SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-Q/A
(MARK ONE)
(x/) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
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Commission File Number: 333-10161
Sygnet Wireless, Inc.
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(Exact name of registrant as specified in its charter)
Ohio
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(State or other jurisdiction of incorporation or organization)
34-1689165
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(I.R.S. Employer Identification No.)
6550-B Seville Drive, Canfield, Ohio 44406
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(Address of principal executive offices) (Zip Code)
(330) 565-1000
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
( ) Yes (x/) No
1
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INDEX
SYGNET WIRELESS, INC.
FORM 10-Q/A
PERIOD ENDED SEPTEMBER 30, 1996
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
Consolidated Balance Sheets as of September 30, 1996 and
December 31, 1995
Consolidated Statements of Income for the Three Months Ended
September 30, 1996 and September 30, 1995 and the Nine Months Ended
September 30, 1996 and September 30, 1995
Consolidated Statements of Cash Flows for the Nine Months Ended
September 30, 1996 and September 30, 1995
Notes to Consolidated Financial Statements
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
2
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PART I - FINANCIAL INFORMATION
<TABLE>
Sygnet Wireless, Inc.
Consolidated Balance Sheets
<CAPTION>
September 30 December 31
1996 1995
------------- -------------
(Unaudited) (Note)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ............................................................... $ 1,682,752 $ 448,292
Accounts receivable, less allowance for doubtful accounts of $574,000 at
September 30, 1996 and $403,000 at December 31, 1995 .................................. 5,080,556 5,654,208
Inventories ............................................................................. 904,353 1,096,961
Prepaid expenses and deferred income taxes .............................................. 608,558 263,722
------------- -------------
Total current assets .............................................................. 8,276,219 7,463,183
Cash to be used for acquisition of business ............................................. 35,200,000 --
Intangible assets, primarily cellular licenses--net ..................................... 48,491,563 49,456,397
Deferred expenses--net .................................................................. 5,949,879 1,649,997
Property, plant and equipment--net ...................................................... 23,743,031 21,048,896
------------- -------------
Total assets ............................................................................ $ 121,660,692 $ 79,618,473
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable ........................................................................ $ 313,140 $ 998,368
Amount payable--Erie acquisition ........................................................ -- 1,920,190
Deferred revenue ........................................................................ 875,573 742,811
Utility property tax payable ............................................................ 242,829 135,000
Accrued expenses and other liabilities .................................................. 1,719,035 1,786,965
------------- -------------
Total current liabilities .................................................................. 3,150,577 5,583,334
Long-term liabilities
Deferred liability--utility property tax ................................................ 250,250 248,876
Long-term debt .......................................................................... 111,000,000 69,500,000
Deferred income taxes ................................................................... 1,157,430 --
------------- -------------
Total long-term liabilities ................................................................ 112,407,680 69,748,876
Shareholders' equity:
Wilcom Corporation:
Common shares, no par, Type A, voting, stated value $25.00; 1,000 shares
authorized, 500 shares issued and outstanding ....................................... -- 12,500
Common shares, no par, Type B, non-voting, stated value $25.00; 5,000
shares authorized, 2,500 shares issued and outstanding .............................. -- 62,500
SYGNET Communications, Inc.:
Common stock, no par, Type A, voting, stated value $1.00; 250,000 shares
authorized, 209,362 shares issued and outstanding ................................... -- 209,362
Common stock, no par, Type B, non-voting, stated value $1.00; 1,250,000
shares authorized, 1,046,801 shares issued and outstanding .......................... -- 1,046,801
Sygnet Wireless, Inc. ...................................................................
Common shares, $.01 par, Class B, voting; 10,000,000 shares authorized,
6,170,630 shares issued and outstanding ............................................. 61,706
Additional paid-in capital ............................................................ 6,530,239 4,170,368
Retained earnings (deficit) ........................................................... (239,558) 753,675
Note receivable from officer/shareholder .............................................. (249,952) (249,952)
Treasury stock, at cost ............................................................... -- (1,718,991)
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Total shareholders' equity ................................................................. 6,102,435 4,286,263
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Total liabilities and shareholders' equity ................................................. $ 121,660,692 $ 79,618,473
============= =============
Note: The balance sheet at December 31, 1995 has been derived from the audited financial statements at that date but does not
include all of the information and footnotes required by generally accepted accounting principles for complete financial statements.
See accompanying notes.
</TABLE>
3
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<TABLE>
Sygnet Wireless, Inc.
Consolidated Statements of Income (Unaudited)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1996 1995 1996 1995
----------- ----------- ----------- -----------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Revenue
Subscriber revenue .......................................... $ 7,056,509 $ 4,181,755 $20,024,721 $11,412,469
Roamer revenue .............................................. 1,775,046 1,061,409 4,534,632 2,965,818
Equipment sales ............................................. 551,157 250,103 1,293,936 994,184
Other revenue ............................................... 382,153 414,148 1,138,241 1,253,780
----------- ----------- ----------- -----------
Total revenue .................................................. 9,764,865 5,907,415 26,991,530 16,626,251
Costs and expenses:
Cost of services ............................................ 1,134,099 778,073 3,464,630 2,282,956
Cost of equipment sales ..................................... 1,172,042 743,623 3,175,211 2,419,297
General and administrative .................................. 1,891,763 851,487 5,505,229 3,262,122
Selling and marketing ....................................... 1,318,756 683,985 3,674,618 2,098,902
Depreciation and amortization ............................... 1,321,815 851,211 3,804,331 2,238,271
----------- ----------- ----------- -----------
Total costs and expenses ..................................... 6,838,475 3,908,379 19,624,019 12,301,548
----------- ----------- ----------- -----------
Income from operations ......................................... 2,926,390 1,999,036 7,367,511 4,324,703
Other
Interest expense, net ....................................... 1,260,045 472,959 3,892,773 1,302,428
Other expense ............................................... 60,338 150,273 294,944 242,137
----------- ----------- ----------- -----------
Income before income taxes ..................................... 1,606,007 1,375,804 3,179,794 2,780,138
Income tax expense ............................................. 992,000 11,000 1,102,000 30,000
----------- ----------- ----------- -----------
Net income ..................................................... $ 614,007 $ 1,364,804 $ 2,077,794 $ 2,750,138
=========== =========== =========== ===========
Unaudited pro forma information (Note 1):
Historical income before income taxes ....................... 1,606,007 1,375,804 3,179,794 2,780,138
Pro forma income taxes ...................................... 723,000 660,000 1,431,000 1,335,000
----------- ----------- ----------- -----------
Pro forma net income ........................................ $ 883,007 $ 715,804 $ 1,748,794 $ 1,445,138
=========== =========== =========== ===========
Pro forma net income per share............................... $ .14 $ .12 $ .28 $ .23
=========== =========== =========== ===========
Pro forma shares outstanding ................................... 6,170,630 6,170,630 6,170,630 6,170,630
=========== =========== =========== ===========
See accompanying notes.
</TABLE>
4
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<TABLE>
Sygnet Wireless, Inc.
Consolidated Statements of Cash Flows (Unaudited)
<CAPTION>
For the Nine Months Ended
September 30,
---------------------------------
1996 1995
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(Unaudited)
<S> <C> <C>
Operating activities
Net income ................................................................................. $ 2,077,794 $ 2,750,138
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation ............................................................................. 2,679,509 1,899,775
Amortization ............................................................................. 1,124,822 338,496
Deferred income taxes .................................................................... 782,900 --
Loss on disposal of equipment ............................................................ 176,841 142,883
Changes in operating assets and liabilities:
Accounts receivable .................................................................... 573,652 (575,035)
Inventory .............................................................................. 192,607 (59,481)
Prepaid and deferred expenses .......................................................... 76,210 148,177
Accounts payable and accrued expenses .................................................. (547,962) 1,683,596
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Net cash provided by operating activities .................................................. 7,136,373 6,328,549
Investing activities
Cash to be used for acquisition of business ................................................ (35,200,000) --
Acquisition of Erie ........................................................................ (1,920,190) (40,859,342)
Purchases of property and equipment ........................................................ (5,550,485) (7,817,994)
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Net cash used in investing activities ...................................................... (42,670,675) (48,677,336)
Financing activities
Dividends paid ............................................................................. (261,623) (1,158,979)
Proceeds from long-term debt ............................................................... 114,000,000 47,986,188
Principal payments on long-term debt ....................................................... (72,500,000) (750,000)
Increase in financing costs ................................................................ (4,469,615) (1,716,230)
Purchase of treasury stock ................................................................. -- (1,718,991)
------------- -------------
Net cash provided by financing activities .................................................. 36,768,762 42,641,988
Increase in cash and cash equivalents ...................................................... 1,234,460 293,201
Cash and cash equivalents at beginning of period ........................................... 448,292 436,790
------------- -------------
Cash and cash equivalents at end of period ................................................. $ 1,682,752 $ 729,991
============= =============
See accompanying notes.
</TABLE>
5
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Sygnet Wireless, Inc.
Notes to Consolidated Financial Statements (Unaudited)
1. Basis of Presentation and Pro Forma Information
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and
Article 10 of Regulation S-X. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements. The unaudited consolidated
financial statements include the combined financial statements of SYGNET
Communications, Inc. (SYGNET) and Wilcom Corporation (Wilcom) through
August 31, 1996, the effective date of the merger described below and the
accounts of Sygnet Wireless, Inc. (the Company) thereafter. In the opinion of
management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Operating
results for the nine-month period ended September 30, 1996 are not
necessarily indicative of the results that may be expected for the year ended
December 31, 1996. For further information, refer to the consolidated
financial statements and notes thereto included in the Company's Registration
Statement (File No. 333-10161) on Form S-1 as amended and filed with the
Securities and Exchange Commission dated September 19, 1996.
As described below, SYGNET and Wilcom have terminated their status as
Subchapter S Corporations. A pro forma adjustment has been made to the
financial statements for the three and nine months ended September 30, 1996
and 1995, respectively, to reflect a provision for federal, state and local
income taxes as though the Subchapter S election was terminated on January 1,
1995.
Pro forma net income per share is presented as though the 6,170,630 shares
issued at the date of the corporate restructuring described below were
outstanding for all periods presented. Historical earnings per share data is
not presented because such data is not meaningful.
2. Merger and Recapitalization
On August 19, 1996, the shareholders of SYGNET and Wilcom effected a
corporate restructuring whereby Wilcom was merged into SYGNET and
shareholders of Wilcom received 8.72 shares of SYGNET common stock for each
share of Wilcom common stock held as of August 31, 1996, the effective date
of the merger. Effective August 31, 1996, the 500 shares of Wilcom Type A
converted into 4,360 shares of SYGNET Type A and the 2,500 shares of Wilcom
Type B converted into 21,800 shares of SYGNET Type B. In conjunction with
this merger, the shareholders of SYGNET amended the articles of incorporation
to change SYGNET's name to Sygnet Wireless, Inc.
On August 28, 1996, the Company approved a plan to recapitalize the Company
whereby the SYGNET Communications, Inc. common stock Type A (205,698 shares)
and Type B (1,028,428 shares) were converted into 6,170,630 shares of Sygnet
Wireless, Inc. Class B common stock in a 5 for 1 stock split.
In addition, on October 3, 1996 the Company's shareholders amended the
articles of incorporation to create a new class of preferred stock (described
below) effective October 4, 1996. As a result of the merger, recapitalization
and amendments to the articles of incorporation, the Company's capital
structure is as follows:
Class A Common Stock - There are authorized 60 million shares of $.01
par value Class A common stock. These shares are entitled to one vote
per share. No Class A shares have been issued.
Class B Common Stock - There are authorized 10 million shares of $.01
par value Class B common stock. 6,170,360 shares are issued and
outstanding. These shares are entitled to ten votes per share.
Preferred Stock - There are authorized 10,000,000 shares of $.01 par
value voting preferred stock and 5,000,000 shares of $.01 par value
nonvoting preferred stock. Of these, 200,000 shares of nonvoting
preferred stock were issued in October in connection with the Asset
Acquisition Agreement described below in note five. The Board of
Directors has the authority to determine the rights conferred to
preferred shareholders when the Board causes the preferred stock to be
issued.
6
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Sygnet Wireless, Inc.
Notes to Consolidated Financial Statements (Unaudited) (Continued)
3. Income Taxes
On August 31, 1996, SYGNET and Wilcom terminated their status as Subchapter S
Corporations. As a result of this termination, application of the provisions
of SFAS No. 109, Accounting for Income Taxes requires deferred income taxes
to be provided for differences in the basis for tax purposes and for
financial accounting purposes of recorded assets and liabilities.
Accordingly, as a result of this termination, a net deferred income tax
liability and related expense of approximately $745,000 was recorded on
September 1, 1996.
Amounts for deferred tax assets and liabilities are as follows:
September 30 December 31
1996 1995
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Deferred tax assets:
-------------------
AMT credit carryforward ........................ $ 63,400 $ 63,400
Allowance for doubtful accounts ................ 229,600 --
Other .......................................... 189,900 8,200
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Total deferred tax assets ...................... 482,900 71,600
Deferred tax liabilities:
------------------------
Depreciation ................................... 489,800 --
Amortization ................................... 731,000 --
Other .......................................... -- 26,600
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Total deferred tax liabilities ................. 1,220,800 26,600
------------ ------------
Net deferred tax (liabilities) assets .......... $ (737,900) $ 45,000
============ ============
The components of the income tax provision in the consolidated statements of
income for the nine months ended September 30, 1996 and 1995 are as follows:
1996 1995
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Current income tax expense ....................... $ 319,100 $ --
Deferred income tax expense ...................... 782,900 30,000
------------ ------------
Total provision for income taxes ................. $ 1,102,000 $ 30,000
============ ============
Income taxes paid were $132,300 and $30,000 for the nine months ended
September 30, 1996 and 1995, respectively.
4. Long-term debt
On September 19, 1996, the Company issued $110,000,000 11 1/2% unsecured
Senior Notes Due October 1, 2006 (the Notes). The Notes pay interest
semiannually on April 1 and October 1 of each year commencing April 1, 1997.
The Notes are redeemable at the option of the Company at redemption prices
(expressed as a percentage of principal amount) ranging from 105.75% in 2001
to 100.00% in 2005 and thereafter. Among other things, the Notes contain
certain covenants which limit additional indebtedness, payment of dividends,
sale of assets or stock, changes in control and transactions with related
parties.
$71,500,000 of the proceeds from the Notes were used to repay amounts
borrowed under the Company's bank credit agreement dated September 29, 1995
which allowed the Company to borrow up to $75 million at any time through
September 30, 2003. The remaining proceeds were used to finance the
acquisition described below.
7
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Sygnet Wireless, Inc.
Notes to Consolidated Financial Statements (Unaudited) (Continued)
5. Subsequent Events
On October 9, 1996, the Company acquired certain cellular licenses, property,
equipment, current assets and current liabilities of Horizon Cellular
Telephone Company of Chautauqua L.P., Horizon Cellular Telephone Company of
Crawford L.P., and Horizon Cellular Telephone Company of Indiana L.P.
(Horizon). The acquired systems will continue to provide cellular service to
an estimated population of 1.4 million in contiguous markets in western
Pennsylvania and New York. Pursuant to the Asset Acquisition Agreement
between Horizon and the Company dated July 11, 1996, the aggregate purchase
price was $252,258,661 in cash and was financed through the issuance of the
Senior Notes , the issuance of $20,000,000 in redeemable preferred stock
(Preferred Stock) and by a syndicated bank credit facility (the Bank Credit
Facility).
The pro forma unaudited condensed combined results of operations for the
three and nine-months ended September 30, 1996, respectively, as if the
purchase occurred on January 1, 1996 is as follows:
Three Months Ended Nine Months Ended
September 30, 1996 September 30, 1996
------------------ ------------------
Revenue ........................... $ 19,243,000 $ 52,046,000
================== ==================
Net loss .......................... $ (1,511,000) $ (9,771,000)
================== ==================
Pro forma net loss per share
applicable to common
shareholders .................... $ (.50) $ (2.30)
================== ==================
Earnings before interest taxes,
depreciation and amortization,
minority interest and other
non-cash expenses (EBITDA) ...... $ 9,184,000 $ 23,190,000
================== ==================
Subscribers ....................... 95,676
==================
The net proceeds from the Preferred Stock were $19 million. Dividends will
accrue quarterly in arrears and will be payable in shares of Preferred Stock.
The dividend rates increase annually from 15% in the year ending
September 30, 1997 to 17% in the year ending September 30, 1998 to 19% in the
year ending September 30, 1999 and are 21% in the year ending September 30,
2000 and thereafter. Warrants to purchase shares of the Company's Class A
Common Stock representing 1% of the Common Stock outstanding, on a fully
diluted basis, will be issued to holders of the Preferred Stock on July 9,
1996 if the Preferred Stock is outstanding at such time. At the end of each
quarter thereafter for so long as any of the Preferred Stock continues to
remain outstanding, warrants to purchase shares of Class A Common Stock
representing 3/8%, on a fully diluted basis, will be issued to the holders of
the Preferred Stock. The exercise price of the warrants will be $.01 per
share of Class A Common Stock.
The Company will be required to redeem the Preferred Stock at its liquidation
amount thereof, plus all accrued and unpaid dividends to the date of
redemption, upon the earlier of (i) the tenth anniversary of the issuance of
the Preferred Stock, (ii) a Change of Control as defined, (iii) the issuance
of any Indebtedness as defined or equity by the Company or (iv) the exercise
of the Put Option (defined below).
At any time after the fourth anniversary, holders of the Preferred Stock have
the right to require the Company to redeem the Preferred Stock (the "Put
Option") in whole or in part within 90 days from the receipt of written
notice of the exercise of the Put Option. In the event the Preferred Stock is
not redeemed within such 90-day period, the holders of the Preferred Stock,
upon written notice to the Company, will have the right to require the
Company to effect a sale or liquidation of the Company to be completed within
a period of 12 months following such notice. The Preferred Stock will be
subject to redemption at the option of the Company at any time in whole or in
part upon three business days' notice.
8
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The Bank Credit Facility is a senior secured reducing revolver that provides
Sygnet Communications, Inc., a subsidiary of the Company, the ability to
borrow up to $300.0 million from time to time. The Bank Credit Facility is
secured by certain assets of and the stock of Sygnet Communications, Inc. The
Bank Credit Facility provides for various borrowing rate options based on
either a fixed spread over the London Interbank Offered Rate ("LIBOR") or the
prime rate. Interest payments will be made quarterly. Upon closing of the
Bank Credit Facility, the existing $75 million credit agreement dated
September 29, 1996 was terminated. A loss of $1,433,000 on the refinancing of
the credit facility was incurred in October 1996 to write-off unamortized
financing costs. As of October 9, 1996 $204.5 million was outstanding under
the Bank Credit Facility.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with the
Company's unaudited combined financial statements and the notes thereto
appearing elsewhere in this report. As a result of the acquisition on October 9,
1996 of the cellular telephone systems of Horizon Cellular Telephone Company
affiliates (the Horizon Acquisition) and the acquisition on September 29, 1995
of Erie Cellular Telephone Company (the Erie Acquisition), the Company's
operating results for the periods discussed may not be indicative of future
performance. In the text below, financial statement numbers have been rounded,
however, the percentage changes are based on the actual financial statements.
The Company's' Historical Results of Operations
Three Months ended September 30, 1996 compared to Three Months ended
September 30, 1995.
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For the three months ended September 30, 1996, revenues totaled $9.8 million, a
65.3% increase over total revenue of $5.9 million for the comparable period in
1995. Net income for the three months ended September 30, 1996 was $614,000, a
55.1% decrease from net income of $1.4 million for the comparable period in
1995. Earnings before interest, taxes, depreciation and amortization, minority
interest and other non-cash expenses (EBITDA) grew to $4.2 million (43.5% of
total revenue) in the three months ended September 30, 1996 from $2.8 million
(48.2% of total revenue) in the comparable 1995 period. Subscriber revenue grew
by 68.7% to $7.0 million for the three months ended September 30, 1996 compared
to $4.2 million for the comparable period in 1995 as a result of continued
subscriber growth in the Company's markets and from the inclusion of results
from the Erie Acquisition. Consistent with industry trends, the Company's
subscribers continue to increase and at September 30, 1996 ending subscribers
had grown 6.8% to 54,245 at September 30, 1996 from 50,797 at June 30, 1996.
Compared to September 30, 1995, ending subscribers grew by 39.7%. On a per
subscriber basis revenue is down slightly, due in part to competitive market
pressures and the mix of subscribers reflecting safety and security usage, who
typically have few minutes of use per month. Roamer revenue grew by 67.2% to
$1.8 million during the three months ended September 30, 1996 compared to $1.1
million during the same period in 1995. This increase was a result of a greater
volume of roaming traffic versus the comparable 1995 period and the inclusion of
the results for Erie for 1996 after the Erie Acquisition. Equipment sales
revenue for the three months ended September 30, 1996 totaled $551,000, a 120%
increase over equipment sales of $250,000 for the comparable period in 1995. The
increase was a result of an increased number of telephones and accessories
distributed as new subscriber acquisitions increased and from the inclusion of
the Erie Acquisition for 1996. Throughout the industry, cellular telephone
equipment is frequently provided to subscribers at no cost as part of promotions
to attract subscribers and to sell access, airtime and cellular service. Other
revenue declined to $382,000 during the three months ended September 30, 1996
from $414,000 in the comparable 1995 period as equipment rental revenue
continued to decrease as rental programs have been phased out.
Cost of services increased to $1.1 million during the three months ended
September 30, 1996 from $778,000 in the comparable 1995 period. Although cost of
services has increased 45.8% due to additional usage including usage related to
the Erie Acquisition, this growth rate was less than the growth rate of
subscriber revenue which grew 65.3% during the same period which is a result of
operating efficiencies gained from the Erie Acquisition. Cost of equipment sales
increased by 57.6% to $1.2 million for the three months ended September 30, 1996
from $744,000 in the comparable 1995 period. The primary reasons for the
increase in cost include an increased number of telephones distributed as new
subscriber acquisitions increased, the higher level of swaps and upgrades of
telephones by existing customers and results of the Erie Acquisition. The
increased cost of equipment sold resulting from the increase in gross
activations is somewhat offset by the declining cost to acquire new telephones.
9
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General and administrative costs, which include primarily wages, occupancy
costs, and bad debt expense, increased by 122% to $1.9 million for the three
months ended September 30, 1996 from $861,000 for the comparable period in 1995.
This increase is due primarily to the effects of a third quarter 1995 one time
adjustment to the personal property tax accrual resulting from a substantial
decrease in tax rates, as well as the Erie Acquisition. Other operating costs
also generally increased as the Company grew. Selling and marketing costs grew
by 92.8% to $1.3 million for the three months ended September 30, 1996 from
$684,000 in the comparable 1995 period. This increase is due to a higher level
of new subscribers added period to period and the Erie Acquisition. Selling and
marketing cost per gross new subscriber decreased to $374 during the three
months ended September 30, 1996 from $414 in the comparable 1995 period.
Depreciation and amortization increased to $1.3 million for the three months
ended September 30, 1996 from $851,000 in the comparable 1995 period due to
depreciation on the higher levels of fixed assets resulting from purchases for
system growth as well as the amortization of the Erie Acquisition The Company
continues to expand its systems by adding cell sites, and for the three months
ended September 30, 1996 three new cell sites were constructed at a cost of $1.4
million. The amortization of the Erie cellular license also contributed $270,000
to this increased amortization.
Interest expense more than doubled to $1.3 million for the three months ended
September 30, 1996 from $473,000 in the comparable 1995 period. This increase
was primarily a result of increased borrowings associated with the Erie
Acquisition.
Income tax expense increased to $992,000 during the three months ended September
30, 1996 as compared to $11,000 for the comparable 1995 period. On August 31,
1996, the Subchapter S corporation status was terminated and subsequently, the
Company was required to record federal, state and local income taxes.
Additionally, as a result of this termination, a deferred income tax expense of
$745,000 was recorded on September 1, 1996.
Nine Months ended September 30, 1996 compared to Nine Months ended
September 30, 1995.
- ------------------------------------------------------------------
For the nine months ended September 30, 1996, revenues totaled $27.0 million, a
62.3% increase over total revenue of $16.7 million for the comparable period in
1995. Net income for the nine months ended September 30, 1996 was $2.1 million,
a 24.4% decrease from net income of $2.8 million for the first nine months of
1995. EBITDA grew to $11.2 million (41.4% of total revenue) in the nine months
ended September 30, 1996 from $6.6 million (39.5% of total revenue) in the
comparable 1995 period. Subscriber revenue grew by 75.4% to $20.0 million for
the nine months ended September 30, 1996 compared to $11.4 million for the
comparable period in 1995 as a result of continued subscriber growth in the
Company's markets and the Erie Acquisition. Consistent with industry trends, the
Company's subscribers continue to increase and at September 30, 1996 ending
subscribers had grown by 21.4% to 54,245 at September 30, 1996 from 44,665 at
December 31, 1995. Compared to September 30, 1995 subscribers grew by 39.7%. On
a per subscriber basis revenue is down slightly, due in part to competitive
market pressures and the mix of subscribers reflecting safety and security
subscribers, who typically have few minutes of use per month. Roamer revenue
grew by 52.9% to $4.5 million during the nine months ended September 30, 1996
compared to $3.0 million during the same period in 1995. This increase was a
result of greater volume of roaming traffic versus the comparable 1995 period
and the inclusion of the results from the Erie Acquisition for all of 1996.
Average roamer revenue per minute during the first nine months of 1996 decreased
slightly in comparison to the first nine months of 1995 as the strategic
reductions made to regional roaming rates in the first quarter of 1995 were in
effect for the full nine month period in 1996. Equipment sales increased by
30.1% to $1.3 million during the first nine months of 1996 compared to $1.0
million during the same period in 1995. This increase was due mainly to an
increased number of telephones and accessories distributed as new subscriber
acquisitions increased, and the inclusion of the Erie Acquisition for 1996.
Throughout the industry, to attract subscribers cellular telephone equipment is
frequently provided to subscribers at no cost as part of promotions to sell
access, airtime and cellular service. Other revenue declined to $1.1 million in
the first nine months of 1996 from $1.3 million in the comparable 1995 period as
equipment rental revenue continued to decrease as rental programs continued to
be phased out.
Cost of services increased to $3.5 million during the nine months ended
September 30, 1996 from $2.3 million in the comparable 1995 period. Although
cost of services has increased 51.8% due to additional system usage associated
with a larger subscriber base and the Erie Acquisition, this growth rate was
less than the growth rate of subscriber revenue which grew 75.4% during the same
period, which was the result of operating efficiencies gained from the Erie
Acquisition.
10
<PAGE>
Cost of equipment sales increased by 31.3% to $3.2 million in the first nine
months of 1996 from $2.4 million in the comparable 1995 period. The primary
reasons for the increase in cost include an increased number of telephones
distributed as new subscriber acquisitions increased, the higher level of swaps
and upgrades of telephones by existing customers and the inclusion of the
results of the Erie Acquisition. The increased cost of equipment sold resulting
from the increase in gross activations is somewhat offset by the declining cost
to acquire new telephones. General and administrative costs increased by 68.7%
to $5.5 million in the first nine months of 1996 from $3.3 million in the
comparable 1995 period. This increase is due primarily to the Erie Acquisition.
Other operating costs also generally increased as the Company grew.
Selling and marketing costs grew by over 75% to $3.7 million in the first nine
months of 1996 from $2.1 million in the comparable 1995 period. This increase is
due to a higher level of new subscribers added period to period and the Erie
Acquisition. Selling and marketing cost per gross new subscriber decreased to
$385 in the first nine months of 1996 from $424 in the comparable 1995 period.
Depreciation and amortization increased to $3.8 million in the first nine months
of 1996 from $2.2 million in the comparable 1995 period due to the depreciation
on higher levels of fixed assets resulting from the purchases for system growth
as well as amortization of the Erie Acquisition The Company continues to expand
its systems by adding cell sites and during the first nine months of 1996 seven
new cell sites were constructed at a cost of $2.3 million. The amortization of
the Erie cellular license also contributed $800,000 to this increased
amortization.
Interest expense almost tripled to $3.9 million for the first nine months of
1996 from $1.3 million in the comparable 1995 period. This increase was
primarily a result of increased borrowings associated with the Erie Acquisition.
Income tax expense increased to $1,102,000 during the nine months ended
September 30, 1996 as compared to $30,000 for the comparable 1995 period. On
August 31, 1996, the Subchapter S corporation status was terminated and
subsequently, the Company was required to record federal, state and local income
taxes. Additionally, as a result of this termination, a deferred income tax
expense of $745,000 was recorded on September 1, 1996.
Liquidity and Capital Resources
- -------------------------------
The Company has historically relied on internally generated funds to fund debt
service and a substantial portion of its capital expenditures. Bank credit
facilities have been used for additional support of capital expenditure programs
and to fund acquisitions. The Company has used the $110.0 million of proceeds
from the sale of the Notes, the $20.0 million of proceeds from the sale of the
Preferred Stock and the $204.5 million of borrowings under the Bank Credit
Facility to fund the $252,258.661 million Horizon Acquisition, to pay the fees
associated with the above transactions, to refinance $71.5 million of existing
bank debt and for working capital.
The Company projects a rapid buildout of the newly acquired systems in order to
improve coverage and increase usage. During the 15 month period from October
1996 through December 31, 1997, the Company expects to add 35 to 40 new cell
sites throughout its entire system. In addition, the Company will continue to
upgrade switches and other network equipment. Aggregate capital expenditure
levels are expected to range from approximately $25 to $30 million from October
1996 through December 31, 1997.
The Company plans to use internally generated funds plus funds available under
the Bank Credit Facility to finance this capital expenditure program. After
completion of the Horizon Acquisition on October 9, 1996, the Company had
approximately $76 million available under the Bank Credit Facility. The Company
believes that these resources will be sufficient to meet its capital needs.
Forward Looking Statements
- --------------------------
The description of the Company's capital expenditure plans set forth above are
forward looking statements made pursuant to the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995. These plans involve a number
of risks and uncertainties. The important factors that could cause actual
capital expenditures or the Company's performance to differ materially from the
plans include, without limitation, the Company's continued ability to satisfy
the financial performance and other covenants of the Bank Credit Facility; the
impact of competition from other providers of cellular telephone and personal
communications services, and from other technologies that may be developed; and
the occurrence of other technological changes affecting the Company's business.
For further information regarding these and other risk factors, see "Risk
Factors" in the Company's Registration Statement (File No. 333-10161) on Form
S-1 as amended and filed with the Securities and Exchange Commission dated
September 19, 1996.
11
<PAGE>
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3.1 Amended and Restated Articles of Incorporation.
3.2 Code of Regulations.
4 Indenture dated as of September 26, 1996 between Registrant and
Fleet National Bank as Trustee.
10 1996 Stock Option Plan for Non-Employee Directors.
27 Financial Data Schedule (provided for the information of the
Securities and Exchange Commission only)
(b) Reports on Form 8-K. There were no reports on Form 8-K filed during the
quarter ended September 30, 1996.
12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SYGNET WIRELESS, INC.
By: /s/ Craig T. Sheetz
------------------------------------
Craig T. Sheetz
Vice President and Chief Financial
Officer
(as duly authorized officer and
principal financial officer of the
registrant)
Dated: November 14, 1996
13
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- -------------- ----------------------------------------------------------------
3.1 Amended and Restated Articles of Incorporation.
3.2 Code of Regulations.
4 Indenture dated as of September 26, 1996 between Registrant and
Fleet National Bank as Trustee.
10 1996 Stock Option Plan for Non-Employee Directors.
27 Financial Data Schedule (provided for the information of the
Securities and Exchange Commission only)
14
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF SYGNET WIRELESS, INC.
ARTICLE ONE
Name of the Corporation
The name of the Corporation shall be Sygnet Wireless, Inc.
ARTICLE TWO
Location
The place in Ohio where the Corporation's principal office is located
is 6550 Seville Drive, Suite B, Canfield, Mahoning County, Ohio.
ARTICLE THREE
Purpose
The purpose for which the Corporation is formed is to engage in any
kind of business, trade, or other activity for which a corporation, for profit,
may be lawfully organized under the corporation laws of the State of Ohio.
ARTICLE FOUR
Structure of Capital Stock
A. Classes and Number of Shares. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is
85,000,000 shares. The classes and the aggregate number of shares of stock of
each type which the Corporation shall have authority to issue are as follows:
60,000,000 shares of Class A Common Stock, par value one cent (1
cent) (the "Class A Common Stock"); and
10,000,000 shares of Class B Common Stock, par value one cent (1
cent) (the "Class B Common Stock"); and
10,000,000 shares of Voting Preferred Stock, par value one cent (1
cent) (the "Voting Preferred Stock"); and
5,000,000 shares of Nonvoting Preferred Stock, par value one cent (1
cent) (the "Nonvoting Preferred Stock").
<PAGE>
B. Powers and Rights of the Class A Common Stock and the Class B Common
Stock.
1. Voting Rights and Powers. With respect to all matters upon which
stockholders are entitled to vote or to which stockholders are entitled to give
consent, the holders of the outstanding shares of Class A Common Stock and the
Holders of the outstanding shares of Class B Common Stock shall vote (together
with the holders of any outstanding shares of Preferred Stock entitled to vote
with the Class A Common Stock and the Class B Common Stock) without regard to
class, and every holder of the outstanding shares of Class A Common Stock shall
be entitled to cast thereon one (1) vote in person or by proxy for each share of
Class A Common Stock held in his name, and every holder of any outstanding
shares of Class B Common Stock shall be entitled to cast thereon ten (10) votes
in person or by proxy for each share of Class B Common Stock held in his name.
In addition to any other votes as may be required by law, the Class
A Common Stock, voting separately as a class, will be required to approve (i)
the authorization of any new class of capital stock which is entitled to more
than one vote per share, (ii) any increase in the votes per share of Class B
Common Stock or the number of shares of Class A Common Stock into which the
shares of Class B Common Stock are convertible, or (iii) any proposed Amendment
to these Amended Articles of Incorporation that would adversely affect the
dividends on shares of Class A Common Stock or the voting rights of the Class A
Common Stock.
2. Dividends and Distributions.
a. Cash Dividends. Cash dividends shall be payable to holders of
Class A Common Stock and Class B Common Stock only as and when declared by the
Board of Directors. The Board of Directors shall not declare any cash dividends
on shares of either Class A or Class B Common Stock unless it also declares at
the same time (and payable on the same date as the payment date for such
dividends) a cash dividend on shares of the other Class of Common Stock in an
amount per share that is equal to the amount of such dividends.
b. Other Dividends and Distributions. Each Share of Class A
Common Stock and each share of Class B Common Stock shall be equal in respect of
rights to dividends and distributions, when and as declared in the form of stock
or other property of the Corporation, except that in the case of dividends or
other distributions payable in stock of the Corporation, other than the
Preferred Stock, including distributions pursuant to stock split-ups or
divisions, which occur after the date shares of Class B Common Stock are first
issued by the Corporation, only shares of Class A Common Stock shall be
distributed with respect to the Class A Common Stock and only shares of Class B
Common Stock shall be distributed with respect to the Class B Common Stock.
3. Other Rights. Except as otherwise required by the General
Corporation Law of the State of Ohio and as otherwise provided in these Amended
Articles of Incorporation, each share of Class A Common Stock and each share of
Class B Common Stock shall have identical powers, preferences and rights,
including rights in liquidation.
2
<PAGE>
4. Issuance of the Class A Common Stock and the Class B Common
Stock.
a. Initial Issuance. The Board of Directors may authorize by
resolution the manner in which shares of Class A Common Stock shall initially be
issued and may set such terms and conditions as it deems appropriate or
advisable with respect thereto, without any vote or other actions by the
stockholders, except as otherwise required by law and by these Amended Articles.
The initial issuance of Class B Common Stock was governed by the Agreement and
Plan of Recapitalization which established these Amended Articles.
b. Subsequent Issuance. Following the initial issuance, the Board
of Directors of the Corporation may from time to time authorize by resolution
the issuance of any or all shares of Class A Common Stock herein authorized in
accordance with the terms and conditions set forth in this Amended Articles of
Incorporation for such purposes, in such amounts, to such persons, corporations
or entities, and for such consideration, all as the Board of Directors in its
discretion may determine and without any vote or other action by the
stockholders, except as otherwise required by law. At any time shares of Class B
Common Stock are outstanding, the Board of Directors may issue shares of Class A
Common Stock in the form of a distribution or distributions pursuant to a stock
dividend on or split-up of the shares of Class A Common Stock only to the then
holders of the outstanding shares of Class A Common Stock and in conjunction
with and in the same ratio as a stock dividend on or split-up of the shares of
Class B Common Stock.
Following initial issuance, the Board of Directors may issue
shares of Class B Common Stock only in the form of a distribution or
distributions pursuant to a stock dividend on or split-up of the shares of Class
B Common Stock and only to the then holders of the outstanding shares of Class B
Common Stock in conjunction with and in the same ratio as a stock dividend on or
split-up of the shares of Class A Common Stock.
5. Conversion of the Class B Common Stock. Each share of Class B
Common Stock (1) may at any time be converted into one fully paid and
non-assessable share of Class A Common Stock at the election of the holder
thereof and (2) shall automatically be converted into one fully paid and
non-assessable share of Class A Common Stock upon its transfer to a person or
entity that is not one of the following persons or a descendant of one of the
following persons (or a trust for the benefit or partially for the benefit of
one or more of them): Warren P. Williamson, Jr.; Ray S. Tittle, Jr.; E.P. Boyle,
Y.T. Chiu; A.D. MacDonell, Jr.; John W. MacDonell; Alex Shashaty; Albert H.
Pharis, Jr.; Maureen P. Gibbs; Paul J. Thomas; or John Boydston. The conversion
of a share of Class B Common Stock into Class A Common Stock is irreversible and
irrevocable. Under no circumstances shall a share of Class A Common Stock ever
be converted into a share of Class B Common Stock.
Any holder of shares of Class B Common Stock may elect to convert
any or all of such shares at one time or at various times in such holder's
discretion. Such right shall be exercised by the surrender of the certificate or
certificates representing each share of Class B Common Stock to be converted to
the agent for the registration of transfer of shares of Class B Common Stock
(the "Transfer Agent"), at its office, or to the Corporation, at its principal
executive offices, accompanied by a written notice of the election by the holder
thereof to convert and (if so required by the Transfer Agent or by the
Corporation) by instruments of transfer, in form satisfactory to the Transfer
Agent and to the Corporation, duly executed by such holder or his duly
authorized attorney. The issuance of a certificate or certificates for shares of
3
<PAGE>
Class A Common Stock upon conversion of shares of Class B Common Stock shall be
made without charge for any stamp or other similar tax in respect of such
issuance. However, if any such certificate or certificates is or are to be
issued in a name other than that of the holder of the share or shares of Class B
Common Stock converted, the person or persons requesting the issuance thereof
shall pay to the Transfer Agent or to the Corporation the amount of any tax
which may be payable in respect of any such transfer, or shall establish to the
satisfaction of the Transfer Agent or of the Corporation that such tax has been
paid. As promptly as practicable after the surrender for conversion of a
certificate or certificates representing shares of Class B Common Stock and the
payment of any tax as hereinbefore provided, the Corporation will deliver or
cause to be delivered at the office of the Transfer Agent to, or upon the
written order of, the holder of such certificate of certificates, a certificate
or certificates representing the number of shares of Class A Common Stock
issuable upon such conversion, issued in such name or names as such holder may
direct. Such conversion shall be deemed to have been made immediately prior to
the close of business on the date of surrender of the certificate or
certificates representing shares of Class B Common Stock (if on such date as the
transfer books of the Corporation shall be closed, then immediately prior to the
close of business on the first date thereafter that said books shall be open),
and all rights of such holder arising from ownership of shares of Class B Common
Stock shall cease at such time, and the person or persons in whose name or names
the certificate or certificates representing shares of Class A Common Stock is
or are to be issued shall be treated for all purposes as having become the
record holder or holders of such shares of Class A Common Stock at such time and
shall have any may exercise all the rights and powers appertaining thereto.
No adjustments in respect of past cash dividends shall be made upon
the conversion of any share of Class B Common Stock; provided, however, that if
any shares of Class B Common Stock shall be converted subsequent to the record
date for the payment of a cash or stock dividend or other distribution on shares
of Class A Common Stock and Class B Common Stock but prior to such payment, the
registered holder of such shares at the close of business on such record date
shall be entitled to receive the cash or stock dividend or other distribution
payable to holders of Class A Common Stock.
If any shares of Class A Common Stock require registration with or
approval of any governmental authority under any federal or state law before
such shares of Class A Common Stock may be issued upon conversion, the
Corporation will cause such shares to be duly registered or approved, as the
case may be. The Corporation will endeavor to list shares of Class A Common
Stock required to be delivered upon conversion, prior to such delivery, upon any
national securities exchange or national market system on which the outstanding
shares of Class A Common Stock may be listed at the time of such delivery. All
shares of Class A Common Stock which may be issued upon conversion of shares of
Class B Common Stock will, upon issue, be fully paid and nonassessable.
C. Preferred Stock. The Board of Directors is authorized, in its sole
discretion, subject only to limitations prescribed by law and the provisions of
this Article Four, to provide for the issuance of Voting Preferred Stock and
Nonvoting Preferred Stock, in series; to establish the number of shares to be
included in each such series; and to fix the designation, power, preferences,
rights, qualifications, limitations, and restrictions pertaining to the Voting
Preferred Stock and the Nonvoting Preferred Stock, or any series thereof.
With respect to all matters upon which stockholders are entitled to
vote or to which stockholders are entitled to give consent, the holders of the
outstanding shares of Voting Preferred Stock shall vote (together with the
holders of any outstanding shares of Class A Common Stock and Class B Common
Stock) without regard to class, and every holder of the outstanding shares of
4
<PAGE>
Voting Preferred Stock shall be entitled to cast thereon one (1) vote in person
or by proxy for each share of Voting Preferred Stock held in his name. The
holders of any outstanding shares of Nonvoting Preferred Stock shall have no
voting rights whatsoever, except as may be required by law, in which case every
holder of Nonvoting Preferred Stock shall be entitled to cast thereon one (1)
vote in person or by proxy for each share of Nonvoting Preferred Stock held in
his name.
The Board of Directors of the Corporation may from time to time
authorize by resolution the issuance of any or all shares of the Preferred Stock
herein authorized in accordance with the terms and conditions set forth in these
Amended Articles of Incorporation for such purposes, in such amounts, to such
persons, corporations, or entities, for such consideration, and in one or more
series, all as the Board of Directors in its discretion may determine and
without any vote or other action by the stockholders, except as otherwise
required by law.
D. Authority of Board of Directors Regarding Issuance of Securities.
The Board of Directors of the Corporation, subject to the limitations contained
in Paragraph B of this Article Four, and the limitations, if any, imposed by the
holders of Preferred Stock, shall have authority to authorize the issuance from
time to time without any vote or other action by the stockholders, of all or any
shares of the stock of the Corporation of any class now or hereafter authorized,
part paid receipts or allotment certificates in respect of any such shares and
any securities convertible into or exchangeable for any such shares (whether
such shares, receipts, certificates or securities be unissued, or issued and
thereafter acquired by the Corporation, unless in the case of acquired or
redeemed shares, the Corporation is required to retire the same), in each case
to such corporations, associations, partnerships, individuals or others, for
such consideration and on such terms as the Board of Directors from time to time
in its discretion lawfully may determine, without offering the same or any part
thereof to holders of any stock of the Corporation of any class now or hereafter
authorized. In the discretion of the Board of Directors any such shares,
receipts, certificates or securities which the Board of Directors shall have
authority to issue, may be offered from time to time to the holders of any class
or classes of stock (or of any one or more series thereof) to the exclusion of
the holders of any or all other classes of stock (or series thereof) at the time
outstanding.
E. Rights or Options to Securities. The Corporation, subject to the
limitations contained in Paragraph B of this Article Four and the limitations,
if any, imposed by the holders of Preferred Stock, upon vote of the Board of
Directors, without any vote or consent of the stockholders of any class or
classes, from time to time may grant rights or options to subscribe for,
purchase or otherwise acquire any shares of stock of the Corporation of any
class now or hereafter authorized or any bonds or other obligation of the
Corporation. Such rights or options (a) may relate to such amounts of any class
or classes of such securities, may be exercisable within such periods, or
without limit as to time, at such price or prices and otherwise upon such terms
and conditions and may confer such rights and privileges; (b) may be granted for
such consideration and on such terms and conditions as to such corporations,
associations, partnerships, individuals, or others, or to the bearers or
registered holders of such warrants or other instruments evidencing such rights
or options (without offering the same or any part thereof to the holders of any
stock of the Corporation of any class now or hereafter authorized); and (c) may
be granted separately or in connection with the issuance of any bonds,
debentures, notes or other evidences of indebtedness or shares of stock of the
Corporation of any class now or hereafter authorized, or otherwise, all as the
Board of Directors may determine. In the discretion of the Board of Directors,
any such rights or options that the Board of Directors shall have the authority
to issue may be granted from time to time to the holders of any class or classes
of stock (or of any one or more series thereof) to the exclusion of the holders
of any or all other classes of stock (or series thereof) at the time
5
<PAGE>
outstanding. Nothing in this Paragraph E shall be deemed to authorize the
issuance of shares of capital stock of the Corporation of any class having a par
value for a consideration less than the par value thereof.
F. Closing Transfer Books; Records Dates. Nothing contained in this
Article Four shall prejudice any power that the Board of Directors may otherwise
have to close the stock transfer books of the Corporation or prejudice any right
that the Corporation may otherwise have to fix in its Code of Regulations, or
provide in its Code of Regulations that the Board of Directors shall be
authorized to fix, record dates for the determination of stockholders entitled
to notice of, and to vote at, meetings of stockholders or any adjournment
thereof, are entitled to receive dividends, or to any allotment of rights, or to
exercise rights in respect of any change, conversion or exchange of capital
stock, or to give a consent for any purpose, and to provide that in such case
such stockholders and only such stockholders as shall be stockholders of record
on the date so fixed shall be entitled to such notice of and to vote at such
meeting and any adjournment thereof, or to receive payment of such dividend, or
to receive such allotment of rights, or to exercise such rights, or to give such
consent, as the case may be, notwithstanding any transfer of any stock on the
books of the Corporation after any such record date fixed as aforesaid.
G. Descriptive Headings. The descriptive headings of the several
Paragraphs of this Article Four are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
H. Series A Senior Cumulative Nonvoting Preferred Stock. Of the
5,000,000 shares of Nonvoting Preferred Stock, par value $0.01 per share,
authorized pursuant to Paragraph A hereof, 500,000 shall be designated Series A
Senior Cumulative Nonvoting Preferred Stock, par value $0.01 per share, with the
rights, preferences, privileges and restrictions set forth in this Paragraph H.
(1) Definitions. For purposes of this Paragraph H the following
definitions shall apply:
"Adjusted Operating Cash Flow" shall mean as of the last day of
each fiscal quarter, the Company's Operating Cash Flow for such fiscal quarter,
minus actual marketing and selling expense for such fiscal quarter plus Average
Marketing Expense as of the last day of such fiscal quarter, all determined in
accordance with GAAP.
"Annualized Adjusted Operating Cash Flow" shall mean as of the
last day of each fiscal quarter, the Company's Adjusted Operating Cash Flow for
the most recently completed two consecutive fiscal quarters, multiplied by two,
determined on a consolidated basis in accordance with GAAP. For purposes of
calculating Annualized Adjusted Operating Cash Flow during the first two
complete fiscal quarters immediately following the Issue Date, it shall be
assumed that the Company's acquisition of certain assets of Horizon Cellular
Telephone Company of Chautauqua, L.P. and affiliates occurred on January 1,
1996.
"Applicable Rate" shall mean the annual rate at which dividends
shall accrue on the Cumulative Preferred Stock during the periods set forth in
Section 2(b).
"Average Marketing Expense" shall mean, as of the last day of
each fiscal quarter, the Company's actual marketing and selling expense for the
6
<PAGE>
most recently completed four fiscal quarters, divided by four, determined on a
consolidated basis in accordance with GAAP.
"Board" shall mean the Board of Directors of the Company.
"Business Day" shall mean a day on which banks and foreign
exchange markets are open for the transaction of business in London and New
York, as relevant to the determination to be made or action to be taken.
"Capitalized Lease Obligations" shall mean obligations under a
lease that are required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of Indebtedness represented by such
obligations shall be the capitalized amount of such obligations, as determined
in accordance with GAAP.
"Change of Control" shall mean any transaction or occurrence (or
series of transactions or occurrences) which results at any time in either (i)
the shareholders of the Company, as reflected in the records of the Company on
the Effective Date of the Credit Agreement, as the term Credit Agreement is used
in the definition of Permitted Indebtedness, owning in the aggregate, whether
directly or indirectly, less than the number of shares which entitles them to at
least 51% of the votes entitled to be cast in an election of the Company's Board
of Directors, on a fully diluted basis, or (ii) the Company owning in the
aggregate, whether directly or indirectly, less than the number of shares which
entitles it to at least 51% of the votes entitled to be cast in an election of
the Board of Directors of any Subsidiary of the Company, on a fully-diluted
basis. A Change of Control shall be deemed to occur as of the effective date of
the first event, action or transaction leading to one of the results described
above.
"Common Stock" shall mean the Class A and Class B Common Stock of
the Company.
"Company" shall mean this Corporation.
"Cumulative Preferred Stock" shall mean the Series A Senior
Cumulative Nonvoting Preferred Stock of the Company.
"Equity Security" shall mean any stock or similar security of the
Company or any security (whether stock or indebtedness) convertible or
exchangeable, with or without consideration, into or for any stock or similar
security, or any security (whether stock or indebtedness) carrying any warrant
or right to subscribe to or purchase any stock or similar security, or any such
warrant or right.
"Event of Default" shall mean (i) a default in the payment of, or
the acceleration of, any Indebtedness of the Company in excess of Five Million
Dollars ($5,000,000), which default shall remain uncured for a period of more
than ninety days; (ii) a Change of Control; (iii) the failure to redeem the
Preferred Stock on the Payment Date for a Mandatory Redemption Event; and (iv) a
breach of any restrictions and limitations set forth in Section 7 hereof.
"GAAP" shall mean, as in effect from time to time, generally
accepted accounting principles used in the United States, consistently applied.
7
<PAGE>
"Indebtedness" of a person shall mean, without duplication: (a)
all liabilities and obligations, contingent or otherwise, of such person, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, (iii) representing the
balance deferred and unpaid of the purchase price of any property or services,
except (other than accounts payable or other obligations to trade creditors
which have remained unpaid for greater than 90 days past their original due date
or to financial institutions, which obligations are not being contested in good
faith and for which appropriate reserves have been established) those incurred
in the ordinary course of its business that would constitute ordinarily a trade
payable to trade creditors, (iv) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (v) for the payment of money relating
to a Capitalized Lease Obligation, or (vi) evidenced by a letter of credit or a
reimbursement obligation of such person with respect to any letter of credit;
(b) all obligations of such person under Interest Swap and Hedging Obligations;
(c) all liabilities of others of the kind described in the preceding clauses (a)
or (b) that such person has guaranteed or that are otherwise its legal liability
or which are secured by any assets or property of such person (or in the case of
the Company, of any of its Subsidiaries) and all obligations to purchase, redeem
or acquire any capital stock of such person; (d) all preferred stock of such
person's subsidiaries; and (e) any and all deferrals, renewals, extensions,
refinancing and refundings (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (a), (b), (c) or (d) or this clause (e), whether or not
between or among the same parties; provided that the outstanding principal
amount at any date of any Indebtedness issued with original issue discount is
the face amount of such Indebtedness less the remaining unamortized portion of
the original issue discount of such Indebtedness at such date.
"Interest Expense" shall mean amounts actually paid by the
Company or any of its Subsidiaries for interest on Indebtedness during the
period in question, determined on a consolidated basis in accordance with GAAP.
"Interest Swap and Hedging Obligations" shall mean any
obligations of a person pursuant to any interest rate swaps, caps, collars and
similar arrangements providing protection against fluctuations in interest
rates. For purposes of this Paragraph H, the amount of such obligations shall be
the amount determined in respect thereof as of the end of the then most recently
ended fiscal quarter of such person, based on the assumption that such
obligation had terminated at the end of such fiscal quarter, and in making such
determination, if any agreement relating to such obligation provides for the
netting of amounts payable by and to such person thereunder or any such
agreement provides for the simultaneous payment of amounts by and to such
person, then, in each such case, the amount of such obligations shall be the net
amount so determined, plus any premium due upon default by such person.
"Issue Date" shall mean the date of the original issuance of
shares of the Cumulative Preferred Stock.
"Junior Stock" shall mean the Common Stock and all other shares
of capital stock of the Company, whether presently outstanding or hereafter
issued, other than the Cumulative Preferred Stock.
"Lien" shall mean any mortgage, lien, pledge, charge, security
interest, or other encumbrance of any kind, whether or not filed, recorded or
otherwise perfected under applicable law (including, any conditional sale or
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other title retention agreement and any lease deemed to constitute a security
interest and any option or other agreement to give any security interest).
"Mandatory Redemption Date" shall have the meaning ascribed
thereto in Section 4(c) hereof.
"Net Income" shall mean the Company's net income, after deducting
all operating expenses, provisions for all taxes and all other proper
deductions, all determined on a consolidated basis for the period in question in
accordance with GAAP.
"Operating Cash Flow" shall mean as of the last day of each
fiscal quarter, the sum of the Company's Net Income, depreciation, amortization,
other non-cash charges to Net Income and Interest Expense minus non-cash credits
to the Company's Net Income, all determined for such fiscal quarter on a
consolidated basis in accordance with GAAP.
"Optional Redemption Date" shall have the meaning ascribed
thereto in Section 4(b) hereof.
"Payment Date" shall have the meaning ascribed thereto in Section
4(d) hereof.
"Permitted Indebtedness" shall mean (i) the Credit Agreement
dated on or about October 9, 1996 among Sygnet Communications, Inc., the
Company's wholly owned Subsidiary, as the borrower, the financial institutions
which are parties thereto as lenders, PNC Bank, National Association and Toronto
Dominion (Texas), Inc. as managing agents and syndication agents, Toronto
Dominion (Texas), Inc. as the administrative agent, and PNC Bank, National
Association as the documentation agent and the collateral agent, together with
all extensions, renewals, amendments, substitutions and replacements thereto
(the "Credit Agreement"); (ii) the $110,000,000 principal amount of 11.5% Senior
Notes due 2006 of the Company together with all extensions, renewals,
amendments, substitutions and replacements thereto and (iii) such other
Indebtedness as shall be permitted to be incurred by Sygnet Communications, Inc.
and its affiliates pursuant to the Credit Agreement.
"Put" shall have the meaning ascribed thereto in Section 5(a)
hereof.
"Put Payment Date" shall have the meaning ascribed thereto in
Section 5(b) hereof.
"Redemption Price" shall have the meaning ascribed thereto in
Section 4(e) hereof.
"Subsidiary" shall mean any corporation of which fifty (50%)
percent or more of the Voting Stock, or any partnership of which 50% or more of
outstanding partnership interests, is at any time owned by the Company, or by
one or more Subsidiaries of the Company, or by the Company and one or more
Subsidiaries of the Company.
"Total Indebtedness" shall mean the outstanding principal amount
of all the Company's Indebtedness.
"Total Leverage Test" shall mean the ratio, as set forth in
Section 8 hereof, of (i) Total Indebtedness to (ii) Annualized Adjusted
Operating Cash Flow.
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"Voting Stock" shall mean any shares having general voting power
in electing the board of directors of any person (irrespective of whether or not
at the time stock of any other class or classes has or might have voting power
by reason or the happening of any contingency).
2. Dividends.
a. Right to Dividends. Dividends on each share of Cumulative
Preferred Stock shall accumulate and accrue from the Issue Date and shall accrue
from day to day thereafter, whether or not earned or declared, at the Applicable
Rate on the stated amount of $100 per share, as set forth below, until paid.
Dividends accruing pursuant to this Section 2(a) shall be payable quarterly in
arrears and shall be payable by the delivery of additional shares of Cumulative
Preferred Stock with a liquidation value equal to the amount of the dividend.
Such dividends shall be cumulative so that, if all accrued dividends shall not
have been paid, such accrued and unpaid dividends shall first be fully paid
before any dividend or other distribution shall be paid or declared and set
apart for any Junior Stock.
b. Applicable Rate. The dividend rate on shares of Cumulative
Preferred Stock shall increase from time to time and shall be equal to the
Applicable Rate as set forth below. The Applicable Rate for each period during
which the Cumulative Preferred Stock is outstanding shall be as follows:
(i) for the period commencing on the Issue Date and ending on
the first anniversary of the Issue Date, the Applicable Rate shall be
15% per annum;
(ii) for the period commencing on the day after the first
anniversary of the Issue Date and ending on the second anniversary of
the Issue Date, the Applicable Rate shall be 17% per annum;
(iii) for the period commencing on the day after the second
anniversary of the Issue Date and ending on the third anniversary of
the Issue Date, the Applicable Rate shall be 19% per annum;
(iv) commencing on the day after the third anniversary of the
Issue Date and thereafter, the Applicable Rate shall be 21% per annum;
and
(v) notwithstanding and in addition to the foregoing, if an
Event of Default occurs or the Company fails to meet the Total Leverage
Test, then until such time as all shares of Cumulative Preferred Stock
shall be redeemed, the Applicable Rate shall be the sum of the
otherwise Applicable Rate plus 5% per annum.
c. Priority. Until such time as all current and accrued dividends
on the Cumulative Preferred Stock for all periods from and after the Issue Date
and the then current period shall have been paid (i) no dividend whatsoever
(other than a dividend payable solely in Common Stock) shall be paid or
declared, and no distribution shall be made, on any Junior Stock, and (ii) no
shares of Junior Stock shall be purchased, redeemed or acquired by the Company
and no monies shall be paid into or set aside or made available for a sinking
fund for the purchase, redemption or acquisition thereof. So long as any shares
of Cumulative Preferred Stock are outstanding, the Company shall not authorize
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or issue, or obligate itself to issue, any other Equity Security senior to or on
a parity with the Cumulative Preferred Stock as to dividend or redemption
rights, liquidation preferences or otherwise.
3. Liquidation Rights of Cumulative Preferred Stock.
a. Preference. In the event of any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, the holders of the
then-outstanding shares of Cumulative Preferred Stock shall be entitled to be
paid out of the assets of the Company available for distribution to its
shareholders, whether such assets are capital, surplus or earnings, before any
payment or declaration and setting apart for payment of any amount shall be made
in respect of the Junior Stock, an amount equal to $100 per share plus an amount
equal to the liquidation preference of all accrued and unpaid dividends thereon,
whether or not earned or declared, to and including the date full payment shall
be tendered to the holders of the then-outstanding shares of Cumulative
Preferred Stock with respect to such liquidation, dissolution or winding up, and
no more. If upon any liquidation, dissolution, or winding up of the Company,
whether voluntary or involuntary, the assets to be distributed to the holders of
the then-outstanding shares of Cumulative Preferred Stock shall be insufficient
to permit the payment to such shareholders of the full preferential amounts to
which they are entitled, then all of the assets of the Company shall be
distributed ratably to the holders of the then-outstanding shares of Cumulative
Preferred Stock on the basis of the number of shares of Cumulative Preferred
Stock held by each such shareholder as compared to the aggregate number of
then-outstanding shares of Cumulative Preferred Stock.
b. Remaining Assets. After the payment or distribution to the
holders of the then-outstanding shares of Cumulative Preferred Stock of the full
preferential amounts to which they are entitled, the holders of the
then-outstanding shares of Junior Stock shall be entitled to receive ratably all
assets of the Company which remain available for distribution.
4. Redemption.
a. Restriction on Redemption and Purchase. Except as expressly
provided in this Section 4, the Company shall not have the right to purchase,
call, redeem or otherwise acquire for value any or all of the Cumulative
Preferred Stock.
b. Optional Redemption. At any time the Company may, at its
option, redeem the Cumulative Preferred Stock, in whole or in part, at the
Redemption Price hereinafter specified; provided, that the Company shall redeem
shares of Cumulative Preferred Stock having an aggregate liquidation preference
of at least One Million Dollars ($1,000,000) upon each Optional Redemption Date.
The date on which any Cumulative Preferred Stock is to be redeemed pursuant to
this Section 4(b) being referred to herein as an "Optional Redemption Date."
c. Mandatory Redemption. The Company shall redeem all
outstanding shares of Cumulative Preferred Stock at the Redemption Price
hereinafter specified upon the first to occur of the following events, the
occurrence date thereof being referred to herein as the "Mandatory Redemption
Date":
(i) the tenth anniversary of the Issue Date;
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(ii) upon the occurrence of a Change of Control;
(iii) upon the completion of an initial public offering or
private issuance of Equity Securities by the Company (other than an
issuance of Equity Securities of the Company to employees or directors
of the Company as compensation or management incentives) to the extent
of the proceeds of such initial public offering or private issuance; or
(iv) upon the exercise of the Put by holders of 51% or more
of the then-outstanding shares of Cumulative Preferred Stock.
d. Redemption Notice. The Company shall, not less than three
(3) Business Days prior to an Optional Redemption Date, give written notice to
each holder of record of shares of Cumulative Preferred Stock that the Company
has determined to exercise its optional redemption rights hereunder. This notice
shall state the number of then-outstanding shares of Cumulative Preferred Stock
to be redeemed, the Optional Redemption Date and Redemption Price, including the
amount of dividends included in such price and the calculation thereof, the
Payment Date and the time, place and manner in which the holder is to surrender
to the Company the certificate or certificates representing the shares of
Cumulative Preferred Stock to be redeemed. Upon the occurrence of one of the
events described in Section 4(c) above, the Company shall provide prompt, but in
no event more than two Business Days after the Mandatory Redemption Date, notice
to the holders of the Cumulative Preferred Stock of the occurrence of such event
and of the Mandatory Redemption Date. Such notice shall state the Redemption
Price, including the amount of dividends included in such price and the
calculation thereof, and the Payment Date, place and manner in which the holders
are to surrender to the Company the certificates representing shares of
Cumulative Preferred Stock to be redeemed. "Payment Date" shall mean the date
set by the Company with respect to an optional redemption or on or prior to the
fifth Business Day after the Mandatory Redemption Date (unless triggered by the
exercise of the Put the Payment Date for which shall be established in
accordance with Section 5 hereof), as the case may be, designated by the Company
for payment of the Redemption Price.
e. Redemption Price. In all events, the Redemption Price of
the Cumulative Preferred Stock (the "Redemption Price") shall be an amount per
share equal to $100 plus the liquidation preference of all accrued and unpaid
dividends thereon, whether or not declared, to and including the Payment Date.
f. Payment of Redemption Price and Surrender of Stock. On the
Payment Date, the Redemption Price of the Cumulative Preferred Stock shall be
paid to the holders of the Cumulative Preferred Stock. On or before the Payment
Date, each holder of shares of Cumulative Preferred Stock to be redeemed shall
surrender the certificate or certificates representing such shares to the
Company, duly endorsed, together with such other instruments as the Company may
reasonably require to insure that such shares of Cumulative Preferred Stock are
duly and validly transferred to the Company, free of all Liens, and on the
Payment Date the Redemption Price for such shares shall be payable to the order
of the person whose name appears on such certificate or certificates as the
owner thereof, and each surrendered certificate shall be cancelled and retired.
Upon an optional redemption of less than all of the then-outstanding shares of
Cumulative Preferred Stock, upon the surrender to the Company of a certificate
or certificates representing shares of Cumulative Preferred Stock to be redeemed
and payment by the Company of the Redemption Price, the Company shall issue to
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the holder thereof a certificate representing any shares of Cumulative Preferred
Stock not redeemed but represented by the certificate or certificates
surrendered.
g. Insufficient Funds. If the funds of the Company legally
available for redemption of Cumulative Preferred Stock on the Payment Date with
respect to a Mandatory Redemption Date are insufficient to redeem all of the
Cumulative Preferred Stock pursuant to Section 4(c) on such date, those funds
that are so available will be used to redeem the maximum possible number of
shares of the Cumulative Preferred Stock ratably among the holders thereof on
the basis of the number of shares of Cumulative Preferred Stock held by each
such shareholder. At the earliest time thereafter as additional funds of the
Company are legally available for redemption of Cumulative Preferred Stock in
the manner provided above, such funds will be immediately used to redeem the
balance of the Cumulative Preferred Stock.
h. Deposit of Funds. Prior to a Payment Date, the Company
shall deposit with any bank or trust company in the United States, rated by its
principal regulator as adequately or well capitalized, as defined by bank
regulatory authorities, or, if no such standard is applicable, having public
debt outstanding with a rating of at least AA, a sum equal to the aggregate
Redemption Price, with irrevocable instructions and authority to the bank or
trust company to pay, on or after the Payment Date, the Redemption Price to the
respective holders of then-outstanding shares of Cumulative Preferred Stock upon
the surrender of their share certificates. The deposit of the aggregate
Redemption Price shall constitute full payment of the shares to their holders;
provided, that, prior to such deposit, the holders thereof shall continue to be
considered shareholders with respect to such shares and shall have all rights
with respect thereto. Any monies so deposited and unclaimed at the end of six
months from the Payment Date shall be released or repaid to the Company, after
which the holders of shares of Cumulative Preferred Stock called for redemption
shall be entitled to receive payment of the Redemption Price only from the
Company.
5. Put Right.
a. At any time on or after the fourth anniversary of the
Issue Date, each then holder of shares of Cumulative Preferred Stock shall have
the right, but not the obligation, to cause the Company to repurchase all
then-outstanding shares of Cumulative Preferred Stock (the "Put"). Due exercise
of the Put by holders of 51% or more of the then-outstanding shares of
Cumulative Preferred Stock shall be deemed a Mandatory Redemption Event pursuant
to Section 4 hereof and the Company shall purchase all then-outstanding shares
of Cumulative Preferred Stock for the Redemption Price. A holder may exercise
the Put by providing written notice of such holder's desire to exercise the Put
to the Company. If a holder exercises the Put, the Company shall provide notice
of such exercise to all other holders of record of shares of Cumulative
Preferred Stock stating that the Put has been exercised and giving all other
holders the right to participate therein. Upon exercise of the Put by holders of
at least 51% of the then-outstanding Cumulative Preferred Stock, the Company
shall provide notice to all holders of record of shares of Cumulative Preferred
Stock that such exercise constitutes a Mandatory Redemption Event in accordance
with the procedures set forth in Section 4(d) hereof.
b. Within ninety (90) days after the Company receives the
notice of exercise of a Put right (the "Put Payment Date"), and upon surrender
of each holder's shares of Cumulative Preferred Stock, the Company shall pay to
each surrendering holder an amount in cash or other immediately available funds
equal to the Redemption Price multiplied by the number of shares of
Cumulative Preferred Stock that have been surrendered by such holder.
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6. Right to Select Directors. Except as is provided herein or
otherwise required by law, the voting power of the Company shall be vested in
the holders of the shares of Class A and Class B Common Stock and such other
series of Voting Preferred Stock as are from time to time designated and the
holders of the shares of Cumulative Preferred Stock shall have no voting power,
but shall have the right to attend and participate in every meeting of
shareholders of the Company and shall be entitled to advance written notice of
every meeting of shareholders of the Company. At any time after the first
anniversary of the Issue Date each holder of shares of Cumulative Preferred
Stock shall have advance written notice of, and have the right to attend, all
meetings of the Board of Directors of the Company. At any time after the third
anniversary of the Issue Date, the holders of Cumulative Preferred Stock shall
have the right to designate directors constituting 15% of the total number of
then- members of the Board of Directors of the Company (rounded up to the
nearest whole number of directors). The Company shall take such action as is
necessary to increase the number of directors of the Company or to otherwise
create vacancies on the Board to be filled by the holders of Cumulative
Preferred Stock pursuant to this Section 6. Such directors shall be designated
by the affirmative vote of holders of a majority of the then-outstanding
Cumulative Preferred Stock. Any directors so designated by the holders of
Cumulative Preferred Stock may be removed or replaced only by a vote of the
holders of then-outstanding shares of Cumulative Preferred Stock; provided that
such directors may be removed for cause as otherwise provided by these Articles
of Incorporation or applicable law.
7. Restrictions and Limitations. So long as any shares of
Cumulative Preferred Stock remain outstanding, the Company shall not, directly
or indirectly, without the written consent of all the holders of the
then-outstanding shares of Cumulative Preferred Stock:
a. Until the Cumulative Preferred Stock is redeemed in full
pursuant to Section 4 hereof or the holders thereof receive payment upon
liquidation, dissolution or winding up of the Company pursuant to Section 3
hereof, purchase, redeem or otherwise acquire for value (or pay into or set
aside as a sinking fund for such purpose) any Junior Stock or any warrant,
option or right to purchase any Junior Stock; provided, that, such restriction
shall not apply to the purchase of Junior Stock or any warrant, option or right
to purchase Junior Stock from an employee or director of the Company upon
termination of his or her employment or service in accordance with the terms of
any employment agreement or employee benefit or incentive plan maintained by the
Company;
b. Until the Cumulative Preferred Stock is redeemed in full
pursuant to Section 4 hereof or the holders thereof receive payment upon the
liquidation, dissolution or winding up of the Company pursuant to Section 3
hereof, declare or pay any dividends on or declare or make any other
distribution, direct or indirect, (other than a dividend payable solely in
shares of Common Stock) on account of the Junior Stock or set apart any sum for
any such purpose;
c. Amend its Amended and Restated Articles of Incorporation
or amend or repeal its bylaws in any manner that would significantly and
adversely affect the rights or preferences of the Cumulative Preferred Stock;
d. Take any action which would result in taxation of the
holders of the Cumulative Preferred Stock under Section 305 of the Internal
Revenue Code of 1986, as amended (the "Code") (or any comparable provision of
the Code as hereafter from time to time amended);
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e. Dissolve the Company; or
f. Enter into any Indebtedness, or permit any of its
Subsidiaries to enter into any Indebtedness, other than Permitted Indebtedness.
8. Total Leverage Test. As of the end of any calendar quarter,
the Company shall not permit the application of the Total Leverage Test to
exceed 12:1.
9. No Reissuance of Cumulative Preferred Stock. So long as any
shares of Cumulative Preferred Stock remain outstanding, no share of Cumulative
Preferred Stock acquired by the Company by reason of redemption, purchase, or
otherwise shall be reissued, and all such shares shall be cancelled, retired and
eliminated from the shares which the Company shall be authorized to issue.
ARTICLE FIVE
Preemptive Rights
No holder of shares of any type of capital stock of the Corporation
shall have any preemptive right to subscribe for or to purchase any shares of
the Corporation of any type, whether those shares of that type be now or later
authorized.
ARTICLE SIX
Cumulative Voting
No holder of shares of any type of capital stock of the Corporation
shall have any cumulative voting rights whatsoever.
ARTICLE SEVEN
Working Capital and Treasury Stock
The Board of Directors is hereby authorized to fix and determine and to
vary the amount of working capital of the Corporation, to determine whether any
and, if any, what part of its surplus, however created or arising, shall be used
or disposed of or declared in dividends or paid to shareholders; and, without
any action by the shareholders, to use and supply such surplus, or any part
thereof, at any time or from time to time in the purchase or acquisition of
shares of any type or class, voting trust certificates for shares, bonds,
debentures, notes, script, warrants, obligations, evidences of indebtedness of
the Corporation, or other securities of the Corporation, to such extent or
amount and in such manner and upon such terms as the Board of Directors shall
deem expedient.
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ARTICLE EIGHT
Stated Capital
Each authorized and outstanding share of Class A Common Stock and Class
B Common Stock shall have a stated value of one cent (14) per share and each
authorized and outstanding share of Voting Preferred Stock and Nonvoting
Preferred Stock shall have a stated value of one cent (14) per share, resulting
in a current stated value of $61,706.25.
ARTICLE NINE
Classification of the Board of Directors
The business and affairs of the Corporation shall be managed and
controlled by a Board of Directors consisting of not less than nine (9) nor more
than fifteen (15) persons. The exact number of directors within the minimum and
maximum limitations specified in the preceding sentence shall be fixed from time
to time by the Board of Directors pursuant to a resolution adopted by a majority
of the entire Board of Directors. At the 1997 annual meeting of stockholders,
the directors shall be divided into three classes, as nearly equal in number as
possible, with the term of office of the first class to expire at the 1998
annual meeting of stockholders, the term of office of the second class to expire
at the 1999 annual meeting of stockholder, and the term of office of the third
class to expire at the 2000 annual meeting of stockholders. At each annual
meeting of stockholders following such initial classification and election,
directors elected to succeed those directors whose terms expire shall be elected
for a term of office to expire at the third succeeding annual meeting of
shareholders after their election.
ARTICLE TEN
Removal of Directors
Any director, or the entire Board of Directors, may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of at least sixty six and two-thirds percent (66-2/3%) of the voting
power of all shares of the Corporation entitled to vote for the election of
directors; each share of Class A Common Stock being entitled to one vote per
share, each share of Class B Common Stock being entitled to ten votes per share,
and each share of Voting Preferred Stock being entitled to one vote per share.
ARTICLE ELEVEN
Vacancies in the Board of Directors
The newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled by a majority vote of the directors then
in office, and directors so chosen shall hold office for a term expiring at the
annual meeting of shareholders at which the term of the class to which they have
been elected expires. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of an incumbent director.
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ARTICLE TWELVE
Indemnification of Directors, et al.
(1) The Corporation shall indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, other than an action by or in the right of the
Corporation, by reason of the fact that he is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, trustee, officer, employee, member, manager, or
agent of another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or conviction, or
upon a pleas of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) The Corporation shall indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action or suit, by or in the right of the Corporation to
procure a judgment in its favor (also known as shareholder derivative actions),
by reason of the fact that he is or was a director, officer, employee, or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any of
the following:
(a) Any claim, issue, or matter as to which such person is adjudged
to be liable for negligence or misconduct in the performance of his duty to the
Corporation unless, and only to the extent that, the court of common pleas or
the court in which such action or suit is brought determines, upon application,
that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit in which the only liability asserted against
a director is pursuant to Section 1701.95 of the Ohio Revised Code, relating to
unlawful loans, dividends or distributions.
(3) To the extent that a director, trustee, officer, employee, member,
manager, or agent has been successful on the merits or otherwise in defense of
any action, suit, or proceeding referred to in division (1) of (2) of this
section, or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorney's fees, actually and reasonably
incurred by him in connection with this action, suit, or proceeding.
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(4) Any indemnification under division (1) or (2) of this section,
unless ordered by a court, shall be made by the Corporation only as authorized
in the specific case, upon a determination that indemnification of the director,
trustee, officer, employee, member, manager, or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
division (1) or (2) of this section. Such determination shall be made as
follows:
(a) By a majority vote of the quorum consisting of directors of the
Corporation who were not and are not parties to or threatened with the action,
suit, or proceeding referred to in division (1) or (2) of this section;
(b) If the quorum described in division (4)(a) of this section is
not obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been retained
by or who has performed services for the Corporation or any person to be
indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (1) or (2) of this section was
brought.
Any determination made by the disinterested directors under division
(4)(a) or by independent legal counsel under division (4)(b) of this section
shall be promptly communicated to the person who threatened or brought the
action or suit by or in the right of the Corporation under division (2) of this
section, and, within ten days after receipt of such notification, such person
shall have the right to petition the court of common pleas or the court in which
such action or suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of the director's act or omission that is the
subject of an action, suit, or proceeding referred to in division (1) or (2) of
this section, the only liability asserted against a director in an action, suit,
or proceeding referred to in division (1) or (2) of this section is pursuant to
Section 1701.95 of the Ohio Revised Code (which relates to unlawful loans,
dividends or distributions), expenses, including attorney's fees, incurred by a
director in defending the action, suit, or proceeding shall be paid by the
Corporation as they are incurred, in advance of the final disposition of the
action, suit, or proceeding, upon receipt of an undertaking by or on behalf of
the director in which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or
failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the Corporation or undertaken with reckless
disregard for the best interests of the Corporation;
(ii) Reasonably cooperate with the Corporation concerning the
action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any action,
suit, or proceeding referred to in division (1) or (2) of this section,
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shall be paid by the Corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized by the directors
in the specific case, upon receipt of an undertaking by or on behalf of the
director, trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be indemnified
by the Corporation.
ARTICLE THIRTEEN
Special Meetings of the Shareholders
Special meetings of stockholders of the Corporation may be called only
by the Board of Directors pursuant to a resolution approved by a majority of the
entire Board of Directors, upon not less than seven (7) nor more than sixty (60)
days written notice.
ARTICLE FOURTEEN
Stockholder Action
Action shall be taken by the stockholders of the Corporation only at
annual or special meetings of stockholders. Stockholders may not act by written
consent.
ARTICLE FIFTEEN
Amendment and Termination
These Articles may be amended only by the affirmative vote of a
majority of the total votes of Class A and Class B shares combined (together
with the holders of any outstanding shares of Preferred Stock entitled to vote
with the Class A Common Stock and the Class B Common Stock); each Class A share
being entitled to one vote per share, each Class B share being entitled to ten
votes per share, and each Voting Preferred share being entitled to one vote per
share.
ARTICLE SIXTEEN
Supersede Prior Articles
These Articles take the place of and supersede the existing Articles of
Incorporation as heretofore amended.
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SYGNET WIRELESS, INC.
Code of Regulations
ARTICLE I
Offices
Section 1. Principal Office. The principal office of the corporation
shall be at such place in Ohio as may be designated from time to time by the
Board of Directors. The present principal office of the Corporation is at 6550
Seville Drive, Suite B, Canfield, Ohio.
Section 2. Other Offices. The corporation may also have offices at such
other places without, as well as within, the State of Ohio as the Board of
Directors may from time to time determine.
ARTICLE II
Meetings of Shareholders
Section 1. Annual Meetings. The annual meeting of the shareholders of
this corporation for the purpose of electing directors and transacting such
other business as may come before the meeting, shall be held on the fourth
Wednesday in April of each year, if not a legal holiday, but if a legal holiday,
then on the next business day following or at such other date and time as the
Board of Directors may determine.
Section 2. Place of Meetings. Meetings of shareholders shall be held at
the principal office of the corporation unless the Board of Directors decides
that a meeting shall be held at some other place within or without the State of
Ohio and causes the notice thereof to so state.
Section 3. Notice of Meetings. Unless waived, a written, printed or
typewritten notice of each annual or special meeting, stating the day, hour,
place and the purpose or purposes thereof, shall be served upon or mailed to
each shareholder of record entitled to vote or entitled to notice, not more than
sixty (60) days nor less than seven (7) days before any such meeting. If mailed,
it shall be directed to a shareholder at his or her address as the same appears
upon the records of the corporation.
Section 4. Quorum. At any meeting of the shareholders, the holders of
Class A Common Stock, Class B Common Stock and Voting Preferred Stock entitling
them to exercise a majority of the voting power of the corporation, present in
person or represented by proxy, shall constitute a quorum.
At any meeting at which a quorum is present, all questions and business
which shall come before the meeting shall be determined by the vote of the
holders of a majority of voting shares as are represented in person or by proxy,
except when a greater proportion is required by law or the Articles of
Incorporation.
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At any meeting, whether a quorum is present or not, the holders of a
majority of the voting shares represented by shareholders present or by proxy
may adjourn from time to time and from place to place without notice other than
by announcement at the meeting. At any such adjourned meeting at which quorum is
present, any business may be transacted which might be transacted at the meeting
as originally notified or held.
Section 5. Proxies. Any shareholder of record who is entitled to attend
a shareholders' meeting, or to vote thereat or to assent or give consents in
writing, shall be entitled to be represented at such meeting or to vote thereat
or to assent or give consents in writing, as the case may be, or to exercise any
other of his rights, by proxy or proxies appointed by a writing signed by such
shareholder, which need not be sealed, witnessed or acknowledged.
Section 6. Voting.
6.01 Class A. At any meeting of shareholders, each Class A
shareholder of the corporation shall, except as otherwise provided by law or by
the Articles of Incorporation or by these Regulations, be entitled to one (1)
vote in person or by proxy for each Class A Share of the corporation registered
in his name on the books of the corporation (1) on the date fixed pursuant to
subparagraph (f) of Section 2 of Article IV of these Regulations as the record
date for the determination of shareholders entitled to vote at such meeting,
notwithstanding the prior or subsequent sale, or other disposal of such share or
shares or transfer of the same on the books of the corporation on or after the
date so fixed, or (2) if no such record date shall have been fixed, then at the
time of such meeting.
6.02 Class B. At any meeting of shareholders, each Class B
shareholder of the corporation shall, except as otherwise provided by law or by
the Articles of Incorporation or by these Regulations, be entitled to ten (10)
votes in person or by proxy for each Class B Share of the corporation registered
in his name on the books of the corporation (1) on the date fixed pursuant to
subparagraph (f) of Section 2 of Article IV of these Regulations as the record
date for the determination of shareholders entitled to vote at such meeting,
notwithstanding the prior or subsequent sale, or other disposal of such share or
shares or transfer of the same on the books of the corporation on or after the
date so fixed, or (2) if no such record date shall have been fixed, then at the
time of such meeting.
6.03 Preferred Stock. At any meeting of shareholders, each
holder of Preferred Stock, if any, shall , except as otherwise provided by law
or by the Articles of Incorporation or by these Regulations, be entitled to vote
as per the rights accorded to that shareholder by his ownership of each share of
Preferred Stock of the corporation registered in his name on the books of the
Corporation (1) on the date fixed pursuant to subparagraph (f) of Section 2 of
Article IV of these Regulations as the record date for the determination of
shareholders entitled to vote at such meeting, notwithstanding the prior or
subsequent sale, or other disposal of such share or shares or transfer of the
same on the books of the corporation on or after the date so fixed, or (2) if no
such record date shall have been fixed, then at the time of such meeting.
Section 7. Financial Reports. At the annual meeting, there shall be
laid before the shareholders a statement of profit and loss and a balance sheet
containing a summary of the assets and liabilities, as at the end of the
preceding fiscal year, together with a statement of dividends paid, and other
changes in the surplus account of the corporation during such year.
A certificate signed by the President or a Vice President and the
Treasurer or an Assistant Treasurer, or a public accountant or firm of public
accountants, shall be appended to such statement of profit and loss and balance
sheet, stating that they are true and correct according to the books of the
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corporation, and that they fairly represent the corporation's affairs according
to its books.
Section 8. Action Without Meeting. No shareholder action may be taken
otherwise than at a meeting of shareholders properly convened pursuant to
Article 2 of this Code of Regulations.
ARTICLE III
Directors
Section 1. Number of Directors. As provided in Article Nine of the
Amended Articles of Incorporation of Sygnet Wireless, Inc., the number of
directors of the corporation, none of whom need be shareholders, shall be no
less than nine (9) and no more than fifteen (15).
Section 2. Election of Directors. Directors shall be elected in the
manner indicated herein and in the Articles of Incorporation at the annual
meeting of shareholders. When the annual meeting is not held or directors are
not elected thereat, they may be elected at a special meeting called and held
for that purpose. Such election shall be by ballot whenever requested by any
shareholders entitled to vote at such elections, but, unless such a request is
made, the election may be conducted in any manner approved by a majority of
shareholders in attendance at such meeting.
Nominations for candidates for the Directors shall be made by the Board
of Directors (or duly constituted committee thereof) and may be made by holders
or proxies of Class A Common Stock, Class B Common Stock and Voting Preferred
Stock provided that any such nomination by any shareholder shall be made not
less than sixty (60) days prior to the annual meeting or within ten (10) days
after the notice of the meeting is given, whichever is later. Those candidates
receiving the greatest number of votes shall be elected. Pursuant to the Amended
Articles of Incorporation, there shall be no cumulative voting.
Section 3. Term of Office. Directors shall hold office as provided in
Articles Nine, Ten and Eleven of the Amended Articles of Incorporation of Sygnet
Wireless, Inc.
Section 4. Addition of Outside Directors. At any time prior to the
Company's annual shareholders' meeting in 1997, the Board of Directors may
expand the membership of the Board of Directorss by up to three (3) Directors
and may elect Directors to fill the positions thus created. The purpose of this
provision is to permit the Board of Directors to appoint the initial outside
Directors of the Company.
ARTICLE IV
Powers, Meetings, and Compensation of Directors
Section 1. General Powers of Board. The powers of the corporation shall
be exercised, its business and affairs conducted, and its property controlled,
by the Board of Directors, except as provided in the Articles of Incorporation,
amendments thereto, or the General Corporation Law of Ohio.
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Section 2. Other Powers. Without prejudice to the general powers
conferred by or implied in the preceding section, the directors, acting as a
Board, shall have power:
(a) To fix, define and limit the powers and duties of all
officers, and to determine the compensation of all
officers.
(b) To appoint, and at their discretion, with or without
cause, to remove, or suspend, such subordinate officers,
assistants, managers, agents and employees as the
directors may from time to time deem advisable, and to
determine their duties and fix their compensation.
(c) To require any officer, agent or employee of the
corporation to furnish a bond for faithful performance in
such amount and with such sureties as the Board may
approve.
(d) To designate a depository or depositories of the funds of
the corporation and the officer or officers of other
persons who shall be authorized to sign notes, checks,
drafts, contracts, deeds, mortgages and other instruments
on behalf of the corporation.
(e) To appoint and remove transfer agents and/or registrars
for the corporation's shares.
(f) To fix a time, not exceeding seventy-five (75) days
preceding the date of any meeting of shareholders, or the
date fixed for the payment of any dividend or
distribution, or the date for the allotment of rights, or
(subject to contract rights with respect thereto) the date
when any change or conversion or exchange of shares shall
be made or go into effect, as a record date for the
determination of the shareholders entitled to notice of
and to vote at any such meeting, or entitled to receive
payments of any such dividend, distribution, or allotment
of rights, or to exercise the right in respect to any such
change, conversion or exchange of shares, and, in such
case, only the persons who are shareholders of record on
the date so fixed shall be entitled to notice of and to
vote at such meeting, or to receive payment of such
dividend, distribution, or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding
any transfer of any shares on the books of the corporation
after any record date fixed as aforesaid, or redemption of
any shares by the corporation after any record date fixed
as aforesaid, and such persons shall conclusively be
deemed to be the shareholders of the corporation on such
record date notwithstanding notice or knowledge to the
contrary; and the Board of Directors may close the books
of the corporation against transfers of shares during the
whole or any part of such period commencing on such record
date.
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(g) To establish such rules and regulations respecting the
issuance and transfer of shares and certificates for
shares as the Board of Directors may consider reasonable.
Section 3. Meetings of the Board. A meeting of the Board of Directors
shall be held immediately following the adjournment of each shareholders'
meeting at which directors are elected, and notice of such meeting need not be
given.
The Board of Directors may, by by-laws or resolution, provide for other
meetings of the Board.
Special meetings of the Board of Directors may be held at any time upon
call of the Chairman of the Board, the President, a Vice President, or one-half
of the members of the Board.
Notice of any special meetings of the Board of Directors shall be
mailed to each director, addressed to him at his residence or usual place of
business, at least three (3) days before the day on which the meeting is to be
held, or shall be sent to him at such place by telegraph or be given personally
or by telephone, not later than the day before the day on which the meeting is
to be held. Every such notice shall state the time and place of the meeting but
need not state the purpose thereof. Notice of any meeting of the Board need not
be given to any director, however, if waived by him in writing or by telegraph,
whether before or after such meeting be held, or he shall be present at such
meeting; and any meeting of the Board shall be a legal meeting without any
notice thereof having been given, if all the directors shall be present thereat.
Any number of Directors may attend a meeting and vote by telephone, so long as
all Directors may speak to all Directors and hear all Directors.
All meetings of the Board shall be held at the principal offices of the
corporation in Mahoning County, Ohio, or at such other place, within or without
the State of Ohio, as the Board may determine from time to time and as may be
specified in the notice thereof.
Section 4. Quorum. A majority of the Board of Directors shall
constitute a quorum for the transaction of business, provided that whenever less
than a quorum is present at the time and place appointed for any meeting of the
Board, a majority of those present may adjourn the meeting from time to time,
without notice other than by announcement at the meeting, until a quorum shall
be present.
Section 5. Compensation. The directors shall be entitled to reasonable
compensation as determined by resolutions of the Board of Directors.
Section 6. By-laws. For the government of its actions, the Board of
Directors may adopt by-laws consistent with the Articles of Incorporation and
these Regulations.
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ARTICLE V
Committees
The Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board, provide for such standing or special committees as
it deems desirable and discontinue the same at pleasure. Each such committee
shall have such powers and perform such duties, not inconsistent with law, as
may be delegated to it by the Board of Directors. Vacancies in any such
committees shall be filled by the Board of Directors or as it may provide.
ARTICLE VI
Officers
Section 1. General Provisions. The Board of Directors shall elect a
Chairman of the Board, a President, such number of Vice Presidents as the Board
may from time to time determine, a Secretary and a Treasurer. The Board of
Directors may from time to time create such offices and appoint such other
officers, subordinate officers and assistant officers as it may determine. The
Chairman of the Board and the President shall be, but the other officers need
not be, chosen from among the members of the Board of Directors. Any two or more
of such offices, other than that of President and Secretary, may be held by the
same person.
Section 2. Term of Office. The officers of the corporation shall hold
office during the pleasure of the Board of Directors, and, unless sooner removed
by the Board of Directors, until the organization meeting of the Board of
Directors following the date of their election and until their successors are
chosen and qualified.
The Board of Directors may remove any officer at any time, with or
without cause, by a majority vote.
A vacancy in any office, however created, shall be filled by the Board
of Directors.
ARTICLE VII
Duties of Officers
Section 1. Chairman of the Board. The office and person of the Chairman
of the Board may also be known as "Board Chair," "Chairwoman," "Chair,"
"Chairperson," or other similar non-masculine descriptive title as adopted by
the incumbent officer and shall be exclusively so known if he or she so directs.
The Chairman of the Board shall preside at all meetings of the shareholders and
shall also preside at meetings of the Board of Directors. The Chairman shall
have general supervision, direction and control over the business of the
Corporation and over its several officers, subject, however, to the control of
the Board of Directors.
Section 2. President. The President shall be the Chief Executive
Officer of the Corporation, and in that capacity shall manage the daily affairs
of the Corporation. Within this authority, the President shall have the
authority to sign all deeds, mortgages, bonds, contracts, notes, and other
instruments of the Corporation and shall have the authority to appoint, remove,
employ and discharge, and prescribe the duties and fix the compensation of all
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agents and employees of the Corporation other than the duly appointed officers,
but subject to the direction of the Board of Directors and the Chairman of the
Board. The President shall seek the advice and consent of the Chairman of the
Board on all important corporate actions and policy matters.
Section 3. Vice Presidents. The Vice President or Vice Presidents, if
more than one is elected, shall perform such duties as may from time to time be
assigned by the Board of Directors or the President.
Section 4. Secretary. The Secretary shall keep minutes of all the
proceedings of the shareholders and Board of Directors, and shall make proper
record of the same, shall attest to records, sign all certificates for shares,
and all deeds, mortgages, bonds, contracts, notes, and other instruments
executed by the corporation requiring the Secretary's signature; give notice of
meetings of shareholders and directors; produce on request at each meeting of
shareholders for the election of directors a certified list of shareholders
arranged in alphabetical order; keep such books as may be required by the Board
of Directors, and file all reports to States and to the Federal Government; and
perform such other and further duties as may from time to time be assigned to
the Secretary by the Board of Directors, or by the Chairman or by the President.
Section 5. Treasurer. The Treasurer shall be the Chief Financial
Officer of the Corporation and shall receive and have in charge all moneys,
bills, notes, bonds, and similar property belonging to the corporation and shall
do with the same as may be ordered by the Board of Directors. The Treasurer
shall keep such financial accounts as may be required and shall generally
perform such other duties as may from time to time be required of the Treasurer
by the Board of Directors. The Treasurer shall furnish such bond in such amount
and with such security as shall be required by the Board of Directors and may
prepare, for submission at each regular meeting of the shareholders, a detailed
statement of the financial condition of the corporation and may sign or
countersign all checks or notes or other evidences of indebtedness issued or
authorized for the benefit of the corporation and may receive and collect all
moneys or other credits due said corporation and deposit them in a bank
designated by the Directors to the credit of and for the benefit of the
corporation.
Section 6. Assistant and Subordinate Officers. The Board of Directors
may appoint such assistant and subordinate officers as it may deem desirable.
Each such officer shall hold office during the pleasure of the Board of
Directors, and perform such duties as the Board of Directors may prescribe.
The Board of Directors may, from time to time, authorize any officer to
appoint and remove subordinate officers, to prescribe their authority and
duties, and to fix their compensation.
Section 7. Duties of Officers May Be Delegated. In the absence of any
officer of the corporation, or for any other reason the Board of Directors may
deem sufficient, the Board of Directors may delegate, for the time being, the
powers or duties, or any of them, of such officer to any other office, or to any
director.
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ARTICLE VIII
Certificates for Shares
Section 1. Form. Certificates for shares shall be in such form as the
Board of Directors may from time to time determine or approve, or in the event
the Board of Directors has not made such determinations or given such approval,
in such form as the Secretary shall determine or approve. Each shareholder of
this corporation whose shares have been paid in full shall be entitled to a
certificate or certificates showing the number of shares of each type registered
in his name on the books of the corporation. Each certificate shall be issued in
numerical order and shall be signed by the Chairman or President, and the
Secretary or any Assistant Secretary. A full record of each certificate as
issued shall be kept by the Secretary of the corporation.
Section 2. Transfers. Subject to any transfer restrictions contained in
the Stock Option Plan of the Corporation, or noted conspicuously on each
certificate representing shares, shares shall be transferable on the books of
the corporation by the holders thereof in person or by a duly authorized
attorney, upon surrender and cancellation for certificates for a like number of
shares of the same class or series, with duly executed assignment and power of
transfer endorsed thereon or attached thereto, and with such proof of the
authenticity of the signatures as the corporation or its agents may reasonably
require. Certificates so surrendered shall be cancelled and attached to the
stubs corresponding thereto in the stock certificate books.
Section 3. Lost, Destroyed or Mutilated Certificates. If any
certificate of shares in this corporation shall become worn, defaced or
mutilated, the Directors, upon production and surrender thereof, may order the
same cancelled and a new certificate issued in lieu thereof. If any such
certificate be lost or destroyed, the Directors, upon receipt of evidence
satisfactory to them of such loss or destruction and upon giving of such
indemnity as they shall deem satisfactory, may order a new certificate to be
issued to the person last appearing upon the books of the corporation to be the
owner of such lost or destroyed certificate.
ARTICLE IX
Fiscal Year
The fiscal year of the corporation shall end on the 31st day of
December in each year, or on such other day as may be fixed from time to time by
the Board of Directors.
ARTICLE X
Seal
The Board of Directors may provide a suitable seal containing the name
of the corporation. If deemed advisable by the Board of Directors, duplicate
seals may be provided and kept for the purposes of the corporation.
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ARTICLE XI
Contracts, Checks, Notes and Other Instruments
All contracts, agreements and other instruments authorized by the Board
of Directors, and all checks, drafts, notes, bonds, bills of exchange and orders
for the payment of money shall, unless otherwise directed by the Board of
Directors, or unless otherwise required by law, be signed by any two of the
following officers: Chairman of the Board, President, Treasurer, or Secretary.
The Board of Directors may, however, authorize any one of said officers to sign
checks, drafts, and orders for the payment of money singly and without the
necessity of counter-signature, and may designate officers and employees of the
corporation other than those named above, or different combinations of such
officers and employees, who may, in the name of the corporation, execute checks,
drafts, and orders for the payment of money in its behalf.
ARTICLE XII
Indemnification of Directors, et al.
(1) The Corporation shall indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, other than an action by or in the right of the
Corporation, by reason of the fact that he is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, trustee, officer, employee, member, manager, or
agent of another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or conviction, or
upon a pleas of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) The Corporation shall indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action or suit, by or in the right of the Corporation to
procure a judgment in its favor (also known as shareholder derivative actions),
by reason of the fact that he is or was a director, officer, employee, or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any of
the following:
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(a) Any claim, issue, or matter as to which such person is adjudged
to be liable for negligence or misconduct in the performance of his duty to the
Corporation unless, and only to the extent that, the court of common pleas or
the court in which such action or suit is brought determines, upon application,
that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit in which the only liability asserted against
a director is pursuant to Section 1701.95 of the Ohio Revised Code, relating to
unlawful loans, dividends or distributions.
(3) To the extent that a director, trustee, officer, employee, member,
manager, or agent has been successful on the merits or otherwise in defense of
any action, suit, or proceeding referred to in division (1) of (2) of this
section, or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorney's fees, actually and reasonably
incurred by him in connection with this action, suit, or proceeding.
(4) Any indemnification under division (1) or (2) of this section,
unless ordered by a court, shall be made by the Corporation only as authorized
in the specific case, upon a determination that indemnification of the director,
trustee, officer, employee, member, manager, or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
division (1) or (2) of this section. Such determination shall be made as
follows:
(a) By a majority vote of the quorum consisting of directors of the
Corporation who were not and are not parties to or threatened with the action,
suit, or proceeding referred to in division (1) or (2) of this section;
(b) If the quorum described in division (4)(a) of this section is
not obtainable or if a majority vote of a quorum of disinterested directors so
directs, in a written opinion by independent legal counsel other than an
attorney, or a firm having associated with it an attorney, who has been retained
by or who has performed services for the Corporation or any person to be
indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the action,
suit, or proceeding referred to in division (1) or (2) of this section was
brought.
Any determination made by the disinterested directors under division
(4)(a) or by independent legal counsel under division (4)(b) of this section
shall be promptly communicated to the person who threatened or brought the
action or suit by or in the right of the Corporation under division (2) of this
section, and, within ten days after receipt of such notification, such person
shall have the right to petition the court of common pleas or the court in which
such action or suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of the director's act or omission that is the
subject of an action, suit, or proceeding referred to in division (1) or (2) of
this section, the only liability asserted against a director in an action, suit,
or proceeding referred to in division (1) or (2) of this section is pursuant to
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Section 1701.95 of the Ohio Revised Code (which relates to unlawful loans,
dividends or distributions), expenses, including attorney's fees, incurred by a
director in defending the action, suit, or proceeding shall be paid by the
Corporation as they are incurred, in advance of the final disposition of the
action, suit, or proceeding, upon receipt of an undertaking by or on behalf of
the director in which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
Corporation or undertaken with reckless disregard for the
best interests of the Corporation;
(ii) Reasonably cooperate with the Corporation concerning the
action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, member, manager, or agent in defending any action,
suit, or proceeding referred to in division (1) or (2) of this section, shall be
paid by the Corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized by the directors
in the specific case, upon receipt of an undertaking by or on behalf of the
director, trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be indemnified
by the Corporation.
ARTICLE XIII
Amendments
This Code of Regulations may be amended or repealed by the affirmative
vote of 50% of the total votes of Class A Common Stock, Class B Common Stock and
Voting Preferred Stock combined; each Class A share being entitled to one (1)
vote per share, and each Class B share and Voting Preferred share being entitled
to ten (10) votes per share.
11
Sygnet Wireless, Inc.
$110,000,000
11-1/2% Senior Notes due October 1, 2006
-------------
INDENTURE
Dated as of September 26, 1996
-------------
Fleet National Bank
Trustee
<PAGE>
INDENTURE, dated as of September 26, 1996, between Sygnet Wireless,
Inc., an Ohio corporation (the "Company"), and Fleet National Bank, as trustee
(the "Trustee").
Each party agrees as follows for the benefit of each other and for the
equal and ratable benefit of the Holders of the 11-1/2% Senior Notes due 2006
(the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 DEFINITIONS
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person or (ii) any officer,
director, or controlling stockholder of such other Person. For purposes of this
definition, the term "control" means (a) the power to direct the management and
policies of a Person, directly or through one or more intermediaries, whether
through the ownership of voting securities, by contract, or otherwise, or (b)
without limiting the foregoing, the beneficial ownership of 10% or more of the
voting power of the voting common equity of such Person (on a fully diluted
basis) or of warrants or other rights to acquire such equity (whether or not
presently exercisable).
"Annualized Operating Cash Flow" on any date, means with respect to any
Person the Operating Cash Flow for the Reference Period multiplied by four.
"Annualized Operating Cash Flow Ratio" on any date (the "Transaction
Date") means, with respect to any Person and it Subsidiaries, the ratio of (i)
consolidated Indebtedness of such Person and its Subsidiaries on the Transaction
Date (after giving pro forma effect to the Incurrence of such Indebtedness)
divided by (ii) the aggregate amount of Annualized Operating Cash Flow of such
Person (determined on a pro forma basis after giving effect to all dispositions
of businesses made by such Person and its Subsidiaries from the beginning of the
Reference Period through the Transaction Date as if such disposition has
occurred at the beginning of such Reference Period); provided, that for purposes
of such computation, in calculating Annualized Operating Cash Flow and
consolidated Indebtedness: (a) the transaction giving rise to the need to
calculate the Annualized Operating Cash Flow Ratio will be assumed to have
occurred (on a pro forma basis) on the first day of the Reference Period; (b)
the incurrence of any Indebtedness during the Reference Period or subsequent
thereto and on or prior to the Transaction Date (and the application of the
proceeds therefrom to the extent used to retire Indebtedness) will be assumed to
have occurred (on a pro forma basis) on the first day of such Reference Period;
(c) Consolidated Interest Expense attributable to any Indebtedness
<PAGE>
(whether existing or being incurred) bearing a floating interest rate shall be
computed as if the rate in effect on the Transaction Date had been the
applicable rate for the entire period; and (d) all members of the consolidated
group of such Person on the Transaction Date that were acquired during the
Reference Period shall be deemed to be members of the consolidated group of such
Person for the entire Reference Period. When the foregoing definition is used in
connection with the Company and its Restricted Subsidiaries, references to a
Person and its Subsidiaries in the foregoing definition shall be deemed to refer
to the Company and its Restricted Subsidiaries.
"Bank Credit Facility" means, (a) until the consummation of the Horizon
Acquisition, the Credit Agreement, dated as of September 29, 1995, entered into
by and among Sygnet Communications, Inc. and certain of its affiliates, the
lenders which are parties thereto and PNC Bank, National Association, as the
agent for such lenders, as it may have been amended from time to time, and (b)
as of and after the consummation of the Horizon Acquisition, and so long as
there is Indebtedness under, or the borrower has the ability to borrow
thereunder, the Credit Agreement (in substantially the form filed as an exhibit
to Amendment No. 3 to the registration statement of which the Prospectus is a
part and consistent with the terms set forth in the commitment letter, dated as
of August 21, 1996), among Sygnet Communications, Inc., as the borrower, the
financial institutions which are parties thereto as lenders, PNC Bank, National
Association and Toronto Dominion (Texas), Inc. as managing agents and
syndication agents, Toronto Dominion (Texas), Inc. as the administrative agent,
and PNC Bank, National Association, as the documentation agent and the
collateral agent, or any other credit facility or loan agreement designated by
the Company to be the "Bank Credit Facility," as such Credit Agreement or other
credit facility or loan agreement may be amended, modified, restated, renewed,
increased, supplemented, refunded, replaced or refinanced from time to time.
There can be only one such credit facility or loan agreement designated to be
the "Bank Credit Facility" at any one time.
"Board of Directors" means the Board of Directors of the Company, or
any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capitalized Lease Obligations" means obligations under a lease that
are required to be capitalized for financial reporting purposes in accordance
with GAAP, and the
amount of Indebtedness represented by such obligations shall be the capitalized
amount of such obligations, as determined in accordance with GAAP.
"Capital Stock" means, with respect to any Person, any capital stock of
such Person and shares, interests, participations or other ownership interests
(however designated) of any Person and any rights (other than debt securities
convertible into
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capital stock), warrants and options to purchase any of the foregoing, including
(without limitation) each class of common stock and preferred stock of such
Person if such Person is a corporation and each general and limited partnership
interest of such Person if such Person is a partnership.
"Cash Equivalents" means (i) Securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) in each case maturing within
one year after the date of acquisition, (ii) time deposits and certificates of
deposit and commercial paper issued by the parent corporation of any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500 million and commercial paper issued by others rated at least A- 2 or the
equivalent thereof by Standard & Poor's Corporation or at least P-2 or the
equivalent thereof by Moody's Investors Service, Inc. and in each case maturing
within one year after the date of acquisition and (iii) investments in money
market funds substantially all of whose assets comprise securities of the types
described in clauses (i) and (ii) above.
"Change of Control" means (i) any sale, transfer or other conveyance,
whether direct or indirect, of a majority of the fair market value of the assets
of the Company, on a consolidated basis, in one transaction or a series of
related transactions, if, immediately after giving effect to such transaction,
any "person" or "group" (as such terms are used for purposes of Sections 13(d)
and 14(d) of the Exchange Act, whether or not applicable), other than an
Excluded Person or Excluded Group, is or becomes the "beneficial owner" (as such
term is used in Rule 13d-3 promulgated pursuant to the Exchange Act), directly
or indirectly, of more than 50% of the total voting power in the aggregate
normally entitled to vote in the election of directors, managers, or trustees,
as applicable, of the transferee, (ii) any "person" or "group" (as such terms
are used for purposes of Section 13(d) and 14(d) of the Exchange Act, whether or
not applicable), other than an Excluded Person or Excluded Group, is or becomes
the "beneficial owner" (as such term is used in Rule 13d-3 promulgated pursuant
to the Exchange Act), directly or indirectly, of more than 50% of the total
voting power in the aggregate of all classes of Capital Stock of the Company
then outstanding normally entitled to vote in elections of directors, or (iii)
during any period of 12 consecutive months after the Issue Date, individuals who
at the beginning of any such 12-month period constituted the Board of Directors
of the Company (together with any new directors whose election by such Board or
whose nomination for election by the shareholders of the Company was approved by
a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office.
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"Consolidated Interest Expense" of any Person means, for any period,
the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of (a) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with the following
sentence, interest attributable to Capitalized Lease Obligations) of such Person
and its consolidated Subsidiaries during such period, including (i) original
issue discount and non-cash interest payments or accruals on any Indebtedness,
(ii) the interest portion of all deferred payment obligations, and (iii) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptances and letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to such period, and
(b) the amount of dividends accrued or payable by such Person or any of its
consolidated Subsidiaries in respect of preferred stock (other than by
Restricted Subsidiaries of such Person to such Person or such Person's Wholly
Owned Subsidiaries). For purposes of this definition, (x) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guaranty by such Person or a
Subsidiary of such Person of an obligation of another Person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed. When the
foregoing definition is used in connection with the Company and its Restricted
Subsidiaries, references to a Person and its Subsidiaries in the foregoing
definition shall be deemed to refer to the Company and its Restricted
Subsidiaries.
"Consolidated Net Income" of any Person for any period means the net
income (or loss) of such Person and its consolidated Subsidiaries for such
period, determined (on a consolidated basis) in accordance with GAAP, adjusted
to exclude (only to the extent included in computing such net income (or loss),
and without duplication (i) all extraordinary gains and losses and gains and
losses that are nonrecurring (including as a result of Asset Sales outside the
ordinary course of business), (ii) the net income, if positive, of any Person,
that is not a Subsidiary in which such Person or any of its Subsidiaries has an
interest, except to the extent of the amount of dividends or distributions
actually paid to such Person or a Subsidiary of such Person that both (x) are
actually paid in cash to such Person or a Subsidiary of such Person during such
period and (y) when taken together will all other dividends and distributions
paid during such period in cash to such Person or a Subsidiary of such Person,
are not in excess of such Person's pro rata share of such other Person's
aggregate net income earned during such period, (iii), except as provided in the
definition of "Annualized Operating Cash Flow Ratio," the net income (or loss)
of any Subsidiary acquired in a pooling of interests transaction for any period
prior to the date of such acquisition and (iv) the net income, if positive, of
any Subsidiary of such Person to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by operation of
the terms of its charter or any agreement or instrument applicable to such
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Subsidiary. When the foregoing definition is used in connection with the Company
and its Restricted Subsidiaries, references to a Person and its Subsidiaries in
the foregoing definition shall be deemed to refer to the Company and its
Restricted Subsidiaries.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 10.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Default" means any event or condition that is, or after notice or
passage of time or both would be, an "Event of Default."
"Disqualified Capital Stock" means, with respect to any Person, Capital
Stock of such Person that, by its terms or by the terms of any security into
which it is convertible, exercisable or exchangeable, is, or upon the happening
of any event or the passage of time would be, required to be redeemed or
repurchased (including at the option of the holder thereof) by such Person or
any of its Subsidiaries, in whole or in part, on or prior to the Stated Maturity
of the Notes; provided that Capital Stock will not be deemed to be Disqualified
Capital Stock if it may only be redeemed or repurchased solely in consideration
of Qualified Capital Stock of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Group" means a "group" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) that includes one or more Excluded Persons;
provided that the voting power of the Capital Stock of the Company "beneficially
owned" (as such term is used in Rule 13d-3 promulgated under the Exchange Act)
by such Excluded Persons (without attribution to such Excluded Persons of the
ownership by other members of the "group") represents a majority of the voting
power of the Capital Stock "beneficially owned" (as such term is used in Rule
13d-3 promulgated under the Exchange Act) by such group.
"Excluded Person" means the members of the Williamson family who owned
Capital Stock of the Company on the Issue Date and any wholly owned Affiliate of
any of the foregoing that is wholly owned by one of the foregoing.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries in existence and outstanding on the Issue Date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
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the Financial Accounting Standards Board ("FASB") or in such other statements by
such other entity as approved by a significant segment of the accounting
profession which are in effect in the United States; provided, however, that for
purposes of determining compliance with covenants in the Indenture, "GAAP" means
such generally accepted accounting principles as in effect as of the Issue Date.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Holder" means a Person in whose name a Note is registered. The Holder
of a Note will be treated as the owner of such Note for all purposes.
"Horizon Acquisition" means the acquisition of assets made pursuant to
the Asset Acquisition Agreement, dated July 11, 1996, among the Company, Horizon
Cellular Telephone Company of Chautauqua, L.P., Horizon Cellular Telephone
Company of Crawford, L.P., and Horizon Cellular Telephone Company of Indiana,
L.P.
"Indebtedness" of any Person means, without duplication: (a) all
liabilities and obligations, contingent or otherwise, of such Person, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, (iii) representing the
balance deferred and unpaid of the purchase price of any property or services,
except (other than accounts payable or other obligations to trade creditors
which have remained unpaid for greater than 90 days past their original due date
or to financial institutions, which obligations are not being contested in good
faith and for which appropriate reserves have been established) those incurred
in the ordinary course of its business that would constitute ordinarily a trade
payable to trade creditors, (iv) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (v) for the payment of money relating
to a Capitalized Lease Obligation, or (vi) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(b) all obligations of such Person under Interest Swap and Hedging Obligations;
(c) all liabilities of others of the kind described in the preceding clauses (a)
or (b) that such Person has guaranteed or that is otherwise its legal liability
or which are secured by any assets or property of such Person and all
obligations to purchase, redeem or acquire any Capital Stock; (d) all
Disqualified Capital Stock of such Person and all preferred stock of such
Person's Subsidiaries; and (e) any and all deferrals, renewals, extensions,
refinancing and refundings (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (a), (b), (c), or (d) or this clause (e), whether or not
between or among the same parties; provided that the outstanding principal
amount at any date of any Indebtedness issued with original issue discount is
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<PAGE>
the face amount of such Indebtedness less the remaining unamortized portion of
the original issue discount of such Indebtedness at such date.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Interest Swap and Hedging Obligations" means any obligations of any
Person pursuant to any interest rate swaps, caps, collars and similar
arrangements providing protection against fluctuations in interest rates. For
purposes of the Indenture, the amount of such obligations shall be the amount
determined in respect thereof as of the end of the then most recently ended
fiscal quarter of such Person, based on the assumption that such obligation had
terminated at the end of such fiscal quarter, and in making such determination,
if any agreement relating to such obligation provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person or in any event until
the counterparty thereunder defaults in its corresponding payment, then in each
such case, the amount of such obligations shall be the net amount so determined,
plus any premium due upon default by such Person.
"Investment" by any Person in any other Person means (without
duplication): (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership or other
ownership interests or other securities of such other Person or any agreement to
make any such acquisition; (b) the making by such Person of any deposit with, or
advance, loan or other extension of credit to, such other Person (including the
purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such other
Person) or any commitment to make any such advance, loan or extension; (c) the
entering into by such Person of any guarantee of, or other contingent obligation
with respect to, Indebtedness or other liability of such other Person; (d) the
making of any capital contribution by such Person to such other Person; and (e)
the designation by the Board of Directors of the Company of any Person to be an
Unrestricted Subsidiary. For purposes of Section 4.09, (i) "Investment" shall
include and be valued at the fair market value of the net assets of any
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
an Unrestricted Subsidiary and shall exclude the fair market value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount of any
Investment shall be the fair market value of such Investment plus the fair
market value of all additional Investments by the Company or any of its
Restricted Subsidiaries at the time any such Investment is made; provided that,
for purposes of this sentence, the fair market value of net assets in excess of
$5,000,000 shall be as determined by an independent appraiser of national
reputation.
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"Issue Date" means the time and date of the first issuance of the Notes
under the Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal corporate
trust office of the Trustee is located, or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"Lien" means any mortgage, lien, pledge, charge, security interest, or
other encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement and any lease deemed to constitute a security interest and
any option or other agreement to give any security interest).
"Maturity Date" means, when used with respect to any Note, the date
specified on such Note as the fixed date on which the final installment of
principal of such Note is due and payable (in the absence of any acceleration
thereof pursuant to the provisions of the Indenture regarding acceleration of
Indebtedness or any Change of Control Offer or Asset Sale Offer).
"Net Cash Proceeds" means the aggregate amount of cash and Cash
Equivalents received by the Company and its Restricted Subsidiaries in respect
of an Asset Sale (including upon the conversion to cash and Cash Equivalents of
(a) any note or installment receivable at any time, or (b) any other property as
and when any cash and Cash Equivalents are received in respect of any property
received in an Asset Sale but only to the extent such cash and Cash Equivalents
are received within one year after such Asset Sale), less the sum of (i) all
reasonable out-of-pocket fees, commissions and other expenses incurred in
connection with such Asset Sale, including the amount (estimated in good faith
by the Board of Directors of the Company) of income, franchise, sales and other
applicable taxes required to be paid by the Company or any Restricted Subsidiary
of the Company in connection with such Asset Sale and (ii) the aggregate amount
of cash so received which is used to retire any existing Indebtedness of its
Restricted Subsidiaries, as the case may be, which is required to be repaid in
connection with such Asset Sale or is secured by a Lien on the property or
assets of the Company or any of its Restricted Subsidiaries, as the case may be.
"Net Pops" of any Person with respect to any System means the Pops of
the MSA or RSA served by such System multiplied by the direct and/or indirect
percentage interest of such Person in the entity licensed or designated to
receive an authorization by the Federal Communications Commission to construct
or operate a system in that MSA or USA.
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"Net Proceeds" means the aggregate net proceeds (including the fair
market value of non-cash proceeds constituting equipment or other assets of a
type generally used in a Related Business in an amount reasonably determined by
the Board of Directors of the Company for amounts under $5,000,000 and by a
financial advisor or appraiser of national reputation for equal or greater
amounts) received by a Person from the sale of Qualified Capital Stock (other
than to a Subsidiary of such Person) after payment of out-of-pocket expenses,
commissions and discounts incurred in connection therewith.
"Obligations" means any principal, premium, interest (including
interest accruing subsequent to a bankruptcy or other similar proceeding whether
or not such interest is an allowed claim enforceable against the Company in a
bankruptcy case under Federal bankruptcy law), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable pursuant
to the terms of the documentation governing any Indebtedness.
"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 or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 10.05 hereof.
"Operating Cash Flow" for any Person for any period means (a) the
Consolidated Net Income of such Person for such period, plus (b) the sum,
without duplication (and only to the extent such amounts are deducted from net
revenues in determining such Consolidated Net Income), of (i) the provisions for
income taxes for such period for such Person and its consolidated Subsidiaries,
(ii) depreciation, amortization and other non-cash charges of such Person and
its consolidated Subsidiaries and (iii) Consolidated Interest Expense of such
Person for such period, determined, in each case, on a consolidated basis for
such Person and its consolidated Subsidiaries in accordance with GAAP, less (c)
the sum, without duplication (and only to the extent such amounts are included
in such Consolidated Net Income) of (i) all extraordinary gains of such Person
and its consolidated Subsidiaries during such period and (ii) the amount of all
cash payments made during such period by such Person and its Subsidiaries to the
extent such payments relate to non-cash charges that were added back in
determining Operating Cash Flow for such period or for any prior period. When
the foregoing definition is used in connection with the Company and its
Restricted Subsidiaries, references to a Person and its Subsidiaries in the
foregoing definition shall be deemed to refer to the Company
and its Restricted Subsidiaries.
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"Opinion of Counsel" means an opinion in form and substance reasonably
satisfactory to the Trustee, and from legal counsel who is reasonably acceptable
to the Trustee, that meets the requirements of Section 10.05 hereof. The counsel
may be an employee of or counsel to the Company, any Subsidiary of the Company
or the Trustee.
"Permitted Acquisition Indebtedness" means, with respect to any Person,
Indebtedness Incurred in connection with the acquisition of property, businesses
or assets which, or Capital Stock of a Person all or substantially all of whose
assets, are of a type generally used in a Related Business; provided that, in
the case of the Company or its Restricted Subsidiaries, as applicable, (x)(i)
the Company's Annualized Operating Cash Flow Ratio, after giving effect to such
acquisition and such Incurrence on a pro forma basis, is no greater than such
ratio prior to giving pro forma effect to such acquisition and such Incurrence,
(ii) the Company's consolidated Indebtedness under the Bank Credit Facility,
divided by the Net Pops of the Company and its Restricted Subsidiaries, in each
case giving pro forma effect to the acquisition and such Incurrence, does not
exceed $60, (iii) the Company's consolidated Indebtedness divided by the Net
Pops of the Company and its Restricted Subsidiaries does not increase as a
result of the acquisition and such Incurrence and (iv) after giving effect to
such acquisition and such Incurrence the acquired property, businesses or assets
or such Capital Stock is owned directly by the Company or a Wholly Owned
Restricted Subsidiary of the Company or (y)(i) under the terms of such
Indebtedness and pursuant to applicable law, no recourse could be had for the
payment of principal, interest or premium with respect to such Indebtedness or
for any claim based thereon against the Company or any Person that constituted a
Restricted Subsidiary immediately prior to the consummation of such acquisition
or any of their property or assets, (ii) the obligor of such Indebtedness shall
have, immediately after giving effect to such acquisition and such Incurrence on
a pro forma basis, a ratio of Annualized Operating Cash Flow as of the date of
the acquisition to the product of Consolidated Interest Expense for the
Reference Period multiplied by four (but excluding from Consolidated Interest
Expense all amounts that are not required to be paid in cash on a current basis)
of at least 1 to 1 and (iii) immediately subsequent to the Incurrence of such
Indebtedness, the obligor thereof shall be a Restricted Subsidiary and shall
have been designated by the Company (as evidenced by an Officers' Certificate
delivered promptly to the Trustee) to be a "Non-Recourse Restricted Subsidiary."
"Permitted Investment" means: (i) Investments in Cash Equivalents; (ii)
Investments in the Company or a Restricted Subsidiary (other than a Non-Recourse
Restricted Subsidiary); (iii) Investments in a Person substantially all of whose
assets are of a type generally used in a Related Business (an "Acquired Person")
if, as a result of such Investments, (A) the Acquired Person immediately
thereupon becomes a Restricted Subsidiary (other than a Non-Recourse Restricted
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Subsidiary) or (B) the Acquired Person immediately thereupon either (1) is
merged or consolidated with or into the Company or any of its Restricted
Subsidiaries (other than a Non-Recourse Restricted Subsidiary) or (2) transfers
or conveys all or substantially all of its assets to, or is liquidated into, the
Company or any of its Restricted Subsidiaries (other than a Non-Recourse
Restricted Subsidiary); (iv) Investments in accounts and notes receivable
acquired in the ordinary course of business; (v) any securities received in
connection with an Asset Sale (other than those of a Non-Recourse Restricted
Subsidiary) and any investment with the Net Cash Proceeds from any Asset Sale in
Capital Stock of a Person, all or substantially all of whose assets are of a
type used in a Related Business, that complies with Section 4.12; (vi) any
Investment pursuant to the terms of the agreements described in or referred to
under the caption "Certain Relationships and Related Transactions" in the
Prospectus, as such agreements were in effect on the Issue Date; (vii) advances
and prepayments for asset purchases in the ordinary course of business in a
Related Business of the Company or a Restricted Subsidiary; and (viii) customary
loans or advances made in the ordinary course of business to officers, directors
or employees of the Company or any of its Restricted Subsidiaries for travel,
entertainment, and moving and other relocation expenses.
"Permitted Liens" means: (a) Liens existing on the Issue Date; (b)
Liens imposed by governmental authorities for taxes, assessments or other
charges not yet subject to penalty or which are being contested in good faith
and by appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP; (c) statutory
liens of carriers, warehousemen, mechanics, materialmen, landlords, repairmen or
other like Liens arising by operation of law in the ordinary course of business
provided that (i) the underlying obligations are not overdue for a period of
more than 30 days, and (ii) such Liens are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP; (d) Liens
securing the performance of bids, trade contracts (other than borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, zoning, similar restrictions and other similar
encumbrances or title defects which, singly or in the aggregate, do not in any
case materially detract from the value of the property, subject thereto (as such
property used by the Company or any of its Restricted Subsidiaries) or interfere
with the ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries; (f) Liens arising by operation of law in connection
with judgments, only to the extent, for an amount and for a period not resulting
in an Event of Default with respect thereto; (g) pledges or deposits made in the
ordinary course of business in connection with worker's compensation,
unemployment insurance and other types of social security legislation; (h) Liens
in favor of the Trustee arising under the Indenture; (i) Liens securing
Permitted Acquisition Indebtedness, which either (A) were not incurred or issued
in anticipation of such acquisition or (B) secure Permitted
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Acquisition Indebtedness meeting the requirements set forth in clause (y) of the
definition thereof; (j) Liens securing Indebtedness under the Bank Credit
Facility (including, without limitation, Indebtedness under Interest Swap and
Hedging Obligations required by the Bank Credit Facility) that was incurred in
accordance with Section 4.08; (k) Liens securing Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or is merged
with or into the Company or a Restricted Subsidiary, provided that such Liens
were in existence prior to the date of such acquisition, merger or
consolidation, were not incurred in anticipation thereof, and do not extend to
any other assets; (l) Liens arising from Purchase Money Indebtedness permitted
under the Indenture; (m) Liens securing Refinancing Indebtedness Incurred to
refinance any Indebtedness that was previously so secured in a manner no more
adverse to the Holders of the Notes than the terms of the Liens securing such
refinanced Indebtedness; (n) Liens in favor of the Company or a Wholly Owned
Restricted Subsidiary and (o) Liens arising out of judgments or awards against
the Company or a Subsidiary of the Company with respect to which enforcement has
been stayed and the Company at the time shall currently be prosecuting an appeal
or proceeding for review in good faith by appropriate proceedings diligently
conducted and with respect to which the Company has created adequate reserves or
has adequate insurance protection; provided, however, that at no time may the
aggregate amount of such judgment liens exceed $3,000,000.
"Person" means any corporation, individual, joint stock company, joint
venture, partnership, unincorporated association, governmental regulatory
entity, country, state or political subdivision thereof, trust, municipality or
other entity.
"Pops" means the estimate of the population of a Metropolitan
Statistical Area ("MSA") or Rural Service Area ("RSA") as derived from the most
recent Rand McNally Commercial Atlas and Marketing Guide or if such statistics
are no longer printed in the Rand McNally Commercial Atlas and Marketing Guide
or the Rand McNally Commercial Atlas and Marketing Guide is no longer published,
such other nationally
recognized source of such information.
"Preferred Stock" means the $20,000,000 aggregate liquidation amount of
Cumulative Preferred Stock, par value $.01 per share, of the Company to be
issued to Toronto Dominion Investments, Inc.
"Prospectus" means the final prospectus, dated as of September 19,
1996, under the Company's registration statement on Form S-1 (No. 333-10161).
"Purchase Money Indebtedness" means Indebtedness of the Company or its
Restricted Subsidiaries Incurred in connection with the purchase of property or
assets for the business of the Company or its Restricted Subsidiaries, provided,
that the recourse of the lenders with respect to such Indebtedness is limited
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solely to the property or assets so purchased without further recourse to either
the Company or any of its Restricted Subsidiaries.
"Qualified Capital Stock" means any Capital Stock of a Person that is
not Disqualified Capital Stock.
"Reference Period" with regard to any Person means the last full fiscal
quarter of such Person for which financial information (which the Company shall
use its best efforts to compile in a timely manner) in respect thereof is
available ended on or immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Notes or the Indenture.
"Refinancing Indebtedness" means Indebtedness or Disqualified Capital
Stock (a) issued in exchange for, or the proceeds from the issuance and sale of
which are used substantially concurrently to repay, redeem, defease, refund,
refinance, discharge or otherwise retire for value, in whole or in part, or (b)
constituting an amendment, modification or supplement to, or a deferral or
renewal of ((a) and (b) above are, collectively, a "Refinancing", any
Indebtedness or Disqualified Capital Stock in a principal amount or, in the case
of Disqualified Capital Stock, liquidation preference (or if such Indebtedness
or Disqualified Capital Stock does not require cash payments prior to maturity
or is otherwise issued at a discount, the original issue price of such
Indebtedness or Disqualified Capital Stock), not to exceed the sum of (x) the
lesser of (i) the principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, of the Indebtedness or Disqualified Capital Stock
so Refinanced and (ii) if such Indebtedness being Refinanced was issued with an
original issue discount, the accreted value thereof (as determined in accordance
with GAAP) at the time of such Refinancing, (y) the amount of any premium
required to be paid in connection with such refinancing pursuant to the terms of
such Indebtedness and (z) all other customary fees and expenses of the Company
or such Restricted Subsidiary reasonably incurred in connection with such
refinancing; provided, that (A) Refinancing Indebtedness issued by any
Restricted Subsidiary of the Company shall only be used to Refinance outstanding
Indebtedness or Disqualified Capital Stock of such Restricted Subsidiary, (B)
Refinancing Indebtedness shall (x) not have a Weighted Average Life shorter than
the Indebtedness or Disqualified Capital Stock to be so refinanced at the time
of such Refinancing and (y) in all respects, be no less subordinated or junior,
if applicable, to the rights of Holders of the Notes than was the Indebtedness
or Disqualified Capital Stock to be refinanced and (C) such Refinancing
Indebtedness shall have no installments or principal (or redemption payment)
scheduled to come due earlier than the scheduled maturity of any installment of
principal (or redemption payment) of the Indebtedness or Disqualified Capital
Stock to be so refinanced which was scheduled to come due prior to the Stated
Maturity of the Notes.
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"Related Business" means any business directly related to the
ownership, development, operation, and acquisition of wireless cellular
communications systems.
"Related Person" means, with respect to any Person, (i) any Affiliate
of such Person or any spouse, immediate family member, or other relative who has
the same principal residence of any Affiliate of such Person and (ii) any trust
in which any Person described in clause (i) above, has a beneficial interest.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer or employee of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer or employee to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Restricted Payment" means, with respect to any Person, (i) any
dividend or other distribution on shares of Capital Stock of such Person or any
Subsidiary of such Person, (ii) any payment on account of the purchase,
redemption or other acquisition or retirement for value, or any payment in
respect of any amendment (in anticipation of or in connection with any such
retirement, acquisition or defeasance) in whole or in part, of any shares of
Capital Stock of such Person or any Subsidiary of such Person held by Persons
other than such Person or any of its Restricted Subsidiaries, (iii) any
defeasance, redemption, repurchase or other acquisition or retirement for value,
or any payment in respect of any amendment (in anticipation of or in connection
with any such retirement, acquisition or defeasance) in whole or in part, of any
Indebtedness of the Company by such Person or a Subsidiary of such Person that
is subordinate in right of payment to, or ranks pari passu (other than the
Notes) with, the Notes and (iv) any Investment (other than a Permitted
Investment); provided, however, that the term "Restricted Payment" does not
include (i) any dividend, distribution or other payment on shares of Capital
Stock of the Company or any Restricted Subsidiary solely in shares of Qualified
Capital Stock, (ii) any dividend, distribution or other payment to the Company,
or any dividend to any of its Restricted Subsidiaries, by any of its
Subsidiaries, or (iii) any defeasance, redemption, repurchase or other
acquisition or retirement for value, in whole or in part, of Indebtedness of
such person payable solely in shares of Qualified Capital Stock of such Person.
"Restricted Subsidiary" means (i) Sygnet Communications, Inc. and (ii)
any Subsidiary of the Company which at the time of determination is not an
Unrestricted Subsidiary. The Board of Directors of the Company may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary only if, immediately
before and after giving effect to such designation, there would exist no Default
or Event of Default and the Company could incur at least $1.00 of Indebtedness
pursuant to the Annualized Operating Cash Flow Ratio test in Section 4.08, on a
pro forma basis taking into account such designation.
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"SEC" means the Securities and Exchange Commission.
"Stated Maturity" means the date fixed for the payment of any principal
or premium pursuant to the Indenture and the Notes, including the Maturity Date,
upon redemption, acceleration, Asset Sale Offer, Change of Control Offer or
otherwise.
"Subsidiary" with respect to any Person, means (i) a corporation at
least fifty percent of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, or (ii) a partnership in which such
Person or a Subsidiary of such Person is, at the time, a general partner of such
partnership, or (iii) any Person in which such Person, one or more Subsidiaries
of such Person, or such Person and one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has (x) at least a
fifty percent ownership interest or (y) the power to elect or direct the
election of the directors or other governing body of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
77bbbb) as in effect on the date on which this Indenture is qualified under the
TIA.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" shall mean any Subsidiary of the Company
that, at the time of determination, shall be an Unrestricted Subsidiary (as
designated by the Board of Directors of the Company, as provided below). The
Board of Directors of the Company may designate any Subsidiary of the Company
other than Sygnet Communications, Inc. (including any newly acquired or newly
formed Subsidiary at or prior to the time it is so formed or acquired) to be an
Unrestricted Subsidiary if (a) no Default or Event of Default is existing or
will occur as a consequence thereof, (b) such Subsidiary does not own any
Capital Stock of, or own or hold any Lien on any property or asset of, the
Company or any Restricted Subsidiary that is not a Subsidiary of the Subsidiary
to be so designated, and (c) such Subsidiary and each of its Subsidiaries has
not at the time of designation, and does not thereafter, create, incur, issue,
assume, guarantee, or otherwise become directly or indirectly liable with
respect to any Indebtedness pursuant to which the lender has recourse to any
property or assets of the Company or any of its Restricted Subsidiaries (except
that such Subsidiary and its Subsidiaries may guarantee the Notes); provided
that either (A) the Subsidiary to be so designated has total assets of $1,000 or
less or (B) if such Subsidiary has assets greater than $1,000, that such
designation would be permitted under Section 4.09. Each such designation shall
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be evidenced by filing with the Trustee a certified copy of the resolution
giving effect to such designation and Officers' Certificate certifying that such
designation complied with the foregoing conditions.
"Voting Stock" means Capital Stock of the Company having generally the
right to vote in the election of a majority of the directors of the Company or
having generally the right to vote with respect to the organizational matters of
the Company.
"Weighted Average Life" means, as of the date of determination, with
respect to any debt instrument, the quotient obtained by dividing (i) the sum of
the products of the numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such debt instrument
multiplied by the amount of each such respective principal payment by (ii) the
sum of all such principal payments.
"Wholly Owned" means, with respect to a Subsidiary of the Company, (i)
a Subsidiary that is a corporation, of which not less than 99% of the Capital
Stock (except for directors' qualifying shares or certain minority interests
owned by other Persons solely due to local law requirements that there be more
than one stockholder, but which interest is not in excess of what is required
for such purpose) is owned directly by such Person or through one or more other
Wholly Owned Subsidiaries of such Person, or (ii) any entity other than a
corporation in which such Person, directly or indirectly, owns not less than 99%
of the Capital Stock of such entity.
SECTION 1.02 OTHER DEFINITIONS
Term Defined in Section
--------------------------------------------- ------------------
"Asset Sale" 4.12
"Asset Sale Offer" 4.12
"Asset Sale Offer Period" 4.12
"Asset Sale Offer Amount" 4.12
"Asset Sale Purchase Date" 4.12
"Bankruptcy Law" 6.01
"Change of Control Offer" 4.07
"Change of Control Offer Period" 4.07
"Change of Control Payment" 4.07
"Change of Control Purchase Date" 4.07
"Computation Period" 4.09
"Covenant Defeasance" 8.03
"Custodian" 6.01
"Event of Default" 6.01
"Legal Defeasance" 8.02
"Incur" 4.08
"Incurrence" 4.08
"Marketable Securities" 4.12
"Paying Agent" 2.03
"Payment Default" 6.01
"Proceeds Purchase Date" 4.15
"Proceeds Purchase Offer" 4.15
"Proceeds Purchase Offer Amount" 4.15
"Proceeds Purchase Offer Period" 4.15
"Registrar" 2.03
"Related Person Transaction" 4.11
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SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act of 1933 shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
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ARTICLE 2
THE NOTES
SECTION 2.01 FORM AND DATING
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each Note
shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
SECTION 2.02 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 a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate Notes for original issue up to the aggregate principal
amount stated in paragraph 4 of the Notes. The aggregate principal amount of
Notes outstanding at any time may not exceed such amount except as provided in
Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
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SECTION 2.03 REGISTRAR AND PAYING AGENT
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
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. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Notes, and shall notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary 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 2.05 HOLDER LISTS
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes, and the Company shall otherwise comply with TIA Section 312(a).
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SECTION 2.06 TRANSFER AND EXCHANGE
Where Notes are presented to the Registrar with a request to register
the transfer of such Notes or to exchange such Notes for an equal principal
amount of Notes of other denominations, the Registrar shall register for
transfer or make the exchange if its requirements for such transactions are met;
provided, however, that any Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar and the Trustee,
duly executed by the Holder thereof or his or her attorney duly authorized in
writing. To permit registrations of transfer and exchanges, the Company shall
issue and the Trustee shall authenticate upon the written order of the Company
Notes at the Registrar's request.
The Registrar shall not be required to issue, register the transfer of
or exchange Notes during the period beginning at the opening of business on a
Business Day 15 days before the date of any selection of Notes for redemption
under Section 3.07 and ending at the close of business on the day of selection,
(ii) to register the transfer of or exchange any Note so selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part or (iii) to register the transfer or exchange of a Note between the record
date and the next succeeding interest payment date.
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 or similar governmental charge payable in connection therewith.
SECTION 2.07 REPLACEMENT NOTES
If any mutilated Note is surrendered to the Trustee, or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must 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 that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
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SECTION 2.08 OUTSTANDING NOTES
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding. Except as
set forth in Section 2.09 hereof, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09 TREASURY NOTES
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Trustee knows are so owned shall be so disregarded.
SECTION 2.10 TEMPORARY NOTES
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon a written order of the
Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
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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 shall destroy
cancelled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all cancelled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01 NOTICES TO TRUSTEE
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days before a redemption date, an Officers' Certificate setting
forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
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SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders of the Notes on
a pro rata basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or integral multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not an integral
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) 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 shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
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(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent immediately available funds
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date. The Trustee or the Paying Agent shall promptly return
to the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
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SECTION 3.06 NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, 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.
SECTION 3.07 OPTIONAL REDEMPTION
(a) Except as set forth in clause (b) of this Section 3.07, the Company
shall not have the option to redeem the Notes pursuant to this Section 3.07
prior to October 1, 2001. Thereafter, the Company shall have the option to
redeem the Notes, in whole or in part, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest to the applicable redemption date, if redeemed during the twelve-month
period beginning on October 1 of the years indicated below:
Year Percentage
---------------------------------------------------- ----------
2001................................................ 105.750%
2002................................................ 104.313%
2003................................................ 102.875%
2004................................................ 101.438%
2005 and thereafter................................. 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section 3.07,
during the first 36 months after the Issue Date, the Company may redeem up to an
aggregate of $38,500,000 in principal amount of Notes at a redemption price of
111.5% of the principal amount thereof, in each case plus accrued and unpaid
interest thereon to the redemption date, with the net proceeds of an offering of
Qualified Capital Stock of the Company; provided that at least $71,500,000 in
aggregate principal amount of Notes remain outstanding immediately after the
occurrence of such redemption; and provided, further, that such redemption shall
occur within 30 days of the date of the closing of such offering.
(c) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Section 3.01 through 3.06 hereof.
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SECTION 3.08 NO MANDATORY REDEMPTION
The Company shall not be required to make mandatory redemption payments
with respect to the Notes.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF NOTES
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
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Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03
hereof.
SECTION 4.03 REPORTS
Whether or not the Company is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall deliver to the
Trustee and to each Holder, within 15 days after it is or would have been
required to file such with the SEC, annual and quarterly financial statements
substantially equivalent to financial statements that would have been included
in reports filed with the SEC, if the Company were subject to the requirements
of Section 13 or 15(d) of the Exchange Act, including, with respect to annual
information only, a report thereon by the Company's certified independent public
accountants as such would be required in such reports to the SEC, and in each
case, together with a management's discussion and analysis of financial
condition and results of operations which would be so required.
SECTION 4.04 COMPLIANCE CERTIFICATE
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, 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 of this Indenture (or, if a Default or
Event 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 is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
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statements delivered pursuant to Section 4.03 hereof shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article Four or Article Five hereof or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.05 TAXES
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
SECTION 4.06 STAY, EXTENSION AND USURY LAWS
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
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SECTION 4.07 CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase (the "Change of Control Payment").
Within 10 days following any Change of Control, the Company shall mail
a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes pursuant to
the procedures required by the Indenture and described in such notice. The
Company shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of the Notes as
a result of a Change of Control.
The Change of Control Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Change of Control Offer
Period"). No later than five Business Days after the termination of the Change
of Control Offer Period (the "Change of Control Purchase Date"), the Company
shall purchase all Notes tendered in response to the Change of Control Offer.
Payment for any Notes so purchased shall be made in the same manner as interest
payments are made.
If the Change of Control Purchase Date is on or after an interest
record date and on or before the related interest payment date, any accrued and
unpaid interest shall be paid to the Person in whose name a Note is registered
at the close of business on such record date, and no additional interest shall
be payable to Holders who tender Notes pursuant to the Change of Control Offer.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (a) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (b) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (c) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each such new Note shall be in a
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principal amount of $1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
SECTION 4.08 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, issue, create, incur, assume, guarantee
or otherwise directly or indirectly become liable for (including as a result of
an acquisition), or otherwise become responsible for, contingently or otherwise
(individually or collectively, to "Incur" or, as appropriate, an "Incurrence"),
any Indebtedness.
Notwithstanding the foregoing, if there exists no Default or Event of
Default immediately prior and subsequent thereto, the Company may incur
Indebtedness if, after giving effect thereto, the Company's Annualized Operating
Cash Flow Ratio on a pro forma basis calculated on the assumption that such
Indebtedness had been incurred on the first day of the applicable Reference
Period, would have been less than the ratios set forth below for the calendar
year periods indicated:
For the Period Ratio
--------------------------------------------------- -----
1996-1998.......................................... 8.0x
1999 and after..................................... 7.0x
In addition, if there exists no Event of Default immediately prior and
subsequent thereto, the foregoing limitations will not apply to the Incurrence
of (i) prior to the date of the consummation of the Horizon Acquisition,
Indebtedness incurred under the Bank Credit Facility (including, without
limitation, Indebtedness under Interest Swap and Hedging Obligations required by
the Bank Credit Facility) in an aggregate amount not to exceed $75,000,000 in
aggregate principal amount; provided, however, that if such Indebtedness is
repaid with the net proceeds of the sale of the Notes pursuant to Section 4.15,
no Indebtedness in excess of $3,500,000 may be incurred thereunder except for
Indebtedness whose proceeds are paid as a dividend or loan payment to the
Company for the sole purpose of funding a repurchase of the Notes under Section
4.15, (ii) on and after the date of the consummation of the Horizon Acquisition,
Indebtedness incurred under the Bank Credit Facility (including, without
limitation, Indebtedness under Interest Swap and Hedging Obligations required by
the Bank Credit Facility) in an aggregate amount not to exceed $300,000,000 in
aggregate principal amount at any time, (iii) Indebtedness by the Company or any
of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by
permanent repayments of and reductions thereof (and in commitments with respect
thereto) in satisfaction of the Net Cash Proceeds application requirement set
forth in Section 4.12 and by repayments and permanent reductions in amounts
outstanding pursuant to scheduled amortizations and mandatory prepayments in
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accordance with the terms thereof, (iv) Indebtedness by the Company evidenced by
the Notes, (v) Permitted Acquisition Indebtedness, (vi) Indebtedness between the
Company and any Restricted Subsidiary of the Company or between Restricted
Subsidiaries of the Company, provided that, in the case of Indebtedness incurred
by the Company, such obligations shall be unsecured and subordinated in all
respects to the Holders' rights pursuant to the Notes, (vii) Capitalized Lease
Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate
principal amount, as the case may be, outstanding at any time not to exceed in
the aggregate $15,000,000, and (viii) Refinancing Indebtedness Incurred to
extend, renew, replace or refund Indebtedness permitted under clauses (iii) (as
so reduced in amount) and (iv) of this paragraph.
Indebtedness of any Person that is not a Restricted Subsidiary of the
Company (or that is a Non-Recourse Restricted Subsidiary designated to be a
Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary),
which Indebtedness is outstanding at the time such Person becomes such a
Restricted Subsidiary of the Company or is merged with or into or consolidated
with the Company or a Restricted Subsidiary of the Company shall be deemed to
have been Incurred, as the case may be, at the time such Person becomes such a
Restricted Subsidiary of the Company, or is merged with or into or consolidated
with the Company or a Restricted Subsidiary of the Company.
SECTION 4.09 LIMITATION ON RESTRICTED PAYMENTS
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, if,
immediately prior or after giving effect thereto on a pro forma basis, (a) a
Default or an Event of Default would occur or be continuing, (b) the Company's
Annualized Operating Cash Flow Ratio for the Reference Period would have
exceeded 6 to 1, or (c) the aggregate amount of all Restricted Payments made by
the Company and its Restricted Subsidiaries, including such proposed Restricted
Payment (if not made in cash, then the fair market value of any property used
therefor) from and after the Issue Date and on or prior to the date of such
Restricted Payment, shall exceed the sum of (i) the amount determined by
subtracting (x) 2.0 times the aggregate Consolidated Interest Expense of the
Company for the period (taken as one accounting period) from the Issue Date to
the last day of the last full fiscal quarter prior to the date of the proposed
Restricted Payment (the "Computation Period") from (y) Operating Cash Flow of
the Company for the Computation Period, plus (ii) the aggregate Net Proceeds
received by the Company from the sale (other than to a Subsidiary of the
Company) of its Qualified Capital Stock after the Issue Date and on or prior to
the date of such Restricted Payment.
Notwithstanding the foregoing, the provisions set forth in clause (b)
or (c) of the immediately preceding paragraph shall not prohibit (i) the use of
an aggregate of $10,000,000 to be used solely for Investments in Unrestricted
Subsidiaries or Non-
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Recourse Restricted Subsidiaries, (ii) the payment of any dividend within 60
days after the date of its declaration if such dividend could have been made on
the date of its declaration in compliance with the foregoing provisions, (iii)
the redemption, defeasance, repurchase or other acquisition or retirement of any
Indebtedness or Capital Stock of the Company or its Restricted Subsidiaries
either in exchange for or out of the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of Qualified Capital
Stock of the Company or (iv) the redemption, repurchase or other acquisition or
retirement of the Preferred Stock for an aggregate price not to exceed
$25,000,000 if, after giving effect thereto on a pro forma basis, the Company's
Annualized Operating Cash Flow Ratio for the Reference Period would have been
less than 7.5 to 1.
SECTION 4.10 LIMITATION ON RESTRICTING SUBSIDIARY DIVIDENDS
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, assume or suffer to exist any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to pay dividends or make other distributions on the
Capital Stock of any Restricted Subsidiary of the Company or pay or satisfy any
obligation to the Company or any of its Restricted Subsidiaries or otherwise
transfer assets or make or pay loans or advances to the Company or any of its
Restricted Subsidiaries, except encumbrances and restrictions existing under (i)
the Indenture and the Notes or Refinancing Indebtedness incurred to refinance
the Notes; provided, that such encumbrances and restrictions are no more
restrictive than those contained in the Indenture as in effect on the Issue
Date, (ii) the Bank Credit Facility as in effect on and immediately after the
date of the Horizon Acquisition, and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof; provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive with respect to such dividend and other
payment restrictions than those contained in the Bank Credit Facility as in
effect on the Issue Date, (iii) any agreement of a Person acquired by the
Company or a Restricted Subsidiary of the Company, which restrictions existed at
the time of acquisition, were not put in place in anticipation of such
acquisition and are not applicable to any person or property, other than the
Person or any property of the Person so acquired. Notwithstanding the foregoing,
customary provisions restricting subletting or assignment of any lease entered
into the ordinary course of business, consistent with past practices shall not
in and of themselves be considered a restriction on the ability of the
applicable Restricted Subsidiary to transfer such agreement or assets, as the
case may be.
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SECTION 4.11 LIMITATION ON TRANSACTIONS WITH RELATED PERSONS
The Company shall not, and shall not permit any of its Restricted
Subsidiaries or Unrestricted Subsidiaries to, enter into any contract,
agreement, arrangement or transaction with any Related Person (each a "Related
Person Transaction"), or any series of Related Person Transactions, except for
transactions made in good faith, the terms of which are (i) fair and reasonable
to the Company or such Subsidiary, as the case may be, and (ii) are at least as
favorable as the terms which could be obtained by the Company or such
Subsidiary, as the case may be, in a comparable transaction made on an arm's
length basis with Persons who are not Related Persons.
Without limiting the foregoing, (a) any Related Person Transaction or
series of Related Person Transactions with an aggregate value in excess of
$1,000,000 must first be approved by a majority of the Board of Directors of the
Company who are disinterested in the subject matter of the transaction pursuant
to a Board Resolution, and (b) with respect to any Related Person Transaction or
series of Related Person Transactions with an aggregate value in excess of
$5,000,000, the Company must first obtain a favorable written opinion from an
independent financial advisor of national reputation as to the fairness from a
financial point of view of such transaction to the Company or such Subsidiary,
as the case may be.
Notwithstanding the foregoing, any contract, agreement, arrangement or
transaction solely between or among the Company and any of its Wholly Owned
Restricted Subsidiaries or between or among Wholly Owned Restricted Subsidiaries
of the Company is not a Related Person Transaction.
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SECTION 4.12 LIMITATION ON ASSET SALES AND SALES OF SUBSIDIARY STOCK
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, in one transaction or a series of related transactions, convey,
sell, transfer, assign or otherwise dispose of, directly or indirectly, any of
its property, business or assets, including any sale or other transfer or
issuance of any Capital Stock of any Restricted Subsidiary of the Company,
whether owned on the Issue Date or thereafter acquired (an "Asset Sale") unless
(a) such Asset Sale is for fair market value as determined by the Board of
Directors of the Company acting reasonably and in good faith, (b) at least 80%
of the value of the consideration for such Asset Sale consists of (i) cash, (ii)
the assumption by the transferee of pari passu Indebtedness or (iii) notes,
obligations or other marketable securities (collectively "Marketable
Securities") that are immediately converted into cash and (c) the Net Cash
Proceeds therefrom are applied on or prior to 360 days after the date of such
Asset Sale (i) to the permanent repayment of Indebtedness under the Bank Credit
Facility (which payment reduces the commitment thereunder) or (ii) to the
repurchase of the Notes pursuant to an offer to purchase (an "Asset Sale Offer")
described below or (iii) to an investment in a Related Business.
Notwithstanding the foregoing provisions of the prior paragraph:
(i) any Restricted Subsidiary of the Company may convey, sell,
lease, transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company or a Restricted Subsidiary of the
Company; (ii) the Company and its Restricted Subsidiaries may, in the ordinary
course of business, (A) convey, sell, lease, transfer, assign or otherwise
dispose of assets in the ordinary course of business and (B) exchange assets for
assets in Related Businesses; (iii) the Company and its Restricted Subsidiaries
may convey, sell, lease, transfer, assign or otherwise dispose of assets
pursuant to and in accordance with Section 5.01; (iv) the Company and its
Restricted Subsidiaries may (a) sell damaged, worn out or other obsolete
property in the ordinary course of business or other property no longer
necessary for the proper conduct of the business of the Company or any of its
Restricted Subsidiaries, or (b) abandon such property if it cannot, through
reasonable efforts, be sold; and (v) the Company may transfer the assets that it
acquires in the Horizon Acquisition to the Subsidiary after the Issue Date.
An Asset Sale Offer may be deferred until the accumulated Net Cash
Proceeds not applied to the uses set forth in subsections (c)(i) or (c)(iii) in
the first paragraph exceeds $5,000,000. An Asset Sale Offer shall remain open
for a period of 20 Business Days following its commencement and no longer,
except to the extent that a longer period is required by applicable law (the
"Asset Sale Offer Period"). No later than five Business Days after the
termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the
Company shall purchase the principal amount of Notes required to be
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purchased pursuant to this Section (the "Asset Sale Offer Amount") or, if less
than the Asset Sale Offer Amount has been tendered, all Notes tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
If the Asset Sale Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
On or before the Asset Sale Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Asset Sale Offer Amount of Notes or portions thereof tendered pursuant to
the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been
tendered, all Notes tendered, and shall deliver to the Trustee an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section. The Company
or the Paying Agent, as the case may be, shall promptly (but in any case not
later than five days after the Asset Sale Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the Asset
Sale Offer on the Asset Sale Purchase Date.
SECTION 4.13 LIMITATIONS ON LIENS
The Company shall not and shall not permit any Restricted Subsidiary,
directly or indirectly, to incur or suffer to exist any Lien (other than
Permitted Liens) upon any of its property or assets, whether now owned or
hereafter acquired.
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SECTION 4.14 CORPORATE EXISTENCE
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.
SECTION 4.15 LIMITATION ON USE OF PROCEEDS; PROCEEDS PURCHASE OFFER
All proceeds (net of underwriting discounts and commissions and other
transaction expenses as set forth in the Prospectus under the caption "Use of
Proceeds") received by the Company from the sale of the Notes shall be applied
to the purchase of assets in the Horizon Acquisition or, as set forth below, to
repay indebtedness under the Subsidiary's existing Bank Credit Facility pending
such acquisition; provided, however, that no such proceeds may be applied to the
purchase of assets in Horizon Acquisition until (i) the Company has received at
least $19,000,000 in proceeds from the Preferred Stock Investment and (ii) the
Trustee has received the certificates and opinions set forth in Exhibit B to the
Indenture. Pending the consummation of the Horizon Acquisition, all such
proceeds shall be held by the Company in a separate bank account, except that up
to $71,500,000 of the net proceeds from the sale of the Notes may be contributed
to the Subsidiary to repay indebtedness under the Subsidiary's existing Bank
Credit Facility, but only to the extent that the banks thereunder consent to
allow the amounts repaid to be reborrowed and paid as a dividend or other
distribution to the Company for the sole purpose of funding a repurchase of the
Notes in the event that the Horizon Acquisition does not occur within 120 days
following the closing of the sale of the Notes.
In the event that all of the net proceeds of the sale of the Notes have
not been so applied, directly or indirectly, to the purchase of assets in the
Horizon Acquisition within 120 days of the closing of the sale of the Notes, the
Company will make an offer (a "Proceeds Purchase Offer") to all holders of Notes
to purchase on a pro rata basis, at a price of 101% of the principal amount
thereof plus accrued interest to the purchase date, all Notes that may be
purchased at such price with such unapplied net proceeds.
If applicable, within five business days following the end of the
120-day period referred to above, the Company will mail a notice to each Holder
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setting forth the Proceeds Purchase Offer and offering to repurchase Notes
pursuant to the procedures required by the Indenture and described in such
notice. The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Notes in the Proceeds Purchase Offer.
A Proceeds Purchase Offer will remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Proceeds Purchase Offer
Period"). No later than five Business Days after the termination of the Proceeds
Purchase Offer Period (the "Proceeds Purchase Date"), the Company will purchase
the principal amount of Notes required to be purchased pursuant to this covenant
(the "Proceeds Purchase Offer Amount") or, if less than the Proceeds Purchase
Offer Amount has been tendered, all Notes tendered in response to the Proceeds
Purchase Offer. Payment for any Notes so purchased will be made in the same
manner as interest payments are made.
If the Proceeds Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest will be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest will be
payable to Holders who tender Notes pursuant to the Proceeds Purchase Offer.
On or before the Proceeds Purchase Date, the Company will, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Proceeds Purchase Offer Amount of Notes or portions thereof tendered
pursuant to the Proceeds Purchase Offer, or if less than the Proceeds Purchase
Offer Amount has been tendered, all Notes tendered, and will deliver to the
Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this
covenant. The Company, the Depository or the Paying Agent, as the case may be,
will promptly (but in any case not later than five Business Days after the
Proceeds Purchase Date) mail or deliver to each tendering Holder an amount equal
to the purchase price of the Notes tendered by such Holder and accepted by the
Company for purchase, and the Company will promptly issue a new Note, and the
Trustee, upon written request from the Company will authenticate and mail or
deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted will be
promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Proceeds Purchase Offer on the
Proceeds Purchase Date.
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ARTICLE 5
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company shall not consolidate with or merge with or into another
Person, or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its assets (computed on a consolidated basis), whether in a
single transaction or a series of related transactions, to another Person or
group of affiliated Persons, unless: (i) immediately after giving effect to such
transaction on a pro forma basis, the consolidated resulting surviving or
transferee entity would immediately thereafter be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Annualized Operating Cash Flow
Ratio provision set forth in the second paragraph of Section 4.08; (ii)
immediately thereafter, 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; (iii) either (a) the Company is the surviving entity or (b) the
resulting, surviving or transferee entity (if other than the Company) is a
corporation organized under the laws of the United States, any state thereof or
the District of Columbia and expressly assumes by supplemental indenture all of
the obligations of the Company in connection with the Notes and the Indenture,
including the punctual payment of the principal of, and premium, if any, and
interest on the Notes and the performance and observance of every covenant of
the Indenture on the part of the Company to be performed; and (iv) the Company
shall have delivered to the Trustee an Officers' Certificate confirming
compliance with the requirements of this Section.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company in accordance with the foregoing,
the successor corporation formed by such consolidation or into which the Company
is merged or to which such transfer is made, shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
the Indenture with the same effect as if such successor corporation had been
named therein as the Company; provided, however, that the predecessor of the
Company shall not be relieved from the obligation to pay the principal of and
interest on the Notes except in the case of a sale of all of the Company's
assets that meets the requirements of Section 5.01 hereof.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any
Note when the same becomes due and payable and the Default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal of or
premium, if any, on any Note when the same becomes due and payable at
maturity, upon redemption or otherwise;
(3) the Company fails to observe or perform any covenant,
condition or agreement on the part of the Company to be observed or
performed pursuant to Sections 4.07, 4.08, 4.09, 4.12, 4.13, 4.15 or
5.01 hereof;
(4) the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Notes or this
Indenture and the Default continues for the period and after the notice
specified below;
(5) default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the date of the Indenture, which default
(a) is caused by a failure to pay principal of or premium, if any, or
interest on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a
"Payment Default"); provided such Event of Default shall not occur
until 90 days after such Payment Default, or (b) results in the
acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $5,000,000 or more;
(6) a final judgment or final judgments for the payment of
money (not fully covered by insurance) are entered by a court or courts
of competent jurisdiction against the Company or any of its
Subsidiaries and such judgment or judgments remain undischarged for a
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period (during which execution shall not be effectively stayed) of 60
days, provided that the aggregate of all such undischarged judgments
exceeds $5,000,000;
(7) the Company or any of its Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief
against it in an involuntary case,
(c) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become
due; or
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company or any
Subsidiary in an involuntary case,
(b) appoints a Custodian of the Company or any
Subsidiary or for all or substantially all of the property of
the Company or any Subsidiary, or
(c) orders the liquidation of the Company or any
Subsidiary,
and the order or decree remains unstayed and in effect for 60
consecutive 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.
An Event of Default shall not be deemed to have occurred under clause
(3), (5) or (6) until the Trustee shall have received written notice from the
Company or any of the Holders or unless a Responsible Officer shall have actual
knowledge of such Event of Default. A Default under clause (4) is not an Event
of Default until the Trustee notifies
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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 within 60 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 6.02 ACCELERATION
If an Event of Default (other than an Event of Default specified in
clauses (7) and (8) of Section 6.01 relating to the Company or any Subsidiary)
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 written
notice to the Company and the Trustee may declare the unpaid principal of and
any accrued interest on all the Notes to be due and payable. Upon such
declaration the principal and interest shall be due and payable immediately
(together with the premium referred to in Section 4.01, if applicable). If an
Event of Default specified in clause (7) or (8) of Section 6.01 relating to the
Company or any Subsidiary occurs, such 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 (except nonpayment of
principal or interest that has become due solely because of the acceleration)
have been cured or waived.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Notes pursuant to the
optional redemption provisions of the Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes. If an Event of Default occurs prior to
October 1, 2001 by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Company with the intention of avoiding the
prohibition on redemption of the Notes prior to October 31, 2001, then the
premium specified in the Indenture for optional redemptions shall also become
immediately due and payable to the extent permitted by law upon the acceleration
of the Notes.
SECTION 6.03 OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquies cence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, the Notes
(including in connection with an offer to purchase); provided, however, that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.05 CONTROL BY MAJORITY
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
SECTION 6.06 LIMITATION ON SUITS
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
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(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not take enforcement action against the Company's assets
or stock and may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
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SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
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The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
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(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c), (e) and (f) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02 RIGHTS OF TRUSTEE
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
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(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) Except with respect to Section 4.01 hereof, the Trustee shall have
no duty to inquire as to the performance of the Company's covenants in Article 4
hereof. In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Sections 6.01(1), 6.01(2) and 4.01 or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or obtained actual
knowledge.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the Trustee
may, in its discretion, make such further inquiry or investigation into such
facts or matters as it may see fit and if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company personally or by agent or attorney.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as defined in the TIA) it must eliminate such conflict within 90 days,
apply to the SEC for permission to continue as trustee or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
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SECTION 7.04 TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA 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). 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 the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
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SECTION 7.07 COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses (including reasonable attorneys' fees) incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim and the Trustee
shall reasonably cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, 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. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Sections 6.01(8) or 6.01(9) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
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SECTION 7.08 REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of 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 does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10, such Holder of a Note may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
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all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article Eight.
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SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, and interest on such Notes when such payments
are due, (b) the Company's obligations with respect to such Notes under Article
2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's obligations in connection therewith
and (d) this Article Eight. Subject to compliance with this Article Eight, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
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SECTION 8.03 COVENANT DEFEASANCE
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15 and 5.01 hereof with respect to the outstanding Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(5) through 6.01(7) hereof shall not
constitute Events of Default.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants or investment
bankers, to pay the principal of, premium, if any, and interest on the
outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a
particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
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the United States reasonably acceptable to the Trustee confirming that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the outstanding Notes
will not recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the incurrence of Indebtedness all or a
portion of the proceeds of which will be used to decease the Notes
pursuant to this Article Eight concurrently with such incurrence) or
insofar as Sections 6.01(8) or 6.01(9) hereof is concerned, at any time
in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that on the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
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Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance have been complied with.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants or investment bankers expressed in a
written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
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SECTION 8.06 REPAYMENT TO COMPANY
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in the
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 8.07 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on 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
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder of a Note:
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(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's obligations
to the Holders of the Notes in the case of a merger or consolidation
pursuant to Article Five hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of the Note;
or
(f) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture (including Sections 4.07, 4.12
and 4.15 hereof) and the Notes may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Notes), and, subject to Sections 6.04 and 6.07 hereof,
any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium, if any, or interest on the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture or the Notes may
be waived with the consent of the Holders of a majority in principal amount of
the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
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Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Notes. However, without the consent of each Holder affected, an
amendment or waiver may not (with respect to any Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter or waive any of the provisions with respect to the
redemption of the Notes, except as provided above with respect to
Sections 4.07, 4.12 or 4.15 hereof;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes
and a waiver of the payment default that resulted from such
acceleration);
(e) make any Note payable in money other than that stated in
the Notes;
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(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of, premium, if any, or interest on
the Notes;
(g) waive a redemption payment with respect to any Note (other
than a payment required by Sections 4.07, 4.12 or 4.15 hereof); or
(h) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES
The Trustee may 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, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
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SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental Indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive indemnity reasonably satisfactory to it and to
receive and (subject to Section 7.01) shall be fully protected in relying upon,
an Officer's Certificate and an Opinion of Counsel stating that the execution of
such amended or supplemental indenture is authorized or permitted by this
Indenture.
ARTICLE 12
MISCELLANEOUS
SECTION 10.01 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section318(c), the imposed duties shall control.
SECTION 10.02 NOTICES
Any notice or communication by the Company or the Trustee to the others
is duly given if in writing and delivered in Person or mailed by first class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Sygnet Wireless, Inc.
6550-B Seville Drive
Canfield, Ohio 44406
Attention: Chief Financial Officer
Telephone No.: (330) 565-1000
Telecopier No.: (330)
If to the Trustee:
Fleet National Bank
777 Main Street
CT.MO 0238
Hartford, CT 06115
Telephone No.: (860) 986-4424
Telecopier No.: (860) 986-7920
Attention: Corporate Trust Department
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The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; 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.
SECTION 10.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES
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).
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SECTION 10.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 10.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 10.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 10.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
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SECTION 10.06 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes, this 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 issuance of the Notes.
SECTION 10.08 GOVERNING LAW
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES.
SECTION 10.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 10.10 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 10.11 SEVERABILITY
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 10.12 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following pages]
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SIGNATURES
Dated as of September 26, 1996 SYGNET WIRELESS, INC.
By: /s/ Albert H. Pharis, Jr.
------------------------------------
Name: Albert H. Pharis, Jr.
Title: President and Chief Executive
Officer
Attest:
/s/ Craig T. Sheetz (SEAL)
- -------------------------------------
Name: Craig T. Sheetz
Title: Vice President and Chief Financial Officer
Dated as of September 26, 1996 FLEET NATIONAL BANK
By: /s/ Kathy A. Larimore
------------------------------------
Name: Kathy A. Larimore
Title: Assistant Vice President
Attest:
/s/ Susan T. Keller (SEAL)
- -------------------------------------
Name: Susan T. Keller
Title: Vice President
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Exhibit A
(Face of Note)
11-1/2% Senior Notes due 2006
No. $__________
SYGNET WIRELESS, INC.
promises to pay to or registered assigns,
the principal sum of Dollars on October 1, 2006.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Dated:
SYGNET WIRELESS, INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
(SEAL)
Certificate of Authentication:
This is one of the Notes
referred to in the within-mentioned Indenture:
FLEET NATIONAL BANK
By:
------------------------------------------
Authorized Signatory
Dated: September 26, 1996
A-1
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(Back of Note)
11-1/2% Senior Notes due 2006
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. Sygnet Wireless, Inc., an Ohio corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
11-1/2% per annum from September 26, 1996 until maturity. The Company will pay
interest semi-annually on April 1 and October 1 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be April 1, 1997. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the March 15 or September 15 next preceding the
Interest Payment Date, even if such Notes are cancelled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be payable
as to principal, interest and premium, if any, 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.
Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
3. Paying Agent and Registrar. Initially, Fleet National Bank, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of September 26, 1996 ("Indenture") between the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code
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<PAGE>
Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The Notes
are unsecured obligations of the Company limited to $110,000,000 in aggregate
principal amount.
5. Optional Redemption.
(a) Except as set forth in clause (b) of this Note, the
Company shall not have the option to redeem the Notes pursuant to this paragraph
5 prior to October 1, 2001. Thereafter, the Company shall have the option to
redeem the Notes, in whole or in part, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest to the applicable redemption date, if redeemed during the twelve-month
period beginning on October 1 of the years indicated below:
Year Percentage
------------------------------------------------ ----------
2001............................................ 105.750%
2002............................................ 104.313%
2003............................................ 102.875%
2004............................................ 101.438%
2005 and thereafter............................. 100.000%
(b) Notwithstanding the provisions of clause (a) of this
paragraph 5, during the first 36 months after the Issue Date, the Company may
redeem up to an aggregate of $38,500,000 in principal amount of Notes at a
redemption price of 111.5% of the principal amount thereof, in each case plus
accrued and unpaid interest thereon to the redemption date, with the net
proceeds of an offering of Qualified Capital Stock of the Company; provided that
at least $71,500,000 in aggregate principal amount of Notes remain outstanding
immediately after the occurrence of such redemption; and provided, further, that
such redemption shall occur within 30 days of the date of the closing of such
offering.
(c) Notice of redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each Holder whose Notes are
to be redeemed at its registered address. Notes in denominations larger than
$1,000 may be redeemed in part but only in integral multiples of $1,000, unless
all of the Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Notes or portions thereof called
for redemption.
6. Mandatory Redemption.
The Company shall not be required to make mandatory redemption payments
with respect to the Notes.
7. Limitation on Use of Proceeds; Proceeds Purchase Offer.
All net proceeds received by the Company from the sale of the Notes
shall be applied to the purchase of assets in the Horizon Acquisition or, as set
forth below, to repay indebtedness under the Subsidiary's existing Bank Credit
Facility pending such acquisition; provided, however, that no such proceeds may
be applied to the purchase of assets in Horizon Acquisition until the Company
A-3
<PAGE>
has received at least $19,000,000 in proceeds from the Preferred Stock
Investment and the Trustee has received certain opinions and certificates
regarding the Horizon Acquisition. Pending the consummation of the Horizon
Acquisition, all such proceeds shall be held by the Company in a separate bank
account, except that up to $71,500,000 of the net proceeds from the sale of the
Notes may be contributed to the Subsidiary to repay indebtedness under the
Subsidiary's existing Bank Credit Facility, but only to the extent that the
banks thereunder consent to allow the amounts repaid to be reborrowed and paid
as a dividend or distribution to the Company for the sole purpose of funding a
repurchase of the Notes in the event that the Horizon Acquisition does not occur
within 120 days following the closing of the sale of the Notes.
In the event that all of the net proceeds of the sale of the Notes have
not been so applied, directly or indirectly, to the purchase of assets in the
Horizon Acquisition within 120 days of the closing of the sale of the Notes, the
Company will make an offer to all holders of Notes to purchase on a pro rata
basis, at a price of 101% of the principal amount thereof plus accrued interest
to the purchase date, all Notes that may be purchased at such price with such
unapplied net proceeds.
8. Change of Control.
Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase.
Within 10 days following any Change of Control, the Company shall mail
a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes pursuant to
the procedures required by the Indenture and described in such notice. The
Company shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of the Notes as
a result of a Change of Control.
The Change of Control Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Change of Control Offer
Period"). No later than five Business Days after the termination of the Change
of Control Offer Period, the Company shall purchase all Notes tendered in
response to the Change of Control Offer. Payment for any Notes so purchased
shall be made in the same manner as interest payments are made.
9. Limitation on Asset Sales and Sales of Subsidiary Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, in one transaction or a series of related transactions, convey,
sell, transfer, assign or otherwise dispose of, directly or indirectly, any of
its property, business or assets, including any sale or other transfer or
A-4
<PAGE>
issuance of any Capital Stock of any Restricted Subsidiary of the Company,
whether owned on the Issue Date or thereafter acquired (an "Asset Sale") unless
(a) such Asset Sale is for fair market value as determined by the Board of
Directors of the Company acting reasonably and in good faith, (b) at least 80%
of the value of the consideration for such Asset Sale consists of (i) cash, (ii)
the assumption by the transferee of pari passu Indebtedness or (iii) notes,
obligations or other marketable securities that are immediately converted into
cash and (c) the Net Cash Proceeds therefrom are applied on or prior to 360 days
after the date of such Asset Sale (i) to the permanent repayment of Indebtedness
under the Bank Credit Facility (which payment reduces the commitment thereunder)
or (ii) to the repurchase of the Notes pursuant to an offer to purchase (an
"Asset Sale Offer") described below or (iii) to an investment in a Related
Business.
Notwithstanding the foregoing provisions of the prior paragraph:
(i) any Restricted Subsidiary of the Company may convey,
sell, lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Company or a Restricted Subsidiary of
the Company;
(ii) the Company and its Restricted Subsidiaries may, in the
ordinary course of business, (A) convey, sell, lease, transfer, assign or
otherwise dispose of assets in the ordinary course of business and (B) exchange
assets for assets in Related Businesses; (iii) the Company and its Restricted
Subsidiaries may convey, sell, lease, transfer, assign or otherwise dispose of
assets pursuant to and in accordance with Section 5.01; (iv) the Company and its
Restricted Subsidiaries may (a) sell damaged, worn out or other obsolete
property in the ordinary course of business or other property no longer
necessary for the proper conduct of the business of the Company or any of its
Restricted Subsidiaries, or (b) abandon such property if it cannot, through
reasonable efforts, be sold; and (v) the Company may transfer the assets that it
acquires in the Horizon Acquisition to the Subsidiary after the Issue Date.
An Asset Sale Offer may be deferred until the accumulated Net Cash
Proceeds not applied to the uses set forth in subsections (c)(i) or (c)(iii) in
the first paragraph exceeds $5,000,000. An Asset Sale Offer shall remain open
for a period of 20 Business Days following its commencement and no longer,
except to the extent that a longer period is required by applicable law (the
"Asset Sale Offer Period"). No later than five Business Days after the
termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the
Company shall purchase the principal amount of Notes required to be purchased
pursuant to this Section or, if less than the Asset Sale Offer Amount has been
tendered, all Notes tendered in response to the Asset Sale Offer. Payment for
any Notes so purchased shall be made in the same manner as interest payments are
made.
If the Asset Sale Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
A-5
<PAGE>
10. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
11. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
12. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
13. Defaults and Remedies. Events of Default include: (i) a default in
the payment of interest on any Note when the same becomes due and payable and
the Default continues for a period of 30 days; (ii) a default in the payment of
the principal of or premium, if any, on any Note when the same becomes due and
payable at maturity, upon redemption or otherwise; (iii) failure to observe or
perform any covenant, condition or agreement on the part of the Company to be
observed or performed pursuant to Sections 4.07, 4.08, 4.09, 4.12, 4.13, 4.15 or
5.01 of the Indenture; (iv) failure by the Company to comply with any of its
other agreements or covenants in, or provisions of, the Notes or the Indenture
and the Default continues for the period and after the notice specified below;
(v) a default occurs under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Subsidiaries (or
the payment of which is guaranteed by the Company or any of its Subsidiaries)
whether such Indebtedness or guarantee now exists, or is created after the date
of the Indenture, which default (a) is caused by a failure to pay principal of
or premium, if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such default (a
"Payment Default"); provided such Event of Default shall not occur until 90 days
after such Payment Default, or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
A-6
<PAGE>
of which has been so accelerated, aggregates $5,000,000 or more; (vii) a
declaration that any of the Subsidiary Guarantees is unenforceable; or (viii)
certain events of bankruptcy or insolvency with respect to the Company or any of
its Subsidiaries. If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest on,
or the principal of, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.
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 the Trustee.
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.
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. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
A-7
<PAGE>
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Sygnet Wireless, Inc.
6550-B Seville Drive
Canfield, Ohio 44406
Attention: Chief Financial Officer
Telephone No.: (330) 565-1000
Telecopier No.: (330)
A-8
<PAGE>
Exhibit B
OPINIONS AND CERTIFICATES TO BE DELIVERED
AT TIME OF HORIZON ACQUISITION
At the time of the closing of the Horizon Acquisition (the "Horizon
Closing Date") the following shall occur:
(a) The Company shall deliver to the Trustee on behalf of the holders
of the Notes an officer's certificate stating, representing and warranting that:
(i) The Company has received proceeds of not less than $19.0
million from the sale of certain of its preferred stock;
(ii) The Asset Acquisition Agreement (the "Acquisition
Agreement") dated July 11, 1996, among the Company, Horizon Cellular
Telephone Company of Chatauqua, L.P., Horizon Cellular Telephone
Company of Crawford, L.P. and Horizon Cellular Telephone Company of
Indiana, L.P. has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company enforceable
in accordance with its terms (except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability);
(iii) The execution, delivery and performance of the
Acquisition Agreement and compliance by the Company with all the
provisions thereof and the consummation of the transactions
contemplated thereby will not require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body and will not conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its
subsidiaries or any agreement, indenture or other instrument to which
it or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, or violate or
conflict with any laws, administrative regulations or rulings or court
decrees applicable to the Company, any of its subsidiaries or their
respective property;
(iv) The Company and each of its subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation,
under any applicable environmental laws, as are necessary to own, lease
and operate the cellular telephone systems acquired pursuant to the
Horizon Acquisition (the "Horizon Systems") and to conduct the business
of the Horizon Systems; the Company and each of its subsidiaries has
fulfilled and performed all of its material obligations with respect to
such permits and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or results
in any other material impairment of the rights of the holder of any
such permit; and such permits contain no restrictions that are
materially burdensome to the Company or any of its subsidiaries;
B-1
<PAGE>
(v) The Company and each of its subsidiaries has received the
consents of the Federal Communications Commission (the "FCC") to the
Horizon Acquisition. Those consents constitute all consents, approvals
and actions necessary for the assignment of the FCC licenses necessary
for the operation of the Horizon Systems. All applicable administrative
and judicial appeal, review and reconsideration periods of such FCC
consents have expired, without the timely filing of any such appeal or
request for review or reconsideration and without the FCC having
instituted review of the grant of such consent on its own motion;
(vi) The Company and each of its subsidiaries validly holds
all FCC licenses necessary for the operation of the Horizon Systems.
Such FCC licenses are in full force and effect and are not subject to
any conditions other than those conditions listed thereon and those
conditions generally applicable to entities holding similar licenses
issued by the FCC. The FCC licenses constitute all of the licenses,
permits, consents or authorizations required by the FCC to permit
operation of a nonwireline cellular telephone system in the Horizon
Systems, and to permit interim operations in the PA-2 IOA. The FCC
licenses expire on the dates set forth in the Prospectus. The five-year
build-out periods for the Horizon Systems expired on the dates set
forth in the Prospectus; and
(vii) There are no judgments, decrees or orders issued by the
FCC that could result in a suspension, revocation, material impairment,
termination prior to its expiration date, non-renewal or adverse
modification of the FCC licenses necessary for the operation of the
Horizon Systems, or that could have a material adverse effect upon, or
cause material disruption to, the cellular operations pursuant to such
FCC licenses. To the best of the Company's knowledge, there is no FCC
complaint, investigation, action or proceeding pending or threatened
relative to the FCC licenses relating to its cellular operations,
including, without limitation, any Notice of Violation, Notice of
Apparent Liability or Order to Show Cause, other than proceedings that
affect the cellular telephone industry generally, that could result in
a suspension, revocation, material impairment, termination prior to its
expiration date, non-renewal or adverse modification of the FCC
licenses or which could have a material adverse effect upon, or cause
material disruption to, the cellular operations in the Youngstown, OH
MSA, the Sharon, PA MSA, the OH-11 RSA, the Erie, PA MSA, the NY-3 RSA,
the PA-1 RSA, the PA-6 RSA, or the PA-7 RSA, or the interim operations
in the PA-2 IOA. Each of the Company's cellular systems is operating in
compliance in all material respects with the Communications Act of
1934, as amended (the "Communications Act") and the Rules and
Regulations of the FCC.
(b) The Company shall deliver to the Underwriters an opinion of Bryan
Cave LLP, dated the Horizon Closing Date, to the effect that:
(i) the Acquisition Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company enforceable in accordance with its terms
(except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
B-2
<PAGE>
(b) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability);
(ii) the execution, delivery and performance of the
Acquisition Agreement and compliance by the Company with all the
provisions thereof and the consummation of the transactions
contemplated thereby will not require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body and to the best of
such counsel's knowledge, will not conflict with or constitute a breach
of any of the terms or provisions of, or a default under, the charter
or by-laws of the Company or any of its subsidiaries or any material
agreement, indenture or other instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective properties is bound, or violate or
conflict with any laws, administrative regulations or rulings or court
decrees applicable to the Company or any of its subsidiaries or their
respective properties;
(iii) to the best of such counsel's knowledge, the Company and
each of its subsidiaries has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable Environmental Laws,
as are necessary to own, lease and operate the properties to be owned,
leased and operated following consummation of the transactions under
the Acquisition Agreement and to conduct its business in the manner
described in the Prospectus relating to the sale of the 11-1/2% Senior
Notes due 2006 of the Company (the "Prospectus"); to the best of such
counsel's knowledge, the Company and each of its subsidiaries has
fulfilled and performed all of its material obligations with respect to
such permits and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or results
in any other material impairment of the rights of the holder of any
such permit, subject in each case to such qualification as may be set
forth in the Prospectus; and, except as described in the Prospectus,
such permits contain no restrictions that are materially burdensome to
the Company or any of its subsidiaries;
(iv) to the best of such counsel's knowledge, all leases to
which the Company or any of its subsidiaries will become a party
following consummation of the transactions under the Acquisition
Agreement are valid and binding and no default has occurred or is
continuing thereunder, which might result in any material adverse
change in the business, prospects, financial condition or results of
operation of the Company and its subsidiaries taken as a whole, with
such exceptions as do not materially interfere with the use made by the
Company or such subsidiary;
(v) the Company and each of its subsidiaries has received the
consents of the FCC to the Horizon Acquisition. Those consents
constitute all consents, approvals and actions necessary for the
assignment of the FCC licenses necessary for the operation of the
B-3
<PAGE>
Horizon Systems (the "Horizon FCC Licenses"). All applicable
administrative and judicial appeal, review and reconsideration periods
of such FCC consents have expired, without the timely filing of any
such appeal or request for review or reconsideration and without the
FCC having instituted review of the grant of such consent on its own
motion;
(vi) the Company and each of its subsidiaries validly holds
all the Horizon FCC Licenses. The Horizon FCC Licenses are in full
force and effect and are not subject to any conditions other than those
conditions listed thereon and those conditions generally applicable to
entities holding similar licenses issued by the FCC. The Horizon FCC
Licenses constitute all of the licenses, permits, consents or
authorizations required by the FCC to permit operation of the Horizon
Systems, and to permit interim operations in the PA-2 IOA. The Horizon
FCC Licenses expire on the dates set forth in the Prospectus. The
five-year build-out periods for the Horizon Systems expired on the
dates set forth in the Prospectus.
(vii) there are no judgments, decrees or orders issued by the
FCC that could result in a suspension, revocation, material impairment,
termination prior to its expiration date, non-renewal or adverse
modification of the Horizon FCC Licenses, or that could have a material
adverse effect upon, or cause material disruption to, the cellular
operations pursuant to the Horizon FCC Licenses. To the best of such
counsel's knowledge, there is no FCC complaint, investigation, action
or proceeding pending or threatened relative to the Horizon FCC
Licenses relating to its cellular operations, including, without
limitation, any Notice of Violation, Notice of Apparent Liability or
Order to Show Cause, other than proceedings that affect the cellular
telephone industry generally, that could result in a suspension,
revocation, material impairment, termination prior to its expiration
date, non-renewal or adverse modification of the Horizon FCC Licenses
or which could have a material adverse effect upon, or cause material
disruption to, the cellular operations in the Youngstown, OH MSA, the
Sharon, PA MSA, the OH-11 RSA, the Erie, PA MSA, the NY-3 RSA, the PA-1
RSA, the PA-6 RSA, or the PA-7 RSA, or the interim operations in the
PA-2 IOA; and
(viii) the Company and each of its subsidiaries has, or has
timely filed applications for, all permits of governmental or
regulatory authorities (including, as appropriate, the state public
utilities commissions of Ohio, Pennsylvania and New York) necessary to
engage in the business currently conducted in the Horizon Systems and
the Company's Systems, except where the failure to hold such permits
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and there is no reason to believe that
any governmental body or agency is considering limiting, suspending or
revoking any such permit. All such permits are valid and in full force
and effect.
(c) The transactions under the Acquisition Agreement shall have been
consummated in accordance with the terms of the Acquisition Agreement.
B-4
<PAGE>
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
310(a)(1) ................................................ 7.10
(a)(2) ............................................. 7.10
(a)(3) ............................................. N.A.
(a)(4) ............................................. N.A.
(b) ................................................ 7.08; 7.10; 10.02
(c) ................................................ N.A.
311(a) ................................................... 7.11
(b) ................................................ 7.11
(c) ................................................ N.A.
312(a) ................................................... 2.05
(b) ................................................ 10.03
(c) ................................................ 10.03
313(a) ................................................... 7.06
(b)(1) ............................................. N.A.
(b)(2) ............................................. 7.06
(c) ................................................ 7.06; 10.02
(d) ................................................ 7.06
314(a) ................................................... 4.03, 4.04; 10.02
(b) ................................................ N.A.
(c)(1) ............................................. 10.04
(c)(2) ............................................. 7.02; 10.04
(c)(3) ............................................. N.A.
(d) ................................................ N.A.
(e) ................................................ 10.05
(f) ................................................ N.A.
315(a) ................................................... 7.01(2)
(b) ................................................ 7.05; 10.02
(c) ................................................ 7.01(1)
(d) ................................................ 7.01(3)
(e) ................................................ 6.11
316(a)(last sentence) .................................... 2.09
(a)(1)(A) .......................................... 6.05
(a)(1)(B) .......................................... 6.04
(a)(2) ............................................. 6.04
(b) ................................................ 6.07
317(a)(1) ................................................ 6.08
(a)(2) ............................................. 6.09
(b) ................................................ 2.04
1
<PAGE>
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
318(a) ................................................... 10.01
- ---------------
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
2
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
SECTION 1.01 DEFINITIONS..............................................1
SECTION 1.02 OTHER DEFINITIONS.......................................16
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.......18
SECTION 1.04 RULES OF CONSTRUCTION...................................18
ARTICLE 2
SECTION 2.01 FORM AND DATING.........................................19
SECTION 2.02 EXECUTION AND AUTHENTICATION............................19
SECTION 2.03 REGISTRAR AND PAYING AGENT..............................20
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.....................20
SECTION 2.05 HOLDER LISTS............................................20
SECTION 2.06 TRANSFER AND EXCHANGE...................................21
SECTION 2.07 REPLACEMENT NOTES.......................................21
SECTION 2.08 OUTSTANDING NOTES.......................................22
SECTION 2.09 TREASURY NOTES..........................................22
SECTION 2.10 TEMPORARY NOTES.........................................22
SECTION 2.11 CANCELLATION............................................23
SECTION 2.12 DEFAULTED INTEREST......................................23
ARTICLE 3
SECTION 3.01 NOTICES TO TRUSTEE......................................23
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED.......................24
SECTION 3.03 NOTICE OF REDEMPTION....................................24
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION..........................25
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.............................25
SECTION 3.06 NOTES REDEEMED IN PART..................................26
SECTION 3.07 OPTIONAL REDEMPTION.....................................26
SECTION 3.08 NO MANDATORY REDEMPTION.................................27
ARTICLE 4
SECTION 4.01 PAYMENT OF NOTES........................................27
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.........................27
SECTION 4.03 REPORTS.................................................28
SECTION 4.04 COMPLIANCE CERTIFICATE..................................28
SECTION 4.05 TAXES...................................................29
SECTION 4.06 STAY, EXTENSION AND USURY LAWS..........................29
i
<PAGE>
Page
SECTION 4.07 CHANGE OF CONTROL.......................................30
SECTION 4.08 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS.....31
SECTION 4.09 LIMITATION ON RESTRICTED PAYMENTS.......................32
SECTION 4.10 LIMITATION ON RESTRICTING SUBSIDIARY DIVIDENDS..........33
SECTION 4.11 LIMITATION ON TRANSACTIONS WITH RELATED PERSONS.........34
SECTION 4.12 LIMITATION ON ASSET SALES AND SALES OF SUBSIDIARY
STOCK...................................................35
SECTION 4.13 LIMITATIONS ON LIENS....................................36
SECTION 4.14 CORPORATE EXISTENCE.....................................37
SECTION 4.15 LIMITATION ON USE OF PROCEEDS; PROCEEDS PURCHASE
OFFER...................................................37
ARTICLE 5
SECTION 5.01 MERGER, CONSOLIDATION OR SALE OF ASSETS.................39
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED.......................39
ARTICLE 6
SECTION 6.01 EVENTS OF DEFAULT.......................................40
SECTION 6.02 ACCELERATION............................................42
SECTION 6.03 OTHER REMEDIES..........................................42
SECTION 6.04 WAIVER OF PAST DEFAULTS.................................43
SECTION 6.05 CONTROL BY MAJORITY.....................................43
SECTION 6.06 LIMITATION ON SUITS.....................................43
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT...........44
SECTION 6.08 COLLECTION SUIT BY TRUSTEE..............................44
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM........................45
SECTION 6.10 PRIORITIES..............................................45
SECTION 6.11 UNDERTAKING FOR COSTS...................................46
ARTICLE 7
SECTION 7.01 DUTIES OF TRUSTEE.......................................46
SECTION 7.02 RIGHTS OF TRUSTEE.......................................47
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE............................48
SECTION 7.04 TRUSTEE'S DISCLAIMER....................................49
SECTION 7.05 NOTICE OF DEFAULTS......................................49
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES..............49
SECTION 7.07 COMPENSATION AND INDEMNITY..............................50
SECTION 7.08 REPLACEMENT OF TRUSTEE..................................51
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC........................52
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION...........................52
ii
<PAGE>
Page
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.......52
ARTICLE 8
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE..............................................52
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE..........................53
SECTION 8.03 COVENANT DEFEASANCE.....................................54
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE..............54
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS................56
SECTION 8.06 REPAYMENT TO COMPANY....................................57
SECTION 8.07 REINSTATEMENT...........................................57
ARTICLE 9
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES.....................57
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES........................58
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.....................60
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.......................60
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES........................60
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.........................61
ARTICLE 12
SECTION 10.01 TRUST INDENTURE ACT CONTROLS...........................61
SECTION 10.02 NOTICES................................................61
SECTION 10.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES.......................................62
SECTION 10.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.....63
SECTION 10.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION..........63
SECTION 10.06 RULES BY TRUSTEE AND AGENTS............................64
SECTION 10.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.............................64
SECTION 10.08 GOVERNING LAW..........................................64
SECTION 10.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS..........64
SECTION 10.10 SUCCESSORS.............................................64
SECTION 10.11 SEVERABILITY...........................................64
SECTION 10.12 COUNTERPART ORIGINALS..................................65
SECTION 10.13 TABLE OF CONTENTS, HEADINGS, ETC.......................65
iii
<PAGE>
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B OPINIONS AND CERTIFICATES TO BE DELIVERED AT
TIME OF HORIZON ACQUISITION
iv
SYGNET WIRELESS, INC.
1996 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
1. Purpose. The purpose of the 1996 Stock Option Plan for Non-Employee
Directors ("Plan") is to increase the proprietary interest of Non-Employee
Directors in Sygnet Wireless, Inc. ("Corporation") by granting them
non-qualified options ("Options") to purchase shares ("Shares") of Class A
common stock of the Corporation ("Common Stock") that will promote long-term
shareholder value through ownership of Common Stock.
2. Administration
(a) Appointment of Committee. The Plan shall be administered by a
committee ("Committee") of the Corporation, consisting of at least two
executives of the Corporation appointed by, and holding office at the
pleasure of, the Board of Directors. Initially, the Committee shall
consist of W.P. Williamson, III, Chairman, and Albert H. Pharis, Jr.
Grants of Options under the Plan shall be automatic as provided in
Section 4. The Committee shall have full authority to interpret the
plan, to promulgate such rules and regulations with respect to the Plan
as it deems desirable and to make all other determinations necessary or
appropriate for the administration of the Plan, and such determinations
shall be final and binding upon all persons having an interest in the
Plan.
(b) Compensation; Professional Assistance; Good Faith. Members of
the Committee shall not receive any compensation for their services as
members, but all expenses and liabilities they incur in connection with
the administration of the Plan shall be borne by the Corporation. The
Committee may employ attorneys, consultants, accountants, or other
persons. The Committee, the Corporation, and its officers and directors
shall be entitled to rely upon the advice, opinions or valuations of
any such persons. All action taken and all interpretations and
determinations made by the Committee in good faith shall be final and
binding upon all Optionees, the Corporation and all other interested
persons. No members of the Committee shall be personally liable for any
action, determination, or interpretation made in good faith with
respect to the Plan and all members of the Committee shall be fully
protected and indemnified by the Corporation in respect to any such
action, determination or interpretation.
3. Participation. Each member of the Board of Directors of the
Corporation who is not an employee of the Corporation or any of its subsidiaries
at the date of each grant ("Non-Employee Director") shall be eligible to
participate in the Plan.
4. Awards under the Plan. The number of Shares available for grants
under the Plan shall not exceed 250,000 Shares, subject to adjustment as
provided in Section 5.
(a) Grant of Options. Each individual who becomes a Non-Employee
Director (but excluding any Non-Employee Director re-elected), shall,
on the first trading day coinciding with or immediately following
election to the Board, automatically be granted an Option for 4,000
Shares, all of which shall vest six months following the date of grant.
Each Non-Employee Director shall, on the first trading day
<PAGE>
coinciding with or immediately following the annual shareholders
meeting of Corporation (and also on December 15, 1996), automatically
be granted an Option to acquire 2,000 Shares, half of which vests six
months following the date of grant and the balance one year after the
date of grant, provided that such Director shall have then satisfied
the rules and regulations with respect to the Plan adopted by the
Committee. The written agreement evidencing each Option shall be dated
as of the applicable date of grant. Each Non-Employee Director
accepting an Option shall execute and return a copy of the agreement to
the Corporation. Any Shares issued pursuant to Options ("Optioned
Shares") may consist, in whole or in part, of authorized and unissued
Shares or Shares in the Corporation's treasury. All Options granted
under the Plan shall be non-qualified options not entitled to special
tax treatment under Section 422 of the Internal Revenue Code of 1986,
as amended.
(b) Option Exercise Price. The exercise price per Share ("Option
Price") of the Option shall be 100% of the Fair Market Value of a Share
on the business day immediately preceding the date of grant. "Fair
Market Value" as of any date shall be the last reported sale price,
regular way, of the Shares on any day or, in case no such reported sale
takes place on such day, the average of the reported closing bid and
asked prices, regular way, in either case on the principal national
securities exchange on which the Shares are listed or, if the Shares
are not listed on a national securities exchange and are listed on the
NASDAQ Stock Market, the sale price determined in the same fashion or,
if the Shares are not so listed on any of the foregoing, the average of
the bid and asked prices on such day as furnished by dealers in the
Shares in the over-the-counter market. If there is no established
trading market for the shares, then fair market value shall be the
appraised value as determined by the Committee. Options granted during
1996 shall have an exercise price of $10 per share. All calculations of
the current market price shall be made to the nearest cent.
(c) Term of Option. Each Option shall expire ten (10) years from the
date of grant.
(d) Exercise of Option. Each Option granted to (i) a newly elected
Non-Employee Director shall be exercisable six months after its date
of grant and (ii) a reelected Non-Employee Director shall be
exercisable one year from its date of grant, provided that such
Director shall have then satisfied the rules and regulations with
respect to the Plan adopted by the Committee.
(e) Manner of Exercise. An exercisable Option, or any exercisable
portion thereof, may be exercised solely by delivery to the Secretary
of the Corporation at his or her office of all of the following:
i) Notice in writing signed by the Optionee or other person then
entitled to exercise an Option or portion thereof, stating that the
Option or portion is exercised, such notice complying with all
applicable rules established by the Committee;
ii) Such representations and documents as the Committee, in its
absolute discretion, deems necessary or advisable to effect
compliance with all applicable provisions of the Federal Securities
Act of 1933, as
2
<PAGE>
amended ("Federal Securities Act"), and any other Federal or state
securities laws or regulations. The Committee may, in its absolute
discretion, also take whatever action it deems appropriate to effect
such compliance, including without limitation, placing legends on
share certificates and issuing stop-transfer orders to transfer
agents and registrars; and
iii) Full cash payment of the Option Price for the Optioned
Shares with respect to which such Option or portion is thereby
exercised and which are to be delivered to him or her pursuant to
such exercise. At any time the shares are tradeable in an
established securities market, such payment need not accompany the
written notice of exercise if the Optionee, either (a) in the notice
of exercise directs that the stock certificate or certificates for
the Optioned Shares as to which the Option is exercised be delivered
to a broker-dealer registered with the Securities and Exchange
Commission that is a member of the New York Stock Exchange or any
other broker-dealer acceptable to the Committee, as the agent for
the Optionee, which broker-dealer delivers to the Corporation its
unconditional and irrevocable undertaking that, at the time such
stock certificate or certificates are delivered, such broker-dealer
will pay to the Corporation an amount in cash equal to such payment,
plus the amount ("withholding amount") of all federal, state and/or
local taxes of any kind which the Corporation is required to
withhold with respect to the exercise of the Option or (b) furnish
with said notice (i) Shares (endorsed in favor of the Corporation)
having a Fair Market Value equal to the amount of such payment or
(ii) instructions that the Corporation withhold from the Optioned
Shares to be delivered a number of Optioned Shares having a fair
market value equal to the Option Price, plus (in each case), if the
Board of Directors shall approve, the withholding amount.
(f) Conditions to Issuance of Stock Certificates. The Corporation
shall not be required to issue or deliver any certificate or
certificates for Optioned Shares prior to fulfillment of all of the
following conditions:
i) The completion of any registration or other qualification of
such Shares under any Federal or state law or under the rulings or
regulations of the Securities and Exchange Commission or any other
governmental regulatory body, which the Corporation shall, in its
absolute discretion, deem necessary or advisable;
ii) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Corporation shall, in
its absolute discretion, determine to be necessary or advisable;
iii) The provision for any income tax withholding which the
Corporation shall, in its absolute discretion, determine to be
necessary or advisable; and
3
<PAGE>
iv) The lapse of such reasonable period of time following the
exercise of the Option as the Corporation may determine, in its
absolute discretion, from time to time to be necessary or advisable
for reasons of administrative convenience.
(g) Rights as Stockholders. An Optionee shall not be, nor have any
of the rights of, a stockholder of the Corporation in respect to any
shares of Common Stock which may be purchased upon the exercise of any
option or portion thereof unless and until certificates representing
such shares have been issued by the Corporation.
(h) Non-transferability. An Option shall be non-assignable and
non-transferable by a Non-Employee Director other than by will or the
laws of descent and distribution. A Non-Employee Director shall forfeit
any Option assigned or transferred, voluntarily or involuntarily, other
than as permitted under this subsection. An Option may be exercised
during the Non-Employee Director's lifetime only by such person or his
or her guardian or legal representative.
(i) Forfeiture. If a Non-Employee Director ceases to be a Director
for any reason, any non-vested Options, or non-vested portion of
options, of the Non- Employee Director shall forfeit and shall never be
exercisable.
5. Adjustments. In the event of a stock dividend or stock split, or
combination or other reduction in the number of issued Shares, a merger,
consolidation, reorganization, recapitalization, sale or exchange of
substantially all assets or dissolution of the Corporation, then appropriate
adjustments shall be made in the shares and number of Shares subject to and
authorized by this Plan and the Option prices specified, in order to prevent
dilution or enlargement of the rights of the Non-Employee Directors under the
Plan.
6. Amendment of the Plan. The Board of Directors may suspend or
terminate the Plan or any portion thereof at any time, and the Board of
Directors or the Committee may amend the Plan from time to time as may be deemed
to be in the best interests of the Corporation; provided, however, that no such
amendment, alteration or discontinuation shall be made (a) that would impair the
rights of a Non-Employee Director with respect to Options theretofore awarded,
without such person's consent, or (b) without the approval of the stockholders
if such approval is necessary to comply with any legal, tax or regulatory
requirement, including any approval requirement which is a prerequisite for
exemptive relief from Section 16(b) of the Securities Exchange Act of 1934, as
amended.
7. Miscellaneous Provisions. Neither the Plan nor any action taken
hereunder shall be construed as giving any Non-Employee Director any right to be
nominated for re-election to the Board.
8. Effective Date and Duration of Plan. The Plan shall be effective
immediately. No awards shall be made hereunder after December 31,
2010.
4
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS FOR SYGNET WIRELESS, INC. AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000879313
<NAME> SYGNET WIRELESS, INC.
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 34,183
<SECURITIES> 0
<RECEIVABLES> 5,655
<ALLOWANCES> 574
<INVENTORY> 904
<CURRENT-ASSETS> 8,276
<PP&E> 23,743
<DEPRECIATION> 0
<TOTAL-ASSETS> 121,661
<CURRENT-LIABILITIES> 3,151
<BONDS> 111,000
0
0
<COMMON> 62
<OTHER-SE> 6,040
<TOTAL-LIABILITY-AND-EQUITY> 121,661
<SALES> 25,854
<TOTAL-REVENUES> 26,992
<CGS> 6,640
<TOTAL-COSTS> 19,624
<OTHER-EXPENSES> 295
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,893
<INCOME-PRETAX> 3,180
<INCOME-TAX> 1,102
<INCOME-CONTINUING> 2,078
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,078
<EPS-PRIMARY> .28
<EPS-DILUTED> .28
</TABLE>
