if at all, (ii)
the Refinancing Debt is scheduled to mature either (a) no earlier than the Debt
being refunded, refinanced or extended or (b) after the maturity date of the
Notes, (iii) the portion, if any, of the Refinancing Debt that is scheduled to
mature on or prior to the maturity date of the Notes has a Weighted Average Life
to Maturity at the time such Refinancing Debt is incurred that is equal to or
greater than the Weighted Average Life to Maturity of the portion of the Debt
being refunded, refinanced or extended that is scheduled to mature on or prior
to the maturity date of the Notes, (iv) such Refinancing Debt is in an aggregate
principal amount that is equal to or less than the aggregate principal amount
then outstanding under the Debt being refunded, refinanced or extended, plus
customary fees and expenses associated with refinancing and (v) such Refinancing
Debt is incurred by the same Person that initially incurred the Debt being
refunded, refinanced or extended, except that (a) the Company may incur
Refinancing Debt to refund, refinance or extend Debt of any Subsidiary of the
Company, and (b) any Subsidiary of the Company may incur Refinancing Debt to
refund, refinance or extend Debt of any other wholly owned Subsidiary of the
Company.
"REGULAR RECORD DATE" means March 15, June 15, September 15 and
December 15 of each year.
"REPRESENTATIVE" means the indenture trustee or other trustee, agent or
representative for an issue of Senior Indebtedness.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SENIOR INDEBTEDNESS" means the principal of and premium, if any, and
interest on (a) indebtedness or other obligations under the Amended and Restated
Revolving Credit and Term Loan Agreement dated as of July 6, 1994, among the
Company and certain of its Subsidiaries, as borrowers, Bank One, Texas, N.A., as
agent, and Bank One, Texas, N.A. and Texas Commerce Bank National Association,
as lenders; (b) indebtedness for money borrowed (including purchase money
obligations) evidenced by notes or other written obligations,
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including letters of credit and bankers acceptances, (c) indebtedness evidenced
by notes, debentures, bonds or other securities issued under the provisions of
an indenture or similar instrument, (d) obligations as lessee under capitalized
leases and under leases of property made as part of any sale and leaseback
transactions, (e) indebtedness of others of any of the kinds described in the
preceding clauses (a) through (d) assumed or guaranteed and (f) amendments,
renewals, extensions, modifications and refundings of any obligations or
indebtedness described in the foregoing clauses (a) through (e); provided,
however, that the following will not constitute Senior Indebtedness: (i) any
indebtedness or obligation as to which, in the instrument creating or evidencing
the same or pursuant to which the same is outstanding, it is expressly provided
that such indebtedness or obligation is subordinate in right of payment to all
other indebtedness, (ii) any indebtedness or obligation which refers explicitly
to the Notes and states that the indebtedness or obligation shall not be senior
in right of payment thereto, (iii) any indebtedness or obligation of the Company
to any Affiliate and (iv) obligation of the Company for compensation to
employees or for items purchased or services rendered in the ordinary course of
business.
"SUBSIDIARY" of any Person means a corporation or other entity a
majority of whose Capital Stock with voting power, under ordinary circumstances,
entitling holders of such Capital Stock to elect the board of directors or other
governing body, is at the time, directly or indirectly, owned by such Person
and/or a Subsidiary or Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (U.S. Code Sections
77aaa-77bbbb) as in effect on the date of execution of this Indenture; provided,
however, that in the event the TIA is amended after such date, "TIA" means, to
the extent required by any such amendments, to the TIA as so amended.
"TRANSFER RESTRICTED SECURITIES" means Notes that bear or are required
to bear the legend set forth in Section 2.6(g) hereof.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter "TRUSTEE" shall mean such successor.
"TRUST OFFICER" means any officer or corporate trust officer or
assistant corporate trust officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. GOVERNMENT OBLIGATIONS" means non-callable (i) direct obligations
(or certificates representing an ownership interest in such obligations) of the
United States for which its full faith and credit are pledged and (ii)
obligations of a person controlled or supervised by, and acting as an agency or
instrumentality of, the United States, the payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Debt or
preferred stock or portions thereof (if applicable) at any date, the number of
years obtained by dividing (i) the then outstanding principal amount or
liquidation amount of such Debt or preferred stock or portions thereof (if
applicable) into (ii) the sum of the products obtained by
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multiplying (a) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by (b) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment.
SECTION 1.2 OTHER DEFINITIONS.
TERM DEFINED IN SECTION
"Agent Members"....................................................2.1
"Bankruptcy Law"...................................................6.1
"Change of Control Date"...........................................4.7
"Change of Control Offer"..........................................4.7
"Change of Control Notice".........................................4.7
"Change of Control Payment"........................................4.7
"Change of Control Payment Date"...................................4.7
"Conversion Price".................................................10.1
"Custodian"........................................................6.1
"Definitive Securities"............................................2.1
"Event of Default".................................................6.1
"Global Security"..................................................2.1
"Paying Agent".....................................................2.3
"Register".........................................................2.3
"Registrar"........................................................2.3
"Restricted Payment"...............................................4.5
"Rule 144A"........................................................2.1
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
This Indenture is subject to the mandatory provisions of the TIA, which
are incorporated by reference in and made part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "institutional trustee" means the
Trustee;
"OBLIGOR" on the Notes means the Company and any successor
obligor upon the Notes.
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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 1.4 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and
transactions.
(6) references to sections of or rules under the
Securities Act shall be deemed to include substitute,
replacement or successor sections or rules adopted by
the SEC from time to time.
ARTICLE 2
THE DEBENTURES
SECTION 2.1 FORM AND DATING.
The Notes 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 Notes 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). Each Note shall be dated
the date of its authentication. The terms of the Notes set forth in Exhibit A
are part of the terms of this Indenture. The Notes are general unsecured
obligations of the Company limited to $___ million in aggregate principal
amount, subject to Section 2.7.
(a) GLOBAL SECURITIES. The Notes are being issued by the Company
pursuant to the provisions of paragraph 6 of the Certificate of Designations of
preferred stock of Range Resources Corporation to be designated $2.03
Convertible Exchangeable Preferred Stock, Series D.
Notes issued to "qualified institutional buyers" (as defined in Rule
144A under the Securities Act ("Rule 144A")) whose interests in the $2.03
Convertible Exchangeable Preferred Stock, Series D were represented by interests
in a global certificate held by Person who is the Depositary, or, if different,
The Depository Trust Company or similar institution, shall be issued initially
in the form of one or more permanent global securities in definitive, fully
registered form without interest coupons and with the Global Securities Legend
and, unless removed in accordance with Section 2.6(g) hereof, the Restricted
Securities Legend set forth in Exhibit A hereto (each, a "Global Security"),
which shall be deposited on behalf of such qualified institutional buyers with
the Trustee, at its New York, New York office, as custodian for the
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Depositary, and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Securities
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 2.1(b) shall apply only to any
Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary for such
Global Security or Global Securities or the nominee of the Depositary and (ii)
shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
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 the Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(c) CERTIFICATED SECURITIES. Except as provided in Section 2.10, owners
of beneficial interests in Global Securities will not be entitled to receive
physical delivery of certificated Notes. Notes issued to Persons who are not
"qualified institutional buyers" shall be issued certificated Notes in
definitive, fully registered form without interest coupons, with the Restricted
Securities Legend and, if such Person is an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), the
Institutional Accredited Investor Legend, but without the Schedule of Exchanges
of Global Security for Definitive Securities, set forth in Exhibit A hereto
("Definitive Securities"); provided, however, that upon transfer of such
Definitive Securities to a "qualified institutional buyer," such Definitive
Securities will, unless the Global Security has previously been exchanged, be
exchanged for an interest in a Global Security pursuant to the provisions of
Section 2.6 hereof.
After a transfer of any Notes during the period of the effectiveness of
a registration statement under the Securities Act with respect to the Notes, all
requirements pertaining to legends on such Notes will cease to apply, the
requirements requiring any such Notes issued to certain Holders be issued in
global form will cease to apply, and a certificated Note without legends will be
available to the transferee of the Holder of such Notes upon exchange of such
transferring Holder's certificated Notes or directions to transfer such Holder's
interest in the Global Security, as applicable.
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SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Notes and may
be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time such Note is authenticated, such Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee shall authenticate Notes for original issue up to the
aggregate principal amount stated in Paragraph 4 of the Notes, upon a written
order of the Company signed by an Officer to a Trust Officer directing the
Trustee to authenticate the Notes and certifying that all conditions precedent
to the issuance of the Notes contained herein have been complied with. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount, except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent reasonably acceptable
to and at the expense of the Company to authenticate Notes. Unless limited by
the terms of such appointment, an authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company.
SECTION 2.3 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange (the "Registrar") and an
office or agency where Notes may be presented for payment (the "Paying Agent").
The Registrar shall keep a register of the Notes (the "Register") and of their
transfer and exchange. The Company may appoint one or more co-registrars and one
or more additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar. If the Company fails to appoint or maintain itself or
another entity as Registrar or Paying Agent, the Trustee shall act as such.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any of its wholly owned Subsidiaries may act as Paying Agent,
Registrar, co-registrar or transfer agent.
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The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Security.
The Company initially appoints the Trustee to act as Registrar and
Paying Agent with respect to the Global Security.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal or interest on the Notes, and will notify the Trustee of any default
by the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and account for any money disbursed by it. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and account for any
money disbursed by it. Upon payment over to the Trustee, the Paying Agent (if
other than the Company or a Subsidiary of the Company) shall have no further
liability for the money delivered to the Trustee. If the Company or a Subsidiary
of the Company acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying Agent.
Upon any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders 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 three
Business Days before each Interest Payment Date and, at such other times as the
Trustee may request in writing, within five Business Days after such request a
list in such form and as of such date as the Trustee may reasonably require, and
which the Trustee may conclusively rely upon, of the names and addresses of
Holders, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.6 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When Definitive
Securities are presented to the Registrar with the request:
(x) to register the transfer of the Definitive Securities; or
(y) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Definitive Securities presented or surrendered for register of transfer or
exchange:
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(i) shall be duly endorsed or accompanied by a written instruction
of transfer in form and substance satisfactory to the Registrar
duly executed by the Holder thereof or by his or her attorney, duly
authorized in writing; and
(ii) in the case of Transfer Restricted Securities that are
Definitive Securities, shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect (in the form set forth on the reverse of the
Notes); or
(B) if such Transfer Restricted Security is being transferred
to the Company or a "qualified institutional buyer" (as
defined in Rule 144A) in accordance with Rule 144A, a
certification to that effect (in the form set forth on the
reverse of the Notes); or
(C) if such Transfer Restricted Securities are being
transferred (w) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act; or (x) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is acquiring the security for its own
account, or for the account of such an institutional
accredited investor, in each case in a minimum principal
amount of Notes of $250,000 for investment purposes and not
with a view to, or for offer or sale in connection with, any
distribution in violation of the Act; or (y) in reliance on
another from the registration requirements of the Securities
Act: (i) a certification to that effect (in the form set forth
on the reverse of the Notes), (ii) if the Company, Trustee or
Registrar so requests, an Opinion of Counsel reasonably
acceptable to the Company, Trustee and Registrar to the effect
that such transfer is in compliance with the Securities Act
and (iii) in the case of clause (x), a signed letter in
substantially the form of Exhibit B hereto.
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A BENEFICIAL
INTEREST IN A GLOBAL SECURITY. A Definitive Security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with:
(i) if such Definitive Security is a Transfer Restricted Security,
certification, substantially in the form of Exhibit B hereto, that
such Definitive Security is
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being transferred to a "qualified institutional buyer" (as defined
in Rule 144A) in accordance with Rule 144A; and
(ii) whether or not such Definitive Security is a Transfer
Restricted Security, written instructions directing the Trustee to
make, or to direct the Notes Custodian to make, an endorsement on
the Global Security to reflect an increase in the aggregate
principal amount of the Notes represented by the Global Security,
then the Trustee shall cancel such Definitive Security in accordance with
Section 2.11 hereof and cause, or direct the Notes Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Notes Custodian, the aggregate principal amount of Notes
represented by the Global Security to be increased accordingly. If no Global
Security is then outstanding, the Company shall issue and the Trustee shall
authenticate a new Global Security in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITY. The transfer and exchange
of a Global Security or beneficial interests therein shall be effected through
the Depositary in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depositary therefor.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A
DEFINITIVE SECURITY.
(i) Any Person having a beneficial interest in a Global Security
that is being exchanged or transferred pursuant to an effective
registration statement under the Securities Act or pursuant to
clause (A), (B) or (C) below may upon request, and if accompanied
by the information specified below, exchange such beneficial
interest for a Definitive Security of the same aggregate principal
amount. Upon receipt by the Trustee of written instructions or such
other form of instructions as is customary for the Depositary, from
the Depositary, or its nominee on behalf of any Person having a
beneficial interest in a Global Security, and upon receipt by the
Trustee of a written order or such other form of instructions, and,
in the case of a Transfer Restricted Security only, the following
additional information and documents (all of which may be submitted
by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial
owner, a certification from such Person to that effect (in the
form set forth on the reverse of the Notes) or
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A) in
accordance with Rule 144A, a certification to that effect from
the transferor (in the form set forth on the reverse of the
Notes); or
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(C) if such beneficial interest is being transferred (w)
pursuant to an exemption from registration in accordance with
Rule 144 or Regulation S under the Securities Act; or (x) to an
institutional "accredited investor" within the meaning of Rule
501 (a)(1), (2), (3) or (7) under the Securities Act that is
acquiring the security for its own account, or for the account
of such an institutional accredited investor, in each case in a
minimum principal amount of Notes of $250,000 for investment
purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Notes; or
(y) in reliance on another exemption from the registration
requirements of the Securities Act: (i) a certification to that
effect from the transferee or transferor (in the form set forth
on the reverse of the Notes), (ii) if the Company, Trustee or
Registrar so requests, an Opinion of Counsel from the
transferee or transferor reasonably acceptable to the Company
and to the Registrar to the effect that such transfer is in
compliance with the Securities Act, and (iii) in the case of
clause (x), a signed letter in substantially the form of
Exhibit B hereto,
then the Trustee or the Notes Custodian, at the direction of the Trustee, will
cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Notes Custodian, the aggregate principal amount
of the Global Security to be reduced on its books and records and, following
such reduction, the Company will execute and, upon receipt of an authentication
order in the form of an Officers' Certificate in accordance with Section 2.2
hereof, the Trustee will authenticate and deliver to the transferee a Definitive
Security in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial interest
in a Global Security pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as
the Depositary, pursuant to instructions from the Agent Members or
otherwise, shall instruct the Trustee. The Trustee shall deliver
such Definitive Securities to the Persons in whose names such Notes
are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITY.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in Section 2.6(f)), a Global Security may not be
transferred as a whole or in part except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) AUTHENTICATION OF DEFINITIVE SECURITIES IN ABSENCE OF DEPOSITARY.
If at any time:
(i) the Depositary notifies the Company that the Depositary is
unwilling or unable to continue as Depositary for the Global
Securities and a successor Depositary for the Global Securities is
not appointed by the Company within 90 days after delivery of such
notice; or
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(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive
Securities under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate, in accordance with Section 2.2 hereof, requesting the
authentication and delivery of Definitive Securities, will authenticate and
deliver Definitive Securities, in an aggregate principal amount equal to the
principal amount of the Global Securities, in exchange for such Global
Securities.
(g) LEGENDS.
(i) Except as permitted by the following paragraph (ii), each Note
certificate evidencing the Global Securities and the Definitive
Securities (and all Notes issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the
following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED, IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. "THE HOLDER OF THIS NOTE
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (II) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (IV) TO THE COMPANY OR (V) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE FEDERAL OR STATE
SECURITIES LAWS AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act:
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(A) in the case of any Transfer Restricted Security that is a
Definitive Security, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security
for a Definitive Security that does not bear the legends set
forth above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) any such Transfer Restricted Security represented by a
Global Security shall not be subject to the provisions set
forth in (i) above (such sales or transfers being subject only
to the provisions of Section 2.6(e)); provided, however, that
with respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Global Security
for a Definitive Security that does not bear a legend, which
request is made in reliance upon Rule 144 under the Securities
Act, the Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant to Rule 144
under the Securities Act (such certification to be in the form
set forth on the reverse of the Notes).
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITY. At such time as
all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or cancelled, such Global Security
shall be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11. At any time prior to such cancellation, if any beneficial interest
in a Global Security is exchanged for Definitive Securities, redeemed,
repurchased or cancelled, the principal amount of Notes represented by such
Global Security shall be reduced accordingly and an endorsement shall be made on
such Global Security, by the Trustee or the Notes Custodian, at the direction of
the Trustee, to reflect such reduction.
(i) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF DEFINITIVE
SECURITIES.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive
Securities and a Global Security at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments or similar
governmental charge payable in connection therewith.
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) any Definitive Security
selected for redemption in whole or in part pursuant to Article 3,
except the unredeemed portion of any Definitive Security being
redeemed in part, or (b) any Note during the 15 day period
preceding the mailing of a notice of redemption or an offer to
repurchase or redeem Notes or the 15 day period preceding an
Interest Payment Date.
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(iv) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent, the Registrar
or any co-registrar may deem and treat the Person in whose name a
Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such
Note and for all other purposes whatsoever, whether or not such
Note is overdue, and none of the Company, the Trustee, the Paying
Agent, the Registrar or any co-registrar shall be affected by
notice to the contrary.
(v) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
(j) NO OBLIGATION OF THE TRUSTEE.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a
participant in the Depositary or other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership
interest in the Notes or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than
the Depositary) or any notice (including any notice of redemption)
or the payment of any amount, under or with respect to such Notes.
All notices and communications to be given to the Holders and all
payments to be made to Holders under the Notes shall be given or
made only to or upon the order of the registered Holders (which
shall be the Depositary or its nominee in the case of a Global
Security). The rights of beneficial owners in any Global Security
shall be exercised only through the Depositary subject to the
applicable rules and procedures of the Depositary. The Trustee may
rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) 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 Note (including any
transfers between or among the Agent Members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are 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 2.7 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, the Registrar or
Notes Custodian, or if the Holder of a Note claims that such Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee, upon the
written order of the Company signed by an
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Officer, shall authenticate a replacement Note if the Trustee's requirements are
met. If required by the Trustee or the Company, an indemnity bond shall be
supplied by the Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss which any of them may suffer if a Note is replaced. The
Company may charge the Holder for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.8 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee hereunder, and those described in this Section 2.8 as not
outstanding. Except as set forth in Section 2.9 hereof, a Note does not cease to
be outstanding because the Company or an Affiliate holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser. If the principal amount of any
Note is considered paid under Section 4.1 hereof, it ceases to be outstanding
and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary of the
Company or an Affiliate of any thereof) segregates and holds interest, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay Notes payable on that date, and is not prohibited from paying
such money to the Holders thereof pursuant to the terms of this Indenture, then
on and after that date such Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest.
SECTION 2.9 TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Affiliate of the Company shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes as to which a Trust Officer of the Trustee knows are so owned shall be so
disregarded.
SECTION 2.10 TEMPORARY SECURITIES.
(a) Until Definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon a written order of the
Company signed by an Officer and delivered or cause to be delivered to a Trust
Officer. Temporary Notes shall be substantially in the form of Definitive
Securities but may have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall
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prepare and the Trustee shall authenticate, upon receipt of a written order of
the Company signed by two Officers which shall specify the amount of the
temporary Notes to be authenticated and the date on which the temporary Notes
are to be authenticated, Definitive Securities in exchange for temporary Notes.
(b) A Global Security deposited with the Depositary or with the Trustee
as custodian for the Depositary pursuant to Section 2.1 shall be transferred to
the beneficial owners thereof only if such transfer complies with Section 2.6
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 after
such notice or (ii) an Event of Default has occurred and is continuing.
(c) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.10 shall be surrendered by the Depositary to
the Trustee located in New York, New York, to be so transferred, in whole or
from time to time in part, 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 Initial Notes of authorized denominations.
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 Depository shall
direct. Any Note delivered in exchange for an interest in the Global Security
shall, except as otherwise provided by Section 2.6(b) bear the restricted
securities legend set forth in Exhibit A hereto.
(d) Subject to the provisions of Section 2.10(c), 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 Notes.
(e) In the event of the occurrence of either of the events specified in
Section 2.10(b), the Company will promptly make available to the Trustee, at the
Company's expense, a reasonable supply of certificated Notes in definitive,
fully registered form without interest coupons.
SECTION 2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and certification of
their destruction (subject to the record retention requirements of the Exchange
Act) shall be delivered to the Company unless, by a written order, signed by an
Officer, the Company shall direct that cancelled Notes be returned to it. The
Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
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SECTION 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, the
Company shall pay defaulted interest (plus interest on such defaulted interest
to the extent lawful) in any lawful manner. The Company shall pay the defaulted
interest to the Persons who are Holders on a subsequent special record date. The
Company shall fix or cause to be fixed (or upon the Company's failure to do so
the Trustee shall fix) any such special record date and payment date to the
reasonable satisfaction of the Trustee, which specified record date shall not be
less than 10 days prior to the payment date for such defaulted interest, and
shall promptly mail or cause to be mailed to each Holder a notice that states
the special record date, the payment date and the amount of defaulted interest
to be paid. The Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such defaulted
interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment such money when deposited to be held
in trust for the benefit of the Person entitled to such defaulted interest as in
this subsection provided.
SECTION 2.13 DEPOSIT OF MONEYS.
Prior to 10:00 a.m. New York City time on each Interest Payment Date
and the maturity date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or maturity date, as the case may be, in a timely
manner which permits the Paying Agent to remit payment to the Holders on such
Interest Payment Date or maturity date, as the case may be.
ARTICLE 3
REDEMPTION
SECTION 3.1 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of paragraph 5 of the Notes, it shall notify the Trustee
of the redemption date, the principal amount of Notes to be redeemed and the
redemption price at least 15 days prior to mailing any notice of redemption to
the Holders (unless the Trustee consents to a shorter period). Such notice shall
be accompanied by an Officers' Certificate from the Company to the effect that
such redemption will comply with the conditions herein.
The Company shall give notice to the Holders of any redemption pursuant
to this Article 3 at least 30 days but not more than 60 days before the
redemption date. If fewer than all the Notes are to be redeemed, the record date
relating to such redemption shall be selected by the Company and given to the
Trustee, which record date shall be not less than 15 days after the date of
notice to the Trustee.
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SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED.
If less than all the Notes are to be redeemed, the Trustee shall select
the Notes to be redeemed in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are quoted or listed
or, if the Notes are not listed, on a pro rata basis, by lot or by such other
method that complies with applicable legal requirements and that 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 Notes
outstanding and not previously called for redemption. The Trustee may select for
redemption portions of the principal amount of Notes that have denominations
larger than $1,000. Notes and portions of them it selects shall be in amounts of
$1,000 or integral multiples of $1,000. Provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption. The Trustee shall notify the Company promptly of the Notes or
portions of Notes to be called for redemption.
SECTION 3.3 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 by first class mail to each Holder
whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date, upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion will be issued;
(d) the Conversion Price (as defined in the Note);
(e) the name and address of the Paying Agent and Conversion Agent;
(f) that Notes called for redemption may be converted at any time
before the close of business on the redemption date, in accordance with Article
10;
(g) that Holders who want to convert Notes must satisfy the
requirements in paragraph 8 of the Notes;
(h) 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, Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price; and
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(i) that interest on Notes called for redemption ceases to accrue on
and after the redemption date.
At the Company's request, the Trustee shall give notice of redemption
in the Company's name and at its expense. In such event, the Company shall
provide the Trustee with the information required by this Section 3.3.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.
Notice of redemption shall be deemed to be given when mailed to each
Holder at its last registered address, whether or not the Holder receives such
notice. Once notice of redemption is mailed, Notes called for redemption become
due and payable on the redemption date at the redemption price set forth in the
Notes. A notice of redemption may not be conditional. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall be paid at the
redemption price, plus accrued but unpaid interest thereon to the redemption
date. If the redemption date is after an Interest Payment Date but prior to the
next succeeding Regular Record Date, interest with respect to any Note converted
after delivery of the related notice of redemption shall be paid to the Holder
so converting for the period from the last Interest Payment Date to the date of
such conversion. If the redemption date is after a Regular Record Date and on or
prior to the related Interest Payment Date, the accrued interest shall be
payable to Holders of record on such Regular Record Date.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m. New York City time on any redemption date, the
Company shall deposit with the Trustee or with the Paying Agent available funds
sufficient to pay the redemption price of and accrued interest (if payable under
the Notes) on all Notes to be redeemed on that date other than Notes or portions
of Notes called for redemption which prior thereto have been delivered by the
Company to the Trustee for cancellation or have been converted. The Trustee or
the Paying Agent shall return to the Company any money not required for that
purpose.
SECTION 3.6 NOTES REDEEMED IN PART.
Upon surrender of a Note 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 Note equal in principal amount to the unredeemed portion of the
Note surrendered.
ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF NOTES.
The Company shall pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes or pursuant to this Indenture.
Principal and interest shall be considered paid on the date due if the Paying
Agent (other than the Company or a Subsidiary of
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the Company) on that date holds money in accordance with this Indenture
designated for and sufficient to pay in cash all principal and interest then due
and the Paying Agent is not prohibited from paying such money to Holders 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 (i)
overdue principal at the rate borne by the Notes and (ii) overdue installments
of interest at the same rate.
SECTION 4.2 STAY EXTENSION AND USURY LAWS.
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 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 4.3 CONTINUED EXISTENCE.
Subject to Article 5 hereof, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its existence
as a corporation and will refrain from taking any action that would cause its
existence as a corporation to cease, including without limitation any action
that would result in its liquidation, winding up or dissolution.
SECTION 4.4 SEC REPORTS.
The Company shall file with the SEC annual reports and information,
documents and other reports which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. Within 15 days after each
such filing, the Company shall deliver copies of the materials so filed to the
Trustee and the Holders (at their addresses as set forth in the Register) or
cause the Trustee to deliver copies of such materials to the Holders at the
Company's expense. If at any time the Company ceases to be required to file
information, documents and other reports pursuant to Section 13 or 15(d) of the
Exchange Act, the Company shall continue to prepare all such information,
documents and other reports it would be required to prepare and file with the
Commission if it were so required to file with the Commission, in each case
within the filing periods required by such Sections 13 or 15(d), and the Company
shall deliver copies of such materials to the Trustee and the Holders (at their
addresses as set forth in the Register) or cause the Trustee to deliver copies
of such materials to the Holders at the Company's expense. The Company also
shall comply with the other provisions of TIA Section 314(a). The Company shall
timely comply with its reporting and filing obligations under the applicable
federal securities laws.
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SECTION 4.5 LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare or pay any distribution or dividend on or in
respect of any class of its Capital Stock (except dividends or distributions
payable by wholly owned Subsidiaries of the Company and dividends or
distributions payable in Qualified Stock of the Company or in options, warrants
or other rights to purchase Qualified Stock of the Company) (a "Restricted
Payment"); unless (a) at the time of and after giving effect to a proposed
Restricted Payment no Event of Default (and no event that, after notice or lapse
of time, or both, would become an Event of Default) shall have occurred and be
continuing and (b) such Restricted Payment is made in cash and in an amount
that, together with the sum of the aggregate of all other Restricted Payments
made by the Company and its Subsidiaries after the date of this Indenture plus
the aggregate amount of all dividends paid with respect to the Company's
preferred stock after the date of the Indenture, does not exceed the cumulative
retained earnings of the Company arising from and after the date of this
Indenture. Notwithstanding the foregoing, the Company will be permitted to pay
dividends on preferred stock of the Company outstanding on the date of the
Indenture in an amount not greater than that specifically provided for in the
Company's certificate of incorporation or the related certificate of
designations.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.6 were computed, which calculations may
be based upon the Company's latest available financial statements.
SECTION 4.6 TAXES.
The Company shall, and shall cause each of its Subsidiaries to, pay or
discharge prior to delinquency all taxes, assessments and governmental levies,
except as contested in good faith and by appropriate proceedings.
SECTION 4.7 CHANGE OF CONTROL.
(a) In the event of a Change of Control, the time of such Change of
Control being referred to as the "Change of Control Date," then the Company
shall give written notice (the "Change of Control Notice") to the Holders in
writing of such occurrence and shall make an offer to purchase (as the same may
be extended in accordance with applicable law, the "Change of Control Offer")
all then outstanding Notes at a purchase price equal to 100% of the principal
amount thereof plus accrued and unpaid interest thereon to the Change of Control
Payment Date, if any. The Change of Control Offer shall be mailed by the Company
not more than 30 days following any Change of Control Date, unless the Company
has previously mailed a notice of optional redemption by the Company of all of
the Notes, to each Holder at such Holder's last address on the Note Register by
first class mail with a copy to the Trustee and the Paying Agent and shall set
forth:
(i) that a Change of Control has occurred and that the Company is
offering to repurchase all of such Holder's Notes;
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(ii) the circumstances and relevant facts regarding such Change of
Control (including, but not limited to, information with respect to
pro forma income, cash flow and capitalization of the Company after
giving effect to such Change of Control);
(iii) the repurchase price (the "Change of Control Payment");
(iv) the expiration date of the Change of Control Offer, which
shall be no earlier than 30 days nor later than 60 days from the
date such notice is mailed;
(v) the date such purchase shall be effected, which shall be no
later than 30 days after expiration date of the Change of Control
Offer (the "Change of Control Payment Date");
(vi) that any Notes not accepted for payment pursuant to the Change
of Control Offer shall continue to accrue interest;
(vii) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest after
the Change of Control Payment Date;
(viii) the Conversion Price;
(ix) the name and address of the Paying Agent and Conversion Agent;
(x) that Notes must be surrendered to the Paying Agent to collect
the repurchase price; and
(xi) any other information required by applicable law to be
included therein and any other procedures that a Holder must follow
in order to have such Notes repurchased.
(b) The Change of Control Offer shall remain open until the close of
business on the last day of the Change of Control Offer. If the Change of
Control Payment Date is on or after a Regular Record Date and on or before the
related Interest Payment Date, accrued interest through such Interest Payment
Date will be paid to each Person in whose name a Note repurchased in the Change
of Control Offer is registered at the close of business on such Regular Record
Date, and no additional interest will be payable to Holders who tender Notes
pursuant to the Change of Control Offer.
(c) In the event that the Company is required to make a Change of
Control Offer, the Company will comply with any applicable securities laws and
regulations, including, to the extent applicable, Section 14(e), Rule 14e-1 and
any other tender offer rules under the Exchange Act which may then be applicable
in connection with any offer by the Company to purchase Notes at the option of
the Holders thereof.
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(d) On the Change of Control Payment Date, the Company shall, to the
extent lawful:
(i) accept for payment Notes or portions thereof tendered pursuant
to the Change of Control Notice,
(ii) deposit with the Paying Agent in immediately available funds
an amount equal to the Change of Control Payment in respect of all
Notes or portions thereof so accepted, and
(iii) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the Notes
or portions thereof tendered to the Company.
(e) The Paying Agent shall promptly mail to each Holder of Notes so
accepted payment in an amount equal to the purchase price for the Notes, and the
Trustee shall promptly authenticate and mail to each Holder a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered by such
Holder, if any; provided, that each such new Note shall be in principal amount
of $1,000 or an integral multiple thereof. The Company shall publicly announce
the results of any redemptions by Holders pursuant to this Section 4.9 on or as
soon as practicable after the Change of Control Payment Date.
SECTION 4.8 LIMITATION ON STOCK SPLITS, CONSOLIDATIONS AND
RECLASSIFICATIONS.
The Company shall not effect a stock split, consolidation or
reclassification of any class of its Capital Stock unless (a) an equivalent
stock split, consolidation or reclassification is simultaneously made with
respect to each other class of Capital Stock of the Company and all securities
exchangeable or exercisable for or convertible into any Capital Stock of the
Company, and (b) after such stock split, consolidation or reclassification all
of the relative voting, dividend and other rights and preferences of each class
of Capital Stock of the Company are identical to those in effect immediately
preceding such stock split, consolidation or reclassification.
SECTION 4.9 LIMITATION ON DIVIDEND RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction of any kind on the ability of any Subsidiary of the Company to
(a) pay to the Company dividends or make to the Company any other distribution
on its Capital Stock, (b) pay any Debt owed to the Company or any of the
Company's Subsidiaries, (c) make loans or advances to the Company or any of the
Company's Subsidiaries or (d) transfer any of its property or assets to the
Company or any of the Company's Subsidiaries, other than such encumbrances or
restrictions existing or created under or by reason of (i) applicable law, (ii)
this Indenture, (iii) covenants or restrictions contained in any instrument
governing Debt of the Company or any of its Subsidiaries existing on the date of
this Indenture, (iv) customary provisions restricting subletting, assignment and
transfer of any
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lease governing a leasehold interest of the Company or any of its Subsidiaries
or in any license or other agreement entered into in the ordinary course of
business, (v) any agreement governing Debt of a Person acquired by the Company
or any of its Subsidiaries in existence at the time of such acquisition (but not
created in contemplation thereof), which encumbrances or restrictions are not
applicable to any Person, or the property or assets of any Person, other than
the Person, or the property or assets of the Person so acquired or (vi) any
restriction with respect to a Subsidiary imposed pursuant to an agreement
entered into in accordance with the terms of this Indenture for the sale or
disposition of Capital Stock or property or assets of such Subsidiary, pending
the closing of such sale or disposition.
SECTION 4.10 LIMITATION ON ADDITIONAL DEBT AFTER DEFAULT.
The Company shall not, and shall not permit any of its Subsidiaries to,
incur any additional Debt (other than Permitted Debt) or Senior Indebtedness
following the occurrence of an Event of Default unless such Event of Default
(and all other Events of Default then pending) is cured or waived; provided,
however, that the Company shall be permitted to incur up to $5.0 million of
Senior Indebtedness after the occurrence of an Event of Default notwithstanding
that such Event of Default (or any other Event of Default) is then outstanding.
SECTION 4.11 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 this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in 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 Events of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto), and
that, to the best of his or her knowledge, no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes are prohibited.
The Company shall, so long as any of the Notes are outstanding, deliver
to the Trustee, within five Business Days after becoming aware of (i) any
Default, Event of Default or default in the performance of any covenant,
agreement or condition in this Indenture or (ii) any event of default under any
other instrument of Debt to which Section 6.1(d) applies, an Officers'
Certificate specifying such Default, Event of Default or default, describing its
status and what action the Company is taking or proposes to take with respect
thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements shall be accompanied by a written statement of the Company's
independent public accountants (who shall be a firm of established national
reputation) that in making the examination necessary for certification of
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such financial statements, nothing has come to their attention that would lead
them to believe that the Company has violated any provisions of this Article 4,
or if any such violation has occurred, specifying the nature and, if known, the
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
SECTION 4.12 FURTHER ASSURANCE TO THE TRUSTEE.
The Company shall, upon request of the Trustee, execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the provisions of this Indenture.
ARTICLE 5
SUCCESSORS
SECTION 5.1 WHEN COMPANY MAY MERGE OR SELL ASSETS.
The Company shall not consolidate or merge with or into, or sell,
lease, convey or otherwise dispose of all or substantially all of its assets to,
any Person, without the consent of each Holder, unless:
(a) the Company is the continuing corporation or the Person formed by
or surviving any such consolidation or merger (if other than the Company), or to
which such sale, lease, conveyance or other disposition of assets shall have
been made, is organized and existing under the laws of the United States, any
state thereof or the District of Columbia and such Person (if other than the
Company) assumes by supplemental indenture executed and delivered to the Trustee
and in a form reasonably satisfactory to the Trustee, all the obligations of the
Company under the Notes and this Indenture including, without limitation,
conversion rights in accordance with Article 11 hereof;
(b) immediately after giving effect to the transaction no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing;
(c) immediately after giving effect to such transaction, the Notes and
this Indenture will be a valid and enforceable obligation of the Company or such
successor; and
(d) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such proposed
transaction and such supplemental indenture comply with the applicable
provisions of this Indenture.
SECTION 5.2 SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the Person formed by such consolidation or into or
with which the Company is merged or to which such
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sale, lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person has been named
as the Company herein; provided, however, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest on the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
The following shall constitute an "Event of Default":
(a) failure to pay principal of or premium, if any, on any Note when
due and payable at maturity, upon redemption, upon a Change of Control Offer or
otherwise, whether or not such payment is prohibited by the subordination
provisions of this Indenture;
(b) failure to pay any interest on any Note when due and payable, which
failure continues for 30 days, whether or not such payment is prohibited by the
subordination provisions of this Indenture;
(c) failure to perform the other covenants of the Company in this
Indenture, which failure continues for 60 days after written notice as provided
in this Indenture;
(d) failure to perform any covenants of the Company to the holders of
Senior Indebtedness as required by the terms of such Senior Indebtedness unless
waived by said holders;
(e) a default occurs (after giving effect to any applicable grace
periods or any extension of any maturity date) in the payment when due of
principal of and/or acceleration of, any indebtedness for money borrowed by the
Company or any of its Subsidiaries in excess of $5 million, individually or in
the aggregate, if such indebtedness is not discharged, or such acceleration is
not annulled, within 10 days after written notice as provided in this Indenture;
(f) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of it or for all or substantially all of its
property, and such Custodian is not discharged within 30 days,
(iv) makes a general assignment for the benefit of its creditors,
or
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(v) generally is unable to pay its debts as the same become due;
and
(g) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any Subsidiary of the
Company in an involuntary case,
(ii) appoints a Custodian of the Company or any Subsidiary of the
Company or for all or substantially all of its property, or
(iii) orders the liquidation of the Company or any Subsidiary of
the Company,
and, in each case, 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 or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (c) (other than a Default under Section 5.1,
which Default shall be an Event of Default with the notice but without the
passage of time specified in this Section 6.1), (d) or (e) shall not be an Event
of Default until the Trustee notifies the Company or the Holders of at least 25%
in principal amount of the then outstanding Notes notify the Company and the
Trustee of the Default and the Company does not cure the Default under such
clause (c) within 60 days after receipt of the notice, or under clause (d)
within 10 days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default."
SECTION 6.2 ACCELERATION.
If an Event of Default (other than an Event of Default specified in
clauses (e) and (f) of Section 6.1) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of the
then outstanding Notes by notice to the Company and the Trustee, may declare the
unpaid principal of and accrued interest on all the Notes to be due and payable.
Upon such declaration the principal and interest shall be due and payable
immediately. If an Event of Default specified in clause (f) or (g) of Section
6.1 occurs, such a an amount shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder. The Holders of a majority in principal amount of the then outstanding
Notes 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 or interest that has become due solely because of the
acceleration. No such recision shall affect any subsequent Default or impair any
right consequent thereto.
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SECTION 6.3 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal or interest on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 6.4 WAIVER OF EXISTING AND PAST DEFAULTS.
The Holders of a majority in principal amount of the then outstanding
Notes by written notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except (i) a continuing Default or Event of
Default in the payment of the principal of, or the interest on, any Note or (ii)
a Default or Event of Default in respect of a provision that under Section 9.2
cannot be amended without the consent of each Holder affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
SECTION 6.5 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any direction that conflicts with
applicable law or this Indenture, that the Trustee determines is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against any loss or expense caused by
taking such action or following such direction.
SECTION 6.6 LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if:
(a) the Holder gives to the Trustee notice of a continuing Event of
Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a request to the Trustee to pursue the remedy;
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(c) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal and interest on the Note, on or
after the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to bring suit for the enforcement of the right to convert the
Note shall not be impaired or affected without the consent of the Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(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 and
interest remaining unpaid on the Notes and interest on overdue principal and
interest, 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.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the Holders allowed in any judicial proceedings relative to the Company, its
creditors or its property. Nothing contained herein shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
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First: to the Trustee for amounts due under Section 6.8 or 7.7;
Second: to holders of Senior Indebtedness to the extent required by
Article 11;
Third: to Holders for amounts due and unpaid on the Notes for principal
and interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Notes for principal and interest,
respectively; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
At least 15 days before the record date, the Company shall mail to the
Trustee and each Holder (at such Holder's address as it appears on the Register,
a notice that states the record date, the payment date and amount to be paid).
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7, or a suit by Holders of more than 10% in principal
amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.1 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 man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture or the TIA and no others.
(ii) In the absence of negligence, misconduct or 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
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Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture, but the Trustee need not verify the contents thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own misconduct,
except that:
(i) This paragraph does not limit the effect of paragraph (b) of
this Section.
(ii) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to the provisions of the TIA, paragraphs (a), (b), (c) and
(e) of this Section 7.1 and Section 7.2.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds held in trust
except to the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE.
(a) 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, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters to the extent reasonably deemed necessary by it, and if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled upon reasonable notice, to examine the books and records and premises
of the Company, personally or by agent, authorized representative or attorney.
(b) Before the Trustee acts or refrains from acting pursuant to the
terms of the Indenture or otherwise, it may require an Officers' Certificate or
an Opinion of Counsel, or both. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any Agent appointed with due care.
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(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.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to and must comply with Sections 7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in the Indenture or any statement in the Notes other
than its authentication.
SECTION 7.5 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
actually known to the Trustee, the Trustee shall mail to each Holder a notice of
the Default or Event of Default within 90 days after it occurs, unless such
Default or Event of Default shall have been cured or waived. Except in the case
of a Default or Event of Default in payment on any Note under Section 6.1(a) or
(b), 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
best interests of Holders. The second sentence of this Section 7.5 shall be in
lieu of the proviso to Section 315(b) of the TIA, which proviso is hereby
expressly excluded from this Indenture, as permitted by the TIA.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each July 1, commencing July 1, 2001, the Trustee
shall mail to Holders, at the Company's expense, a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA Section 313(b)(2) to the extent applicable. 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 Holders shall be
filed with the SEC and each stock exchange or market on which the Notes are
listed or quoted. The Company shall notify the Trustee when the Notes are listed
on any stock exchange or quoted on any market.
SECTION 7.7 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee (in its capacities as Trustee,
Notes Custodian, Conversion Agent, Paying Agent and Registrar) from time to time
such compensation as may be agreed in writing between the Company and the
Trustee for its services hereunder. The Trustee's
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compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it. Such expenses may include the
reasonable compensation and out-of-pocket expenses of the Trustee's Agents and
counsel, except such disbursements, advances and expenses as may be attributable
to its negligence, misconduct or bad faith.
The Company shall indemnify and hold harmless the Trustee (in its
capacities as Trustee, Paying Agent and Registrar) against any claim, demand,
expense (including reasonable attorney's fees and expenses), loss or liability
incurred by it in connection with the administration of this trust and 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. The Company shall defend the claim and the Trustee shall cooperate in
the defense. In the event that a conflict of interest or conflict of defenses
would arise in connection with representation of the Company and the Trustee by
the same counsel, the Trustee may have separate counsel and the Company shall
pay the reasonable fees and expenses of such counsel. The Company need not pay
for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through misconduct, negligence or bad
faith.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture.
SECTION 7.8 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign by so notifying the Company in writing at least
30 days prior to the date of the proposed resignation; provided, however, that
no such resignation shall be effective until a successor Trustee has accepted
its appointment pursuant to this Section 7.8. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
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(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 otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee is not appointed or does not take office within
60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.7. Notwithstanding the replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 hereof shall continue
for the benefit of the retiring trustee with respect to expenses and liabilities
incurred by it prior to such replacement.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
This indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1) and 310(a)(2). The Trustee shall always
have a combined capital and surplus as stated in its most recent published
annual report of condition of at least $150 million. The Trustee shall comply
with TIA Section 310(b), including the optional provision permitted by the
second sentence of TIA Section 310(b)(9). The provisions of TIA Section 310
shall apply to the Company, as obligor of the Notes.
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SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The provisions of TIA Section 311 shall apply to the Company, as
obligor of the Notes.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 TERMINATION OF COMPANY'S OBLIGATIONS.
This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 7.7 and 8.3 shall survive) when all
outstanding Notes theretofore authenticated and issued (other than destroyed,
lost or stolen Notes which have been replaced or paid) have been delivered to
the Trustee for cancellation and the Company has paid all sums payable
hereunder. In addition, the Company shall be discharged from all of its
obligations under Section 2.13 and Sections 4.3 through 4.19 while the Notes
remain outstanding if all outstanding Notes will become due and payable at their
scheduled maturity within one year and the following conditions have been
satisfied:
(a) the Company has deposited, or caused to be deposited, irrevocably
with the Trustee as trust funds specifically pledged as security for, and
dedicated solely for, such purpose, (i) money in an amount, (ii) non-callable
U.S. Government Obligations which through the payment of principal, premium, if
any, and interest in accordance with their terms (without the reinvestment of
such interest or principal) will provide not later than one day before the due
date of any payment money in an amount, or (iii) a combination thereof,
sufficient with respect to clauses (ii) and (iii) in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee at or prior to the time of such
deposit, to pay the principal of, premium, if any, and discharge each
installment of interest on the outstanding Notes, together with all other
amounts payable by the Company under this Indenture.
(b) no Default or Event of Default with respect to the Notes has
occurred and is continuing on the date of such deposit or shall occur as a
result of such deposit or at any time during the period ending on the 91st day
after the date of such deposit, as evidenced to the Trustee by an Officer's
Certificate delivered to the Trustee concurrently with such deposit.
(c) such defeasance does not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the
Company is a party or by which it is bound, and is not prohibited by Article 11,
as evidenced to the Trustee by an Officers' Certificate delivered to the Trustee
concurrently with such deposit,
(d) the Company has delivered to the Trustee a private Internal Revenue
Service ruling or an opinion of counsel that Holders will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to
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federal income tax on the same amount, in the same manner, and at the same
times, as would have been the case if such deposit, defeasance and discharge had
not occurred,
(e) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that the deposit shall not result in the Company, the Trustee or the
trust being deemed to be an "investment company" under the Investment Company
Act of 1940, as amended,
(f) 91 days pass after the deposit is made and during such 91 day
period no event of Default specified in Section 6.1(f) or (g) shall occur and be
continuing at the end of such period, and
(g) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent relating
to the discharge of such provisions of the Indenture have been complied with.
Notwithstanding the foregoing, the Company's obligations to pay principal,
premium, if any, and interest on the Notes shall continue until the Internal
Revenue Service ruling or Opinion of Counsel referred to in clause (d) above is
provided.
If the Company exercises such option to discharge such provisions of
the Indenture, payment of the Notes may not be accelerated because of an event
of default specified in Sections 6.1(c) with respect to the failure to perform
any of the covenants set forth in Section 2.13 and Section 4.3 through 4.19, or
Section 6.1(d).
After a deposit made pursuant to this Section 8.1, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
specified above under this Indenture.
SECTION 8.2 APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.1. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on the
Notes. Money and securities so held in trust are not subject to Article 11.
SECTION 8.3 REPAYMENT TO COMPANY.
Subject to Section 7.7, 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 by the Company 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 Holder
entitled thereto no less than 30 days prior to such payment. After payment to
the Company, Holders entitled to the money must look to the
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Company for payment as general creditors unless an applicable abandoned property
law designates another Person.
SECTION 8.4 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 8.2 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.1 until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 8.2; provided, however, that if the
Company makes any payment of interest on or principal of any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.1 WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture or the Notes
without the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency; provided that such
amendment does not in the opinion of the Trustee adversely affect the rights of
any Holder;
(b) to comply with Section 5.1;
(c) to provide for uncertificated Notes in addition to or in lieu of
certificated Notes;
(d) to make any change that does not adversely affect the legal rights
hereunder of any Holder; or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
provided, however, that, in each case, the Company has delivered to the Trustee
an Opinion of Counsel and an Officers' Certificate, each stating that such
amendment complies with the provisions of this Section 9.1.
SECTION 9.2 WITH CONSENT OF HOLDERS.
Subject to the provisions of Sections 6.4 and 6.7, the Company and the
Trustee may amend or modify this Indenture or the Notes with the written consent
of the Holders of at least a majority in principal amount of the then
outstanding Notes, and the Holders of a majority in principal amount of the
Notes then outstanding may waive compliance in a particular instance by
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the Company with any provision of this Indenture or the Notes; provided,
however, that, without the consent of each Holder affected, an amendment,
modification or waiver under this Section 9.2 may not (with respect to any Notes
held by a non-consenting Holder):
(a) change the stated maturity of, or any installment of interest on,
any Note;
(b) reduce the principal amount of any Note or reduce the rate or
extend the time of payment of interest on any Note;
(c) increase the conversion price (other than in connection with a
reverse stock split as provided in this Indenture);
(d) change the place or currency of payment of principal of, or premium
or repurchase price, if any, or interest on, any Note;
(e) impair the right to institute suit for the enforcement of any
payment on or with respect to any Note;
(f) adversely affect the right to exchange or convert Notes;
(g) reduce the percentage of the aggregate principal amount of
outstanding Notes, the consent of the Holders of which is necessary to modify or
amend this Indenture;
(h) reduce the percentage of the aggregate principal amount of
outstanding Notes, the consent of the Holders of which is necessary for waiver
of compliance with certain provisions of this Indenture or for waiver of certain
defaults;
(i) modify the provisions of this Indenture with respect to the
subordination of the Notes in a manner adverse to the Holders;
(j) modify the provisions of this Indenture with respect to the right
to require the Company to repurchase Notes in a manner adverse to the Holders;
or
(k) modify the provisions of this Indenture with respect to the vote
necessary to amend this Section 9.2.
To secure a consent of the Holders under this Section 9.2, it shall not
be necessary for the Holders to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or waiver under this Section 9.2 becomes effective,
the Company shall mail to Holders a notice briefly describing the amendment or
waiver. Any failure of the Company to mail such notices, or any defect therein,
shall not, however, in any way, impair or affect the validity of any such
amendment or waiver.
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SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Notes shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplemental indenture or waiver becomes effective,
a consent to it by a Holder of a Note is a continuing consent by such Holder and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as such consenting Holder's Note, even if notation of the consent is not
made on any Note. However, prior to becoming effective, any such Holder or
subsequent Holder may revoke the consent as to its Notes or a portion thereof if
the Trustee receives written notice of revocation before the consent of Holders
of the requisite aggregate principal amount of Notes has been obtained and not
revoked.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver. If a record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to consent to such amendment or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders 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 Notes
required hereunder for such amendment or waiver to be effective shall have also
been given and not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
Holder, unless it is of the type described in any of clauses (a) through (k) of
Section 9.2. In such case, the amendment or waiver shall bind each Holder of a
Note who has consented to it and every subsequent Holder of a Note that
evidences the same debt as the consenting Holder's Note.
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee (in accordance with the written direction of the Company)
may (at the Company's expense) place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment or waiver. Failure to make the appropriate notation
or issue a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
SECTION 9.6 TRUSTEE PROTECTED.
The Trustee shall sign all supplemental indentures, except that the
Trustee need not sign any supplemental indenture that adversely affects its
rights. In signing or refusing to sign such supplemental Indenture, the Trustee
shall be entitled to receive an Officer's Certificate and Opinion of Counsel to
the effect that such supplemental Indenture is authorized or permitted by this
Indenture and will be valid and binding on the Company in accordance with its
terms.
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ARTICLE 10
CONVERSION
SECTION 10.1 CONVERSION PRIVILEGE.
Each Holder may, at such Holder's option, at any time prior to the
close of business on December 31, 2005, unless earlier redeemed or repurchased,
convert such Holder's Notes, in whole or in part (in denominations of $1,000 or
multiples thereof), at 100% of the principal amount so converted, into fully
paid and non-assessable shares of the Company's Common Stock at a conversion
price per share equal to $____, as such conversion price may be adjusted from
time to time in accordance with Section 10.4 (the "Conversion Price").
SECTION 10.2 CONVERSION PROCEDURE.
To convert a Note, a Holder must (1) complete and sign the notice on
the reverse of the Note, (2) surrender such Note to the Conversion Agent, (3)
furnish appropriate endorsements and transfer documents if required by the
Registrar or Conversion Agent and (4) pay any transfer or similar tax if
required by Section 10.6. The Company's delivery to the Holder of a fixed number
of shares of Common Stock (and any cash in lieu of fractional shares of Class A
Common Stock into which such Note is converted) shall be deemed to satisfy the
Company's obligation to pay the principal amount of such Note and, subject to
the provisions of Section 3.4, unless such Note is converted after a Regular
Record Date and prior to the related Interest Payment Date, all accrued interest
that has not previously been paid. If such Note is converted after a Regular
Record Date and prior to the related Interest Payment Date, the interest
installment on such Note scheduled to be paid on such Interest Payment Date
shall be payable on such Interest Payment Date to the Holder of record at the
close of business on such Regular Record Date through such date of conversion.
As promptly as practicable after the surrender of such Note in
compliance with this Section 10.2, the Company shall issue and deliver at such
office or agency to such Holder, or on such Holder's written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Note or portion thereof in accordance with
the provisions of this Article 10 and a check or cash in respect of any
fractional interest in respect of a share of Common Stock arising upon such
conversion, as provided in Section 10.3. In case any Note of a denomination
greater than $1,000 shall be surrendered for partial conversion, subject to
Article 2, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of the Note so surrendered, without charge to such Holder,
a new Note or Notes in authorized denominations in an aggregate principal amount
equal to the unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected on the date on
which such Note shall have been surrendered in compliance with this Section
10.2, and the Person in whose name any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be deemed to have
become on said date the holder of record of the shares represented thereby;
provided, however, that any such surrender on any date when the stock transfer
books of
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the Company shall be closed shall constitute the Person in whose name the
certificates are to be issued as the record holder thereof for all purposes on
the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such Note shall have been surrendered.
If the last day on which a Note may be converted is a Legal Holiday in
a place where a Conversion Agent is located, the Note may be surrendered to that
Conversion Agent on the next succeeding day that is not a Legal Holiday.
Provisions of this Indenture that apply to conversion of all of a Note
also apply to conversion of a portion of such Note.
SECTION 10.3 CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES.
No fractional shares of Common Stock or scrip representing fractional
shares shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of Common
Stock would be issuable upon the conversion of any Note or Notes, the Company
shall make an adjustment therefor in cash at the Current Market Price of the
Common Stock as of the close of business on the Business Day prior to such
conversion.
SECTION 10.4 ADJUSTMENT OF CONVERSION PRICE.
(a) In the event that the Company shall (i) pay a dividend or other
distribution, in shares of its Common Stock, on any class of Capital Stock of
the Company or any Subsidiary which is not wholly owned by the Company, (ii)
subdivide its outstanding Common Stock into a greater number of shares or (iii)
combine its outstanding Common Stock into a smaller number of shares, the
Conversion Price in effect immediately prior thereto shall be adjusted so that
the Holder of any Note thereafter surrendered for conversion shall be entitled
to receive the number of shares of Common Stock of the Company that such Holder
would have owned or have been entitled to receive after the happening of any of
the events described above had such Note been converted immediately prior to the
happening of such event. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the record date in the case of a
dividend and shall become effective immediately after the effective date in the
case of subdivision or combination.
(b) In the event that the Company shall issue or distribute Capital
Stock or issue rights, warrants or options entitling the holder thereof to
subscribe for or purchase Capital Stock at a price per share less than the
Current Market Price per share on the date of issuance or distribution (provided
that the issuance of Capital Stock upon the exercise of warrants or options will
not cause an adjustment in the Conversion Price if no such adjustment would have
been required at the time such warrant or option was issued), then at the
earliest of (i) the date the Company shall enter into a firm contract for such
issuance or distribution, (ii) the record date for the determination of
stockholders entitled to receive any such rights, warrants or options, if
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applicable, or (iii) the date of actual issuance or distribution of any such
Capital Stock or rights, warrants or options, the Conversion Price in effect
immediately prior to such earliest date shall be adjusted so that the Conversion
Price shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to such earliest date by:
(x) if such Capital Stock is Common Stock, the fraction whose numerator
shall be the number of shares of Common Stock outstanding on such date
plus the number of shares which the aggregate offering price of the
total number of shares so offered would purchase at such Current Market
Price (such amount, with respect to any such rights, warrants or
options, determined by multiplying the total number of shares subject
thereto by the exercise price of such rights, warrants or options and
dividing the product so obtained by the Current Market Price), and of
which the denominator shall be the number of shares of Common Stock
outstanding on such date plus the number of additional shares of Common
Stock to be issued or distributed or receivable upon exercise of any
such warrant, right or option; or
(y) if such Capital Stock is other than Common Stock, the fraction
whose numerator shall be the Current Market Price per share of Common
Stock on such date minus an amount equal to (A) the sum of (I) the
Current Market Price per share of such class of Capital Stock
multiplied by the number of shares of such class of Capital Stock to be
so issued minus (II) the offering price per share of such Capital Stock
multiplied by the number of shares of such class of Capital Stock to be
so issued (B) divided by the number of shares of Common Stock
outstanding on such date and whose denominator is the Current Market
Price of the Common Stock on such date.
Such adjustment shall be made successively whenever any such Capital Stock,
rights, warrants or options are issued or distributed at a price below the
Current Market Price therefor as in effect on the date of issuance or
distribution. In determining whether any rights, warrants or options entitle the
holders to subscribe for or purchase shares of Capital Stock at less than such
Current Market Price, and in determining the aggregate offering price of shares
of Capital Stock so issued or distributed, there shall be taken into account any
consideration received by the Company for such Capital Stock, rights, warrants
or options, the value of such consideration, if other than cash, to be
determined by the Board of Directors, whose determination shall be conclusive
and described in a certificate filed with the Trustee. If any right, warrant or
option to purchase Capital Stock, the issuance of which resulted in an
adjustment in the Conversion Price pursuant to this subsection (b), shall expire
and shall not have been exercised, the Conversion Price shall immediately upon
such expiration be recomputed to the Conversion Price which would have been in
effect had the adjustment of the Conversion Price made upon the issuance of such
right, warrant or option been made on the basis of offering for subscription or
purchase only that number of shares of Capital Stock actually purchased upon the
actual exercise of such right, warrant or option.
(c) In the event that the Company shall pay as a dividend or other
distribution to holders of any class of its Capital Stock generally or to
holders of any class of Capital Stock of any Subsidiary which is not wholly
owned by the Company evidences of indebtedness or assets (including, without
limitation, shares of Capital Stock, cash or other securities, but excluding
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dividends, rights, warrants, options and distributions for which adjustment is
made as described in subsections (a) and (b) above and further excluding cash
dividends paid out of cumulative retained earnings of the Company arising after
the date hereof and determined in accordance with GAAP), 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 per share of 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 and described in a
certificate filed with the Trustee) of the portion of the Capital Stock or
assets or evidences of indebtedness so distributed or of such rights or warrants
attributable to one share of Common Stock (the amount so attributable equaling
the aggregate fair market value of such indebtedness or assets, as so determined
by the Board of Directors, divided by the number of shares of Common Stock
outstanding on such record date), and the denominator shall be the Current
Market Price of the Common Stock on such record date. Such adjustment shall
become effective immediately after the record date for the determination of
stockholders entitled to receive such distribution, except as provided in
subsection (f) below.
(d) Notwithstanding anything contained herein to the contrary, no
adjustment in the Conversion Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Conversion Price
then in effect; provided, however, that any adjustments which by reason of this
subsection (d) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
10 shall be made by the Company and shall be made to the nearest cent or to the
nearest one hundredth of a share, as the case may be and the Trustee shall be
entitled to rely thereon. Anything in this Section 10.4 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Conversion Price, in addition to those required by this Section 10.4, as it in
its discretion shall determine to be advisable in order that any stock
dividends, subdivision of shares, distribution of rights to purchase stock or
securities, or a distribution of securities convertible into or exchangeable for
stock hereafter made by the Company to its stockholders shall not be taxable.
Notwithstanding any provision of this Article 10 to the contrary, no adjustment
in the Conversion Price shall be made upon (i) the issuance of Common Stock of
the Company pursuant to any compensation or incentive plan for officers,
directors, employees or consultants of the Company, which plan has been approved
by the Compensation Committee of the Board of Directors (or if there is no such
committee then serving, by the majority vote of the Directors then serving on
the Company's Board of Directors who are not an employee or officer of the
Company, a 5% or greater stockholder of the Company, an officer, employee or
Affiliate of any such 5% or greater stockholder of the Company or any relative
or spouse of any such Person or of such Person's spouse who has the same home as
such Person), and, if required by law, the requisite vote of the stockholders of
the Company (unless the exercise price thereof is changed after the date hereof
other than solely by operation of the anti-dilution provisions thereof or by the
Compensation Committee, if applicable, the Board of Directors and, if required
by law, the stockholders of the Company as provided in this clause (i)), (ii)
the issuance of Common Stock upon the conversion or exercise of preferred stock
or warrants of the Company outstanding on the date of this Indenture, unless the
conversion or exercise price thereof is changed after the date of this Indenture
(other than solely by operation of the anti-dilution provisions thereof) or
(iii) the declaration, setting aside or payment of dividends out of the
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Company's cumulative retained earnings (as evidenced by the quarterly financial
statements of the Company, certified by an Officer's Certificate delivered to
the Trustee) from and after January 1, 2001. Except as provided in this Article
10, no adjustment in the Conversion Price will be made for the issuance of
Common Stock or any securities convertible into or exchangeable for Common
Stock, or carrying the right to purchase any of the foregoing.
(e) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly file with the Trustee and any conversion agent
other than the Trustee an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Promptly after
delivery of such certificate, the Company shall prepare a notice of
such adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the date on which such adjustment becomes
effective and shall mail or cause to be mailed such notice to each
Holder at his last address appearing on the Note Register.
(f) In any case in which this Section 10.4 provides that an adjustment
shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (i) issuing to
the Holder of any Note converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable
upon such conversion by reason of the adjustment required by such event
over and above the Common Stock issuable upon such conversion before
giving effect to such adjustments and (ii) paying to such Holder any
amount in cash in lieu of any fraction pursuant to Section 10.3 hereof.
SECTION 10.5 EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE.
In the event of (i) any reclassification or change of outstanding
shares of Common Stock (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), (ii) any consolidation, merger or combination of the Company
with another corporation as a result of which holders of Common Stock shall be
entitled to receive securities or other Property (including cash) with respect
to or in exchange for such Common Stock or (iii) any sale or conveyance of the
Property of the Company as, or substantially as, an entirety to any other
corporation as a result of which holders of Common Stock shall be entitled to
receive securities or other Property (including cash) with respect to or in
exchange for such Common Stock, then the Company or the successor or purchasing
corporation, as the case may be, shall enter into a supplemental indenture
providing that each Note shall be convertible into the kind and amount of
securities or other Property (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
by a holder of a number of shares of Common Stock issuable upon conversion of
such Notes immediately prior to such reclassification, change, consolidation,
merger, combination, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 10.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at his address appearing on the Register.
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The above provisions of this Section 10.5 shall similarly apply to
successive reclassification, changes, consolidations, mergers, combinations,
sales and conveyances.
SECTION 10.6 TAXES ON SHARES ISSUED.
The issuance of stock certificates on conversions of Notes shall be
made without charge to the converting Holder for any tax in respect of the
issuance thereof. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of a stock certificate in any name other than that of the Holder of any
Note converted, and the Company shall not be required to issue or deliver any
such stock certificate unless and until the person or persons requesting the
issue 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.
SECTION 10.7 RESERVATION OF SHARES; SHARES TO BE FULLY PAID; COMPLIANCE WITH
GOVERNMENT REQUIREMENTS; LISTING OF COMMON STOCK.
The Company shall reserve, out of its authorized but unissued Common
Stock or its Common Stock held in treasury, sufficient shares of Common Stock to
provide for the conversion of the Notes that are outstanding from time to time.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the shares of Common Stock
issuable upon conversion of the Notes, the Company will take all corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue shares of Common Stock at such adjusted
Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Notes will upon issuance be fully paid and
nonassessable by the Company and free from all taxes, liens and charges with
respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided
for the purpose of conversion of Notes hereunder require registration with or
approval of any governmental authority under any applicable federal or state law
(excluding federal or state securities laws) before such shares may be validly
issued upon conversion, the Company will in good faith and as expeditiously as
possible endeavor to secure such registration or approval, as the case may be.
The Company further covenants that if at any time Common Stock shall be
listed on the American Stock Exchange or any other national securities exchange
or on the Nasdaq Stock Market the Company will, if permitted by the rules of
such exchange or market, list and keep listed so long as the Common Stock shall
be so listed on such exchange or market, all Common Stock issuable upon
conversion of the Notes.
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SECTION 10.8 RESPONSIBILITY OF TRUSTEE REQUIREMENTS.
The Trustee and any other Conversion Agent shall not at any time be
under any duty or responsibility to any Holder to determine whether any fact
exists which may require any adjustment of the Conversion Price or other
adjustment or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. The
Trustee and any other Conversion Agent shall not be accountable with respect to
the validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities or other Property, which may at any time be issued or
delivered upon the conversion of any Note; and neither the Trustee nor any other
Conversion Agent makes any representations with respect thereto. Subject to the
provisions of Section 8.1 hereof, neither the Trustee nor any Conversion Agent
shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
other Property (including cash) upon the surrender of any Note for the purpose
of conversion or to comply with any of the duties, responsibilities or covenants
of the Company contained in this Article 10. Without limiting the generality of
the foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 10.5 hereof relating
either to the kind or amount of securities or other Property (including cash)
receivable by Holders upon the conversion of their Notes after any event
referred to in Section 10.5 hereof or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 8.1 hereof, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers' Certificate (which the Company shall be
obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
SECTION 10.9 NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS.
In the event that:
(a) the Company shall declare a dividend (or any other distribution) on
its Common Stock (other than in cash out of retained earnings); or
(b) the Company shall authorize the granting to the holders of its
Common Stock generally of rights or warrants to subscribe for or purchase any
shares of any class of its Capital Stock or any other rights or warrants; or
(c) of any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of the
sale or transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
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then, in each such case, the Company shall file or cause to be filed with the
Trustee and to be mailed to each Holder at his address appearing on the
Register, as promptly as possible but in any event at least 15 days prior to the
applicable date hereinafter specified, a notice prepared by the Company stating
(x) the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or
occurring and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their Common Stock for securities or
other Property deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding-up. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
ARTICLE 11
SUBORDINATION
SECTION 11.1 AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note agrees, that
the indebtedness evidenced by the Notes is subordinated in right of payment, to
the extent and in the manner provided in this Article 11, to the prior payment
in full of all Senior Indebtedness, and that the subordination is for the
benefit of the holders of Senior Indebtedness. All provisions of this Article 11
shall be subject to Section 11.13. Notwithstanding anything is this Indenture to
the contrary, the indebtedness evidenced by the Notes shall be ranked pari passu
with the indebtedness evidenced by the Company's 8.125% Subordinated Convertible
Notes Due 2005 and relating to the $2.03 Convertible Exchangeable Preferred
Stock, Series C of the Company.
SECTION 11.2 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution to creditors of the Company in a
liquidation, dissolution or winding up of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property:
(a) holders of Senior Indebtedness shall be entitled to receive
payment in full of all Senior Indebtedness before Holders shall be entitled to
receive any payments of principal of or premium, if any, or interest on the
Notes; and
(b) until the Senior Indebtedness is paid in full, any distribution
to which Holders would be entitled but for this Article 11 shall be made to
holders of Senior Indebtedness as their interests may appear, except that
Holders may receive securities that are subordinated to Senior Indebtedness to
at least the same extent as the Notes; provided that no such default will
prevent any payment on, or in respect of, the Notes for more than 120 days
unless the maturity of such Senior Indebtedness has been accelerated.
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A distribution may consist of cash, securities or other property.
SECTION 11.3 COMPANY NOT TO MAKE PAYMENT WITH RESPECT TO NOTES IN CERTAIN
CIRCUMSTANCES.
(a) Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all principal thereof, premium, if any, and interest
thereon and any other amounts owing in respect thereof shall first be paid in
full, or such payment duly provided for in cash or in a manner satisfactory to
the holders of such Senior Indebtedness before any payment is made on account
of the principal of or premium, if any, or interest on the Notes or to acquire
any of the Notes.
(b) Upon the happening of an event of default (or if any event of
default would result upon any payment upon or with respect to Notes) with
respect to any Senior Indebtedness as such event of default is defined therein
or in the instrument under which it is outstanding, permitting holders to
accelerate the maturity thereof, and, if the default is other than default in
payment of the principal of, premium, if any, or interest on or any other
amount owing in respect of such Senior Indebtedness, upon written notice
thereof given to the Company and the Trustee by the holders of Senior
Indebtedness or their Representative, then, unless (i) such an event of default
shall have been cured or waived or shall have ceased to exist or (ii) the
Company and the Trustee receive written notice from the Representatives of the
Senior Indebtedness with respect to which such event of default relates
approving payment on the Notes, no payment shall be made by the Company with
respect to the principal of or premium, if any, or interest on the Notes or to
acquire any of the Notes; provided that no such default will prevent any
payment on, or in respect of, the Notes for more than 120 days unless the
maturity of such Senior Indebtedness has been accelerated. Not more than one
such 120 day delay may be made in any consecutive 360 day period, irrespective
of the number of defaults with respect to Senior Indebtedness during such
period.
SECTION 11.4 ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default,
the Company shall promptly notify holders of Senior Indebtedness of the
acceleration.
SECTION 11.5 WHEN DISTRIBUTION MUST BE PAID OVER.
If a distribution is made to Holders that, because of this Article 11,
should not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness and pay it over to
them as their interests may appear.
SECTION 11.6 NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of principal of or
premium, if any, or interest on the Notes to violate this Article 11.
51
<PAGE> 81
SECTION 11.7 SUBROGATION.
After all Senior Indebtedness is paid in full and until the Notes are
paid in full, Holders shall be subrogated to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Indebtedness. A distribution made under this Article 11 to
holders of Senior Indebtedness which otherwise would have been made to Holders
is not, as between the Company and Holders, a payment by the Company on Senior
Indebtedness.
SECTION 11.8 RELATIVE RIGHTS.
This Article 11 defines the relative rights of Holders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of and premium,
if any, and interest on the Notes in accordance with their terms;
(b) affect the relative rights of Holders and creditors of the Company,
other than holders of Senior Indebtedness; or
(c) prevent the Trustee or any Holder from exercising its available
remedies upon a Default, subject to the rights of holders of Senior Indebtedness
to receive distributions otherwise payable to Holders.
If the Company fails because of this Article 11 to pay principal of or
premium, if any, or interest on a Note on the date, such failure shall
nevertheless be deemed a Default. Nothing in this Article 11 shall have any
effect on the right of the Holders or the Trustee to accelerate the maturity of
the Notes.
SECTION 11.9 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Indebtedness to enforce the
subordination of the indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or by its failure to comply with the
terms of this Indenture.
SECTION 11.10 DISTRIBUTION OF NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative, if any.
SECTION 11.11 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding any provisions of this Indenture to the contrary, the
Trustee and any Paying Agent may continue to make payments on the Notes and
shall not at any time be charged
52
<PAGE> 82
with knowledge of the existence of any facts which would prohibit the making of
such payments until it receives written notice (received by a Trust Officer, in
the case of the Trustee) reasonably satisfactory to it that payments may not be
made under this Article 11 and, prior to the receipt of any such notice, the
Trustee, subject to the provisions of Article 7, and any agent shall be entitled
to assume conclusively that no such facts exist. The Company, an Agent, a
Representative or a holder of Senior Indebtedness may give the notice. If an
issue of Senior Indebtedness has a Representative, only the Representative (or
any Representative, if more than one) may give the notice with respect to such
Senior Indebtedness.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a Representative) to establish that such notice has been given
by a holder of Senior Indebtedness (or a Representative), and shall be entitled
to rely on any written notice by a Person representing himself to be a holder of
a Senior Indebtedness to the effect that such issue of Senior Indebtedness has
no Representative.
Any deposit of moneys by the Company with the Trustee or any Paying
Agent (whether or not in trust) for the payment of the principal of or premium,
if any, or interest on, or a payment on account of a Change of Control or Net
Worth Deficiency, if any, of, any Notes shall be subject to the provisions of
this Article 11, except that if, at least three business days prior to the date
on which by the terms of this Indenture any such moneys may become payable for
any purpose (including without limitation, the payment of principal of or
premium, if any, or interest on any Note), the Trustee shall not have received
with respect to such moneys the notice provided for in this Section 11.11, then
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 within three
business days prior to or on or after such date. This Section 11.11 shall be
construed solely for the benefit of the Trustee and Paying Agent and shall not
otherwise affect the rights of holders of Senior Indebtedness. In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article 11, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of the Senior Indebtedness 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 11, 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 payment.
The Trustee shall not be deemed to owe any fiduciary duty to holders of
Senior Indebtedness by virtue of the provisions of this Article 11. The
Trustee's responsibilities to the holders of Senior Indebtedness are limited to
those set forth in this Article 11 and no implied covenants or obligations shall
be read into this Indenture. The Trustee shall not become liable to holders of
Senior Indebtedness if it makes a payment prohibited by this Article 11 in good
faith.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
53
<PAGE> 83
SECTION 11.12 EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Notes, by 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 11 and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 11.13 TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from money or the proceeds of U.S. Government Obligations held in trust under
Article 8 by the Trustee for the payment of principal of and interest on the
Notes shall not be subordinated to the prior payment of any Senior Indebtedness
or subject to the restrictions set forth in this Article 11, and none of the
Holders shall be obligated to pay over any such amount to the Company or any
holder of Senior Indebtedness of the Company or any other creditor of the
Company.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
SECTION 12.2 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), telex, telecopier or
overnight air courier guaranteeing next day delivery addressed as follows:
if to the Company:
Range Resources Corporation
500 Throckmorton Street, Suite 1900
Fort Worth, Texas 76102
Fax No. (817) 870-0075
Attention: President
if to the Trustee:
Computershare Investor Services, L.L.C.
--------------------------------------
Fax. No.
------------------------------
Attention: Corporate Trust Department
54
<PAGE> 84
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
All other notices or communications shall be in writing.
SECTION 12.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 12.4 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 stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) at the Trustee's reasonable request, an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with.
55
<PAGE> 85
SECTION 12.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION OF COUNSEL.
Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that the individual making such Officers' Certificate
or Opinion of Counsel 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 Officers'
Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of such individual, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such condition or covenant has been complied with; provided,
however, that, with respect to certain matters of fact not involving any legal
conclusion, an Opinion of Counsel may, upon the consent of the parties relying
on such opinion, rely on an Officers' Certificate or certificates of public
officials.
SECTION 12.6 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
Holders. The Registrar, Paying Agent or Conversion Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 12.7 LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding Business Day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 12.8 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 Notes
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation including with respect to any certificates
delivered thereunder or hereunder. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
56
<PAGE> 86
SECTION 12.9 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 GOVERNING LAW.
The internal laws of the State of New York shall govern this Indenture
and the Notes, without regard to the conflict of laws provisions thereof.
SECTION 12.11 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.12 SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 12.13 SEVERABILITY.
In case any provision of this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.14 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
57
<PAGE> 87
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
executed as of the day and year first above written.
RANGE RESOURCES CORPORATION
By:
-------------------------------
Name:
Title:
Attest:
---------------------------------
Name:
COMPUTERSHARE INVESTOR SERVICES, L.L.C.
By:
-------------------------------
Name:
Title:
Attest:
---------------------------------
Name:
Dated: [___________________]
58
<PAGE> 88
EXHIBIT A [Face of Note]
RANGE RESOURCES CORPORATION
8.125% SUBORDINATED CONVERTIBLE NOTE DUE 2005
[Global Securities legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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 Securities legend]
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED, IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER
OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTIONS OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
Exhibit A-1
<PAGE> 89
REGULATION S UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (IV) TO THE COMPANY OR (V)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, IN EACH OF CASES FL) THROUGH (V)IN ACCORDANCE WITH ANY
APPLICABLE FEDERAL OR STATE SECURITIES LAWS AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
[Institutional Accredited Investor Legend]
IN CONNECTION WITH ANY TRANSFER OF THIS NOTE, THE HOLDER WILL DELIVER
TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
CUSIP No. [_________]
$_________
No.______
Range Resources Corporation, a Delaware corporation, promises to pay to
_________________________________________________________ or registered assigns,
the principal sum of _____________________________________________ Dollars on
December 31, 2005.
Interest Payment Dates: March 31, June 30, September 30 and
December 31.
Record Dates: March 15, June 15, September 15 and December 15.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Dated: ________________________ RANGE RESOURCES CORPORATIOIN
By:_______________________________
Officer of the Company
(SEAL)
Attest: __________________________
By:_______________________________
Secretary
Authentication:
Exhibit A-2
<PAGE> 90
This is one of the Notes referred to in the within-mentioned Indenture:
KEYCORP SHAREHOLDER SERVICES, INC., as Trustee
By:________________________________
Authorized Signature
Dated:_____________________________
[Reverse Side]
Capitalized terms used herein without definition shall have the meaning
ascribed to them in the Indenture, dated as of ___________________ [Indenture
Date] (the "Indenture"), as amended from time to time, between Range Resources
Corporation (the "Company") and Keycorp Shareholder Services, Inc., as trustee
(the "Trustee").
1. INTEREST.
(a) The Company shall pay interest on the outstanding principal
amount of this Note at the rate of 8.125% per annum from _____________________
[Indenture Date] until maturity. The Company will pay interest quarterly on
March 31, June 30, September 30 and December 31 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date on
which interest has been paid or duly provided for or, if no interest has been
paid, from ___________________ [Indenture Date]; provided, however, that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
(b) To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on (i)
overdue principal, premium, if any, at the rate borne by the Notes; and (ii)
overdue installments of interest at the same rate.
2. METHOD OF PAYMENT. The Company will pay interest (except defaulted
interest) on the Notes to the Persons who are registered Holders at the close of
business on March 15, June 15, September 15 or December 15 next preceding the
applicable Interest Payment Date (each a "Regular Record Date"), even if such
Notes are cancelled after such Regular Record Date and on or before such
Interest Payment Date. Defaulted interest shall be paid to Holders as of a
special record date established for purposes of determining the Holders entitled
thereto. The Notes will be payable as to principal and interest at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer
Exhibit A-3
<PAGE> 91
of immediately available funds will be required with respect to principal of and
interest on the Global Security. Such payment shall be in currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
3. PAVING AGENT, REGISTRAR AND CONVERSION AGENT. Initially, the Trustee
will act as Paying Agent, Registrar and Conversion Agent. The Company may change
any Paying Agent, Registrar or Conversion Agent without notice to any Holder.
The Company or any of its subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under the Indenture. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. The Notes are subject to all such terms, and Holders are referred to
the Indenture and the TIA for a statement of such terms. The Notes are general
unsecured obligations of the Company limited to $___ million in aggregate
principal amount, subject to Section 2.7 of the Indenture.
5. OPTIONAL REDEMPTION BY THE COMPANY. The Notes shall not be subject
to redemption at the option of the Company prior to November 1, 2000. On or
after November 1, 2000, the Notes will be redeemable at any time prior to
maturity at the option of the Company, in whole or in part from time to time,
upon not less than 30 days' nor more than 60 days' prior notice to the Holders
at the redemption prices (expressed as percentages of principal amount) set
forth below:
AFTER NOVEMBER 1, PERCENTAGE
2000 .......................................103
2001 .......................................102
2002 .......................................101
2003 AND THEREAFTER.........................100
In each case together with accrued but unpaid interest, if any, to the
redemption date.
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
7. REDEMPTION AT THE OPTION OF HOLDER. Upon a Change of Control, the
Company shall offer to repurchase all or any part of the Notes (at each Holder's
option) at a repurchase price equal to 100% of the aggregate principal amount
thereof, plus accrued but unpaid interest, if any, to the date of repurchase.
Within 30 days after a Change of Control, the Company shall mail a notice to
each Holder setting forth the procedures governing the Change of Control Offer
as required by the Indenture. A Holder may tender or refrain from tendering all
or any portion of such Holder's Notes, at such Holder's discretion, by
completing the form entitled "Option of Holder to Elect Repurchase" below and
delivering such form, together with the Notes
Exhibit A-4
<PAGE> 92
with respect to which the repurchase right is being exercised, duly endorsed for
transfer to the Company, to the Trustee. Any partial tender of Notes must be in
an integral multiple of $1,000.
8. CONVERSION.
(a) Subject to the provisions of the Indenture, the Holder hereof
may, at such Holder's option, at any time prior to the close of business on
December 31, 2005, unless earlier redeemed or repurchased, convert this Note, in
whole or in part (provided partial conversions may only be made in denominations
of $1,000 or multiples thereof), at 100% of the principal amount hereof so
converted, into shares of Common Stock of the Company, par value $.01 per share,
at a conversion price per share of $__________, subject to adjustment as
provided in the Indenture.
To convert a Note, a Holder must (i) complete and sign the conversion
notice below, (ii) surrender the Note to the Conversion Agent, (iii) furnish
appropriate endorsements and transfer documents if required by the Registrar or
Conversion Agent and (iv) pay any transfer or similar tax if required by the
Indenture. No fractional shares will be issued upon any conversion, but an
adjustment in cash will be made, as provided in the Indenture, in respect of any
fraction of a share which would otherwise be issuable upon surrender of any Note
for conversion. A Holder is not entitled to any rights of a holder of Common
Stock until such Holder has converted its Notes into Common Stock as provided in
the Indenture.
9. SUBORDINATION. The Notes are subordinated to Senior Indebtedness. To
the extent provided in the Indenture, Senior Indebtedness must be paid before
the Notes may be paid. The Company agrees, and each Holder by accepting a Note
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give effect to such provisions, and each Holder
appoints the Trustee its attorney-in-fact for any and all such purposes.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $25 and integral multiples of $25. A Holder
may transfer or exchange Notes as provided in the Indenture. The Registrar may
require a Holder, 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
Definitive Security (or portion thereof selected for redemption). Also, it need
not exchange or register the transfer of any Notes during the 15 day period
preceding the mailing of a notice of redemption or an offer to repurchase Notes
or the 15 day period preceding an Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
12. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding, and any
existing Default (except a payment default) may be waived with the consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding. Without the consent of any Holder, the Company and the Trustee may
amend
Exhibit A-5
<PAGE> 93
or supplement the Indenture or the Notes to (i) cure any ambiguity, defect or
inconsistency, provided that such amendment does not in the opinion of the
Trustee adversely affect the rights of any Holder, (ii) provide for
uncertificated Notes in addition to or in lieu of certificated Notes, (iii)
comply with Section 5.1 of the Indenture, (iv) make any change that does not
adversely affect the legal rights of any Holder, or (v) comply with requirements
of the SEC in order to effect or maintain the qualification of the Indenture
under the TIA.
13. DEFAULTS AND REMEDIES. Events of Default include: (a) failure to
pay principal of or premium, if any, on any Note when due and payable at
maturity, upon redemption, upon a Change of Control Offer or otherwise, whether
or not such payment is prohibited by the subordination provisions of the
Indenture; (b) failure to pay any interest on any Note when due and payable,
which failure continues for 30 days, whether or not such payment is prohibited
by the subordination provisions of the Indenture; (c) failure to perform the
other covenants of the Company in the Indenture, which failure continues for 60
days after written notice as provided in the Indenture; (d) failure to perform
any covenants of the Company to the holders of Senior Indebtedness as required
by the terms of such Senior Indebtedness unless waived by said holders; (e) a
default occurs (after giving effect to any applicable grace periods or any
extension of any maturity date) in the payment when due of principal of and/ or
acceleration of, any indebtedness for money borrowed by the Company or any of
its Subsidiaries in excess of $5,000,000, individually or in the aggregate, if
such indebtedness is not discharged, or such acceleration is not annulled,
within 10 days after written notice as provided in the Indenture; and (f)
certain events of bankruptcy, insolvency or reorganization of the Company or any
Subsidiary. If an Event of Default shall occur and be continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may accelerate the maturity of all Notes, except that in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes shall immediately so accelerate. The Trustee
may require indemnity satisfactory to it before it enforces the Indenture or the
Notes at the request or direction of any of the Holders. Subject to certain
limitations, the Holders of a majority in aggregate principal amount of the
outstanding Notes will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee. The Company must furnish an annual
compliance certificate to the Trustee.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee; provided, however, that if
the Trustee acquires any conflicting interest as described in the TIA, it must
eliminate such conflict or resign.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
Exhibit A-6
<PAGE> 94
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Transfer Restricted Securities shall have all the rights set forth in the
Registration Rights Agreement.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Range Resources Corporation 500 Throckmorton Street, Suite 1900 Fort
Worth, Texas 76102 Attn: President
SCHEDULE OF EXCHANGES OF GLOBAL SECURITY FOR DEFINITIVE SECURITIES
The following exchanges of this Global Security for Definitive
Securities have been made:
<TABLE>
<CAPTION>
Amount of decrease Amount of increase Principal Amount of Signature of
in Principal Amount in Principal Amount this Global Security authorized officer
of this Global of this Global following such decrease of Trustee or
Date of Exchange Security Security or increase Notes Custodian
--------------------- --------------------- ------------------- ------------------------ ------------------
<S> <C> <C> <C> <C>
</TABLE>
Exhibit A-7
<PAGE> 95
FORM OF ELECTION TO CONVERT
I (we) hereby irrevocably exercise the option to convert this Note, or
the portion below designated, into shares of Common Stock of Range Resources
Corporation in accordance with the terms of the Indenture referred to in this
Note, and direct that the shares issuable and deliverable upon conversion,
together with any check in payment for fractional shares, be issued in the name
of and delivered to the undersigned registered Holder hereof, unless a different
name has been indicated in the assignment below. If shares are to be issued in
the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
Portion of this Note to
be converted (if partial
conversion, $1,000 or an
integral multiple thereof): $___________________________
If shares of Common Stock are to be issued and registered otherwise than to the
registered Holder named above, please print the name and address, including zip
code, and social security or other taxpayer identification number of the person
to whom such Common Stock is to be issued.
__________________________________________
__________________________________________
__________________________________________
Your Name:_______________________________________________________
(exactly as your name appears on the face of this Note)
By:_____________________________________
Title:___________________________________
Date:___________________________________
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
______________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
Exhibit A-8
<PAGE> 96
and irrevocably appoint _______________________________________________ agent to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Date: ___________________
Your Name:_______________________________
(exactly as your name appears
on the face of this Note)
By:______________________________________
Title:___________________________________
Date:____________________________________
Signature Guaranteed:
By:__________________________________________
(Bank or trust company having an office or correspondent in the United States or
a broker or dealer which is a member of a registered securities exchange or the
National Association of Securities Dealers, Inc.)
Exhibit A-9
<PAGE> 97
In connection with any transfer or exchange of any of the Notes
evidenced by this certificate occurring prior to the date that is three years
after the later of the date of original issuance of such Notes and the last
date, if any, on which such Notes were owned by the Company or any Affiliate of
the Company, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
[ ] (1) acquired for the undersigned's own account, without transfer (in
satisfaction of Section 2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of the
Indenture; or
[ ] (2) transferred to the Company; or
[ ] (3) transferred pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
[ ] (4) transferred pursuant to id in compliance with Regulation S under the
Securities Act of 1933; or
[ ] (5) transferred 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 Company and the Trustee a signed letter
containing certain representations and agreements (the form of which
letter appears as Exhibit C to the Indenture); or
[ ] (6) transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof; provided, however, that if box (4), (5) or (6) is
checked, the Company, Trustee or Registrar may require, prior to registering any
such transfer of the Notes, in their sole discretion, such legal opinions,
certifications and other information as the Company, Trustee or Registrar has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, including but not limited to the
exemption provided by Rule 144 under such Act.
Your Name:______________________________
(exactly as your name appears
on the face of this Note)
By:____________________________________
Title:_________________________________
Date:__________________________________
Exhibit A-10
<PAGE> 98
Signature Guaranteed:
By: ________________________________________________________________________
(Bank or trust company having an office or correspondent in the United States
or a broker or dealer which is a member of a registered securities exchange or
the National Association of Securities Dealers, Inc.)
OPTION OF HOLDER TO ELECT REPURCHASE
1. If you want to elect to have all or any part of this Note
repurchased by the Company pursuant to Article 4 of the Indenture (in connection
with a Change of Control Offer or Deficiency Offer), state the amount you elect
to have repurchased (if all, write "ALL"): $
Your Name:______________________________
(exactly as your name appears
on the face of this Note)
By:_____________________________________
Title:__________________________________
Date:___________________________________
Signature Guaranteed:
By:__________________________________________
(Bank or trust company having an
office or correspondent in the United States
or a broker or dealer which is a member of a
registered securities exchange or the National
Association of Securities Dealers, Inc.)
Exhibit A-11
<PAGE> 99
EXHIBIT B
TRANSFEREE LETTER OF REPRESENTATION
Range Resources Corporation
c/o ______________________________
__________________________________
__________________________________
Dear Sirs:
This Certificate is delivered to request a transfer of $_______________
principal amount of the 8.125% Subordinated Convertible Notes due 2005 (the
"Notes") of Range Resources Corporation (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name:___________________________________________________________
Address:_________________________________________________________
Taxpayer ID Number:______________________________________________
The undersigned represents and warrant to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor," and we are acquiring the Notes for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have such
knowledge and experience in financial business matters as to be capable of
evaluating the merits and risk of our investment in the Notes and we invest in
or purchase securities similar to the Notes in the normal course of our
business. We and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date which is three years after the later of the date of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Notes (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a) so long as the Notes are eligible for
resale pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer, as defined in Rule 144A under the
Securities Act, (a "QIB") in a transaction complying with the requirements of
Rule 144A, (b) in an offshore transaction in accordance with Regulation S under
Exhibit B-1
<PAGE> 100
the Securities Act, (c) pursuant to a registration statement which has been
declared effective under the Securities Act, (d) to the Company, or (e) pursuant
to any other available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any requirement of law
that the disposition of our property or the property of such investor account or
accounts be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. Each purchaser
acknowledges that the Company, Trustee and Registrar reserve the right prior to
any offer, sale or other transfer prior to the Resale Termination Date of the
Notes pursuant to clauses (b) or (e) above to require the delivery of an opinion
of counsel, certifications and/or other information satisfactory to the Company,
Trustee and Registrar.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
[Name]
By:______________________________________
Title:___________________________________
Exhibit B-2
