<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 30, 1999
REGISTRATION NO. 333-91359
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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METRICOM, INC. METRICOM FINANCE, INC.
(EXACT NAME OF REGISTRANT AS (EXACT NAME OF REGISTRANT AS
SPECIFIED IN ITS CHARTER) SPECIFIED IN ITS CHARTER)
DELAWARE DELAWARE
(STATE OF INCORPORATION) (STATE OF INCORPORATION)
77-0294597 77-0529272
(I.R.S. EMPLOYER IDENTIFICATION (I.R.S. EMPLOYER IDENTIFICATION
NO.) NO.)
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980 UNIVERSITY AVENUE
LOS GATOS, CALIFORNIA 95030-2375
(408) 399-8200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
TIMOTHY A. DREISBACH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
METRICOM, INC.
980 UNIVERSITY AVENUE, LOS GATOS, CALIFORNIA 95030-2375
(408) 399-8200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
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KENNETH L. GUERNSEY JEREMY W. DICKENS
CYDNEY S. POSNER WEIL, GOTSHAL & MANGES LLP
LAURA RANDALL WOODHEAD 767 FIFTH AVENUE
COOLEY GODWARD LLP NEW YORK, NEW YORK 10153
ONE MARITIME PLAZA, 20TH FLOOR (212) 310-8000
SAN FRANCISCO, CALIFORNIA 94111
(415) 693-2000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the registration statement becomes effective
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act, as
amended, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED OFFERING PRICE(1) REGISTRATION FEE(2)
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Debt Securities(3).......................................... (4) (4)
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Common Stock of Metricom, Inc., $0.001 par value per
share(5).................................................. (4) (4)
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Guarantees of Metricom, Inc. with respect to debt
securities(6)............................................. (4) (4)
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Total.............................................. $1,200,000,000(7) $333,600
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</TABLE>
(1) The proposed maximum aggregate offering price per class of security will be
determined from time to time by the registrants in connection with the
issuance by the registrants of the securities registered hereunder.
(2) Calculated pursuant to Rule 457(o) under the Securities Act. The amount of
the registration fee was paid in connection with the initial filing of the
registration statement.
(3) Subject to note 7 below, there is being registered hereunder, by Metricom,
Inc. and Metricom Finance, Inc., an indeterminate principal amount of their
debt securities as may be sold, from time to time, by either of the
registrants. If any debt securities are issued at an original issue
discount, then the offering price shall be in such greater principal amount
at maturity as shall result in aggregate gross proceeds to the registrants
not to exceed $1.2 billion less the gross proceeds attributable to any
securities previously issued pursuant to this registration statement.
(4) Not required to be included in accordance with General Instruction II.D. of
Form S-3.
(5) Subject to note 7 below, there is being registered hereunder, solely by
Metricom, Inc., an indeterminate number of shares of common stock of
Metricom, Inc. as may be sold from time to time.
(6) Subject to note (7) below, there is being registered hereunder an
indeterminate principal amount of Guarantees of Metricom. Inc. with respect
to the obligation of Metricom Finance, Inc. under such debt securities as
may be sold, from time to time, as to which Metricom Finance, Inc. will be a
co-issuer and co-obligor. Under the Guarantees, the obligation of Metricom
Finance, Inc. under the debt securities will be fully and unconditionally
guaranteed by Metricom, Inc. as described more fully in the registration
statement.
(7) Except as permitted by Rule 462 under the Securities Act, in no event will
the aggregate offering price of all securities issued from time to time
pursuant to this registration statement exceed $1.2 billion. The securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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<PAGE> 2
PROSPECTUS
$1,200,000,000
METRICOM, INC.
[LOGO]
COMMON STOCK
DEBT SECURITIES
GUARANTEES OF DEBT SECURITIES
METRICOM FINANCE, INC.
DEBT SECURITIES
GUARANTEED AS SET FORTH IN THIS PROSPECTUS BY METRICOM, INC.
Metricom, Inc. may offer shares of common stock from time to time at
prices and on terms to be determined by market conditions at the time it makes
the offer. Metricom and Metricom Finance, Inc., a wholly-owned subsidiary of
Metricom, referred to as Finance, may, as co-issuers and co-obligors, offer one
or more series of debt securities from time to time at prices and on terms to be
determined by market conditions at the time of the offering. The obligation of
Finance under these securities will be fully and unconditionally guaranteed by
Metricom as set forth in this prospectus. We will provide the specific terms of
each series of debt securities in supplements to this prospectus. Before you
invest in the securities, you should carefully read this prospectus and the
prospectus supplement related to the securities offered.
Metricom's common stock is traded on the Nasdaq National Market under the
symbol "MCOM." On December 29, 1999, the last reported sale price of the common
stock on the Nasdaq National Market was $80 5/8 per share.
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THE SECURITIES WE MAY OFFER INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
COMMENCING ON PAGE 5.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
If we sell the securities through agents or underwriters, we will include
their names and the fees, commissions and discounts they will receive, as well
as the net proceeds to us, in the applicable prospectus supplement.
The date of this prospectus is December 30, 1999
<PAGE> 3
TABLE OF CONTENTS
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PAGE
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Prospectus Summary.................... 3
Risk Factors.......................... 5
Forward-Looking Information........... 5
Deficiency of Earnings to Fixed
Charges............................. 5
Use of Proceeds....................... 5
Description of Debt Securities........ 6
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PAGE
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Description of Capital Stock.......... 16
Plan of Distribution.................. 19
Legal Matters......................... 19
Experts............................... 19
Where You Can Get More Information.... 20
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No dealer, sales person or other person is authorized to give any
information or to represent anything not contained in this prospectus. You must
not rely on any unauthorized information or representations. This prospectus is
an offer to sell only the securities offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so. The information
contained in this prospectus is current only as of its date.
Metricom(R) and Ricochet(R) are Metricom trademarks. Trade names and
trademarks of other companies appearing in this prospectus are the property of
their respective holders.
2
<PAGE> 4
PROSPECTUS SUMMARY
The following is a summary of Metricom's business. This summary highlights
selected information from this prospectus and does not contain all the
information that may be important to you. To understand the terms of the
securities, you should read this prospectus with the accompanying prospectus
supplement carefully. Together, these documents describe the specific terms of
the securities we are offering. You should also carefully read the section
entitled "Risk Factors" in this prospectus and the accompanying prospectus
supplement and the documents identified under the caption "Where You Can Get
More Information." References to "Metricom" refer to Metricom, Inc. and
references to "Finance" refers to Metricom Finance, Inc. Unless the context
requires otherwise, references to "we," "us" or "our" refer to Metricom and
Finance, collectively.
Metricom is a leading provider of mobile wireless data access to corporate
networks and the Internet. Metricom has designed its new high speed service,
marketed under the Ricochet(R) brand name, to meet the needs of the growing
number of professionals who require full access to their corporate networks and
the Internet while away from the office. Metricom's service will also appeal to
consumers who desire high-speed mobile access to the Internet. Simply by
attaching a wireless modem to a laptop computer or personal electronic device,
users can access their corporate networks and the Internet whenever they want
and wherever they are within Metricom's coverage areas.
Metricom was incorporated in California in December 1985 and
reincorporated in Delaware in April 1992. Its principal office is located at 980
University Avenue, Los Gatos, California 95030-2375. Its telephone number at
that location is (408) 399-8200, and its Web sites are located at
www.metricom.com and www.ricochet.net. Information contained on these Web sites
does not constitute part of this prospectus.
Finance is a wholly owned subsidiary of Metricom, newly formed for the
purpose of allowing Metricom to consummate a holding company reorganization. A
holding company reorganization is a transaction effected either as a result of
the transfer of all or substantially all of Metricom's assets to Finance, the
merger of a wholly owned subsidiary of Finance with Metricom, or a merger of
Metricom into a single-member limited liability company owned by Finance, after
which the debt securities will become solely the obligation of a holding
company.
THE SECURITIES WE MAY OFFER
Metricom may offer shares of its common stock, and Metricom and Finance
may offer various series of debt securities, with a total value of up to $1.2
billion, from time to time, under this prospectus at prices and on terms to be
determined by market conditions at the time of offering. This prospectus
provides you with a general description of the securities we may offer. Each
time we offer a type or series of securities, we will provide a prospectus
supplement that will describe the specific amounts, prices and other important
terms of the securities, including, to the extent applicable:
- designation or classification;
- aggregate principal amount or aggregate offering price;
- maturity, if applicable;
- rates and times of payment of interest or dividends, if any;
- redemption, conversion or sinking fund terms, if any;
- voting or other rights, if any;
- conversion prices, if any; and
- important federal income tax considerations.
3
<PAGE> 5
The prospectus supplement may also add, update or change information
contained in this prospectus or in documents we have incorporated by reference.
THIS PROSPECTUS MAY NOT BE USED TO COMPLETE ANY SALE OF SECURITIES UNLESS IT IS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We may sell the securities directly to or through agents, underwriters or
dealers. We, and our agents or underwriters, reserve the right to accept or
reject all or part of any proposed purchase of securities. If we do offer
securities through agents or underwriters, we will include in the applicable
prospectus supplement:
- the names of those agents or underwriters;
- applicable fees, discounts and commissions, to be paid to them; and
- the net proceeds to us.
Common Stock. Metricom may issue its common stock from time to time.
Holders of common stock are entitled to one vote per share on all matters
submitted to a vote of stockholders, except those matters that are submitted
solely to a vote of the holders of preferred stock. Subject to any preferences
of outstanding shares of preferred stock, holders of common stock are entitled
to dividends when and if declared by the board of directors.
Debt Securities. We may offer debt securities from time to time, in one or
more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. The senior debt securities will rank equally with all of our
other unsecured and unsubordinated debt. The subordinated debt securities will
be subordinate and junior in right of payment, to the extent and in the manner
described in the instrument governing that debt, to all of our senior
indebtedness. Convertible debt securities will be convertible into Metricom's
common stock. Conversion may be mandatory or at your option and would be at
prescribed conversion rates.
The debt securities will be issued under indentures between us and Bank
One Trust Company, N.A., referred to as Bank One, as trustee. In this
prospectus, we have summarized certain general features of the debt securities.
We urge you, however, to read the prospectus supplements related to the series
of debt securities being offered, as well as the complete indentures, which
contain the terms of the debt securities. The indentures have been filed as
exhibits to the registration statement of which this prospectus is a part.
Guarantees. Metricom will fully and unconditionally guarantee the
obligations of Finance under the debt securities. Each guarantee with respect to
senior debt securities will constitute part of Metricom's senior debt. Each
guarantee with respect to subordinated debt securities will be subordinated to
Metricom's senior indebtedness on the same basis as the applicable security.
Upon the completion of a holding company reorganization, that guarantee
automatically, and without further notice to or action by the holders of the
debt securities, will be released entirely and will cease to be of any force and
effect. After that time, all references in the indenture and any supplemental
indentures to an obligor of the debt securities will refer only to the holding
company.
4
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RISK FACTORS
The prospectus supplement applicable to each type or series of securities
we offer will contain a discussion of risks applicable to an investment in
Metricom and/or Finance and to the particular types of securities that we are
offering under that supplement. Prior to making a decision about investing in
our securities, you should carefully consider the specific factors discussed
under the caption "Risk Factors" in the applicable prospectus supplement,
together with all of the other information contained in the prospectus
supplement or appearing or incorporated by reference in the registration
statement of which this prospectus is a part.
FORWARD-LOOKING INFORMATION
This prospectus contains forward-looking statements, within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934, that are based on the current expectations that we have
about Metricom and its industry. Words such as "expect," "anticipate,"
"estimate," "believe," "intend," "plan" and other similar expressions are used
to identify some forward-looking statements, but not all forward-looking
statements include these words. Some of these forward-looking statements relate
to commercial acceptance of Metricom's service and the holding company
reorganization. All forward-looking statements involve risks and uncertainties.
Metricom's actual results may differ significantly from our expectations and
from the results expressed in or implied by these forward-looking statements.
The section captioned "Risk Factors" that appears in Metricom's annual report on
Form 10-K, as amended, for the year ended December 31, 1998 and Metricom's
current report on Form 8-K filed with the SEC on July 9, 1999, as well as the
section captioned "Risk Factors" that will appear in prospectus supplements
accompanying this prospectus describe some, but not necessarily all, of the
factors that could cause these differences. We urge you to read those sections
carefully. Except as may be required by law, we undertake no obligation to
publicly update any forward-looking statements for any reason, even if new
information becomes available or other events occur in the future.
DEFICIENCY OF EARNINGS TO FIXED CHARGES
Metricom's earnings were insufficient to cover fixed charges during each
of the periods described below. For the purpose of these calculations,
"earnings" consist of income before taxes, plus fixed charges, and "fixed
charges" consist of interest expense incurred and the portion of rental expense
deemed by Metricom to be representative of the interest factor of rental
payments under leases.
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NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 30,
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1994 1995 1996 1997 1998 1998 1999
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(DOLLARS IN MILLIONS) (UNAUDITED)
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Deficiency of earnings to fixed charges..... $11.7 $23.5 $39.3 $59.3 $84.2 $45.9 $48.2
</TABLE>
USE OF PROCEEDS
Unless otherwise described in a prospectus supplement, we will use the net
proceeds from the offering of the securities for deployment and
commercialization of Metricom's network and for other general corporate
purposes, principally working capital, funding operating losses and capital
expenditures and operating expenses related to Metricom. When we offer a
particular type or series of securities, the prospectus supplement relating to
those securities will describe our intended use of the net proceeds we will
receive from the sale of those securities. Unless otherwise described in a
prospectus supplement, pending application for specific purposes, the net
proceeds of any offering of securities may be invested in short-term investments
and marketable securities.
5
<PAGE> 7
DESCRIPTION OF DEBT SECURITIES
We may offer the debt securities from time to time as either senior or
subordinated debt or as senior or subordinated convertible debt. We will issue
senior debt securities under an indenture between us, as joint and several
obligors, and Bank One, as trustee. We will issue subordinated debt securities
under another indenture between us, as joint and several obligors, and Bank One,
as trustee. The terms of the indentures are also governed by the provisions of
the Trust Indenture Act. The following is a summary of the material provisions
of the debt securities; however, we urge you to review the senior debt
indentures and the subordinated debt indenture, which are filed as exhibits to
the registration statement of which this prospectus is a part. See "Where You
Can Find More Information." Unless the context requires otherwise, whenever we
refer to the indentures, we also are referring to any supplemental indentures
that specify the terms of a particular series of debt securities. In this
description, the phrases "we," "our" and similar terms refer only to Metricom
and Finance as co-obligors and not to any future subsidiaries that Metricom,
Inc. may create or acquire.
GENERAL
The indentures allow us to issue debt securities in series up to the
aggregate amount we authorize from time to time for each series. We will
describe the following terms of the debt securities, to the extent those terms
are applicable, and other information that we consider relevant relating to a
particular series of debt securities in a prospectus supplement:
- the designation and title of the debt securities;
- the classification of those securities as senior or subordinated debt
securities;
- the aggregate principal amount, or principal amount at maturity, as
applicable, of the debt securities;
- the percentage of the principal amount, or principal amount at maturity,
as applicable, at which we will issue and sell the debt securities;
- the date or dates on which the debt securities will mature;
- the rate or rates per annum, if any, which may be fixed or variable, at
which the debt securities will bear or accrete interest, or the method
of determination of the interest rate or rates;
- the times and places at which the interest, if any, will be payable;
- provisions for sinking, purchase or other analogous funds, if any;
- the date or dates or particular events, if any, after which we may, or
must, redeem the debt securities, as well as the redemption price or
prices;
- the date or dates or particular events, if any, after which we must
offer to repurchase the debt securities from their holders, as well as
the repurchase price or prices;
- the date or the dates, if any, after which the holders may convert the
debt securities into shares of our common stock and the terms for that
conversion; and
- any other material terms of, including any covenants or defined terms
applicable to, the debt securities.
We will pay the principal, premium, if any, and interest, if any, on debt
securities by wire transfer of immediately available funds to the holder of any
debt securities held in global form and at the office of the trustee maintained
for that purpose with respect to any certificated notes. With respect to
certificated debt securities, we may pay interest, if any, at our option by
check mailed to the address of the person entitled to payment as it appears in
our security register or by wire transfer of immediately available funds in
accordance with instructions provided by the registered holders of certificated
debt securities. Debt securities will be transferable at the office of the
trustee maintained for that purpose.
6
<PAGE> 8
We may issue debt securities in registered form and, unless otherwise
specified in the applicable prospectus supplement, only in denominations of
$1,000 and integral multiples of $1,000. We may also issue debt securities in
book-entry form, without certificates. We will describe the procedures relating
to an issue of book-entry debt securities in the prospectus supplement relating
to those debt securities. We will not require a service charge for any transfer
or exchange of the debt securities, but we or the trustee may require payment of
a sum sufficient to cover any transfer tax or other similar government charge
payable in connection with a transfer or exchange.
We may issue debt securities under the indentures at a substantial
discount from their stated principal amount at maturity. We will describe any
United States federal income tax consequences and other considerations
applicable to debt securities issued with "original issue discount" in the
prospectus supplement relating to those debt securities.
METRICOM FINANCE, INC.
Finance is a wholly owned subsidiary of Metricom, newly formed for the
purpose of allowing Metricom to consummate a holding company reorganization.
Although, at the time the notes are issued, there will not be any debt senior in
right of payment to the notes, given our growth plans, we believe it is possible
that we may desire to incur senior indebtedness and that the senior lender may
desire that the notes be both contractually and structurally subordinated to the
senior indebtedness. In anticipation of that possibility, the notes expressly
provide that, subject to specified constraints designed to assure no materially
adverse tax consequences to either the holders of the notes or to the obligors
under the notes, we can reorganize our assets and liabilities to accommodate
this type of senior indebtedness.
A holding company reorganization is a transaction after which, all or
substantially all our assets and operations will be owned and operated by a
subsidiary corporation or limited liability company wholly owned by a holding
company, and the holding corporation will remain as the sole obligor in respect
of the notes. We currently expect that this type of reorganization of our
operations may be effected either as a result of the transfer of all or
substantially all of our assets to Finance, the merger of a wholly owned
subsidiary of Finance with Metricom, or a merger of Metricom into a
single-member limited liability company owned by Finance, after which the debt
securities will become solely the obligation of a holding company. That holding
company will have no material assets other than the capital stock of its
subsidiaries. If Metricom completes a holding company reorganization, the debt
securities will be effectively junior to all of the liabilities, including
credit facilities, other indebtedness and trade payables that the holding
company's subsidiaries may incur, all of which subsidiary debt also could be
secured by liens. Metricom does not currently intend to undertake a holding
company reorganization; however, because of Metricom's ambitious growth plans
and in order to preserve its flexibility to create a corporate structure that
may facilitate its ability to raise additional capital in the future, Metricom
anticipates the possibility of a change in that current plan and has structured
the debt securities to allow it to reorganize if it chooses to do so.
Prior to completing a holding company reorganization, Finance will not
have any operations or any material assets and will not have any revenues. As a
result, prospective investors should not expect Finance to contribute to the
amounts required to be paid on the debt securities. Moreover, Metricom has fully
and unconditionally guaranteed the obligations of Finance with respect to the
debt securities solely for the purpose of enabling Metricom and Finance to
register the debt securities, as co-obligors, on the registration statement of
which this prospectus is a part. Upon the completion of a holding company
reorganization, the notes will, by their terms, be the obligation solely of a
holding company, meaning a company the only asset of which is the stock or an
ownership interest in either a corporate subsidiary (or subsidiaries) or a
limited liability company, and the guarantee automatically, and without further
notice to or action by the holders of the debt securities, will be released
entirely and will cease to be of any force and effect. After that time, all
references in the indenture and any supplemental indentures to an obligor of the
debt securities will refer to the holding company.
7
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LIMITATIONS ON ACTIVITIES OF FINANCE
Prior to the consummation of a holding company reorganization, neither
Finance nor any wholly owned subsidiary of Finance formed solely for the purpose
of consummating the holding company reorganization will:
- hold any material assets;
- consolidate or merge with or into any other entity or person, other than
in connection with the holding company reorganization;
- become liable or pay for any indebtedness or other obligations;
provided, however, that Finance may:
- become liable for or pay for its obligations under the indenture, the
supplemental indentures and the debt securities;
- become liable for or pay for any judgments;
- be a co-obligor with respect to indebtedness if Metricom is also an
obligor of that indebtedness and the net proceeds of that indebtedness
are received by Metricom or one or more of its restricted subsidiaries
other than Finance; or
- engage in any business activities other than incident to maintaining its
corporate existence or consummating a holding company reorganization.
Upon consummation of the holding company reorganization, the obligation of
Finance with respect to the debt securities will automatically be extinguished
and only Metricom will continue as the sole obligor on the debt securities, if
the holding company reorganization is completed by Metricom's contribution of
its assets to Finance. Metricom's obligation with respect to the debt securities
will automatically be extinguished and only Finance will continue as the sole
obligor on the debt securities, if the holding company reorganization is
completed by a merger of a subsidiary of Finance with Metricom. In connection
with the completion of a holding company reorganization, the trustee shall, at
the request of either obligor, enter into a supplemental indenture to evidence
the release of Metricom or Finance, as the case may be, from its obligations on
the debt securities and to evidence the release of Metricom's guarantee of the
obligations of Finance with respect to the debt securities.
CONVERSION RIGHTS
The prospectus supplement will describe, if applicable, the terms on which
the holders may convert debt securities into common stock. The conversion may be
mandatory or may be at the option of the holder of debt securities. The
prospectus supplement will describe how the number of shares of common stock to
be received upon conversion would be calculated.
MERGER, CONSOLIDATION AND SALE OF ASSETS
Unless we provide otherwise in the prospectus supplement relating to a
particular series of debt securities, the indentures will not permit us to
consolidate with or merge into any other person or sell, convey, transfer or
lease all or substantially all of our properties and assets as an entirety to
any person, unless:
- the person formed by the consolidation or into which we are merged, or
the person that acquires our properties and assets by sale, conveyance
or transfer or which leases our properties and assets substantially as
an entirety:
- is a corporation, validly existing under the laws of the United States
of America, any state of the United States, or the District of
Columbia, and
- expressly assumes, by a supplemental indenture, executed and delivered
to the trustee, in form reasonably satisfactory to the trustee, our
obligations for the due and punctual payment of the principal of,
premium, if any, and interest on all the debt securities and the
performance and observance of every covenant of the indentures;
8
<PAGE> 10
- immediately after giving effect to the transaction, no default or event
of default shall have occurred and be continuing with respect to the
applicable debt securities; and
- the person formed by the consolidation or surviving the merger or
acquiring or leasing our properties and assets delivers an officers'
certificate and an opinion of counsel to the trustee, each stating that
the consolidation, merger, conveyance, transfer or lease and the
supplemental indenture comply with these provisions of the indentures
and that all conditions precedent provided for under the indentures that
relate to the transaction have been satisfied.
These provisions apply only to a merger or consolidation in which we are
not the surviving corporation and to sales, conveyances, leases and transfers by
us as transferor or lessor. We use the term "person" to mean any individual,
corporation, partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision of a government entity.
The indentures also provide that, upon completion of any of the
transactions described above in accordance with the preceding paragraphs, the
person formed by the consolidation or surviving the merger or acquiring or
leasing our properties and assets will be substituted for us and will succeed
to, and may exercise, all of our rights and powers under the indentures with the
same effect as if that person had been named as the obligor under the
indentures. Also, upon completion of any of these transactions, except in the
case of a lease, we will be discharged from all our obligations and covenants
under the indentures and the debt securities.
Notwithstanding the foregoing provisions, nothing in this "Merger,
Consolidation or Sale of Assets" covenant will prohibit us from completing the
holding company reorganization, provided that the completion of that transaction
is solely for the purpose of effecting the holding company reorganization and
not for the purpose of circumventing any other provision of the indenture or any
supplemental indentures.
EVENTS OF DEFAULT
Unless we provide otherwise in the prospectus supplement relating to a
particular series of debt securities, the following will be events of default
under the indentures:
(1) default in the payment of interest on any debt securities when
the interest becomes due and payable, if the default continues for 30
days; or
(2) default in the payment of the principal of, or premium, if any,
on, any debt securities of that series at its maturity or upon any
redemption; or
(3) default in the deposit of any sinking fund payment when and as
due pursuant to the terms of the debt securities of that series and the
indentures and such default shall continue for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty in the indentures, other than a default in the performance, or
breach, of a covenant or warranty that is specifically dealt with
elsewhere under this "events of default" section, if the default or breach
continues for 60 days after the trustee or the holders of at least 25% in
principal amount, or principal amount at maturity, as applicable, deliver
a written "notice of default" to us specifying the default or breach and
requiring it to be remedied; or
(5) the entry of a decree or order by a court with appropriate
jurisdiction adjudging us bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition with regard to us under the Federal Bankruptcy Code or any
other applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator, or other similar official
with regard to us or any substantial part of our property, or ordering the
winding up or liquidation of our affairs, if such a decree or order
continues unstayed and in effect for a period of 60 consecutive days; or
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(6) our institution of proceedings to be adjudicated bankrupt or
insolvent, or our consent to the institution of bankruptcy or insolvency
proceedings against us, or our filing of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy Code or any
other applicable federal or state law, or our consent, to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator, or other similar official regarding us or
of any substantial part of our property, or our making of an assignment
for the benefit of creditors; or
(7) any other event of default provided with respect to debt
securities of that series.
In each case, "default" means any event which is, or after notice or
passage of time or both would be, an event of default.
Unless we provide otherwise in the prospectus supplement relating to a
particular series of debt securities, if an event of default described in clause
(1), (2), (3), (4) or (7) above occurs and is continuing, then in every case the
trustee or the holders of not less than 25% in principal amount, or principal
amount at maturity, as applicable, of the outstanding debt securities of that
series may declare the principal amount or, if the debt securities of that
series are original issue discount securities, the portion of the principal
amount as may be specified in the terms of that series, of all of the debt
securities of that series to be due and payable immediately, by a notice in
writing to us, and to the trustee if given by holders, and upon any declaration
the principal amount or specified portion of the principal amount will become
immediately due and payable. If an event of default described in clause (5) or
(6) above occurs and is continuing, then the principal amount of all the debt
securities will automatically be immediately due and payable without any
declaration or other act on the part of the trustee or any holder of those debt
securities.
At any time after a declaration of acceleration with respect to debt
securities of any series or all series, as applicable, has been made, the
holders of a majority in principal amount, or principal at maturity, as
applicable, of the outstanding debt securities of that series, or of all series,
as the case may be, by written notice to us and the trustee, may rescind and
annul the declaration and its consequences if the rescission would not conflict
with any judgment or decree and if all existing events of default have been
cured or waived except nonpayment of principal or interest that has become due
solely because of acceleration. Such a rescission will not affect any subsequent
default or impair any right consequent to a subsequent rescission.
Except as otherwise provided in each indenture, or any supplement thereto,
the holders of not less than a majority in principal amount, or principal amount
at maturity, as applicable, of the outstanding debt securities of any series
may, on behalf of the holders of all the debt securities of such series, waive
any past default, described in clause (1), (2), (3), (4) or (7) of the first
paragraph of this section, or, in the case of a default described in clause (5)
or (6) of the first paragraph of this section, the holders of not less than a
majority in principal amount, or principal amount at maturity, as applicable, of
all outstanding debt securities may waive any such past default, and its
consequences, except a default:
- respect of the payment of the principal of, or premium, if any, on, or
interest on any debt security, or
- in respect of a covenant or provision which under the indentures cannot
be modified or amended without the consent of the holders of all or more
than a majority in principal amount, or principal amount at maturity, as
applicable, of the outstanding debt security of the affected series.
A default will cease to exist upon a waiver and any event of default
arising from that default will be deemed to have been cured for every purpose of
the indentures, but the waiver will not extend to any subsequent or other
default or event of default.
Except to enforce the right to receive payment of principal, premium, if
any, or interest on any debt security, no holder of any debt security of any
series will have any right to institute any proceeding, judicial or otherwise,
with respect to the indentures, or for the appointment of a receiver or trustee,
or for any other remedy thereunder, unless:
- that holder has previously given written notice to the trustee of a
continuing event of default with respect to the debt securities of that
series;
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- the holders of not less than 25% in principal amount, or principal
amount at maturity, as applicable, of the outstanding debt securities of
that series in the case of any event of default under clause (1), (2),
(3), (4) or (7) of the first paragraph of this section, or, in the case
of any event of default described in clause (5) or (6) of the first
paragraph of this section, the holders of not less than 25% in principal
amount, or principal amount at maturity, as applicable, of all
outstanding debt securities delivers a written request to the trustee to
institute proceedings in respect of the event of default in its own name
as trustee under each of the indentures;
- that holder or holders offer the trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance with
the request to institute proceedings;
- the trustee fails to institute a proceeding for 60 days after receiving
the notice, request and offer of indemnity; and
- no direction inconsistent with such written request has been given to
the trustee during such 60-day period by the holders of at least a
majority in principal amount, or principal amount at maturity, as
applicable, of the outstanding debt securities of that series in the
case of any default under clause (1), (2), (3), (4) or (7) of the first
paragraph of this section, or, in the case of any event of default
described in clause (5) or (6) of the first paragraph of this section,
by the holders of at least a majority in principal amount, or principal
amount at maturity, as applicable, of all outstanding debt securities.
During the existence of an event of default, the trustee must exercise the
rights and powers vested in it under either indenture in good faith. Subject to
the provisions of the indentures relating to the duties of the trustee, in case
an event of default occurs and is continuing, the trustee under the indentures
is not under any obligation to exercise any of its rights or powers under the
indentures at the request or direction of any of the holders unless these
holders offer the trustee reasonable indemnity. Subject to provisions of the
indentures concerning the rights of the trustee, with respect to the debt
securities of any series, the holders of not less than a majority in principal
amount, or principal amount at maturity, as applicable, of the outstanding debt
securities of that series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee, or
exercising any trust or power conferred on the trustee under the indentures.
Within 90 days after the occurrence of any default with respect to debt
securities of any series, the trustee will transmit notice of any default known
to it to the holders of the affected debt securities in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, unless the default
is cured or waived; however, except in the case of a default in the payment of
the principal of, or premium, if any, on, or interest on any debt securities of
that series, or in the payment of any sinking fund installment with respect to
debt securities of that series, the trustee will be protected in withholding
that notice if and so long as the trustee in good faith determines that the
withholding of that notice is in the interest of the holders of debt securities
of that series.
We are required to deliver a brief certificate of our compliance with all
of the conditions and covenants under the indentures to the trustee within 120
days after the end of each fiscal year.
DEFEASANCE OR COVENANT DEFEASANCE
We may, at our option and at any time, terminate our obligations with
respect to the outstanding debt securities of any series, referred to as
"defeasance." Defeasance means that we will be deemed to have paid and
discharged the entire indebtedness represented by the outstanding debt
securities, except for the following provisions, which will survive until
otherwise terminated or discharged under the indentures:
- the rights of holders of the outstanding debt securities
- to receive, solely from the trust fund described in the indentures,
payments in respect of the principal of, and premium, if any, on, and
interest on those debt securities when those payments are due, and
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- to receive shares of common stock or other securities from us upon
conversion of any convertible debt securities issued thereunder;
- our obligations to issue temporary debt securities, register the
transfer or exchange of any debt securities, replace mutilated,
destroyed, lost or stolen debt securities, maintain an office or agency
for payments in respect of the debt securities and, if we act as our own
paying agent, hold in trust, money to be paid to the persons entitled to
payment, and with respect to "additional amounts," if any, on those debt
securities as contemplated in the indentures;
- the rights, powers, trusts, duties and immunities of the trustee under
the indentures; and
- the defeasance provisions of the indentures.
In addition, we may, at our option and at any time, elect to terminate our
obligations with respect to selected covenants that are set forth in the
indentures and any omission to comply with those obligations will not constitute
a default or an event of default with respect to the debt securities, referred
to as "covenant defeasance."
In order to exercise either defeasance or covenant defeasance:
- we must irrevocably deposit or cause to be deposited with the trustee,
in trust, for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
holders of the applicable debt securities,
- money, or
- Government Obligations that mature not later than one day before the
due date of any payment of principal, premium, if any, and interest,
under the applicable debt securities, or
- a combination of money and Government Obligations as described
immediately above,
- the money or Government Obligations, or both, must in any case, be
sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay and discharge
- the principal of, and any premium and all installments of interest on,
the outstanding debt securities on the stated maturity date (or any
redemption date that we select, if applicable), and
- any mandatory sinking fund payments or analogous payments applicable
to the outstanding debt securities on the day on which those payments
are due and payable; however, we must deliver to the trustee
irrevocable instructions to apply the money or the proceeds of the
Government Obligations to the payments required to be made with
respect to those debt securities;
- the defeasance or covenant defeasance of the debt securities will not
result in a breach or violation of, or constitute a default under, the
indentures or any other material agreement or instrument to which we
are a party or by which we are bound;
- we must effect the defeasance or covenant defeasance of the debt
securities in compliance with any additional or substitute terms,
conditions or limitations set forth in the prospectus supplement
relating to a particular series of debt securities; and
- we must deliver an officers' certificate and an opinion of counsel to
the trustee, each stating that all conditions precedent under the
indentures to either defeasance or covenant defeasance, as the case
may be, have been satisfied.
"Government Obligations" means direct obligations, or certificates
representing an ownership interest in such obligations, of the United States,
including any agency or instrumentality of the United States, for the payment of
which the full faith and credit of the United States is pledged and which are
not callable or redeemable at the issuer's option.
Before we make a deposit to effect a defeasance or covenant defeasance of
the debt securities, we may give to the trustee, in accordance with the
redemption provisions in the indentures, a notice of our election to
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redeem all or any portion of the outstanding debt securities at a future date in
accordance with the terms of the debt securities of that series and the
redemption provisions of the indentures, which notice must be irrevocable. If we
deliver such an irrevocable redemption notice, it will be given effect in
applying the foregoing.
With respect to subordinated debt securities, money and securities held in
trust pursuant to the defeasance and covenant defeasance provisions of the
indentures, will not be subject to the subordination provisions of the
subordinated indenture.
SATISFACTION AND DISCHARGE
The indentures will, upon a written request or order signed by one of our
designated officers and delivered to the trustee, cease to be of further effect
with respect to any series of debt securities, except as to any surviving rights
of registration of transfer or exchange or conversion of debt securities of that
series expressly provided for, and the trustee will be required to execute
proper instruments acknowledging satisfaction and discharge of such indenture as
to that series when either:
- we have delivered to the trustee for cancellation all debt securities of
that series previously authenticated and delivered, other than:
- debt securities that have been destroyed, lost or stolen and which
have been replaced or paid, as provided in the indentures, and
- debt securities for which money sufficient to make all payment on the
debt securities has previously been deposited in trust with the
trustee or any paying agent or segregated and held in trust by us with
any remaining amounts to thereafter be repaid to us, as provided in
the indentures, or
- all debt securities, other than convertible debt securities, of the
series:
- have become due and payable, or
- will become due and payable at their stated maturity within one year,
or
- if redeemable at our option, are to be called for redemption within
one year under arrangements reasonably satisfactory to the trustee for
the giving of notice of redemption by the trustee in the name, and at
our expense; and
we irrevocably deposit or cause to be deposited with the trustee as
trust funds in trust an amount of money or Government Obligations
sufficient to pay and discharge the entire indebtedness on those debt
securities not previously delivered to the trustee for cancellation,
including all principal of and any premium and installments of interest
to the date of such deposit in the case of debt securities which have
become due and payable or to the stated maturity or redemption date of
the debt securities, as applicable.
In addition, in order to satisfy and discharge the securities, we will be
required to:
- pay or cause to be paid all other sums payable under the debt securities
by us; and
- deliver an officers' certificate and an opinion of counsel to the
trustee, each stating that all conditions precedent provided for
relating to the satisfaction and discharge of the indentures as to such
series have been satisfied.
AMENDMENTS AND WAIVERS
Under the indentures, we and the trustee may at any time and from time to
time, without the consent of any holder of debt securities, enter into one or
more supplemental indentures to:
- cure ambiguities, defects or inconsistencies, or to make any other
provisions with respect to questions or matters arising under the
indentures;
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- effect or maintain the qualification of the indentures under the Trust
Indenture Act;
- secure any debt securities;
- add covenants for the protection of the holders of debt securities;
- establish the forms or terms of debt securities of any series;
- make any other change that does not adversely affect in any material
respect the rights under such indenture of the holders of debt
securities thereunder;
- add a guarantee of our payment obligations under the indentures by a
subsidiary or other party;
- evidence the acceptance of appointment by a successor trustee;
- evidence the succession of another person to us and the assumption by
any such successor of our obligations in accordance with the indentures
and the debt securities; and
- evidence the release of any obligations of a co-obligor or guarantor in
connection with the holding company reorganization.
Other amendments and modifications of the indentures or the debt securities may
be made by us and the trustee with the consent of the holders of not less than a
majority of the aggregate principal amount, or principal amount at maturity, as
applicable, of all of the then outstanding debt securities of the affected
series; however, no such modification or amendment may, without the consent of
the holder of each outstanding debt security affected thereby,
- change the stated maturity of the principal of, or any installment of
interest on, any debt security;
- reduce the principal amount or the rate of interest or any premium
payable upon the redemption of any debt security;
- change any obligation of us to pay any "additional amounts" contemplated
by each indenture (except as contemplated and permitted by certain
provisions of the indentures);
- reduce the accreted amount of an original issue discount security that
would be due and payable upon a declaration of acceleration of the
maturity of the debt securities under the indentures or the amount of
the debt securities provable in bankruptcy pursuant to the indentures;
- adversely affect, after the event giving rise to any right of repayment
occurs, any right of repayment at the option of any holder of any debt
security, or change any place of payment described in the indentures
where any debt security or any premium or the interest thereon is
payable;
- impair the right to institute suit for the enforcement of any payment on
or after the stated maturity of the debt securities, or, in the case of
redemption or repayment of the debt securities, on or after the
redemption date or repayment date, as applicable;
- adversely affect any right to convert any debt securities as may be
provided under the indentures; or
- reduce the percentage in principal amount, or principal amount at
maturity, as applicable, of the outstanding debt securities of any
series, the consent of whose holders is required for any such
supplemental indenture, for any waiver of compliance with provisions of
the indentures or defaults thereunder and their consequences provided
for in the indentures.
SENIOR DEBT
The debt securities that will be senior debt securities will be issued
under the senior debt indenture and will rank on an equal basis with all of our
other unsecured and unsubordinated debt.
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SUBORDINATED DEBT
The debt securities that will be subordinated debt securities will be
issued under the subordinated debt indenture and will be subordinate and junior
in right of payment, to the extent and in the manner set forth in the
subordinated debt indenture, to all of our "Senior Indebtedness." Unless we
provide otherwise in the prospectus supplement relating to a particular series
of debt securities, the subordinated debt indenture will define "Senior
Indebtedness" as obligations, or obligations guaranteed or assumed by us, for
borrowed money or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions, modifications and refundings
of any such indebtedness or obligations, other than nonrecourse obligations, the
subordinated debt securities or any other obligations specifically designated as
not constituting, or as being subordinate in right of payment to, Senior
Indebtedness.
In the event:
- of any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings in respect of
us or a substantial part of our property, or
- that a default occurs with respect to the payment of principal of, and
any premium or interest on, or other monetary amounts due and payable on
any Senior Indebtedness or
- that there occurs an event of default, other than a default in the
payment of principal, and any premium or interest, or other monetary
amounts due and payable, with respect to any Senior Indebtedness,
permitting the holder or holders of that Senior Indebtedness to
accelerate the maturity of that Senior Indebtedness, with notice or
lapse of time, or both, and such event of default continues beyond the
period of grace, if any, in respect of that default or event of default,
and the default or event of default is not cured or waived or ceases to
exist, or
- that the principal of and accrued interest on, or the accreted amount
of, the subordinated debt securities is declared due and payable as a
result of an event of default of the subordinated debt indenture and
that declaration is not rescinded and annulled as provided under the
subordinated debt indenture,
then the holders of all Senior Indebtedness will be entitled to receive
payment, in cash or cash equivalents, of the full amount unpaid on that
Senior Indebtedness first, or provision will be made for that payment in
money or money's worth, before the holders of any of the subordinated debt
securities are entitled to receive a payment on account of the principal
of, and any premium or interest on, the indebtedness evidenced by such
subordinated debt securities.
If this prospectus is being delivered in connection with a series of
subordinated debt securities, the accompanying prospectus supplement or the
information incorporated by reference will set forth the approximate amount of
Senior Indebtedness outstanding as of the end of the most recent fiscal quarter.
Moreover, that prospectus supplement will contain more specifically the
subordination provisions applicable to the particular series of subordinated
debt securities being offered.
GUARANTEES
The obligations of Finance under the debt securities will be fully and
unconditionally guaranteed by Metricom. Each guarantee of Finance's obligations
under senior debt securities will constitute part of the senior debt of the
Metricom and will rank pari passu with all other unsecured and unsubordinated
debt of Metricom. Each guarantee with respect to subordinated debt securities
will be subordinated to Metricom's senior indebtedness on the same basis as
provided above with respect to the subordination of the relevant subordinated
debt securities to senior indebtedness of Finance. Upon completion of a holding
company reorganization, the guarantee automatically, and without further notice
to or action by the holders of the debt securities, will be released entirely
and will cease to be of any force and effect.
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GOVERNING LAW
The indentures and the debt securities will be governed by and construed
in accordance with the laws of the State of New York. The indentures are subject
to the provisions of the Trust Indenture Act that are required to be a part
thereof and will, to the extent applicable, be governed by such provisions.
DESCRIPTION OF CAPITAL STOCK
GENERAL
Metricom has authorized capital stock of 150 million shares of common
stock, $0.001 par value per share, and 80 million shares of preferred stock,
$0.001 par value per share. As of October 29, 1999, there were 21,982,627 shares
of Metricom's common stock and 60 million shares of its preferred stock
outstanding.
Finance has authorized capital stock of 1,000 shares of common stock,
$0.001 par value. As of December 22, 1999, 1,000 shares were issued, outstanding
and held of record by Metricom.
Metricom's Restated Bylaws divide its board of directors into three
classes as nearly equal in size as possible with staggered three-year terms.
Finance's board of directors will be divided into three classes upon the
effectiveness of the registration statement, if any, covering a class of equity
securities under the Securities Exchange Act of 1934, as amended. The
classification of the board of directors could delay or deter a third party from
acquiring control of Metricom or Finance.
Each of Metricom and Finance are currently subject to the provisions of
Section 203 of the Delaware General Corporation Law regulating corporate
takeovers. Section 203 prevents certain Delaware corporations, including those
whose securities are listed on the Nasdaq National Market, from engaging, under
certain circumstances, in a "business combination," which includes a merger or
sale of more than 10% of the corporation's assets, with any interested
stockholder for three years following the date that the stockholder became an
interested stockholder. An interested stockholder is a stockholder who acquired
15% or more of the corporation's outstanding voting stock without the prior
approval of the corporation's board of directors. At Metricom's annual meeting
of stockholders held on October 15, 1999, its stockholders elected not to be
governed by Section 203. The election will become effective 12 months after
adoption of the election. Finance's stockholder has made the same election,
which election is currently effective.
The following summaries of certain provisions of our common stock and
preferred stock do not purport to be complete and are subject to, and are
qualified in their entirely, by the provisions of Metricom's Certificate of
Incorporation Restated and Amended and Restated Bylaws and Finance's Certificate
of Incorporation, as amended, and Bylaws, which are incorporated by reference
into the registration statement of which this prospectus is a part.
COMMON STOCK
Subject to preferences that may apply to shares of preferred stock
outstanding at the time, the holders of outstanding shares of common stock are
entitled to receive dividends out of assets legally available for the payment of
dividends at the times and in the amounts that the board of directors may
determine from time to time. Except, with regard to Metricom, as discussed below
under the caption "Preferred Stock," each stockholder is entitled to one vote
for each share of common stock held on all matters submitted to a vote of
stockholders. Cumulative voting for the election of directors is not provided
for in Metricom's restated certificate or Finance's certificate, which means
that the holders of a majority of the shares voted can elect all of the
directors then standing for election (other than directors to be elected solely
by the holders of the series of preferred stock). The common stock is not
entitled to preemptive rights and is not subject to conversion or redemption.
Upon a liquidation, dissolution or winding-up, the assets legally available for
distribution to stockholders are distributable ratably among the holders of the
common stock and any participating preferred stock outstanding at that time
after payment of liquidation preferences, if any, on any outstanding preferred
stock and payment of other claims of creditors. Each outstanding share of common
stock is, and all shares of common stock to be outstanding upon completion of
this offering will be validly issued, fully paid and nonassessable.
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The transfer agent and registrar for Metricom's common stock is Boston
Equiserve.
PREFERRED STOCK
Metricom's Restated Certificate authorizes 80 million shares of preferred
stock, of which 36 million shares are designated Series A1 preferred stock, 36
million shares are designated Series A2 preferred stock and 8 million shares are
not currently designated. The material terms of the Series A1 and Series A2
preferred stock are summarized below. Metricom's board of directors has the
authority to issue the remaining undesignated shares of preferred stock in
additional series and to fix the rights, preferences, privileges and
restrictions of any new series, including dividend rights, dividend rates,
conversion rights, voting rights, terms of redemption, redemption prices,
liquidation preferences and the number of shares constituting any series or the
designation of such series, without further vote or action by our stockholders,
subject to rights of the holders of outstanding preferred stock. The preferred
stock may have the effect of delaying, deferring or preventing a change in our
control without further action by Metricom's stockholders and may adversely
affect the voting and other rights of the holders of Metricom's common stock,
including the loss of voting control of others. Finance's certificate of
incorporation does not currently authorize preferred stock.
SERIES A1 AND A2 PREFERRED STOCK OF METRICOM
Dividends. The holders of shares of each of the Series A1 preferred and
Series A2 preferred have the right to receive cumulative dividends payable, at
our option, in cash or additional shares of Series A1 preferred or Series A2
preferred, as the case may be, at the annual rate of 6.5% of the original issue
price of $10 per share, until November 15, 2002 after which date the right to
such cumulative dividends shall terminate, and holders of shares of each of the
Series A1 and Series A2 preferred stock shall be entitled to dividends only
when, as and if declared by the Board of Directors. Cumulative dividends payable
to the holders of Series A1 preferred stock will be prior and in preference to
any dividends payable to the holders of common stock and Series A2 preferred
stock. Cumulative dividends payable to the holders of Series A2 preferred stock
will be prior and in preference to the dividends payable to the holders of
common stock.
Voting Rights. For so long as more than 7.5 million shares of each of the
Series A1 preferred and Series A2 preferred are outstanding, the affirmative
vote of the holders of at least a majority of the outstanding shares of each of
the Series A1 and Series A2 preferred will be required to:
- amend any provision of our restated certificate that changes the rights
and preferences of that series so as to adversely affect the rights of
the Series A1 preferred or Series A2 preferred, as the case may be, in a
manner different from other classes or series of stock;
- issue any new class or series of stock ranking senior in liquidation
preference or dividends to the Series A1 preferred or Series A2
preferred, as the case may be;
- issue any debt securities convertible into Metricom's equity securities
at a price lower than $10 per share, subject to adjustment for any stock
dividend, split, combination or other similar event;
- redeem or repurchase, under specified circumstances, any series of stock
junior to the Series A1 preferred or Series A2 preferred, as the case
may be; or
- declare or pay any dividend on outstanding common stock, subject to
specified exceptions.
In addition, for so long as more than 7.5 million shares of either of the
Series A1 preferred or Series A2 preferred are outstanding, the holders of
shares of those series of preferred stock, voting as separate classes, will be
entitled to elect one member of Metricom's board of directors to represent each
series. Holders of outstanding shares of Series A1 preferred may waive this
right from time to time and instead designate an observer to attend meetings of
the board of directors.
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Liquidation Rights. If Metricom is liquidated, dissolved or wound up, the
holders of Series A1 preferred and holders of Series A2 preferred will be
entitled to be paid out of Metricom's assets, before any distribution to the
holders of common stock, an amount equal to the greater of the original issue
price plus accrued but unpaid dividends or the amount the holders would have
received if the shares had been converted to common stock. For this purpose,
"liquidation" includes:
- a consolidation, merger or other reorganization in which Metricom's
stockholders prior to the transaction own less than 50% of its voting
power after such transaction or other transaction or series of
transactions to which Metricom is a party in which over 50% of its
voting power is transferred; or
- a sale, lease or other disposition of all or substantially all of
Metricom's assets.
Redemption. On November 15, 2009, Metricom must redeem all outstanding
shares of Series A1 and Series A2 preferred. In the event of a change of control
or major acquisition by Metricom, each holder of Series A1 and Series A2
preferred will have the right to require Metricom to redeem all, but not less
than all, of the shares of preferred stock held by that holder. For purposes of
this provision, a "change of control" means an event by which any person or
group, other than Vulcan, MCI WorldCom and their respective affiliates:
- becomes a beneficial owner of more than 30% of Metricom's outstanding
equity securities, or
- acquires the right to elect at least 30% of the board of directors.
For purposes of this provision, a "major acquisition" means the
acquisition by Metricom of more than 50% of the outstanding equity securities or
all or substantially all of the assets of any entity, or Metricom's merger with
another entity in which Metricom is the surviving entity, in each case, for
equity consideration exceeding 25% of Metricom's outstanding equity securities.
Conversion. Holders of each of the Series A1 and Series A2 preferred have
the right to convert their shares into common stock, subject to the limitation
that Series A1 preferred shares do not become convertible until May 2002, at
which time 25% of the Series A1 preferred stock originally issued will become
convertible. Following each six-month period thereafter, an additional 25% of
the Series A1 preferred stock originally issued will become convertible. Each
share of Series A1 and Series A2 preferred is initially convertible into one
share of common stock. The conversion rates and prices for each of the Series A1
and Series A2 preferred will be adjusted in the event of any stock split or
combination, dividend payment or distribution on the common stock,
reclassification or other change to the common stock, or reorganization, merger
or sale of assets. Each of the Series A1 and Series A2 preferred will
automatically be converted into shares of common stock in the event that shares
of either series are transferred by the original purchaser to a person other
than Vulcan, MCI WorldCom or their respective affiliates. If the holders of the
Series A2 preferred stock exercise their right to convert their shares into
common stock, then upon conversion we must pay to those holders who convert all
accrued but unpaid dividends on the shares being converted. Dividends may not be
paid on Series A2 preferred stock until all dividends payable on Series A1
preferred stock are fully paid, or declared and funds set aside for payment.
Therefore, a conversion by holders of Series A2 preferred stock into common
stock will also require us to pay all accrued but unpaid dividends on the Series
A1 preferred stock and to declare and set aside funds for the then-current
dividend period.
Registration Rights. Under Metricom's Amended and Restated Registration
Rights Agreement, dated November 15, 1999, the holders of 60,000,000 shares of
Metricom's currently outstanding series of redeemable convertible preferred
stock are entitled to certain registration rights with respect to the shares of
common stock issuable upon conversion of the preferred stock. Subject to certain
exceptions, including the right of Metricom to defer a demand registration under
specified conditions, holders that, in the aggregate, hold at least 500,000
shares of registrable securities have the right to require that Metricom use its
best efforts to register under the Securities Act their registrable securities,
the anticipated offering price of which, net of underwriting discounts and
commissions, would exceed $10,000,000. Additionally, in the event that Metricom
registers any of its common stock, either for its own account or for the account
of any other stockholder, Metricom is required to notify holders of registrable
securities and, subject to certain limitations, to include in that registration,
the registrable securities of holders requesting registration. Registrable
securities need not be
18
<PAGE> 20
included in registration statements relating to employee benefit plans or with
respect to corporate reorganizations or other transactions under Rule 145 of the
Securities Act. Metricom is also required, subject to certain limitations, to
give notice of and effect certain short-form registrations upon request of
holders of registrable securities. Metricom is not required to effect more than
two registrations on Form S-3 in any 12-month period unless the registration is
requested by Vulcan Ventures Incorporated or MCI WorldCom, Inc. or certain of
their affiliates; however, Metricom is not required to effect this registration
if it has effected one or more registrations upon one of these holders' requests
within the preceding 12-month period.
PLAN OF DISTRIBUTION
We may sell the securities being offered by this prospectus through
agents, underwriters or dealers.
Agents designated by us from time to time may solicit offers to purchase
the securities offered by this prospectus. Any agent involved in the offer or
sale of those securities may be deemed to be an underwriter under the Securities
Act and we will name that agent and describe any commissions payable by us to
that agent in a prospectus supplement. Any agent appointed by us will be acting
on a reasonable efforts basis for the period of its appointment or, if indicated
in the applicable prospectus supplement, on a firm commitment basis. We may be
obligated under agreements with these agents to indemnify them against civil
liabilities, including liabilities under the Securities Act. These agents may
also engage in transactions with or perform services for us in the ordinary
course of business.
If we utilize any underwriters in any sale of the securities in respect of
which this prospectus is delivered, we will enter into an underwriting agreement
with those underwriters at the time of sale to them and the names of the
underwriters and the terms of the transaction will be set forth in the
prospectus supplement. That prospectus supplement will be used by the
underwriters to make resales of the securities in respect of which this
prospectus is delivered to the public. We may be obligated under the
underwriting agreements with these underwriters to indemnify them against civil
liabilities, including liabilities under the Securities Act. These underwriters
may also engage in transactions with or perform services for us in the ordinary
course of business.
If we utilize a dealer in any sale of the securities in respect of which
the prospectus is delivered, we will sell the securities to the dealer, as
principal. The dealer may then resell those securities to the public at varying
prices to be determined by the dealer at the time of resale. We may be obligated
under agreements with these dealers to indemnify them against civil liabilities,
including liabilities under the Securities Act. These dealers may also engage in
transactions with or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize
agents, underwriters or dealers to solicit offers from purchasers to purchase
the securities from us at the public offering price set forth in the prospectus
supplement under delayed delivery contracts providing for payment and delivery
of those securities on a specified date in the future. These delayed delivery
contracts will be subject to only those conditions set forth in the prospectus
supplement, and we will set forth the commission payable for solicitation of
these offers in the prospectus supplement.
LEGAL MATTERS
Cooley Godward LLP, San Francisco, California will provide us with an
opinion as to the legality of the securities we are offering. Weil, Gotshal &
Manges LLP, New York, New York, will serve as counsel to underwriters, dealers
or agents purchasing any of the securities we are offering by this prospectus.
Attorneys with Cooley Godward LLP own an aggregate of 1,675 shares of Metricom's
common stock.
EXPERTS
The financial statements and schedules incorporated by reference in this
prospectus and elsewhere in the registration statement have been audited by
Arthur Andersen LLP, independent public accountants, as
19
<PAGE> 21
indicated in their reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in giving said reports.
WHERE YOU CAN GET MORE INFORMATION
Metricom files annual, quarterly and current reports, proxy statements and
other information with the SEC. We have filed with the SEC a registration
statement on Form S-3 under the Securities Act. This prospectus does not contain
all of the information set forth in the registration statement and the exhibits
to the registration statement. For further information with respect to us and
the securities we are offering under this prospectus, we refer you to the
registration statement and the exhibits and schedules filed as a part of the
registration statement. You may read and copy the registration statement, as
well as Metricom's reports, proxy statements and other information at the SEC's
public reference rooms at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, as well as at the SEC's regional offices at 500 West Madison Street,
Suite 1400, Chicago, Illinois, 60661 and at Seven World Trade Center, New York,
New York 10048. You can request copies of these documents by writing to the SEC
and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for
more information about the operation of the public reference rooms. Metricom's
SEC filings are also available at the SEC's web site at "http://www.sec.gov." In
addition, you can read and copy Metricom's SEC filings at the office of the
National Association of Securities Dealers, Inc at 1735 K Street, N.W.,
Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" information that we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus. This prospectus and the information that
we file later with the SEC may update and supersede the information incorporated
by reference. We incorporate by reference the documents listed below and any
future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 prior to the termination of the offering of
all securities to which this prospectus relates:
- Annual Report on Form 10-K of Metricom for the year ended December 31,
1998, as amended;
- Quarterly Report on Form 10-Q of Metricom for the quarter ended March
31, 1999;
- Quarterly Report on Form 10-Q of Metricom for the quarter ended June 30,
1999;
- Quarterly Report on Form 10-Q of Metricom for the quarter ended
September 30, 1999;
- Current Report on Form 8-K of Metricom filed with the SEC on July 9,
1999, as subsequently amended; and
- The description of common stock of Metricom contained in our
registration statement on Form 8-A filed with the SEC on February 28,
1992.
You may request of copy of these filings at no cost, by writing or
telephoning us at the following address:
Corporate Secretary
Metricom, Inc.
980 University Avenue
Los Gatos, California 94030
(408) 399-8200
20
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated costs and expenses, other
than the underwriting discounts and commissions, payable by the registrant in
connection with the offering of the Securities being registered. All the amounts
shown are estimates, except for the registration fee.
<TABLE>
<S> <C>
SEC Registration Fee........................................ $333,600
Accounting fees and expenses................................ 50,000
Legal fees and expenses..................................... 75,000
Miscellaneous............................................... 41,400
--------
Total............................................. $500,000
========
</TABLE>
Metricom will pay all fees and expenses associated with filing this
registration statement.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the Delaware General Corporation Law, or the DGCL,
authorizes a court to award or a corporation's board of directors to grant
indemnification to directors and officers in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act.
Metricom's Restated Certificate of Incorporation and Restated Bylaws and
Finance's certificate of incorporation and Bylaws provide for mandatory
indemnification of our respective directors and permissive indemnification of
officers, employees and other agents to the maximum extent permitted by the
DGCL. Metricom has entered into indemnification agreements with its directors
and certain officers. The indemnification agreements provide the registrants'
directors with further indemnification to the maximum extent permitted by the
DGCL. We also have obtained directors and officers insurance to insure our
directors and officers against certain liabilities, including liabilities under
the securities laws.
The form of underwriting agreement filed as Exhibit 1.1 to the
registration statement provides for indemnification by the underwriters of the
registrants and their officers and directors for certain liabilities under the
Securities Act or otherwise.
II-1
<PAGE> 23
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of Metricom, Inc.**
4.2 Certificate of Incorporation, as amended, of Metricom
Finance, Inc.
4.3 Bylaws of Metricom Finance, Inc.
4.4 Senior Debt Indenture among Metricom, Inc., Metricom
Finance, Inc. and Bank One Trust Company, N.A., as trustee.
4.5 Subordinated Debt Indenture among Metricom, Inc., Metricom
Finance, Inc. and Bank One Trust Company, N.A., as trustee.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney for Metricom, Inc.**
24.2 Power of Attorney for Metricom Finance, Inc.**
25.1 Statement of Eligibility and Qualification on Form T-1 of
Bank One Trust Company, N.A. to act as trustee under
indenture.
</TABLE>
- ---------------
** Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrants undertake that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrants'
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrants pursuant to the provisions described in Item 15 or otherwise,
the registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, each of the registrants
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The undersigned registrants undertake to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
The undersigned registrants further undertake that:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933,
II-2
<PAGE> 24
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement, and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Forms S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
II-3
<PAGE> 25
SIGNATURES
(METRICOM, INC.)
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
amendment to registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Los Gatos, State of
California, on December 30, 1999.
Metricom, Inc.
By: /s/ TIMOTHY A. DREISBACH
--------------------------------------
Timothy A. Dreisbach
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ TIMOTHY A. DREISBACH President and Chief December 30, 1999
- ----------------------------------------------------- Executive Officer (Principal
Timothy A. Dreisbach Executive Officer) and
Director
/s/ JAMES E. WALL Chief Financial Officer December 30, 1999
- ----------------------------------------------------- (Principal Financial and
James E. Wall Accounting Officer)
/s/ ROBERT S. CLINE* Director December 30, 1999
- -----------------------------------------------------
Robert S. Cline
/s/ RALPH DERRICKSON* Director December 30, 1999
- -----------------------------------------------------
Ralph Derrickson
/s/ ROBERT P. DILWORTH* Director December 30, 1999
- -----------------------------------------------------
Robert P. Dilworth
/s/ JUSTIN L. JASCHKE* Director December 30, 1999
- -----------------------------------------------------
Justin L. Jaschke
/s/ DAVID MOORE* Director December 30, 1999
- -----------------------------------------------------
David Moore
/s/ WILLIAM D. SAVOY* Director December 30, 1999
- -----------------------------------------------------
William D. Savoy
*By: /s/ TIMOTHY A DREISBACH
---------------------------------------------------
Timothy A. Dreisbach
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 26
SIGNATURES
(METRICOM FINANCE, INC.)
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
amendment to registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Los Gatos, State of
California, on December 30, 1999.
Metricom Finance, Inc.
By: /s/ TIMOTHY A. DREISBACH
------------------------------------
Timothy A. Dreisbach
President and Chief Executive
Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy A. Dreisbach, Dale W. Marquart
and James E. Wall, and each or any one of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments and registration
statements filed pursuant to Rule 462) to this registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitutes or substitute, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ TIMOTHY A. DREISBACH President and Chief December 30, 1999
- ----------------------------------------------------- Executive Officer (Principal
Timothy A. Dreisbach Executive Officer) and
Director
/s/ JAMES E. WALL Chief Financial Officer December 30, 1999
- ----------------------------------------------------- (Principal Financial and
James E. Wall Accounting Officer) and
Director
/s/ DALE W. MARQUART Director December 30, 1999
- -----------------------------------------------------
Dale W. Marquart
</TABLE>
II-5
<PAGE> 27
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- -----------------------
<S> <C>
1.1 Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of Metricom, Inc.**
4.2 Certificate of Incorporation, as amended, of Metricom
Finance, Inc.
4.3 Bylaws of Metricom Finance, Inc.
4.4 Senior Debt Indenture among Metricom, Inc., Metricom
Finance, Inc. and Bank One Trust Company, N.A., as Trustee.
4.5 Subordinated Debt Indenture among Metricom, Inc., Metricom
Finance, Inc. and Bank One Trust Company, N.A., as Trustee.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney for Metricom, Inc.**
24.2 Power of Attorney for Metricom Finance, Inc.**
25.1 Statement of Eligibility and Qualification on Form T-1 of
Bank One Trust Company, N.A. to act as trustee under
indenture.
</TABLE>
- -------------------------
** Previously filed.
<PAGE> 1
EXHIBIT 1.1
METRICOM, INC.
UNDERWRITING AGREEMENT
_____ __, 2000
NAME(S) OF MANAGING UNDERWRITERS
ADDRESS(ES) OF MANAGING UNDERWRITERS
Dear Sirs:
Metricom, Inc., a Delaware corporation (the "Company"), and Metricom
Finance, Inc., a Delaware corporation (collectively the "Issuers") propose to
issue and sell from time to time, either together or separately, certain of
their (i) senior debt securities (the "Senior Securities"), (ii) subordinated
debt securities (the "Subordinated Securities," and together with the Senior
Securities, the "Debt Securities"), and/or (iii) the Company's common stock, par
value $.001 per share (the "Common Stock"), in one or more offerings on terms
determined at the time of sale and set forth in a term agreement in the form of
Exhibit A hereto (the "Terms Agreement"). The Debt Securities may be convertible
into the Common Stock as set forth in the applicable Terms Agreement relating
thereto.
The Senior Securities are to be issued under an Indenture to be dated as of
a date subsequent to the date hereof (the "Senior Indenture"), between the
Issuers and Bank One Trust Company, N.A., as trustee (the "Senior Trustee").
The Subordinated Securities are to be issued under an Indenture dated as of a
date subsequent to the date hereof, as amended or supplemented (the
"Subordinated Indenture"), between the Issuers and Bank One Trust Company,
N.A., as trustee (the "Subordinated Trustee", and together with the Senior
Trustee, the "Trustees"). The Senior Indenture and the Subordinated Indenture
are collectively referred to herein as the "Indentures". The Senior Securities
and the Subordinated Securities may have varying designations, maturities, rates
and times of payment of interest, if any, selling prices, redemption terms, if
any, exchange terms, if any, conversion terms (in the case of Subordinated
Securities) and other specific terms as set forth in the applicable Terms
Agreement relating thereto.
The Debt Securities and Common Stock, to be issued and sold as specified in
the applicable Terms Agreement, shall collectively be referred to herein as the
"Offered Securities." As used herein, unless the context otherwise requires, the
term "Underwriters" shall mean the firm or firms specified as Underwriter or
Underwriters in the applicable Terms Agreement relating to the Offered
Securities and the term "you" shall mean the Underwriter or Underwriters, if no
underwriting syndicate is purchasing the Offered Securities, or the
representative or representatives of the Underwriters, if an underwriting
syndicate is purchasing the Offered Securities, as specified in the applicable
Terms Agreement.
Whenever Issuers or the Company, as applicable, determine to make an
offering of Offered Securities, Issuers or the Company, as applicable, will
enter into a Terms Agreement providing for the sale of the applicable Offered
Securities to, and the purchase
<PAGE> 2
and offering thereof by, the Underwriters. The Terms Agreement relating to the
Offered Securities shall specify the type of Offered Securities to be issued,
the names of the Underwriters participating in such offering (subject to
substitution as provided in Section 10 hereof), the principal amount or number
of Offered Securities which each such Underwriter severally agrees to purchase,
the price at which the Offered Securities are to be purchased by the
Underwriters from the Issuers or the Company, as applicable, the initial public
offering price, the time and place of delivery and payment and other specific
terms. In addition, each Terms Agreement shall specify whether the Issuers or
the Company, as applicable, have agreed to grant to the Underwriters an option
to purchase additional Offered Securities to cover over-allotments, if any, and
the amount of Offered Securities subject to such option (the "Option
Securities"). As used herein, the term "Offered Securities" shall include the
Option Securities, if any. The Terms Agreement may take the form of an exchange
of any standard form of written telecommunication between you and the Issuers or
the Company, as applicable. Each offering of Offered Securities will be governed
by this Agreement, as supplemented by the applicable Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit of and be binding
upon the Issuers or the Company, as applicable, and each Underwriter
participating in the offering of such Offered Securities, except as set forth in
Section 12 hereof.
The Issuers have prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No. 33-
**), including a prospectus, relating to the Offered Securities and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act"). Such registration statement has been
declared effective by the Commission. As provided in Section 4(a), a prospectus
supplement reflecting the terms of the Offered Securities, the terms of the
offering thereof and the other matters set forth therein has been prepared and
will be filed pursuant to Rule 424 under the Securities Act. Such prospectus
supplement, in the form first filed after the date of the applicable Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the date of the
applicable Terms Agreement, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the "Registration
Statement", and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except that, if such
basic prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus"
shall refer to the basic prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Issuers with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are incorporated by
reference therein. As used herein, "Effective Time" means the date and the time
as of which the Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus Supplement"
means each prospectus supplement included in such registration statement, or
amendments thereof, before it became effective under the Securities Act.
2
<PAGE> 3
1. Representations, Warranties and Agreements of the Issuers. The Issuers
represent, warrant and agree that:
(a) The Issuers meet the requirements for use of Form S-3 under the
Securities Act.
(b) The Registration Statement conforms, and each Prospectus
Supplement and any further amendments or supplements to the Registration
Statement or any Prospectus Supplement will, when they become effective or
are filed with the Commission, as the case may be, conform in all respects
to the requirements of the Securities Act and the Rules and Regulations and
do not and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the applicable
filing date (as to each Prospectus Supplement and any supplement thereto)
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus Supplement, in light of the
circumstances under which they were made) not misleading; provided that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or any Prospectus Supplement in
reliance upon and in conformity with written information furnished to the
Issuers through any Underwriter specifically for inclusion therein.
(c) The Registration Statement conforms , and each Prospectus
Supplement and any further amendments or supplements to the Registration
Statement or any Prospectus Supplement will, when they become effective or
are filed with the Commission, as the case may be, conform in all respects
to the requirements of the Trust Indenture Act of 1939, as amended (the
"TIA") and the rules and regulations thereunder. At each Delivery Date, the
applicable Indenture, if any, will comply in all material respects with the
requirements of the TIA and the rules and regulations thereunder.
(d) The documents incorporated by reference or deemed to be
incorporated in the Prospectus pursuant to Item 12 of Form S-3 under the
Securities Act, at the time they were or hereafter are filed with the
Commission, complied in all material respects with the requirements of the
Exchange Act, and the rules and regulations of the Commission thereunder
(the "Exchange Act Regulations") and, when read together and with the other
information in the Prospectus, as of the Effective Date of the Registration
Statement and any amendment thereto, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(e) The Issuers and each of their subsidiaries (as defined in Section
14) have been duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of
incorporation,
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<PAGE> 4
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged; and none of the subsidiaries of the Company is a
"significant subsidiary", as such term is defined in Rule 405 of the Rules
and Regulations.
(f) At each Delivery Date (as defined in Section 3), the Issuers or
the Company, as applicable, will have an authorized capitalization as set
forth in the applicable Prospectus Supplement, and all of the issued shares
of capital stock of the Issuers or the Company, as applicable, have been
duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description thereof contained in the Registration
Statement and Prospectus; and all of the issued shares of capital stock of
each subsidiary of the Issuers or the Company, as applicable, have been
duly and validly authorized and issued and are fully paid and
non-assessable and are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(g) The Offered Securities to be issued and sold by the Issuers or the
Company, as applicable, to the Underwriters have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein and in the applicable Terms Agreement will be duly and
validly issued, fully paid and non-assessable and the Offered Securities
will conform to the description thereof contained in the Prospectus
Supplement.
(h) This Agreement has been duly authorized, executed and delivered by
the Issuers or the Company; as applicable, and upon execution and delivery
of each Terms Agreement by the Issuers or the Company, as applicable, such
Terms Agreement shall have been duly authorized, executed and delivered by
the Issuers or the Company, as applicable.
(i) The execution, delivery and performance of this Agreement and each
Terms Agreement by the Issuers or the Company, as applicable, and the
consummation of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Issuers or the Company, as applicable, or any of its subsidiaries is a
party or by which the Issuers or the Company, as applicable, or any of
their subsidiaries is bound or to which any of the property or assets of
the Issuers or the Company, as applicable, or any of their subsidiaries is
subject, nor will such actions result in any violation of the provisions of
the charter or by-laws of the Issuers or the Company, as applicable, or any
of their subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Issuers or Company, as applicable, or any of their subsidiaries or any of
their properties or assets; and except for the registration
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<PAGE> 5
of the Offered Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign securities
laws in connection with the purchase and distribution of the Offered
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and performance of
this Agreement or the applicable Terms Agreement by the Issuers or the
Company, as applicable, and the consummation of the transactions
contemplated hereby and thereby.
(j) There are no contracts, agreements or understandings between the
Issuers or the Company, as applicable, and any person granting such person
the right (other than rights which have been waived or satisfied) to
require the Issuers or the Company, as applicable, to file a registration
statement under the Securities Act with respect to any securities of the
Issuers or the Company, as applicable owned or to be owned by such person
or to require the Issuers or the Company, as applicable, to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Issuers or the Company, as applicable,
under the Securities Act.
(k) Except as described in each Prospectus Supplement, the Issuers or
the Company, as applicable, have not and will not have sold or issued any
shares of Common Stock or Debt Securities during the six-month period
preceding the date of such Prospectus Supplement, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the Securities Act,
other than shares issued pursuant to employee benefit plans, qualified
stock options plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(l) None of the Issuers or the Company, as applicable, or any of their
subsidiaries has sustained, since the date of the latest audited financial
statements included in the Prospectus Supplement, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus Supplement; and, since such date, there
has not been any change in the capital stock or long-term debt of the
Issuers or the Company, as applicable, or any of their subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Issuers or the Company, as applicable, and their subsidiaries, otherwise
than as set forth or contemplated in the Prospectus Supplement.
(m) The historical [and pro forma] financial statements (including the
related notes and supporting schedules) filed as part of the Registration
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<PAGE> 6
Statement or included in the Prospectus Supplement present fairly the
financial condition and results of operations of the entities purported to
be shown thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. [The pro
forma financial statements have been prepared on a basis consistent with
such historical statements of the Issuers or the Company, as applicable,
except for the pro forma adjustments specified therein, and give effect to
assumptions made on a reasonable basis and in good faith and present fairly
the historical and proposed transactions contemplated by each Prospectus
Supplement, each applicable Terms Agreement and this Agreement.] The
[other] financial and statistical information and data included in the
Prospectus Supplement[, historical and pro forma,] have been derived from
the financial records of the Issuers or the Company (or its predecessors),
as applicable, and, in all material respects, have been prepared on a basis
consistent with such books and records of the Issuers or the Company, as
applicable, (or its predecessor).
(n) As of the execution of this Agreement and any applicable Delivery
Date, Arthur Andersen LLP, who have certified certain financial statements
of the Company, whose report appears in the Registration Statement [and
will appear in each Prospectus Supplement] and who have delivered the
initial letter referred to in Section 7(f) hereof, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(o) The Issuers or the Company, as applicable, and each of their
subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects
except such as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made of such
property by the Issuers or the Company, as applicable, and their
subsidiaries; and all real property and buildings held under lease by the
Issuers or the Company, as applicable, and their subsidiaries are held by
them under valid, subsisting and enforceable leases, with such exceptions
as are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Issuers or the Company, as
applicable, and their subsidiaries.
(p) The Issuers or the Company, as applicable and each of their
subsidiaries carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is customary
for companies engaged in similar businesses in similar industries.
(q) The Issuers or the Company, as applicable, and each of their
subsidiaries own or possess adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights and licenses
necessary for the conduct
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<PAGE> 7
of their respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have not
received any notice of any claim of conflict with, any such rights of
others.
(r) There are no legal or governmental proceedings pending to which
the Issuers or the Company, as applicable, or any of their subsidiaries is
a party or of which any property or assets of the Issuers or the Company,
as applicable, or any of their subsidiaries is the subject which, if
determined adversely to the Issuers or the Company, as applicable, or any
of their subsidiaries, might have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company, and its subsidiaries; and
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(s) There are no contracts or other documents which are required to be
described in the Prospectus Supplement or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus Supplement or
filed as exhibits to the Registration Statement.
(t) No relationship, direct or indirect, exists between or among the
Issuers or the Company. as applicable, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Issuers or the
Company. as applicable, on the other hand, which is required to be
described in the Prospectus Supplement which is not so described.
(u) No labor disturbance by the employees of the Issuers or the
Company, as applicable, exists or, to the knowledge of the Issuers or the
Company, as applicable, is imminent which might be expected to have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries.
(v) The Issuers or the Company, as applicable, have filed all federal,
state and local income and franchise tax returns required to be filed
through the date hereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Issuers or the Company, as
applicable, or any of their subsidiaries which has had (nor do the Issuers
or the Company, as applicable, have any knowledge of any tax deficiency
which, if determined adversely to the Issuers or the Company, as
applicable, or any of their subsidiaries, might have a material adverse
effect on the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries.
(w) Since the date as of which information is given in the Prospectus
Supplement through the date hereof, and except as may otherwise be
disclosed
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<PAGE> 8
in the Prospectus Supplement, the Issuers or the Company, as applicable,
have not (i) issued or granted any securities, (ii) incurred any liability
or obligation, direct or contingent, other than liabilities and obligations
which were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv) declared or
paid any dividend on its capital stock.
(x) The Issuers or the Company, as applicable, (i) make and keep
accurate books and records and (ii) maintain internal accounting controls
which provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded
as necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets at
reasonable intervals.
(y) None of the Issuers or the Company, as applicable, nor any of
their subsidiaries (i) is in violation of its charter or by-laws, (ii) is
in default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject or (iii) is in
violation in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business.
(z) None of the Issuers or the Company, as applicable, nor any of
their subsidiaries, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Issuers or the Company,
as applicable, or any of their subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, made any direct or indirect
unlawful payment to any foreign or domestic government official or employee
from corporate funds; violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977, or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(aa) None of the Issuers or the Company, as applicable, nor any of
their SUBSIDIARIES, or will be after the offering and use of proceeds
therefrom, an "investment company" within the meaning of such term under
the Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder
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<PAGE> 9
(bb) If the Offered Securities include Debt Securities, such Debt
Securities shall, on the date of the Terms Agreement relating to such
Offered Securities, be duly authorized for issuance and sale pursuant to
this Agreement and, when such Debt Securities are duly executed,
authenticated and delivered pursuant to the provisions of this Agreement
and the applicable Indenture against payment of the consideration therefor
in accordance with this Agreement and the applicable Terms Agreement, such
Debt Securities will be valid and legally binding obligations of the
Issuers or the Company, as applicable, enforceable in accordance with their
terms, except as enforceability thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting enforcement of creditors'
rights or by general equity principles and will be entitled to the benefits
of the applicable Indenture; and the Indentures conform in all material
respects to all statements relating thereto contained in the Prospectus
Supplement; and, if the Offered Securities include Subordinated Securities
that are convertible into Common Stock ("Convertible Subordinated
Securities"), then such Subordinated Securities shall be convertible into
Common Stock in accordance with their terms and the terms of a Convertible
Subordinated Security Prospectus Supplement (a "Convertible Prospectus
Supplement").
(cc) If the Offered Securities include Debt Securities, the applicable
Indenture has been duly authorized by the Issuers or the Company, as
applicable, will be substantially in the form filed as an exhibit to the
Registration Statement and, when duly executed and delivered by the Issuers
or the Company, as applicable, and the Trustee, will constitute a valid and
binding obligation of the Issuers or the Company, as applicable,
enforceable against the Issuers or the Company, as applicable, in
accordance with its terms, except as enforceability thereof may be limited
by bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles; and the
summary descriptions of the applicable Indenture set forth in the
Prospectus Supplement conforms in all material respects to the provisions
contained in the applicable Indenture.
2. Purchase of the Offered Securities by the Underwriters. The several
commitments of the Underwriters to purchase Offered Securities pursuant to any
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions set forth herein.
In addition, on the basis of the representations and warranties herein and
subject to the terms and contained herein set forth, the Issuers or the Company,
as applicable may grant, if so provided in the Terms Agreement applicable to any
Terms Agreement, an option to the Underwriters named in such Terms Agreement,
severally and not jointly, to purchase up to the amount of Option Securities set
forth therein at the same price per security as is applicable to the Offered
Securities. Such option, if granted, may be exercised in whole or in part from
time to time from time to time for the purpose of covering over-allotments as
provided in Section 4 hereof. Option Securities shall be purchased severally for
the account of the Underwriters in proportion to the number of shares of Offered
Securities set opposite
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<PAGE> 10
the name of such Underwriters in the Terms Agreement applicable to the Offered
Securities. The respective purchase obligations of each Underwriter with respect
to any Option Securities that are Common Stock shall be adjusted by the
Underwriters so that no Underwriter shall be obligated to purchase such Common
Stock other than in 100 share amounts.
Neither the Issuers nor the Company, as applicable, shall be obligated to
deliver any of the Offered Securities to be delivered on any Delivery Date (as
hereinafter defined), as the case may be, except upon payment for all the
Offered Securities to be purchased on such Delivery Date as provided herein.
3. Delivery of and Payment for the Securities. (a) Delivery of and payment
for the Offered Securities shall be made at the office of Weil, Gotshal & Manges
LLP, 767 Fifth Avenue, New York, New York 10153, at 10:00 A.M., New York City
time, on the fourth full business day (unless postponed in accordance with the
provisions of this Agreement) following the Delivery Date or at such other date
or place as shall be agreed upon by you and the Issuers or the Company, as
applicable, in the applicable Terms Agreement. This date and time are sometimes
referred to as the "First Delivery Date." On the Delivery Date, the Issuers or
the Company, as applicable, shall deliver or cause to be delivered certificates
representing the Offered Securities to the Underwriters for the account of each
Underwriter named in the Terms Agreement applicable to the Offered Securities
against payment to or upon the order of the Issuers or the Company, as
applicable, of the purchase price by wire transfer in immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to the applicable Terms Agreement is a further condition of
the obligation of each Underwriter thereunder. Upon delivery, the Offered
Securities shall be registered in such names and in such denominations as the
Underwriters shall request in writing not less than two full business days prior
to the First Delivery Date.
(b) The option granted in Section 2 will expire 30 days after the date of
the applicable Terms Agreement and may be exercised in whole or in part from
time to time by written notice being given to the Issuers, or the Company, as
applicable, by the Underwriters. Such notice shall set forth the aggregate
number of Option Securities as to which the option is being exercised, the names
in which the Option Securities are to be registered, the denominations in which
the Option Securities are to be issued and the date and time, as determined by
the Underwriters, when the Option Securities are to be delivered; provided,
however, that this date and time shall not be earlier than the Delivery Date nor
earlier than the second business day after the date on which the option shall
have been exercised nor later than the fifth business day after the date on
which the option shall have been exercised. The date and time the Option
Securities are delivered are sometimes referred to as a "Second Delivery Date"
and the First Delivery Date and any Second Delivery Date are sometimes each
referred to as a "Delivery Date."
(c) Delivery of and payment for the Option Securities shall be made at the
place specified in the first sentence of Section 3(a) (or at such other place as
shall be determined by agreement between the Underwriters and the Issuers or the
Company, as applicable) at 10:00 A.M., New York City time, on such Second
Delivery Date. On such
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<PAGE> 11
Second Delivery Date, the Issuer or the Company, as applicable, shall deliver or
cause to be delivered the certificates representing the Option Securities to the
Underwriters for the account of each Underwriter against payment to or upon the
order of the Issuers or the Company, as applicable, of the purchase price by
wire transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to the applicable Terms
Agreement shall be a further condition of the obligation of each Underwriter
thereunder. Upon delivery, the Option Securities shall be registered in such
names and in such denominations as the Underwriters shall request in the
aforesaid written notice.
4. Further Agreements of the Issuers. The Issuers or the Company, as
applicable, agree:
(a) To prepare a Preliminary Prospectus Supplement in a form approved
by the Underwriters and, not later than the Commission's close of business
on the second business day following the execution and delivery of each
Terms Agreement or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Securities Act, to file a Prospectus Supplement
pursuant to Rule 424(b) under the Securities Act; to make no further
amendment to the Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectus except as
permitted herein and by the applicable Terms Agreement; to advise the
Underwriters , promptly after receiving notice thereof, of the time when
any supplement to the Prospectus Supplement has been filed and to furnish
such Underwriters with copies thereof; to advise such Underwriters,
promptly after receiving notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus Supplement or the Prospectus Supplement, of the
suspension of the qualification of the Offered Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or the
Prospectus Supplement or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus Supplement or the Prospectus Supplement
or suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters and to counsel for
the Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings) and
(ii)
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each Preliminary Prospectus Supplement, the Prospectus Supplement and any
supplemented Prospectus Supplement and, if the delivery of a prospectus
supplement is required at any time after the Effective Time in connection
with the offering or sale of the Offered Securities or any other securities
relating thereto and if at such time any events shall have occurred as a
result of which the Prospectus Supplement as then supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
Supplement is delivered, not misleading, or, if for any other reason it
shall be necessary to supplement the Prospectus Supplement in order to
comply with the Securities Act, to notify the Underwriters and, upon their
request, to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as the Underwriters may from time
to time reasonably request of a supplemented Prospectus Supplement which
will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or any supplement to the Prospectus Supplement that
may, in the judgment of the Issuers or the Company, as APPLICABLE, or the
Underwriters, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus Supplement or any
Prospectus Supplement pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Underwriters and counsel for the Underwriters
and obtain the consent of the Underwriters to the filing;
(f) As soon as practicable (it being understood that the Issuers or
the Company, as applicable, shall have until at least 410 or, if the fourth
quarter following the fiscal quarter that includes the applicable effective
date is the last fiscal quarter of the fiscal year, 455 days after the end
of the current fiscal quarter), to make generally available to the
Company's security holders, as applicable, [and to deliver to the
Underwriters, if any,] an earnings statement of the Issuers or the Company,
as applicable, and their subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Issuers or the Company, as applicable,
Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Underwriters copies of all materials furnished by the
Issuers or the Company, as applicable, to its securityholders and all
public reports and all reports and financial statements furnished by the
Company to the Nasdaq Stock Market or the principal national securities
exchange upon which the Common Stock may be listed pursuant to requirements
of or agreements with
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<PAGE> 13
Nasdaq or such exchange or to the Commission pursuant to the Exchange Act
or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Underwriters
may reasonably request to qualify the Offered Securities for offering and
sale under the securities laws of such jurisdictions as the Underwriters
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Offered Securities; provided
that in connection therewith the Issuers or the Company, as applicable,
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(i) For a period specified in the applicable Terms Agreement,
commencing on the date of such Terms Agreement, not to, directly or
indirectly, (1) offer for sale, sell, contract to sell, pledge, hedge or
otherwise dispose, directly or indirectly, of any shares of Common Stock,
Debt Securities or securities convertible into or exchangeable for Common
Stock (other than the Offered Securities and shares issued pursuant to
employee benefit plans, qualified stock option plans or other employee
compensation plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or grant options, rights
or warrants with respect to any shares of Common Stock, Debt Securities or
securities convertible into or exchangeable for Common Stock (other than
the grant of options pursuant to option plans existing on the date hereof),
or (2) enter into any swap or other derivatives transaction that transfers
to another, in whole or in part, any of the economic benefits or risks of
ownership of such shares of Common Stock or Debt Securities, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock, Debt Securities or other securities, in cash or
otherwise, or (3) publicly disclose an intention to make any such offer,
sale, pledge, hedge, swap or other transaction, in each case without the
prior written consent of the Underwriters; and to cause each officer and
director of the Issuers or the Company, as applicable, to furnish to the
Underwriters, prior to the First Delivery Date, a letter or letters, in
form and substance satisfactory to counsel for the Underwriters, pursuant
to which each such person shall agree not to, directly or indirectly, (1)
offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result
in the disposition by any person at any time in the future of) any shares
of Common Stock, Debt Securities or securities convertible into or
exchangeable for Common Stock or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any
of the economic benefits or risks of ownership of such shares of Common
Stock or Debt Securities, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock, Debt
Securities or other securities, in cash or otherwise, in each case for a
period specified in the applicable Terms
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Agreement, commencing on the date of such Terms Agreement, without the
prior written consent of the Underwriters;
(j) If and to the extent specified in the applicable Terms Agreement,
to apply for the inclusion of the Offered Securities in the National Market
System of the Nasdaq Stock Market and to use its best efforts to complete
that listing, subject only to official notice of issuance and evidence of
satisfactory distribution, prior to the First Delivery Date;
(k) Prior to filing with the Commission its final Report on Form 10-Q
containing the information specified in Rule 463 of the Rules and
Regulations, to furnish a copy thereof to the counsel for the Underwriters
and receive and consider its comments thereon, and to deliver promptly to
the Underwriters a signed copy of such Report on Form 10-Q filed by it with
the Commission;
(l) To take such steps as shall be necessary to ensure that none of
the Issuers or the Company, as applicable, or any of their subsidiaries
shall become an "investment company" within the meaning of such term under
the Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
5. Expenses. The Issuers or the Company, as applicable, agree to pay all
expenses incident to the performance of its obligations under this Agreement and
any applicable Terms Agreement, including (a) the costs incident to the
authorization, issuance, sale and delivery of the Offered Securities and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus Supplement, the Prospectus Supplement and any supplement
to the Prospectus Supplement, all as provided in this Agreement; (d) the costs
of producing and distributing this Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the stock; (e) the
filing fees incident to securing any required review by the National Association
of Securities Dealers, Inc. of the terms of sale of the Offered Securities; (f)
any applicable listing or other fees; (g) the fees and expenses of qualifying
the Offered Securities under the securities laws of the several jurisdictions as
provided in Section 4 (h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related reasonable fees and expenses of counsel to the
Underwriters); (h) all costs and expenses of the Underwriters, including the
reasonable fees and disbursements of counsel for the Underwriters, incident to
the offer and sale of the Offered Securities by the Underwriters to employees
and persons having business relationships with the Issuers or the Company, as
applicable, and their subsidiaries; and (i) all other costs and expenses
incident to the performance of the obligations of the Issuers or the Company, as
applicable, under this Agreement; provided that, except as provided in this
Section 5 and in Section 10 the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Offered Securities which they may sell and the expenses of advertising
any offering of the Offered Securities made by the Underwriters.
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6. Conditions of Underwriters' Obligations. The respective obligations of
the Underwriters hereunder are subject to the accuracy, when made and on the
applicable Delivery Date, of the representations and warranties of the Issuers
or the Company, as applicable, contained herein, to the performance by the
Issuers or the Company, as applicable, of their obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus Supplement shall have been timely filed with the
Commission in accordance with Section 4(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus Supplement or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to such Delivery Date that the Registration Statement or the
Prospectus Supplement or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Weil, Gotshal & Manges
LLP, counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the applicable Terms
Agreement, the Offered Securities, the Registration Statement and the
Prospectus Supplement, and all other legal matters relating to this
Agreement and the applicable Terms Agreement and the transactions
contemplated hereby and thereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Issuers or the
Company, as applicable, shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass
upon such matters.
(d) Cooley Godward LLP shall have furnished to the Underwriters their
written opinion, as counsel to the Issuers or the Company, as applicable,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Underwriters, to the effect that:
(i) The Issuers or the Company, as applicable, and each of their
subsidiaries have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification and have
all power and authority necessary to own or hold their respective
properties and conduct the businesses in which they are engaged;
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<PAGE> 16
(ii) The Issuers or the Company, as applicable, have an
authorized capitalization as set forth in the Prospectus and
Prospectus Supplement, and all of the issued shares of capital stock
of the Issuers or the Company, as applicable, (including the Offered
Securities being delivered on such Delivery Date) have been duly and
validly authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus and
Prospectus Supplement; and all of the issued shares of capital stock
of each subsidiary of the Issuers or the Company, as applicable, have
been duly and validly authorized and issued and are fully paid,
non-assessable and are owned directly or indirectly by the Issuers or
the Company, as applicable, free and clear of all liens, encumbrances,
equities or claims;
(iii) There are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of, any
of the Offered Securities pursuant to the Issuers' or the Company's,
as applicable, charter or by-laws or any agreement or other instrument
known to such counsel;
(iv) All real property and buildings held under lease by the
Issuers or the Company, as applicable, and their subsidiaries are held
by them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Issuers
or the Company, as applicable, and their subsidiaries;
(v) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Issuers or the
Company, as applicable, or any of their subsidiaries is a party or of
which any property or assets of the Issuers or the Company, as
applicable, or any of its subsidiaries is the subject which, if
determined adversely to the Issuers or the Company, as applicable, or
any of its subsidiaries, might have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(vi) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion, the
Prospectus Supplement was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations specified in
such opinion on the date specified therein and no stop order
suspending the effectiveness of the Registration Statement has been
issued and, to the knowledge of such counsel, no
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<PAGE> 17
proceeding for that purpose is pending or threatened by the
Commission;
(vii) The Registration Statement and the Prospectus Supplement
and any further amendments or supplements thereto made by the Issuers
or the Company, as applicable, prior to such Delivery Date (other than
the financial statements and related schedules therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and the
Rules and Regulations;
(viii) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Prospectus Supplement or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which
have not been described or filed as exhibits to the Registration
Statement;
(ix) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Issuers or the Company,
as applicable;
(x) The issue and sale of the Offered Securities being delivered
on such Delivery Date by the Issuers or the Company, as applicable,
and the compliance by the Issuers or the Company, as applicable, with
all of the provisions of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Issuers or the Company, as applicable, or any of their
subsidiaries is a party or by which the Issuers or the Company, as
applicable, or any of their subsidiaries is bound or to which any of
the property or assets of the Issuers or the Company, as applicable,
or any of their subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws of the
Issuers or the Company, as applicable, or any of their subsidiaries or
any statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over the
Issuers or the Company, as applicable, or any of its subsidiaries or
any of their properties or assets; and, except for the registration of
the Offered Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of
the Offered Securities by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court
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<PAGE> 18
or governmental agency or body is required for the execution, delivery
and performance of this Agreement by the Issuers or the Company, as
applicable, and the consummation of the transactions contemplated
hereby;
(xi) To the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Issuers or the
Company, as applicable, and any person granting such person the right
(other than rights which have been waived or satisfied) to require the
Issuers or the Company, as applicable, to file a registration
statement under the Securities Act with respect to any securities of
the Issuers or the Company, as applicable, owned or to be owned by
such person or to require the Issuer or the Company, as applicable, to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Issuer or the
Company, applicable, under the Securities Act;
(xii) If the Offered Securities include Debt Securities, the
applicable Indenture has been duly and validly authorized, executed
and delivered by the Issuers or the Company, as applicable, and
constitutes the valid and binding agreement of the Issuers or the
Company, as applicable, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
or other laws relating to or affecting enforcement of creditors'
rights or by general equity principles;
(xiii) If the Offered Securities include Debt Securities, such
Debt Securities are in the form contemplated by the applicable
Indenture, and have been duly and validly authorized by all necessary
corporate action and, when executed and authenticated as specified in
the applicable Indenture and delivered against payment pursuant to
this Agreement, as supplemented by the applicable Terms Agreement,
will be valid and binding obligations of the Issuers or the Company,
as applicable, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
laws relating to or affecting enforcement of creditors' rights or by
general equity principles, and except further as enforcement thereof
may be limited by requirements that a claim (or a foreign currency
judgment in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law, and will be entitled to the benefits of the
applicable Indenture;
(xiv) The Offered Securities and, if applicable, the Indenture
and the Common Stock, conform in all material respects to the
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<PAGE> 19
descriptions thereof in the Prospectus and the applicable Prospectus
Supplement;
(xv) If the Offered Securities include Debt Securities, the
applicable Indenture is qualified under the 1939 Act; and
(xvi) If the Offered Securities include Convertible Subordinated
Securities or Convertible Preferred Stock, the shares of Common Stock
issuable upon conversion of such Convertible Subordinated Securities
or Convertible Preferred Stock have been duly authorized and reserved
for issuance upon such conversion by all necessary corporate action
and such shares, when issued upon such conversion will be duly and
validly issued and will be fully paid and non-assessable, and the
issuance of such shares upon such conversion will not be subject to
preemptive rights.
In rendering such opinion, such counsel may (i) state that their opinion is
limited to matters governed by the Federal laws of the United States of
America and the General Corporation Law of the State of Delaware and (ii)
in giving the opinion referred to in Section 8(d)(iv), state that no
examination of record titles for the purpose of such opinion has been made,
and that they are relying upon a general review of the titles of the
Issuers or the Company, as applicable, and their subsidiaries, upon
opinions of local counsel and abstracts, reports and policies of title
companies rendered or issued at or subsequent to the time of acquisition of
such property by the Issuers or the Company, as applicable, or their
subsidiaries, upon opinions of counsel to the lessors of such property and,
in respect of matters of fact, upon certificates of officers of the Issuers
or the Company, as applicable, or their subsidiaries, provided that such
counsel shall state that they believe that both the Underwriters and they
are justified in relying upon such opinions, abstracts, reports, policies
and certificates. Such counsel shall also have furnished to the
Underwriters a written statement, addressed to the Underwriters and dated
such Delivery Date, in form and substance satisfactory to the Underwriters,
to the effect that (x) such counsel has acted as counsel to the Issuers or
the Company, as applicable, in connection with previous financing
transactions and has acted as counsel to the Company in connection with the
preparation of the Registration Statement, and (y) based on the foregoing,
no facts have come to the attention of such counsel which lead them to
believe that the Registration Statement, as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Prospectus Supplement
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The foregoing opinion and statement may be qualified
by a statement to the effect that such counsel does not assume any
responsibility for the accuracy, completeness or
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<PAGE> 20
fairness of the statements contained in the Registration Statement or the
Prospectus Supplement except for the statements made in the Prospectus
Supplement under the identified in Section 8(d)(viii) and (ix).
(e) The Underwriters shall have received from Weil Gotshal & Manges
LLP, counsel for the Underwriters, such opinion or opinions, dated such
Delivery Date, with respect to the issuance and sale of the Offered
Securities, the Registration Statement, the Prospectus Supplement and other
related matters as the Underwriters may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the Underwriters shall
have received from Arthur Andersen LLP a letter, in form and substance
satisfactory to the Underwriters, addressed to the Underwriters and dated
the date hereof (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given
in the Prospectus Supplement, as of a date not more than five days prior to
the date hereof), the conclusions and findings of such firm with respect to
the financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(g) With respect to the letter of Arthur Andersen LLP referred to in
the preceding paragraph and delivered to the Underwriters concurrently with
the execution of this Agreement (the "initial letter"), the Issuers or the
Company, as applicable, shall have furnished to the Underwriters a letter
(the "bring-down letter") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the
Prospectus Supplement, as of a date not more than five days prior to the
date of the bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(h) The Issuers or the Company, as applicable, shall have furnished to
the Underwriters a certificate, dated such Delivery Date, of its Chairman
of the Board, its President or a Vice President and its chief financial
officer stating that:
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<PAGE> 21
(i) The representations, warranties and agreements of the Company in
Section 1 are true and correct as of such Delivery Date; the Issuers or the
Company, as applicable, have complied with all their agreements contained
herein; and the conditions set forth in Subsections (a) and (i) of this
Section 7 have been fulfilled; and
(ii) They have carefully examined the Registration Statement and the
Prospectus Supplement and, in their opinion (A) as of the Effective Date,
the Registration Statement and Prospectus Supplement did not include any
untrue statement of a material fact and did not omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or amendment to
the Registration Statement or the Prospectus Supplement.
(i) (i) None of the Issuers or the Company, as applicable, or any of
their subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Prospectus Supplement any loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus Supplement or (ii) since such date there
shall not have been any change in the capital stock or long-term debt of
the Issuers or the Issuers or the Company, as applicable, or any of their
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Issuers or
the Company, as applicable, and their subsidiaries, otherwise than as set
forth or contemplated in the Prospectus Supplement, the effect of which, in
any such case described in clause (i) or (ii), is, in the judgment of the
Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Offered Securities being delivered on such Delivery Date on the terms and
in the manner contemplated in the Prospectus Supplement.
(j) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Issuers
or the Company, as applicable, on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by Federal
or state authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or
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<PAGE> 22
there shall have been a declaration of a national emergency or war by the
United States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the United
States shall be such) as to make it, in the judgment of the Underwriters
impracticable or inadvisable to proceed with the public offering or
delivery of the Offered Securities being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus Supplement.
(k) The Nasdaq Stock Market or such other exchange as may be specified
in the applicable Terms Agreement shall have approved the Offered
Securities for inclusion in the National Market System, subject only to
official notice of issuance and evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) The Issuers or the Company, as applicable, shall indemnify and
hold harmless each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to,
any loss, claim, damage, liability or action relating to purchases and
sales of Offered Securities), to which that Underwriter, officer, employee
or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus
Supplement, the Registration Statement or the Prospectus Supplement or in
any amendment or supplement thereto, or (B) in any materials or information
provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the Stock ("Marketing
Materials"), including any roadshow or investor presentations made to
investors by the Company (whether in person or electronically) (ii) the
omission or alleged omission to state in any Preliminary Prospectus
Supplement, the Registration Statement or the Prospectus Supplement, or in
any amendment or supplement thereto, or in any Marketing Materials, or in
any Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Offered Securities or
the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of
or based upon matters covered by clause (i) or (ii) above (provided that
neither the Issuers nor the Company, as applicable, shall be liable under
this clause (iii) to the
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extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be
taken by such Underwriter through its gross negligence or willful
misconduct), and shall reimburse each Underwriter and each such officer,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that neither the
Issuers nor the Company, as applicable, shall be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus
Supplement, the Registration Statement or the Prospectus Supplement, or in
any such amendment or supplement, in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Issuers or
the Company, as applicable, through the Underwriters by or on behalf of any
Underwriter specifically for inclusion therein which information consists
solely of the information specified in Section 7(e). The foregoing
indemnity agreement is in addition to any liability which the Issuers or
the Company, as applicable, may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Issuers or the Company, as applicable, their officers and
employees, each of their directors and each person, if any, who controls
the Issuers or Company, as applicable, within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Issuers or the
Company, as applicable, or any such director, officer or controlling person
may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Prospectus Supplement, the Registration
Statement or the Prospectus Supplement or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus Supplement, the
Registration Statement or the Prospectus Supplement, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Issuers or the Company, as applicable,
through the Underwriters by or on behalf of that Underwriter specifically
for inclusion therein, and shall reimburse the Issuers or the Company, as
applicable, and any such director, officer or controlling
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<PAGE> 24
person for any legal or other expenses reasonably incurred by the Issuers
or the Company, as applicable, or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses
are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Issuers or the
Company, as applicable, or any such director, officer, employee or
controlling person.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 7 except to the extent
it has been materially prejudiced by such failure and, provided further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 7. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Underwriters shall have the right to employ counsel to
represent jointly the Underwriters and their respective officers, employees
and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters
against the Issuers or the Company, as applicable, under this Section 7 if,
in the reasonable judgment of the Underwriters, it is advisable for the
Underwriters and those officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Issuers or the
Company, as applicable. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with
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the consent of the indemnifying party or if there be a final judgment of
the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Issuers or the Company, as
applicable, on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Issuers or the Company,
as applicable, on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers or the Company, as applicable, on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Offered
Securities purchased under this Agreement (before deducting expenses)
received by the Issuers or the Company, as applicable, on the one hand, and
the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Offered Securities purchased
under this Agreement, on the other hand, bear to the total gross proceeds
from the offering of the shares of the Offered Securities under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus Supplement. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Issuers or the Company, as applicable, or the
Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Issuers or Company, as applicable, agree that it would not
be just and equitable if contributions pursuant to this Section were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section shall be deemed to include, for purposes of this Section
7(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the
25
<PAGE> 26
provisions of this Section 7(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Offered Securities underwritten by it and distributed to the
public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 7(d)
are several in proportion to their respective underwriting obligations and
not joint.
8. Defaulting Underwriters.
If, on the applicable Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters participating in an offering of Offered Securities
shall be obligated to purchase the Offered Securities which the defaulting
Underwriter agreed but failed to purchase on such Delivery Date in the
respective proportions which the number of the Offered Securities set opposite
the name of each remaining non-defaulting Underwriter named in the applicable
Terms Agreement bears to the total number of the Offered Securities set opposite
the names of all the remaining non-defaulting Underwriters named in the
applicable Terms Agreement; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Offered Securities on
such Delivery Date if the total number of the Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of the Offered Securities to be purchased
on such Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of the Offered Securities
which it agreed to purchase on such Delivery Date pursuant to the terms of
Section 3. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Underwriters who
so agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Offered Securities to be
purchased on such Delivery Date. If the remaining Underwriters or other
underwriters satisfactory to the Underwriters do not elect to purchase the
shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the Underwriters to purchase, and of the
Company to sell, the Option Securities) shall terminate without liability on the
part of any non-defaulting Underwriter or the Issuer or the Company, as
applicable, except that the Issuer or the Company, as applicable, will continue
to be liable for the payment of expenses to the extent set forth in Sections 5
and 10.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Issuer or the Company, as applicable, for damages
caused by its default. If other underwriters are obligated or agree to purchase
the Offered Securities of a defaulting or withdrawing Underwriter, either the
Underwriters or the Issuer or the Company, as applicable, may postpone the
Delivery Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the
26
<PAGE> 27
Underwriters may be necessary in the Registration Statement, the Prospectus
Supplement or in any other document or arrangement.
9. Termination. The obligations of the Underwriters hereunder may be
terminated by the Underwriters by notice given to and received by the Issuer or
the Company, as applicable, prior to delivery of and payment for the Offered
Securities if, prior to that time, any of the events described in Sections 6(i)
or 6(j), shall have occurred or if the Underwriters shall decline to purchase
the Offered Securities for any reason permitted under this Agreement.
10. Reimbursement of Underwriters' Expenses. If (a) the Issuer or the
Company, as applicable, shall fail to tender the Offered Securities for delivery
to the Underwriters by reason of any failure, refusal or inability on the part
of the Issuer or the Company, as applicable, to perform any agreement on its
part to be performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company is not fulfilled,
the Issuer or the Company, as applicable, will reimburse the Underwriters for
all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and the
proposed purchase of the Offered Securities, and upon demand the Issuer or the
Company, as applicable, shall pay the full amount thereof to the
Representative(s). If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, neither the Issuer nor the
Company, as applicable, shall be obligated to reimburse any defaulting
Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to _______, or in respect of any Terms Agreement,
to such other person as may be named therein;
(b) if to the Issuer or the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Chief Financial Officer
(Fax: (415) ______);
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Issuer or the Company, as
applicable, shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on by the Underwriters.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Underwriters, the Issuer or the Company,
as applicable, and their respective successors. This Agreement and the terms and
provisions
27
<PAGE> 28
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Issuer or the
Company, as applicable, contained in this Agreement shall also be deemed to be
for the benefit of the person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act and (B) the indemnity
agreement of the Underwriters contained in Section 7(b) of this Agreement shall
be deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Issuer or the Company, as applicable, within the meaning of Section 13 of
the Securities Act. Nothing in this Agreement is intended or shall be construed
to give any person, other than the persons referred to in this Section 12, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
13. Survival. The respective indemnities, representations, warranties and
agreements of the Issuer or the Company, as applicable, and the Underwriters
contained in this Agreement and each Terms Agreement or made by or on behalf on
them, respectively, pursuant to this Agreement, shall survive the delivery of
and payment for the Offered Securities and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
14. Definition of "Business Day" and "Subsidiary". For purposes of this
Agreement, (a) "business day" means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
28
<PAGE> 29
Very truly yours,
METRICOM, INC.
By
-------------------------------------
Name:
METRICOM FINANCE, INC.
By
-------------------------------------
Name:
Title:
29
<PAGE> 30
Exhibit A
METRICOM, INC.
METRICOM FINANCE, INC.
[Title of Securities]
TERMS AGREEMENT
Dated: , 200_
TO: [NAMES OF UNDERWRITERS]
[ADDRESSES OF UNDERWRITERS]
RE: UNDERWRITING AGREEMENT DATED ________, 2000.
DEAR SIRS:
WE (THE "REPRESENTATIVE[S]") UNDERSTAND THAT METRICOM, INC., A DELAWARE
CORPORATION, AND/OR (THE "COMPANY" AND COLLECTIVELY, THE "ISSUERS"), PROPOSE TO
ISSUE AND SELL [[$ AGGREGATE PRINCIPAL AMOUNT] OF THEIR [SENIOR DEBT SECURITIES]
[AND] [SUBORDINATED [CONVERTIBLE DEBT SECURITIES] (THE "DEBT SECURITIES")] [AND]
[_________ SHARES OF THE COMPANY'S COMMON STOCK, PAR VALUE $.001 PER SHARE (THE
"COMMON STOCK")]. THIS AGREEMENT IS THE TERMS AGREEMENT REFERRED TO IN THE
UNDERWRITING AGREEMENT DATED _______________, 200_ (THE "UNDERWRITING
AGREEMENT"). SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN OR
INCORPORATED BY REFERENCE HEREIN, THE UNDERWRITERS NAMED BELOW (THE
"UNDERWRITERS") OFFER TO PURCHASE, SEVERALLY AND NOT JOINTLY, THE RESPECTIVE
[AMOUNTS OF [DEBT SECURITIES] [AND] [COMMON STOCK]] SET FORTH BELOW.
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
UNDERWRITER DEBT SECURITIES COMMON STOCK
------------------- -------------------
<S> <C> <C>
TOTAL $_________ $_________
</TABLE>
DEBT SECURITIES
TITLE OF DEBT SECURITIES: PRINCIPAL AMOUNT TO BE ISSUED: $
SENIOR OR SUBORDINATED:
CURRENCY:
CURRENT RATINGS:
<PAGE> 31
INTEREST RATE OR FORMULA: %
INTEREST PAYMENT DATES:
DATE OF MATURITY:
REDEMPTION PROVISIONS:
SINKING FUND REQUIREMENTS:
INITIAL PUBLIC OFFERING PRICE: % OF THE PRINCIPAL AMOUNT, PLUS ACCRUED
INTEREST, IF ANY, [OR AMORTIZED ORIGINAL ISSUE DISCOUNT, IF ANY,] FROM , 200_.
PURCHASE PRICE: % OF THE PRINCIPAL AMOUNT, PLUS ACCRUED INTEREST, IF ANY,
[OR AMORTIZED ORIGINAL ISSUE DISCOUNT, IF ANY,] FROM , 200_ (PAYABLE IN NEXT DAY
FUNDS).
LISTING REQUIREMENT: [NONE] [NASDAQ]
CONVERTIBLE:
CONVERSION PROVISIONS:
DELIVERY DATE AND LOCATION:
ADDITIONAL REPRESENTATIONS, IF ANY:
REDEMPTION PROVISIONS:
LOCK-UP PROVISIONS:
SINKING FUND REQUIREMENTS:
NUMBER OF OPTION SECURITIES, IF ANY:
OTHER TERMS AND CONDITIONS:
COMMON STOCK
TITLE OF COMMON STOCK:
PRINCIPAL AMOUNT TO BE ISSUED: $
CURRENCY:
2
<PAGE> 32
ANNUAL CASH DIVIDEND RATE: %
PAYABLE:
LIQUIDATION PREFERENCE PER SHARE:
INITIAL PUBLIC OFFERING PRICE: %, PLUS ACCRUED INTEREST OR AMORTIZED
ORIGINAL ISSUE DISCOUNT, IF ANY, FROM ____________, 200_
PURCHASE PRICE: % PLUS ACCRUED INTEREST OR AMORTIZED ORIGINAL ISSUE
DISCOUNT, IF ANY, FROM _____________, 200_ (PAYABLE IN NEXT DAY FUNDS).
LISTING REQUIREMENT: [NONE] [NASDAQ]
CONVERTIBLE:
INITIAL CONVERSION PRICE: $_____ PER SHARE OF [COMMON STOCK].
OTHER CONVERSION PROVISIONS:
DELIVERY DATE AND LOCATION:
ADDITIONAL REPRESENTATIONS, IF ANY:
REDEMPTION PROVISIONS:
LOCK-UP PROVISIONS:
SINKING FUND REQUIREMENTS:
NUMBER OF OPTION SECURITIES, IF ANY:
OTHER TERMS AND CONDITIONS:
3
<PAGE> 1
EXHIBIT 4.2
CERTIFICATE OF INCORPORATION
OF
METRICOM FINANCE, INC.
The undersigned, a natural person (the "Sole Incorporator"), for the
purpose of organizing a corporation to conduct the business and promote the
purposes hereinafter stated, under the provisions and subject to the
requirements of the laws of the State of Delaware hereby certifies that:
I.
The name of this corporation is Metricom Finance, Inc.
II.
The address of the registered office of the corporation in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of Newcastle, and the
name of the registered agent of the corporation in the State of Delaware at such
address is The Corporation Trust Company.
III.
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of Delaware.
IV.
A. This corporation is authorized to issue only one class of stock, to
be designated Common Stock. The total number of shares of Common Stock presently
authorized is one thousand (1,000) shares, each having a par value of
one-hundredth of one cent ($.0001).
V.
A. The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed by the Board
of Directors in the manner provided in the Bylaws.
B. Subject to paragraph (h) of Section 43 of the Bylaws, the Bylaws may
be altered or amended or new Bylaws adopted by the stockholders entitled to
vote. The Board of Directors shall also have the power to adopt, amend or repeal
Bylaws.
1.
<PAGE> 2
VI.
A. The liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law.
B. Any repeal or modification of this Article VI shall be prospective
and shall not affect the rights under this Article VI in effect at the time of
the alleged occurrence of any act or omission to act giving rise to liability or
indemnification.
VII.
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon the stockholders
herein are granted subject to this reservation.
VIII.
The name and the mailing address of the Sole Incorporator is as follows:
NAME MAILING ADDRESS
Ron A. Metzger Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111
IN WITNESS WHEREOF, this Certificate has been subscribed this 15th day
of December 1999 by the undersigned, who affirms that the statements made herein
are true and correct.
/s/ Ron A. Metzger
---------------------------------
Ron A. Metzger
SOLE INCORPORATOR
2.
<PAGE> 3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
METRICOM FINANCE, INC.
(A DELAWARE CORPORATION)
METRICOM FINANCE, INC., a Delaware corporation (the "Corporation"), does
hereby certify:
FIRST: The name of the Corporation is METRICOM FINANCE, INC.
SECOND: The date on which the Corporation's original Certificate of
Incorporation was filed with the Delaware Secretary of State is December 15,
1999.
THIRD: The Board of Directors of the Corporation, acting in accordance
with Sections 141(f) and 242 of the General Corporation Law of the State of
Delaware, adopted resolutions to amend the Certificate of Incorporation of the
Corporation to add Article IX.
as follows:
"IX.
The corporation elects not to be governed by Section 203 of the General
Corporation Law of the State of Delaware, as the same may be amended from time
to time. This election shall be effective as of the earliest date permitted by
law."
FOURTH: Thereafter pursuant to a resolution of the Board of Directors
this Certificate of Amendment was submitted to the stockholders of the
Corporation for their approval, and was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FIFTH: All other provisions of the Certificate of Incorporation shall
remain in full force and effect.
<PAGE> 4
IN WITNESS WHEREOF, METRICOM FINANCE, INC. has caused this Certificate
of Amendment to be signed by its President and Chief Executive Officer and
attested to by its Secretary this 21st day of December, 1999.
METRICOM FINANCE, INC.
/s/ TIMOTHY A. DREISBACH
-------------------------------------
Timothy A. Dreisbach
President and Chief Executive Officer
ATTEST:
/s/ DALE W. MARQUART
- ------------------------------
Dale W. Marquart
Secretary
2
<PAGE> 1
EXHIBIT 4.3
BYLAWS
OF
METRICOM FINANCE, INC.
(A DELAWARE CORPORATION)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I Offices.....................................................1
Section 1. Registered Office...........................................1
Section 2. Other Offices...............................................1
ARTICLE II Corporate Seal..............................................1
Section 3. Corporate Seal..............................................1
ARTICLE III Stockholders' Meetings......................................1
Section 4. Place Of Meetings...........................................1
Section 5. Annual Meetings.............................................1
Section 6. Special Meetings............................................4
Section 7. Notice Of Meetings..........................................5
Section 8. Quorum......................................................5
Section 9. Adjournment And Notice Of Adjourned Meetings................5
Section 10. Voting Rights...............................................6
Section 11. Joint Owners Of Stock.......................................6
Section 12. List Of Stockholders........................................6
Section 13. Action Without Meeting......................................6
Section 14. Organization................................................7
ARTICLE IV Directors...................................................8
Section 15. Number And Term Of Office...................................8
Section 16. Powers......................................................8
Section 17. Classes of Directors........................................8
Section 18. Vacancies...................................................9
Section 19. Resignation................................................10
Section 20. Removal....................................................10
Section 21. Meetings...................................................10
(a) Annual Meetings.......................................10
(b) Regular Meetings......................................10
(c) Special Meetings......................................11
(d) Telephone Meetings....................................11
(e) Notice Of Meetings....................................11
</TABLE>
i.
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
(f) Waiver Of Notice......................................11
Section 22. Quorum And Voting..........................................11
Section 23. Action Without Meeting.....................................12
Section 24. Fees And Compensation......................................12
Section 25. Committees.................................................12
(a) Executive Committee...................................12
(b) Other Committees......................................12
(c) Term..................................................12
(d) Meetings..............................................13
Section 26. Organization...............................................13
ARTICLE V Officers...................................................13
Section 27. Officers Designated........................................13
Section 28. Tenure And Duties Of Officers..............................14
(a) General...............................................14
(b) Duties Of Chairman Of The Board Of Directors..........14
(c) Duties Of President...................................14
(d) Duties Of Vice Presidents.............................14
(e) Duties Of Secretary...................................14
(f) Duties Of Chief Financial Officer.....................15
Section 29. Delegation Of Authority....................................15
Section 30. Resignations...............................................15
Section 31. Removal....................................................15
ARTICLE VI Execution Of Corporate Instruments And Voting Of
Securities Owned By The Corporation........................15
Section 32. Execution Of Corporate Instruments.........................15
Section 33. Voting Of Securities Owned By The Corporation..............16
ARTICLE VII Shares Of Stock............................................16
Section 34. Form And Execution Of Certificates.........................16
Section 35. Lost Certificates..........................................17
Section 36. Transfers..................................................17
</TABLE>
ii.
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 37. Fixing Record Dates........................................17
Section 38. Registered Stockholders....................................18
ARTICLE VIII Other Securities Of The Corporation........................18
Section 39. Execution Of Other Securities..............................18
ARTICLE IX Dividends..................................................19
Section 40. Declaration Of Dividends...................................19
Section 41. Dividend Reserve...........................................19
ARTICLE X Fiscal Year................................................19
Section 42. Fiscal Year................................................19
ARTICLE XI Indemnification............................................19
Section 43. Indemnification Of Directors, Officers, Employees And
Other Agents...............................................19
(a) Directors And Executive Officers......................19
(b) Other Officers, Employees And Other Agents............19
(c) Expenses..............................................20
(d) Enforcement...........................................20
(e) Non-Exclusivity Of Rights.............................21
(f) Survival Of Rights....................................21
(g) Insurance.............................................21
(h) Amendments............................................21
(i) Saving Clause.........................................21
(j) Certain Definitions...................................21
ARTICLE XII Notices....................................................22
Section 44. Notices....................................................22
(a) Notice To Stockholders................................22
(b) Notice To Directors...................................22
(c) Address Unknown.......................................22
(d) Affidavit Of Mailing..................................22
(e) Time Notices Deemed Given.............................23
(f) Methods Of Notice.....................................23
(g) Failure To Receive Notice.............................23
</TABLE>
iii.
<PAGE> 5
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
(h) Notice To Person With Whom Communication Is Unlawful..23
(i) Notice To Person With Undeliverable Address...........23
ARTICLE XIII Amendments.................................................24
Section 45. Amendments.................................................24
ARTICLE XIV Loans To Officers..........................................24
Section 46. Loans To Officers..........................................24
</TABLE>
iv.
<PAGE> 6
BYLAWS
OF
METRICOM FINANCE, INC.
(A DELAWARE CORPORATION)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the corporation in
the State of Delaware shall be in the City of Wilmington, County of New Castle.
(Del. Code Ann., tit. 8, Section 131)
SECTION 2. OTHER OFFICES. The corporation shall also have and maintain an
office or principal place of business, at such place as may be fixed by the
Board of Directors, and may also have offices at such other places, both within
and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the corporation may require. (Del. Code Ann.,
tit. 8, Section 122(8))
ARTICLE II
CORPORATE SEAL
SECTION 3. CORPORATE SEAL. The corporate seal shall consist of a die
bearing the name of the corporation and the inscription, "Corporate
Seal-Delaware." Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise. (Del. Code Ann., tit. 8,
Section 122(3))
ARTICLE III
STOCKHOLDERS' MEETINGS
SECTION 4. PLACE OF MEETINGS. Meetings of the stockholders of the
corporation shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors, or,
if not so designated, then at the office of the corporation required to be
maintained pursuant to Section 2 hereof. (Del. Code Ann., tit. 8, Section
211(a))
SECTION 5. ANNUAL MEETINGS.
(a) The annual meeting of the stockholders of the corporation, for the
purpose of election of directors and for such other business as may lawfully
come before it, shall be held on such date and at such time as may be designated
from time to time by the Board of Directors. Nominations of persons for election
to the Board of Directors of the corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of
1.
<PAGE> 7
stockholders: (i) pursuant to the corporation's notice of meeting of
stockholders; (ii) by or at the direction of the Board of Directors; or (iii) by
any stockholder of the corporation who was a stockholder of record at the time
of giving of notice provided for in the following paragraph, who is entitled to
vote at the meeting and who complied with the notice procedures set forth in
Section 5. (Del. Code Ann., tit. 8, Section 211(b))
(b) At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. Subject to
the rights of holders of any series of Preferred Stock to nominate and elect
certain directors as set forth in the Certificate of Incorporation, for
nominations or other business to be properly brought before an annual meeting by
a stockholder pursuant to clause (iii) of Section 5(a) of these Bylaws, (i) the
stockholder must have given timely notice thereof in writing to the Secretary of
the corporation, (ii) such other business must be a proper matter for
stockholder action under the Delaware General Corporation Law ("DGCL"), (iii) if
the stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the corporation with a Solicitation Notice (as
defined in this Section 5(b)), such stockholder or beneficial owner must, in the
case of a proposal, have delivered a proxy statement and form of proxy to
holders of at least the percentage of the corporation's voting shares required
under applicable law to carry any such proposal, or, in the case of a nomination
or nominations, have delivered a proxy statement and form of proxy to holders of
a percentage of the corporation's voting shares reasonably believed by such
stockholder or beneficial owner to be sufficient to elect the nominee or
nominees proposed to be nominated by such stockholder, and must, in either case,
have included in such materials the Solicitation Notice, and (iv) if no
Solicitation Notice relating thereto has been timely provided pursuant to this
section, the stockholder or beneficial owner proposing such business or
nomination must not have solicited a number of proxies sufficient to have
required the delivery of such a Solicitation Notice under this Section 5. To be
timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the ninetieth (90th) day nor earlier than the close of business on
the one hundred twentieth (120th) day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced more than thirty (30) days prior to or
delayed by more than thirty (30) days after the anniversary of the preceding
year's annual meeting, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such annual meeting
or the tenth (10th) day following the day on which public announcement of the
date of such meeting is first made. In no event shall the public announcement of
an adjournment of an annual meeting commence a new time period for the giving of
a stockholder's notice as described above. Such stockholder's notice shall set
forth: (A) as to each person whom the stockholder proposed to nominate for
election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "1934 Act") and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and the
beneficial owner, if any,
2.
<PAGE> 8
on whose behalf the proposal is made; and (C) as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder, as they appear on
the corporation's books, and of such beneficial owner, (ii) the class and number
of shares of the corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, and (iii) whether either such stockholder
or beneficial owner intends to deliver a proxy statement and form of proxy to
holders of, in the case of the proposal, at least the percentage of the
corporation's voting shares required under applicable law to carry the proposal
or, in the case of a nomination or nominations, a sufficient number of holders
of the corporation's voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a "Solicitation Notice").
(c) Notwithstanding anything in the second sentence of Section 5(b) of
these Bylaws to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the corporation is increased and there is
no public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the corporation at least one
hundred (100) days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 5 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the tenth (10th) day following the day on which such public
announcement is first made by the corporation.
(d) Only such persons who are nominated in accordance with the
procedures set forth in this Section 5 shall be eligible to serve as directors
and only such business shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set forth
in this Section 5. Except as otherwise provided by law, the Chairman of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made, or proposed, as the
case may be, in accordance with the procedures set forth in these Bylaws and, if
any proposed nomination or business is not in compliance with these Bylaws, to
declare that such defective proposal or nomination shall not be presented for
stockholder action at the meeting and shall be disregarded.
(e) Notwithstanding the foregoing provisions of this Section 5, in
order to include information with respect to a stockholder proposal in the proxy
statement and form of proxy for a stockholders' meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934 Act.
Nothing in these Bylaws shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the corporation proxy statement pursuant to
Rule 14a-8 under the 1934 Act.
(f) For purposes of this Section 5, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the 1934 Act.
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SECTION 6. SPECIAL MEETINGS.
(a) Special meetings of the stockholders of the corporation may be
called, for any purpose or purposes, by (i) the Chairman of the Board of
Directors, (ii) the Chief Executive Officer, or (iii) the Board of Directors
pursuant to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board of
Directors for adoption). At any time or times that the corporation is subject to
Section 2115(b) of the California General Corporation Law ("CGCL"), stockholders
holding five percent (5%) or more of the outstanding shares shall have the right
to call a special meeting of stockholders only as set forth in Section 18(c)
herein.
(b) If a special meeting is properly called by any person or persons
other than the Board of Directors, the request shall be in writing, specifying
the general nature of the business proposed to be transacted, and shall be
delivered personally or sent by registered mail or by telegraphic or other
facsimile transmission to the Chairman of the Board of Directors, the Chief
Executive Officer, or the Secretary of the corporation. No business may be
transacted at such special meeting otherwise than specified in such notice. The
Board of Directors shall determine the time and place of such special meeting,
which shall be held not less than thirty-five (35) nor more than one hundred
twenty (120) days after the date of the receipt of the request. Upon
determination of the time and place of the meeting, the officer receiving the
request shall cause notice to be given to the stockholders entitled to vote, in
accordance with the provisions of Section 7 of these Bylaws. If the notice is
not given within one hundred (100) days after the receipt of the request, the
person or persons properly requesting the meeting may set the time and place of
the meeting and give the notice. Nothing contained in this paragraph (b) shall
be construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the Board of Directors may be held.
(c) Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are to be
elected pursuant to the corporation's notice of meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
corporation who is a stockholder of record at the time of giving notice provided
for in these Bylaws who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 6(c). In the event
the corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the corporation's notice of meeting, if the
stockholder's notice required by Section 5(b) of these Bylaws shall be delivered
to the Secretary at the principal executive offices of the corporation not
earlier than the close of business on the one hundred twentieth (120th) day
prior to such special meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a
stockholder's notice as described above.
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SECTION 7. NOTICE OF MEETINGS. Except as otherwise provided by law or the
Certificate of Incorporation, written notice of each meeting of stockholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder entitled to vote at such meeting, such
notice to specify the place, date and hour and purpose or purposes of the
meeting. Notice of the time, place and purpose of any meeting of stockholders
may be waived in writing, signed by the person entitled to notice thereof,
either before or after such meeting, and will be waived by any stockholder by
his attendance thereat in person or by proxy, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Any stockholder so waiving notice of such meeting shall be
bound by the proceedings of any such meeting in all respects as if due notice
thereof had been given. (Del. Code Ann., tit. 8, Sections 222, 229)
SECTION 8. QUORUM. At all meetings of stockholders, except where otherwise
provided by statute or by the Certificate of Incorporation, or by these Bylaws,
the presence, in person or by proxy duly authorized, of the holders of a
majority of the outstanding shares of stock entitled to vote shall constitute a
quorum for the transaction of business. In the absence of a quorum any meeting
of stockholders may be adjourned, from time to time, either by the chairman of
the meeting or by vote of the holders of a majority of the shares represented
thereat, but no other business shall be transacted at such meeting. The
stockholders present at a duly called or convened meeting, at which a quorum is
present, may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. Except as
otherwise provided by statute, the Certificate of Incorporation or these Bylaws,
in all matters other than the election of directors, the affirmative vote of the
majority of shares present in person or represented by proxy at the meeting and
entitled to vote on the subject matter shall be the act of the stockholders.
Except as otherwise provided by statute, the Certificate of Incorporation or
these Bylaws, directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy at the meeting and entitled to
vote on the election of directors. Where a separate vote by a class or classes
or series is required, except where otherwise provided by the statute or by the
Certificate of Incorporation or these Bylaws, a majority of the outstanding
shares of such class or classes or series, present in person or represented by
proxy, shall constitute a quorum entitled to take action with respect to that
vote on that matter and, except where otherwise provided by the statute or by
the Certificate of Incorporation or these Bylaws, the affirmative vote of the
majority (plurality, in the case of the election of directors) of the votes cast
by the holders of shares of such class or classes or series shall be the act of
such class or classes or series. (Del. Code Ann., tit. 8, Section 216)
SECTION 9. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting of
stockholders, whether annual or special, may be adjourned from time to time
either by the chairman of the meeting or by the vote of a majority of the shares
casting votes. When a meeting is adjourned to another time or place, notice need
not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. (Del. Code Ann., tit. 8,
Section 222(c))
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SECTION 10. VOTING RIGHTS. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the stock
records of the corporation on the record date, as provided in Section 12 of
these Bylaws, shall be entitled to vote at any meeting of stockholders. Every
person entitled to vote shall have the right to do so either in person or by an
agent or agents authorized by a proxy granted in accordance with Delaware law.
An agent so appointed need not be a stockholder. No proxy shall be voted after
three (3) years from its date of creation unless the proxy provides for a longer
period. (Del. Code Ann., tit. 8, Sections 211(e), 212(b))
SECTION 11. JOINT OWNERS OF STOCK. If shares or other securities having
voting power stand of record in the names of two (2) or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety, or otherwise, or if two (2) or more persons have the same
fiduciary relationship respecting the same shares, unless the Secretary is given
written notice to the contrary and is furnished with a copy of the instrument or
order appointing them or creating the relationship wherein it is so provided,
their acts with respect to voting shall have the following effect: (a) if only
one (1) votes, his act binds all; (b) if more than one (1) votes, the act of the
majority so voting binds all; (c) if more than one (1) votes, but the vote is
evenly split on any particular matter, each faction may vote the securities in
question proportionally, or may apply to the Delaware Court of Chancery for
relief as provided in the DGCL, Section 217(b). If the instrument filed with the
Secretary shows that any such tenancy is held in unequal interests, a majority
or even-split for the purpose of subsection (c) shall be a majority or
even-split in interest. (Del. Code Ann., tit. 8, Section 217(b))
SECTION 12. LIST OF STOCKHOLDERS. The Secretary shall prepare and make, at
least ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at said meeting, arranged in alphabetical order,
showing the address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not specified, at the place where
the meeting is to be held. The list shall be produced and kept at the time and
place of meeting during the whole time thereof, and may be inspected by any
stockholder who is present. (Del. Code Ann., tit. 8, Section 219(a))
SECTION 13. ACTION WITHOUT MEETING.
(a) Unless otherwise provided in the Certificate of Incorporation, any
action required by statute to be taken at any annual or special meeting of the
stockholders, or any action which may be taken at any annual or special meeting
of the stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent, and no written consent shall be effective to
take the corporate action
6.
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referred to therein unless, within sixty (60) days of the earliest dated consent
delivered to the corporation in the manner herein required, written consents
signed by a sufficient number of stockholders to take action are delivered to
the corporation by delivery to its registered office in the State of Delaware,
its principal place of business or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation's registered office shall be by hand or
by certified or registered mail, return receipt requested. (Del. Code Ann., tit.
8, Section 228)
(c) Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a
sufficient number of holders to take the action were delivered to the
corporation as provided in subsection (b), in accordance with Section 228 of the
DGCL. If the action which is consented to is such as would have required the
filing of a certificate under any section of the DGCL if such action had been
voted on by stockholders at a meeting thereof, then the certificate filed under
such section shall state, in lieu of any statement required by such section
concerning any vote of stockholders, that written consent has been given in
accordance with Section 228 of the DGCL.
(d) Notwithstanding the foregoing, no such action by written consent
may be taken following the effectiveness of the corporation's registration
statement under the 1934 Act covering a class of equity securities of the
corporation (the "1934 Act Registration").
SECTION 14. ORGANIZATION.
(a) At every meeting of stockholders, the Chairman of the Board of
Directors, or, if a Chairman has not been appointed or is absent, the President,
or, if the President is absent, the most senior Vice President present, or in
the absence of any such officer, a chairman of the meeting chosen by a majority
in interest of the stockholders entitled to vote, present in person or by proxy,
shall act as chairman. The Secretary, or, in his absence, an Assistant Secretary
directed to do so by the President, shall act as secretary of the meeting.
(b) The Board of Directors of the corporation shall be entitled to
make such rules or regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for the meeting,
rules and procedures for maintaining order at the meeting and the safety of
those present, limitations on participation in such meeting to stockholders of
record of the corporation and their duly authorized and constituted proxies, and
such other persons as the chairman shall permit, restrictions on entry to the
meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot. Unless, and to the extent determined by
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the Board of Directors or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with rules of parliamentary
procedure.
ARTICLE IV
DIRECTORS
SECTION 15. NUMBER AND TERM OF OFFICE. The authorized number of directors
of the corporation shall be fixed in accordance with the Certificate of
Incorporation. Directors need not be stockholders unless so required by the
Certificate of Incorporation. If for any cause, the directors shall not have
been elected at an annual meeting, they may be elected as soon thereafter as
convenient at a special meeting of the stockholders called for that purpose in
the manner provided in these Bylaws. (Del. Code Ann., tit. 8, Sections 141(b),
211(b), (c))
SECTION 16. POWERS. The powers of the corporation shall be exercised, its
business conducted and its property controlled by the Board of Directors, except
as may be otherwise provided by statute or by the Certificate of Incorporation.
(Del. Code Ann., tit. 8, Section 141(a))
SECTION 17. CLASSES OF DIRECTORS.
(a) Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified circumstances, following the
1934 Act Registration, the directors shall be divided into three classes
designated as Class I, Class II and Class III, respectively. Directors shall be
assigned to each class in accordance with a resolution or resolutions adopted by
the Board of Directors. At the first annual meeting of stockholders following
the closing of the 1934 Act Registration, the term of office of the Class I
directors shall expire and Class I directors shall be elected for a full term of
three years. At the second annual meeting of stockholders following the 1934 Act
Registration, the term of office of the Class II directors shall expire and
Class II directors shall be elected for a full term of three years. At the third
annual meeting of stockholders following the 1934 Act Registration, the term of
office of the Class III directors shall expire and Class III directors shall be
elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual meeting.
During such time or times that the corporation is subject to Section 2115(b) of
the CGCL, this Section 17(a) shall become effective and apply only when the
corporation is a "listed" corporation within the meaning of Section 301.5 of the
CGCL.
(b) In the event that the corporation (i) is subject to Section
2115(b) of the CGCL and (ii) is not a "listed" corporation or ceases to be a
"listed" corporation under Section 301.5 of the CGCL, Section 17(a) of these
Bylaws shall not apply and all directors shall be elected at each annual meeting
of stockholders to hold office until the next annual meeting.
(c) No person entitled to vote at an election for directors may
cumulate votes to which such person is entitled, unless, at the time of such
election, the corporation (i) is subject to Section 2115(b) of the CGCL and (ii)
is not a "listed" corporation or ceases to be a "listed" corporation under
Section 301.5 of the CGCL. During this time, every stockholder entitled to vote
at an election for directors may cumulate such stockholder's votes and give one
candidate a
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number of votes equal to the number of directors to be elected by such
stockholder, multiplied by the number of votes to which such stockholder's
shares are otherwise entitled, or distribute the stockholder's votes on the same
principle among as many candidates as such stockholder thinks fit. No
stockholder, however, shall be entitled to so cumulate such stockholder's votes
unless (i) the names of such candidate or candidates have been placed in
nomination prior to the voting and (ii) the stockholder has given notice at the
meeting, prior to the voting, of such stockholder's intention to cumulate such
stockholder's votes. If any stockholder has given proper notice to cumulate
votes, all stockholders may cumulate their votes for any candidates who have
been properly placed in nomination. Subject to the rights of the holders of any
series of Preferred Stock to elect directors as set forth in the Certificate of
Incorporation, under cumulative voting, the candidates receiving the highest
number of votes, up to the number of directors to be elected, are elected.
Notwithstanding the foregoing provisions of this section, each director
shall serve until his successor is duly elected and qualified or until his
death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
SECTION 18. VACANCIES.
(a) Unless otherwise provided in the Certificate of Incorporation, any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other causes and any newly created directorships
resulting from any increase in the number of directors shall, unless the Board
of Directors determines by resolution that any such vacancies or newly created
directorships shall be filled by stockholders, be filled only by the affirmative
vote of a majority of the directors then in office, even though less than a
quorum of the Board of Directors. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
director for which the vacancy was created or occurred and until such director's
successor shall have been elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this Section 18 in the case of the
death, removal or resignation of any director. (Del. Code Ann., tit. 8, Section
223(a), (b))
(b) If at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Delaware Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent (10%) of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in offices as aforesaid, which election shall be governed by Section 211 of the
DGCL. (Del. Code Ann., tit. 8, Section 223(c)).
(c) At any time or times that the corporation is subject to Section
2115(b) of the CGCL, if, after the filling of any vacancy, the directors then in
office who have been elected by stockholders shall constitute less than a
majority of the directors then in office, then
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(1) Any holder or holders of an aggregate of five percent (5%) or
more of the total number of shares at the time outstanding having the right to
vote for those directors may call a special meeting of stockholders; or
(2) The Superior Court of the proper county shall, upon
application of such stockholder or stockholders, summarily order a special
meeting of stockholders, to be held to elect the entire board, all in accordance
with Section 305(c) of the CGCL. The term of office of any director shall
terminate upon that election of a successor.
SECTION 19. RESIGNATION. Any director may resign at any time by delivering
his written resignation to the Secretary, such resignation to specify whether it
will be effective at a particular time, upon receipt by the Secretary or at the
pleasure of the Board of Directors. If no such specification is made, it shall
be deemed effective at the pleasure of the Board of Directors. When one or more
directors shall resign from the Board of Directors, effective at a future date,
a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each director so chosen shall hold office for the unexpired portion of the term
of the director whose place shall be vacated and until his successor shall have
been duly elected and qualified. (Del. Code Ann., tit. 8, Sections 141(b),
223(d))
SECTION 20. REMOVAL.
(a) Unless otherwise provided in the Certificate of Incorporation,
during such time or times that the corporation is subject to Section 2115(b) of
the CGCL, the Board of Directors or any individual director may be removed from
office at any time without cause by the affirmative vote of the holders of at
least a majority of the outstanding shares entitled to vote on such removal;
provided, however, that unless the entire Board is removed, no individual
director may be removed when the votes cast against such director's removal
would be sufficient to elect that director if voted cumulatively at an election
which the same total number of votes were cast (or, if such action is taken by
written consent, all shares entitled to vote were voted) and the entire number
of directors authorized at the time of such director's most recent election were
then being elected.
(b) Unless otherwise provided in the Certificate of Incorporation,
following any date on which the corporation is no longer subject to Section
2115(b) of the CGCL and subject to any limitations imposed by law, Section 20(a)
above shall no longer apply and removal shall be as provided in Section 141(k)
of the DGCL.
SECTION 21. MEETINGS.
(a) ANNUAL MEETINGS. The annual meeting of the Board of Directors
shall be held immediately before or after the annual meeting of stockholders and
at the place where such meeting is held. No notice of an annual meeting of the
Board of Directors shall be necessary and such meeting shall be held for the
purpose of electing officers and transacting such other business as may lawfully
come before it.
(b) REGULAR MEETINGS. Unless otherwise restricted by the Certificate
of Incorporation, regular meetings of the Board of Directors may be held at any
time or date and at
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any place within or without the State of Delaware which has been designated by
the Board of Directors and publicized among all directors. No formal notice
shall be required for regular meetings of the Board of Directors. (Del. Code
Ann., tit. 8, Section 141(g))
(c) SPECIAL MEETINGS. Unless otherwise restricted by the Certificate
of Incorporation, special meetings of the Board of Directors may be held at any
time and place within or without the State of Delaware whenever called by the
Chairman of the Board, the President or any two of the directors (Del. Code
Ann., tit. 8, Section 141(g))
(d) TELEPHONE MEETINGS. Any member of the Board of Directors, or of
any committee thereof, may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
by such means shall constitute presence in person at such meeting. (Del. Code
Ann., tit. 8, Section 141(i))
(e) NOTICE OF MEETINGS. Notice of the time and place of all special
meetings of the Board of Directors shall be orally or in writing, by telephone,
including a voice messaging system or other system or technology designed to
record and communicate messages, facsimile, telegraph or telex, or by electronic
mail or other electronic means, during normal business hours, at least
twenty-four (24) hours before the date and time of the meeting, or sent in
writing to each director by first class mail, charges prepaid, at least three
(3) days before the date of the meeting. Notice of any meeting may be waived in
writing at any time before or after the meeting and will be waived by any
director by attendance thereat, except when the director attends the meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. (Del. Code Ann., tit. 8, Section 229)
(f) WAIVER OF NOTICE. The transaction of all business at any meeting
of the Board of Directors, or any committee thereof, however called or noticed,
or wherever held, shall be as valid as though had at a meeting duly held after
regular call and notice, if a quorum be present and if, either before or after
the meeting, each of the directors not present shall sign a written waiver of
notice. All such waivers shall be filed with the corporate records or made a
part of the minutes of the meeting. (Del. Code Ann., tit. 8, Section 229)
SECTION 22. QUORUM AND VOTING.
(a) Unless the Certificate of Incorporation requires a greater number
and except with respect to indemnification questions arising under Section 43
hereof, for which a quorum shall be one-third of the exact number of directors
fixed from time to time in accordance with the Certificate of Incorporation, a
quorum of the Board of Directors shall consist of a majority of the exact number
of directors fixed from time to time by the Board of Directors in accordance
with the Certificate of Incorporation; provided, however, at any meeting whether
a quorum be present or otherwise, a majority of the directors present may
adjourn from time to time until the time fixed for the next regular meeting of
the Board of Directors, without notice other than by announcement at the
meeting. (Del. Code Ann., tit. 8, Section 141(b))
(b) At each meeting of the Board of Directors at which a quorum is
present all questions and business shall be determined by the affirmative vote
of a majority of the directors
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present, unless a different vote be required by law, the Certificate of
Incorporation or these Bylaws. (Del. Code Ann., tit. 8, Section 141(b))
SECTION 23. ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and such writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee. (Del. Code Ann., tit. 8, Section 141(f))
SECTION 24. FEES AND COMPENSATION. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors,
including, if so approved, by resolution of the Board of Directors, a fixed sum
and expenses of attendance, if any, for attendance at each regular or special
meeting of the Board of Directors and at any meeting of a committee of the Board
of Directors. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise and receiving compensation therefor. (Del. Code
Ann., tit. 8, Section 141(h))
SECTION 25. COMMITTEES.
(a) EXECUTIVE COMMITTEE. The Board of Directors may appoint an
Executive Committee to consist of one (1) or more members of the Board of
Directors. The Executive Committee, to the extent permitted by law and provided
in the resolution of the Board of Directors shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
DGCL to be submitted to stockholders for approval, or (ii) adopting, amending or
repealing any bylaw of the corporation. (Del. Code Ann., tit. 8, Section 141(c))
(b) OTHER COMMITTEES. The Board of Directors may from time to time
appoint such other committees as may be permitted by law. Such other committees
appointed by the Board of Directors shall consist of one (1) or more members of
the Board of Directors, and shall have such powers and perform such duties as
may be prescribed by the resolution or resolutions creating such committees, but
in no event shall such committee have the powers denied to the Executive
Committee in these Bylaws. (Del. Code Ann., tit. 8, Section 141(c))
(c) TERM. Each member of a committee of the Board of Directors shall
serve a term on the committee coexistent with such member's term on the Board of
Directors. The Board of Directors, subject to any requirements of any
outstanding series of preferred Stock and the provisions of subsections (a) or
(b) of this Bylaw, may at any time increase or decrease the number of members of
a committee or terminate the existence of a committee. The membership of a
committee member shall terminate on the date of his death or voluntary
resignation from the committee or from the Board of Directors. The Board of
Directors may at any time for any reason remove any individual committee member
and the Board of Directors may fill any committee vacancy created by death,
resignation, removal or increase in the number of members
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of the committee. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee, and, in addition, in the absence or
disqualification of any member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. (Del. Code Ann., tit. 8, Section 141(c))
(d) MEETINGS. Unless the Board of Directors shall otherwise provide,
regular meetings of the Executive Committee or any other committee appointed
pursuant to this Section 25 shall be held at such times and places as are
determined by the Board of Directors, or by any such committee, and when notice
thereof has been given to each member of such committee, no further notice of
such regular meetings need be given thereafter. Special meetings of any such
committee may be held at any place which has been determined from time to time
by such committee, and may be called by any director who is a member of such
committee, upon written notice to the members of such committee of the time and
place of such special meeting given in the manner provided for the giving of
written notice to members of the Board of Directors of the time and place of
special meetings of the Board of Directors. Notice of any special meeting of any
committee may be waived in writing at any time before or after the meeting and
will be waived by any director by attendance thereat, except when the director
attends such special meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. A majority of the authorized number of
members of any such committee shall constitute a quorum for the transaction of
business, and the act of a majority of those present at any meeting at which a
quorum is present shall be the act of such committee. (Del. Code Ann., tit. 8,
Sections 141(c), 229)
SECTION 26. ORGANIZATION. At every meeting of the directors, the Chairman
of the Board of Directors, or, if a Chairman has not been appointed or is
absent, the President (if a director), or if the President is absent, the most
senior Vice President (if a director), or, in the absence of any such person, a
chairman of the meeting chosen by a majority of the directors present, shall
preside over the meeting. The Secretary, or in his absence, any Assistant
Secretary directed to do so by the President, shall act as secretary of the
meeting.
ARTICLE V
OFFICERS
SECTION 27. OFFICERS DESIGNATED. The officers of the corporation shall
include, if and when designated by the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, one or more Vice
Presidents, the Secretary, the Chief Financial Officer, the Treasurer and the
Controller, all of whom shall be elected at the annual organizational meeting of
the Board of Directors. The Board of Directors may also appoint one or more
Assistant Secretaries, Assistant Treasurers, Assistant Controllers and such
other officers and agents with such powers and duties as it shall deem
necessary. The Board of Directors may assign such additional titles to one or
more of the officers as it shall deem appropriate. Any one person may hold any
number of offices of the corporation at any one time unless specifically
prohibited therefrom by law. The salaries and other compensation of the officers
of the
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corporation shall be fixed by or in the manner designated by the Board of
Directors. (Del. Code Ann., tit. 8, Sections 122(5), 142(a), (b))
SECTION 28. TENURE AND DUTIES OF OFFICERS.
(a) GENERAL. All officers shall hold office at the pleasure of the
Board of Directors and until their successors shall have been duly elected and
qualified, unless sooner removed. Any officer elected or appointed by the Board
of Directors may be removed at any time by the Board of Directors. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by the
Board of Directors. (Del. Code Ann., tit. 8, Section 141(b), (e))
(b) DUTIES OF CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors, when present, shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the Board of Directors
shall perform other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time. If there is no President, then the Chairman
of the Board of Directors shall also serve as the Chief Executive Officer of the
corporation and shall have the powers and duties prescribed in paragraph (c) of
this Section 28. (Del. Code Ann., tit. 8, Section 142(a))
(c) DUTIES OF PRESIDENT. The President shall preside at all meetings
of the stockholders and at all meetings of the Board of Directors, unless the
Chairman of the Board of Directors has been appointed and is present. Unless
some other officer has been elected Chief Executive Officer of the corporation,
the President shall be the chief executive officer of the corporation and shall,
subject to the control of the Board of Directors, have general supervision,
direction and control of the business and officers of the corporation. The
President shall perform other duties commonly incident to his office and shall
also perform such other duties and have such other powers as the Board of
Directors shall designate from time to time. (Del. Code Ann., tit. 8, Section
142(a))
(d) DUTIES OF VICE PRESIDENTS. The Vice Presidents, in the order of
their seniority, may assume and perform the duties of the President in the
absence or disability of the President or whenever the office of President is
vacant. The Vice Presidents shall perform other duties commonly incident to
their office and shall also perform such other duties and have such other powers
as the Board of Directors or the President shall designate from time to time.
(Del. Code Ann., tit. 8, Section 142(a))
(e) DUTIES OF SECRETARY. The Secretary shall attend all meetings of
the stockholders and of the Board of Directors, and shall record all acts and
proceedings thereof in the minute book of the corporation. The Secretary shall
give notice in conformity with these Bylaws of all meetings of the stockholders,
and of all meetings of the Board of Directors and any committee thereof
requiring notice. The Secretary shall perform all other duties given him in
these Bylaws and other duties commonly incident to his office and shall also
perform such other duties and have such other powers as the Board of Directors
shall designate from time to time. The President may direct any Assistant
Secretary to assume and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall perform other
duties commonly incident to his office and shall also perform such other duties
and have
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such other powers as the Board of Directors or the President shall designate
from time to time. (Del. Code Ann., tit. 8, Section 142(a))
(f) DUTIES OF CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall keep or cause to be kept the books of account of the corporation in a
thorough and proper manner, and shall render statements of the financial affairs
of the corporation in such form and as often as required by the Board of
Directors or the President. The Chief Financial Officer, subject to the order of
the Board of Directors, shall have the custody of all funds and securities of
the corporation. The Chief Financial Officer shall perform other duties commonly
incident to his office and shall also perform such other duties and have such
other powers as the Board of Directors or the President shall designate from
time to time. The President may direct the Treasurer or any Assistant Treasurer,
or the Controller or any Assistant Controller to assume and perform the duties
of the Chief Financial Officer in the absence or disability of the Chief
Financial Officer, and each Treasurer and Assistant Treasurer and each
Controller and Assistant Controller shall perform other duties commonly incident
to his office and shall also perform such other duties and have such other
powers as the Board of Directors or the President shall designate from time to
time. (Del. Code Ann., tit. 8, Section 142(a))
SECTION 29. DELEGATION OF AUTHORITY. The Board of Directors may from time
to time delegate the powers or duties of any officer to any other officer or
agent, notwithstanding any provision hereof.
SECTION 30. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall be effective when received by the person
or persons to whom such notice is given, unless a later time is specified
therein, in which event the resignation shall become effective at such later
time. Unless otherwise specified in such notice, the acceptance of any such
resignation shall not be necessary to make it effective. Any resignation shall
be without prejudice to the rights, if any, of the corporation under any
contract with the resigning officer. (Del. Code Ann., tit. 8, Section 142(b))
SECTION 31. REMOVAL. Any officer may be removed from office at any time,
either with or without cause, by the affirmative vote of a majority of the
directors in office at the time, or by the unanimous written consent of the
directors in office at the time, or by any committee or superior officers upon
whom such power of removal may have been conferred by the Board of Directors.
ARTICLE VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF
SECURITIES OWNED BY THE CORPORATION
SECTION 32. EXECUTION OF CORPORATE INSTRUMENTS. The Board of Directors may,
in its discretion, determine the method and designate the signatory officer or
officers, or other person or persons, to execute on behalf of the corporation
any corporate instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts on behalf of
the corporation, except where otherwise provided by law or these Bylaws,
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and such execution or signature shall be binding upon the corporation. (Del.
Code Ann., tit. 8, Sections 103(a), 142(a), 158)
Unless otherwise specifically determined by the Board of Directors or
otherwise required by law, promissory notes, deeds of trust, mortgages and other
evidences of indebtedness of the corporation, and other corporate instruments or
documents requiring the corporate seal, and certificates of shares of stock
owned by the corporation, shall be executed, signed or endorsed by the Chairman
of the Board of Directors, or the President or any Vice President, and by the
Secretary or Chief Financial Officer or Treasurer or any Assistant Secretary or
Assistant Treasurer. All other instruments and documents requiring the corporate
signature, but not requiring the corporate seal, may be executed as aforesaid or
in such other manner as may be directed by the Board of Directors. (Del. Code
Ann., tit. 8, Sections 103(a), 142(a), 158)
All checks and drafts drawn on banks or other depositaries on funds to the
credit of the corporation or in special accounts of the corporation shall be
signed by such person or persons as the Board of Directors shall authorize so to
do.
Unless authorized or ratified by the Board of Directors or within the
agency power of an officer, no officer, agent or employee shall have any power
or authority to bind the corporation by any contract or engagement or to pledge
its credit or to render it liable for any purpose or for any amount. (Del. Code
Ann., tit. 8, Sections 103(a), 142(a), 158)
SECTION 33. VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock and
other securities of other corporations owned or held by the corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such authorization,
by the Chairman of the Board of Directors, the Chief Executive Officer, the
President, or any Vice President. (Del. Code Ann., tit. 8, Section 123)
ARTICLE VII
SHARES OF STOCK
SECTION 34. FORM AND EXECUTION OF CERTIFICATES. Certificates for the shares
of stock of the corporation shall be in such form as is consistent with the
Certificate of Incorporation and applicable law. Every holder of stock in the
corporation shall be entitled to have a certificate signed by or in the name of
the corporation by the Chairman of the Board of Directors, or the President or
any Vice President and by the Treasurer or Assistant Treasurer or the Secretary
or Assistant Secretary, certifying the number of shares owned by him in the
corporation. Any or all of the signatures on the certificate may be facsimiles.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued with the same effect as if he were such officer, transfer agent,
or registrar at the date of issue. Each certificate shall state upon the face or
back thereof, in full or in summary, all of the powers, designations,
preferences, and rights, and the limitations or restrictions of the shares
authorized to be issued or shall, except as otherwise required by law, set forth
on the face or back a statement that the corporation will furnish without charge
to each stockholder who so requests
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the powers, designations, preferences and relative, participating, optional, or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
Within a reasonable time after the issuance or transfer of uncertificated stock,
the corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to this section or otherwise required by law or with respect to this
section a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Except as otherwise expressly provided by law, the rights and
obligations of the holders of certificates representing stock of the same class
and series shall be identical. (Del. Code Ann., tit. 8, Section 158)
SECTION 35. LOST CERTIFICATES. A new certificate or certificates shall be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to agree to indemnify the corporation in such manner as it shall
require or to give the corporation a surety bond in such form and amount as it
may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen,
or destroyed. (Del. Code Ann., tit. 8, Section 167)
SECTION 36. TRANSFERS.
(a) Transfers of record of shares of stock of the corporation shall be
made only upon its books by the holders thereof, in person or by attorney duly
authorized, and upon the surrender of a properly endorsed certificate or
certificates for a like number of shares. (Del. Code Ann., tit. 8, Section 201,
tit. 6, Section 8-401(1))
(b) The corporation shall have power to enter into and perform any
agreement with any number of stockholders of any one or more classes of stock of
the corporation to restrict the transfer of shares of stock of the corporation
of any one or more classes owned by such stockholders in any manner not
prohibited by the DGCL. (Del. Code Ann., tit. 8, Section 160 (a))
SECTION 37. FIXING RECORD DATES.
(a) In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which record date
shall, subject to applicable law, not be more than sixty (60) nor less than ten
(10) days before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or if
notice is waived, at the close of business on the day next preceding the day on
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which the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
(b) In order that the corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty (60)
days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. (Del. Code Ann., tit. 8, Section 213)
SECTION 38. REGISTERED STOCKHOLDERS. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
(Del. Code Ann., tit. 8, Sections 213(a), 219)
ARTICLE VIII
OTHER SECURITIES OF THE CORPORATION
SECTION 39. EXECUTION OF OTHER SECURITIES. All bonds, debentures and other
corporate securities of the corporation, other than stock certificates (covered
in Section 33), may be signed by the Chairman of the Board of Directors, the
President or any Vice President, or such other person as may be authorized by
the Board of Directors, and the corporate seal impressed thereon or a facsimile
of such seal imprinted thereon and attested by the signature of the Secretary or
an Assistant Secretary, or the Chief Financial Officer or Treasurer or an
Assistant Treasurer; provided, however, that where any such bond, debenture or
other corporate security shall be authenticated by the manual signature, or
where permissible facsimile signature, of a trustee under an indenture pursuant
to which such bond, debenture or other corporate security shall be issued, the
signatures of the persons signing and attesting the corporate seal on such bond,
debenture or other corporate security may be the imprinted facsimile of the
signatures of such persons. Interest coupons appertaining to any such bond,
debenture or other corporate security, authenticated by a trustee as aforesaid,
shall be signed by the Treasurer or an Assistant Treasurer of the corporation or
such other person as may be authorized by the Board of Directors, or bear
imprinted thereon the facsimile signature of such person. In case any officer
who shall have signed or attested any bond, debenture or other corporate
security, or whose facsimile signature shall appear thereon or on any such
interest coupon, shall have ceased to be such officer before the bond, debenture
or other corporate security so signed or attested shall have been delivered,
such bond, debenture or other corporate security nevertheless may be adopted by
the corporation and issued and delivered as though the person who signed the
same or whose facsimile signature shall have been used thereon had not ceased to
be such officer of the corporation.
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ARTICLE IX
DIVIDENDS
SECTION 40. DECLARATION OF DIVIDENDS. Dividends upon the capital stock of
the corporation, subject to the provisions of the Certificate of Incorporation
and applicable law, if any, may be declared by the Board of Directors pursuant
to law at any regular or special meeting. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation and applicable law. (Del. Code Ann., tit. 8,
Sections 170, 173)
SECTION 41. DIVIDEND RESERVE. Before payment of any dividend, there may be
set aside out of any funds of the corporation available for dividends such sum
or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think
conducive to the interests of the corporation, and the Board of Directors may
modify or abolish any such reserve in the manner in which it was created. (Del.
Code Ann., tit. 8, Section 171)
ARTICLE X
FISCAL YEAR
SECTION 42. FISCAL YEAR. The fiscal year of the corporation shall be fixed
by resolution of the Board of Directors.
ARTICLE XI
INDEMNIFICATION
SECTION 43. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER
AGENTS.
(a) DIRECTORS AND EXECUTIVE OFFICERS. The corporation shall indemnify
its directors and executive officers (for the purposes of this Article XI,
"executive officers" shall have the meaning defined in Rule 3b-7 promulgated
under the 1934 Act) to the fullest extent not prohibited by the DGCL; provided,
however, that the corporation may modify the extent of such indemnification by
individual contracts with its directors and executive officers; and, provided,
further, that the corporation shall not be required to indemnify any director or
executive officer in connection with any proceeding (or part thereof) initiated
by such person unless (i) such indemnification is expressly required to be made
by law, (ii) the proceeding was authorized by the Board of Directors of the
corporation, (iii) such indemnification is provided by the corporation, in its
sole discretion, pursuant to the powers vested in the corporation under the DGCL
or any other applicable law or (iv) such indemnification is required to be made
under subsection (d).
(b) OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The corporation shall
have power to indemnify its other officers, employees and other agents as set
forth in the DGCL or any other applicable law. The Board of Directors shall have
the power to delegate the
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determination of whether indemnification shall be given to any such person to
such officers or other persons as the Board of Directors shall determine.
(c) EXPENSES. The corporation shall advance to 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, by reason of the fact that he is or was a director or executive
officer, of the corporation, or is or was serving at the request of the
corporation as a director or executive officer of another corporation,
partnership, joint venture, trust or other enterprise, prior to the final
disposition of the proceeding, promptly following request therefor, all expenses
incurred by any director or executive officer in connection with such proceeding
upon receipt of an undertaking by or on behalf of such person to repay said
amounts if it should be determined ultimately that such person is not entitled
to be indemnified under this Section 43 or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to
paragraph (e) of this Section 43, no advance shall be made by the corporation to
an executive officer of the corporation (except by reason of the fact that such
executive officer is or was a director of the corporation in which event this
paragraph shall not apply) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, if a determination is reasonably and
promptly made (i) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the proceeding, or (ii) if such
quorum is not obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, that
the facts known to the decision-making party at the time such determination is
made demonstrate clearly and convincingly that such person acted in bad faith or
in a manner that such person did not believe to be in or not opposed to the best
interests of the corporation.
(d) ENFORCEMENT. Without the necessity of entering into an express
contract, all rights to indemnification and advances to directors and executive
officers under this Bylaw shall be deemed to be contractual rights and be
effective to the same extent and as if provided for in a contract between the
corporation and the director or executive officer. Any right to indemnification
or advances granted by this Bylaw to a director or executive officer shall be
enforceable by or on behalf of the person holding such right in any court of
competent jurisdiction if (i) the claim for indemnification or advances is
denied, in whole or in part, or (ii) no disposition of such claim is made within
ninety (90) days of request therefor. The claimant in such enforcement action,
if successful in whole or in part, shall be entitled to be paid also the expense
of prosecuting his claim. In connection with any claim for indemnification, the
corporation shall be entitled to raise as a defense to any such action that the
claimant has not met the standards of conduct that make it permissible under the
DGCL or any other applicable law for the corporation to indemnify the claimant
for the amount claimed. Neither the failure of the corporation (including its
Board of Directors, independent legal counsel or its stockholders) to have made
a determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in the DGCL or any other applicable law, nor an
actual determination by the corporation (including its Board of Directors,
independent legal counsel or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that claimant has not met the applicable standard of conduct.
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(e) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by
this Bylaw shall not be exclusive of any other right which such person may have
or hereafter acquire under any applicable statute, provision of the Certificate
of Incorporation, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office. The corporation is specifically
authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances, to the
fullest extent not prohibited by the DGCL, or by any other applicable law.
(f) SURVIVAL OF RIGHTS. The rights conferred on any person by this
Bylaw shall continue as to a person who has ceased to be a director, officer,
employee or other agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
(g) INSURANCE. To the fullest extent permitted by the DGCL or any
other applicable law, the corporation, upon approval by the Board of Directors,
may purchase insurance on behalf of any person required or permitted to be
indemnified pursuant to this Section 43.
(h) AMENDMENTS. Any repeal or modification of this Section 43 shall
only be prospective and shall not affect the rights under this Bylaw in effect
at the time of the alleged occurrence of any action or omission to act that is
the cause of any proceeding against any agent of the corporation.
(i) SAVING CLAUSE. If this Bylaw or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and executive officer to
the full extent not prohibited by any applicable portion of this Bylaw that
shall not have been invalidated, or by any other applicable law. If this Section
43 shall be invalid due to the application of the indemnification provisions of
another jurisdiction, then the corporation shall indemnify each director and
executive officer to the full extent under any other applicable law.
(j) CERTAIN DEFINITIONS. For the purposes of this Bylaw, the following
definitions shall apply:
(1) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of testimony in,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative.
(2) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness fees, fines,
amounts paid in settlement or judgment and any other costs and expenses of any
nature or kind incurred in connection with any proceeding.
(3) The term the "corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any
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person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Bylaw with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(4) References to a "director," "executive officer," "officer,"
"employee," or "agent" of the corporation shall include, without limitation,
situations where such person is serving at the request of the corporation as,
respectively, a director, executive officer, officer, employee, trustee or agent
of another corporation, partnership, joint venture, trust or other enterprise.
(5) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Section 43.
ARTICLE XII
NOTICES
SECTION 44. NOTICES.
(a) NOTICE TO STOCKHOLDERS. Whenever, under any provisions of these
Bylaws, notice is required to be given to any stockholder, it shall be given in
writing, timely and duly deposited in the United States mail, postage prepaid,
and addressed to his last known post office address as shown by the stock record
of the corporation or its transfer agent. (Del. Code Ann., tit. 8, Section 222)
(b) NOTICE TO DIRECTORS. Any notice required to be given to any
director may be given by the method stated in subsection (a), or by overnight
delivery service, facsimile, telex or telegram, except that such notice other
than one which is delivered personally shall be sent to such address as such
director shall have filed in writing with the Secretary, or, in the absence of
such filing, to the last known post office address of such director.
(c) ADDRESS UNKNOWN. If no address of a stockholder or director be
known, notice may be sent to the office of the corporation required to be
maintained pursuant to Section 2 hereof.
(d) AFFIDAVIT OF MAILING. An affidavit of mailing, executed by a duly
authorized and competent employee of the corporation or its transfer agent
appointed with respect to the class of stock affected, specifying the name and
address or the names and
22.
<PAGE> 28
addresses of the stockholder or stockholders, or director or directors, to whom
any such notice or notices was or were given, and the time and method of giving
the same, shall in the absence of fraud, be prima facie evidence of the facts
therein contained. (Del. Code Ann., tit. 8, Section 222)
(e) TIME NOTICES DEEMED GIVEN. All notices given by mail or by
overnight delivery service, as above provided, shall be deemed to have been
given as at the time of mailing and all notices given by facsimile, telex or
telegram shall be deemed to have been given as of the sending time recorded at
time of transmission.
(f) METHODS OF NOTICE. It shall not be necessary that the same method
of giving notice be employed in respect of all directors, but one permissible
method may be employed in respect of any one or more, and any other permissible
method or methods may be employed in respect of any other or others.
(g) FAILURE TO RECEIVE NOTICE. The period or limitation of time within
which any stockholder may exercise any option or right, or enjoy any privilege
or benefit, or be required to act, or within which any director may exercise any
power or right, or enjoy any privilege, pursuant to any notice sent him in the
manner above provided, shall not be affected or extended in any manner by the
failure of such stockholder or such director to receive such notice.
(h) NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL. Whenever
notice is required to be given, under any provision of law or of the Certificate
of Incorporation or Bylaws of the corporation, to any person with whom
communication is unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the corporation is
such as to require the filing of a certificate under any provision of the DGCL,
the certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
(i) NOTICE TO PERSON WITH UNDELIVERABLE ADDRESS. Whenever notice is
required to be given, under any provision of law or the Certificate of
Incorporation or Bylaws of the corporation, to any stockholder to whom (i)
notice of two consecutive annual meetings, and all notices of meetings or of the
taking of action by written consent without a meeting to such person during the
period between such two consecutive annual meetings, or (ii) all, and at least
two, payments (if sent by first class mail) of dividends or interest on
securities during a twelve-month period, have been mailed addressed to such
person at his address as shown on the records of the corporation and have been
returned undeliverable, the giving of such notice to such person shall not be
required. Any action or meeting which shall be taken or held without notice to
such person shall have the same force and effect as if such notice had been duly
given. If any such person shall deliver to the corporation a written notice
setting forth his then current address, the requirement that notice be given to
such person shall be reinstated. In the event that the action taken by the
corporation is such as to require the filing of a certificate under any
provision of the DGCL, the certificate need not state that notice was not given
to persons to whom notice was not required to be given pursuant to this
paragraph. (Del. Code Ann, tit. 8, Section 230)
23.
<PAGE> 29
ARTICLE XIII
AMENDMENTS
SECTION 45. AMENDMENTS. Subject to paragraph (h) of Section 43 of these
Bylaws, the Bylaws may be altered or amended or new Bylaws adopted by the
affirmative vote of at least sixty-six and two-thirds percent (66-2/3) of the
voting power of all the then-outstanding shares of the Voting Stock. The Board
of Directors shall also have the power to adopt, amend, or repeal Bylaws. (Del.
Code Ann., tit. 8, Sections 109(a), 122(6))
ARTICLE XIV
LOANS TO OFFICERS
SECTION 46. LOANS TO OFFICERS. The corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other employee
of the corporation or of its subsidiaries, including any officer or employee who
is a director of the corporation or its subsidiaries, whenever, in the judgment
of the Board of directors, such loan, guarantee or assistance may reasonably be
expected to benefit the corporation. The loan, guarantee or other assistance may
be with or without interest and may be unsecured, or secured in such manner as
the Board of Directors shall approve, including, without limitation, a pledge of
shares of stock of the corporation. Nothing in these Bylaws shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute. (Del. Code Ann., tit. 8, Section 143)
24.
<PAGE> 1
EXHIBIT 4.4
- --------------------------------------------------------------------------------
METRICOM, INC.
METRICOM FINANCE, INC.
CO-OBLIGORS
SENIOR INDENTURE
DATED AS OF DECEMBER 29, 1999
BANK ONE TRUST COMPANY, N.A.
TRUSTEE
- --------------------------------------------------------------------------------
<PAGE> 2
CROSS-REFERENCE TABLE*
Trust Indenture Act
<TABLE>
<CAPTION>
Section Indenture
<S> <C>
310 (a)(1)................................................................7.10
(a)(2) ...............................................................7.10
(a)(3)................................................................N.A.
(a)(4)................................................................N.A.
(a)(5)................................................................7.10
(b)...................................................................7.10
(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)(2)................................................................7.06;
(c).................................................................7.07;
10.02
314(a)....................................................................4.03;
10.02
(c)(1)................................................................10.04
(c)(2)................................................................10.04
(c)(3)................................................................N.A.
(e)...................................................................10.05
(f)...................................................................NA
315 (a)...................................................................7.01
(b)...................................................................7.05,
10.02
(c)...................................................................7.01
(d)...................................................................7.01
(e)...................................................................6.11
316 (a)(last sentence)....................................................2.09
(a)(1)(A).............................................................6.05
(a)(1)(B).............................................................6.04
(a)(2)................................................................N.A.
(b)...................................................................6.07
(c)...................................................................2.12
317 (a)(1)................................................................6.08
(a)(2)................................................................6.09
(b)...................................................................2.04
318 (a)...................................................................10.01
(b)...................................................................N.A.
(c)...................................................................10.01
</TABLE>
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE......................................1
Section 1.01. Definitions...........................................................1
Section 1.02. Other Definitions.....................................................7
Section 1.03. Incorporation by Reference of Trust Indenture Act.....................7
Section 1.04. Rules of Construction.................................................8
ARTICLE 2. THE SECURITIES..................................................................8
Section 2.01. Form of Notes.........................................................8
Section 2.02. Terms of Notes........................................................9
Section 2.03. Execution, Authentication and Delivery...............................10
Section 2.04. Registrar and Paying Agent...........................................11
Section 2.05. Paying Agent to Hold Money in Trust..................................11
Section 2.06. Holder Lists.........................................................12
Section 2.07. Transfer and Exchange................................................12
Section 2.08. Replacement Notes....................................................15
Section 2.09. Outstanding Notes....................................................15
Section 2.10. Treasury Notes.......................................................15
Section 2.11. Temporary Notes......................................................16
Section 2.12. Cancellation.........................................................16
Section 2.13. Defaulted Interest...................................................16
Section 2.14. CUSIP Numbers........................................................16
ARTICLE 3. REDEMPTION AND PREPAYMENT......................................................17
Section 3.01. Notices to Trustee...................................................17
Section 3.02. Selection of Notes to Be Redeemed....................................17
Section 3.03. Notice of Redemption.................................................17
Section 3.04. Effect of Notice of Redemption.......................................18
Section 3.05. Deposit of Redemption price..........................................18
Section 3.06. Notes Redeemed in Part...............................................18
ARTICLE 4. COVENANTS......................................................................19
Section 4.01. Payment of Notes.....................................................19
Section 4.02. Maintenance of Office or Agency......................................19
Section 4.03. Reports..............................................................19
Section 4.04. Compliance Certificate...............................................20
Section 4.05. Taxes................................................................21
Section 4.06. Stay, Extension and Usury Laws.......................................21
Section 4.07. Restrictions on Activities of Metricom Finance Sub...................21
Section 4.08. Corporate Existence..................................................21
ARTICLE 5. SUCCESSORS.....................................................................22
Section 5.01. Merger, Consolidation, or Sale of Assets.............................22
Section 5.02. Successor Corporation Substituted....................................22
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE 6. DEFAULTS AND REMEDIES..........................................................22
Section 6.01. Events of Default....................................................22
Section 6.02. Acceleration.........................................................24
Section 6.03. Other Remedies.......................................................24
Section 6.04. Waiver of Past Defaults..............................................24
Section 6.05. Control by Majority..................................................25
Section 6.06. Limitation on Suits..................................................25
Section 6.07. Rights of Holders of Notes to Receive Payment........................25
Section 6.08. Collection Suit by Trustee...........................................25
Section 6.09. Trustee May File Proofs of Claim.....................................26
Section 6.10. Priorities...........................................................26
Section 6.11. Undertaking for Costs................................................26
ARTICLE 7. TRUSTEE........................................................................26
Section 7.01. Duties of Trustee....................................................27
Section 7.02. Rights of Trustee....................................................28
Section 7.03. Individual Rights of Trustee.........................................28
Section 7.04. Trustee's Disclaimer.................................................28
Section 7.05. Notice of Defaults...................................................29
Section 7.06. Reports by Trustee to Holders of the Notes...........................29
Section 7.07. Compensation and Indemnity...........................................29
Section 7.08. Replacement of Trustee...............................................30
Section 7.09. Successor Trustee by Merger, etc.....................................31
Section 7.10. Eligibility; Disqualification........................................31
Section 7.11. Preferential Collection of Claims Against Company....................31
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.......................................31
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.............31
Section 8.02. Legal Defeasance and Discharge.......................................31
Section 8.03. Covenant Defeasance..................................................32
Section 8.04. Conditions to Legal or Covenant Defeasance...........................32
Section 8.05. Deposited Money and Government Obligations to be Held in Trust;
Other Miscellaneous Provisions.......................................33
Section 8.06. Repayment to Company.................................................33
Section 8.07. Reinstatement........................................................34
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER...............................................34
Section 9.01. Without Consent of Holders of Notes..................................34
Section 9.02. With Consent of Holders of Notes.....................................35
Section 9.03. Compliance with Trust Indenture Act..................................36
Section 9.04. Revocation and Effect of Consents....................................36
Section 9.05. Notation on or Exchange of Notes.....................................37
Section 9.06. Trustee to Sign Amendments, etc......................................37
ARTICLE 10. MISCELLANEOUS..................................................................37
Section 10.01. Trust Indenture Act Controls........................................38
Section 10.02. Notices.............................................................38
Section 10.03. Communication by Holders of Notes with Other Holders of Notes.......38
Section 10.04. Certificate and Opinion as to Conditions Precedent..................38
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C>
Section 10.05. Statements Required in Certificate or Opinion.......................39
Section 10.06. Rules by Trustee and Agents.........................................39
Section 10.07. No Personal Liability of Directors, Officers, Employees and
Stockholders........................................................39
Section 10.08. Governing Law.......................................................39
Section 10.09. No Adverse Interpretation of Other Agreements.......................40
Section 10.10. Successors..........................................................40
Section 10.11. Severability........................................................40
Section 10.12. Counterpart Originals...............................................40
Section 10.13. Table of Contents, Headings, etc....................................40
ARTICLE 11. SATISFACTION AND DISCHARGE.....................................................40
Section 11.01. Satisfaction and Discharge..........................................40
Section 11.02. Application of Trust Money..........................................41
ARTICLE 12. SECURITY GUARANTEES............................................................41
Section 12.01. Guarantee...........................................................41
Section 12.02. Limitation on Guarantor Liability...................................42
Section 12.03. Execution and Delivery of Note Guarantee............................43
Section 12.04. Release Following Holding Company Reorganization....................43
</TABLE>
iii
<PAGE> 6
INDENTURE dated as of December 29, 1999 between Metricom, Inc., a
Delaware corporation (the "Company"), Metricom Finance, Inc., a Delaware
corporation ("Finance Sub" and, together with the Company, the "Issuers" and
each an "Issuer"), and Bank One Trust Company, N.A., a national banking
association, as trustee (the "Trustee").
The Issuers have duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of their unsecured
debentures, securities or other evidence of indebtedness (herein called the
"Notes"), which may or may not be convertible into or exchangeable for any
securities of any Person (including the Company), to be issued in one or more
series as provided in this Indenture.
The Issuers and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the holders of the Notes or
of any series thereof (the "Holders"), as follows:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
Unless otherwise provided in a Supplemental Indenture, the
following terms have the indicated meaning for purposes of this Indenture:
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control" and
correlative meanings, the terms "controlling," "controlled by" and "under common
control with," as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Authenticating Agent" means any person authorized by the Trustee
to act on behalf of the Trustee to authenticate the Notes.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Board of Directors" means (1) in respect of a limited liability
company, the board of advisors of that company; (2) in respect of a corporation,
the board of directors of the corporation, or any authorized committee thereof;
and (3) in respect of any other Person, the board or committee of that Person
serving a similar function.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of an Issuer to have been duly adopted by
the Board of Directors (or a committee of the Board of Directors empowered to
adopt such resolution) and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
<PAGE> 7
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, in equity of such Person, whether now outstanding
or issued after the date the Notes are issued, including, without limitation,
all Common Stock and Preferred Stock of such Person.
"Cedel" means Cedel Bank, S.A., or its successor.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, of that Person's equity, other than Preferred
Stock of that Person, whether now outstanding or issued after the date the notes
are issued, including without limitation, all series and classes of that common
stock.
"Company" means Metricom, Inc., a Delaware corporation, and any
and all successors thereto.
"Corporate Trust Office" 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 Issuers.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Note" means a certificated security registered in the
name of the Holder thereof and issued in accordance with Section 2.07 hereof, in
substantially the form of Exhibit A hereto except that such note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.04 hereof
as the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock, but excluding any Indebtedness that is
convertible into, or exchangeable for, Capital Stock.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear systems.
"Exchange Act" means the Notes Exchange Act of 1934, as amended.
"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, the statements and
pronouncements of the Financial Accounting Standards Board and such other
statements by such other entities as have been approved by a significant segment
of the accounting
2
<PAGE> 8
profession, which are applicable at the date of any determination made under
this Indenture or any Supplemental Indenture.
"Global Note" means a Note bearing the legend specified in
Section 2.07(f) evidencing all or a part of a series of Notes issued in
accordance with Section 2.01, 2.07(b), 2.07(d) or 2.07(f) hereof.
"Global Note Legend" means the legend set forth in Section
2.07(f), which is required to be placed on all Global Notes issued under this
Indenture.
"Government Obligations" means direct obligations, or
certificates representing an ownership interest in such obligations, of the
United States, including any agency or instrumentality of the United States, for
the payment of which the full faith and credit of the United States is pledged
and which are not callable or redeemable at the issuer's option.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including by way of a pledge of assets or
through letters of credit or reimbursement agreements in respect thereof), of
all or any part of any Indebtedness.
"Guarantor" means Metricom, Inc. and any other Person that may
from time to time become a guarantor of the Notes, until any such party is
released from such guarantee pursuant to the provisions of this Indenture, and
each of their respective successors.
"Hedging Obligations" means, with respect to any Person, the net
payment obligations of that Person under (1) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and (2) other
agreements or arrangements in the ordinary course of business and pursuant to
past practices designed to protect that Person against fluctuations in commodity
prices, interest rates or currency exchange rates, in any case, not entered into
for speculative purposes.
"Holder" means a Person in whose name a Note is registered.
"Holding Company Reorganization" means a transaction in which the
Company either:
(1) contributes all or substantially of the Company's assets to Finance
Sub, but retains the Company's obligations under the Notes and any other
Indebtedness providing for such a transaction;
(2) a wholly owned subsidiary of Finance Sub formed solely for the
purpose of effecting the Holding Company Reorganization merges with the
Company, and in which Finance Sub becomes the sole holder of all of the
issued and outstanding Capital Stock of the surviving entity and all of
the holders of the Capital Stock of the Company become the holders of
all of the issued and outstanding shares of the Capital Stock of Finance
Sub; or
(3) a merger of the Company with and into a single-member limited
liability company, all of the issued and outstanding Capital Stock of
which is owned by Finance Sub and all of the holders of the Capital
Stock of the Company become the holders of all of the issued and
outstanding shares of the Capital Stock of Finance Sub.
"Indebtedness" means, with respect to any Person, any
indebtedness of that Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or
3
<PAGE> 9
similar instruments or letters of credit, or reimbursement agreements in respect
of letters of credit, or banker's acceptances or representing Capital Lease
Obligations, the balance deferred and unpaid of the purchase price of any
property or representing any Hedging Obligations, except any such balance that
constitutes an accrued expense or trade payable, or all Disqualified Stock
valued at the greater of the Person's voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends, if and to the extent any of
the foregoing indebtedness, other than letters of credit and Hedging
Obligations, would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien on any asset of that Person, whether or not such Indebtedness is
assumed by that Person, and, to the extent not otherwise included, the guarantee
by such Person of any Indebtedness of any other Person, and any liability,
whether or not contingent, whether or not it appears on the balance sheet, of
that Person. The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value thereof, in the case of any Indebtedness that
does not require current payments of interest, and
(2) the principal amount of Indebtedness, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time by one or more Supplemental Indentures hereto in accordance with
Article 9 hereof.
"Indentures" means this Indenture, the Subordinated Indenture,
and any Supplemental Indentures hereto and thereto.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Interest Payment Date," when used with respect to any series of
Notes, means the Stated Maturity of an installment of interest on such Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York 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 on such payment for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in any asset and any filing of or agreement to give any
financing statement under the Uniform Commercial Code or equivalent statutes of
any jurisdiction.
"Maturity," when used with respect to any Indebtedness, means the
date on which the principal of such Indebtedness or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Non-Recourse Debt" means Indebtedness: (1) as to which neither
the Issuers nor any of their Restricted Subsidiaries (a) provides credit support
of any kind, including any undertaking,
4
<PAGE> 10
agreement or instrument that would constitute Indebtedness, (b) is directly or
indirectly liable, as a guarantor or otherwise, or (c) constitutes the lender;
(2) no default with respect to which, including any rights that the holders of
that Indebtedness may have to take enforcement action against an Unrestricted
Subsidiary, would permit upon notice, lapse of time or both any holder of any
other of their Indebtedness, other than the notes, or of the Indebtedness of any
of their Restricted Subsidiaries to declare a default on that other Indebtedness
or cause the payment of that other Indebtedness to be accelerated or payable
prior to its Stated Maturity; and (3) as to which the lenders have been notified
in writing that they will not have any recourse to their stock or assets or the
stock or assets of any of their Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee by the Company of Finance
Sub's payment obligations under this Indenture and on the Notes.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Notes" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Notes
authenticated and delivered under this Indenture, exclusive, however, of Notes
of any series as to which such Person is not Trustee.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice-President of such
Person.
"Officers' Certificate" means a certificate signed on behalf of
an Issuer by at least one Officer of such Issuer, who must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of such Issuer, that, if applicable, meets the
requirements of Sections 10.04 and 10.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
10.04 and 10.05 hereof. The counsel may be an employee of or counsel to an
Issuer, any Subsidiary of an Issuer or the Trustee.
"Original Issue Discount Note" means any Note which provides for
an amount less than the principal amount thereof to be due and payable upon
Maturity thereof.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively, and, with respect to the DTC, shall include Euroclear and Cedel.
"Paying Agent" means any Person (including the Issuers acting as
Paying Agent) authorized by the Issuers to pay the principal, premium, if any,
or interest on any Notes on behalf of the Issuers.
"Person" means any natural person, limited liability company,
corporation, partnership, government, agency or instrumentality of a government,
or any other entity.
5
<PAGE> 11
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, of that Person's equity that have a preference as
to the payment of dividends or as to payments upon a liquidation of that Person,
whether now outstanding or issued after the date the Notes are issued, including
without limitation, all series and classes of that Preferred Stock.
"principal" of Indebtedness means the principal of the
Indebtedness plus the premium, if any,, if and when applicable, on the
Indebtedness.
"redemption date," when used with respect to any Notes, or series
thereof, to be redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"redemption price," when used with respect to any Note, or series
thereof, to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any of Subsidiary of a Person other
than an Unrestricted Subsidiary of that Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the shelf registration
statement filed by the Issuers with the SEC on Form S-3 under the Securities
Act, in connection with the Notes.
"Significant Subsidiary" means any Subsidiary of the Company or
Finance Sub that is a "significant subsidiary" within the meaning of Rule
1-02(w) of Regulation S-X under the Securities Act.
"Stated Maturity" means, (1) with respect to any Indebtedness,
the date specified in such Indebtedness as the fixed date on which the final
installment of principal of such Indebtedness is due and payable and (2) with
respect to any scheduled installment of principal of or interest on any
Indebtedness, the date specified in such Indebtedness as the fixed date on which
such installment is due and payable.
"Subordinated Indenture" means that certain indenture by and
among the Issuers and Bank One Trust Company, N.A., as trustee, dated as of
December 29, 1999.
"Subordinated Notes" means those securities issued from time to
time in one or more series under the Subordinated Indenture and any indentures
supplemental thereto.
"Subsidiary" means, with respect to any Person, (1) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled, without regard to the
occurrence of any contingency, to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
that Person and (2) any
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partnership (a) the sole general partner or the managing general partner of
which is such Person or an entity described in clause (1) and related to such
Person or (b) the only general partners of which are such Person or of one or
more entities described in clause (1) and related to such Person or (c) any
combination entities described in clauses (1) and (2).
"Supplemental Indenture" means one or more indentures
supplemental to one or both of the Indentures in accordance with Article 9
hereof and thereof.
"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" means any Subsidiary that is designated
by a Board of Directors as an Unrestricted Subsidiary pursuant to a resolution
of the Board of Directors, but only to the extent that such Subsidiary: (1) has
no Indebtedness other than Non-Recourse Debt; (2) is a Person with respect to
which neither the Issuers nor any of their Restricted Subsidiaries has any
direct or indirect obligation (a) to subscribe for additional Equity Interests,
or (b) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"Voting Stock" of any Person as of any date means the Capital
Stock of that Person that is at the time entitled to vote in the election of
directors or similar individuals of that Person.
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Defined in
Term Section
<S> <C>
"Authentication Order"........................................2.03
"Benefited Party".............................................12.01
"Covenant Defeasance".........................................8.03
"DTC".........................................................2.04
"Event of Default"............................................6.01
"Legal Defeasance" ...........................................8.02
"Paying Agent"................................................2.04
"Payment Default".............................................6.01
"Registrar"...................................................2.04
"Successor Company"...........................................5.01
</TABLE>
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
(a) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the
following meanings:
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"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" means the Trustee; and
"obligor" on the Notes means the Issuers and any successor
obligor upon the Notes.
(c) 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.
(a) 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) "including" means "including without limitation";
(6) provisions apply to successive events and
transactions; and
(7) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE SECURITIES
SECTION 2.01. FORM OF NOTES.
(a) Form of Notes. Notes of each series shall be in substantially
the form as shall be established by or pursuant to a Board Resolution or in one
or more Supplemental Indentures hereto, in each case with appropriate notations,
legends or endorsements required by law, stock exchange rule or usage. Notes
issued in global form shall include the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto. Notes
issued in definitive form shall be substantially in the form of a Global Note,
but shall not include the Global Note Legend or "Schedule of Exchanges of
Interests in the Global Note." Each Global Note shall represent such of the
outstanding Notes of a series as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount, or principal
amount at Maturity, as applicable, of outstanding Notes of such series from time
to time endorsed thereon and that the aggregate principal amount, or principal
amount at Maturity, as applicable, of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount, or principal amount at
Maturity, as
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applicable, of outstanding Notes of a series represented thereby shall be made
by the Trustee or the Custodian, at the direction of the Trustee, in accordance
with instructions given by the Holder thereof as required by Section 2.06
hereof.
Each Note shall be dated the date of its authentication. Unless
otherwise specified in an indenture supplemental hereto with respect to any
series of Notes, 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
Issuers and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Form of Trustee's Certificate of Authentication. The form of
Trustee's certificate of authentication shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein
referred to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.
as Trustee,
By:
Authorized Signatory
Dated:
(c) Euroclear and Cedel Procedures Applicable. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in Global Notes that are held by Participants through
Euroclear or Cedel.
SECTION 2.02. TERMS OF NOTES.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited. The Notes issued
under this Indenture shall rank pari passu with all other unsecured and
unsubordinated Indebtedness of the Issuers.
The Notes may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 2.03, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more Supplemental Indentures hereto, prior to the issuance of Notes of
any series, any or all of the following, as applicable, as may be determined
from time to time by the Issuers with respect to unissued Notes of the series
and set forth in such Notes of the series when issued from time to time:
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<PAGE> 15
(1) the designation and title of the Notes;
(2) the aggregate principal amount, or principal amount at
Maturity, as applicable, of the Notes;
(3) the percentage of the principal amount, or principal
amount at Maturity, as applicable, at which the Issuers will issue and
sell the Notes;
(4) the date or dates on which the Notes will mature;
(5) the rate or rates per annum, if any, at which the
Notes will bear or accrete interest, or the method of determination of
the interest rate or rates;
(6) the times and places at which the interest, if any,
will be payable;
(7) provisions for sinking, purchase or other analogous
funds, if any;
(8) whether the Notes will be issued as Original Issue
Discount Notes;
(9) the date or dates or particular events, if any, after
which the Issuers may redeem the Notes at their option, as well as the
redemption price or prices;
(10) the date or dates or particular events, if any, after
which the Issuers must offer to repurchase the Notes from Holders, as
well as the repurchase price or prices;
(11) the date or the dates, if any, after which the
Holders may convert the Notes into shares of Common Stock of the Company
and the terms for that conversion;
(12) any transfer restrictions, procedures or other
requirements; and
(13) any other material terms of, including any covenants
or defined terms applicable to, the Notes.
All Notes of any one series shall be substantially identical
except as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 2.03) and set forth in such Officers' Certificate or in any
Supplemental Indenture hereto. Not all Notes of any one series need be issued at
the same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Notes of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.03. EXECUTION, AUTHENTICATION AND DELIVERY.
(a) At least one Officer of each Issuer shall sign the Notes for
each Issuer by manual or facsimile signature. The Issuers' respective seals may
be reproduced on the Notes and may be in facsimile form; provided, however, that
no seal shall be required to be reproduced on the Notes.
(b) 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.
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(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee. The Trustee's manual signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
(d) At any time and from time to time following the execution of
this Indenture, the Issuers may deliver Notes executed by the Issuers to the
Trustee for authentication, and the Trustee shall, upon a written order of the
Issuers signed by at least one Officer of each Issuer (an "Authentication
Order"), authenticate Notes for original issue up to the aggregate principal
amount or principal amount at Maturity, as applicable, stated in the Notes. The
aggregate principal amount or principal amount at Maturity, as applicable, of
Notes outstanding at any time may not exceed such amount except as provided in
Section 2.07 hereof.
(e) The Trustee may appoint an Authenticating Agent acceptable to
the Issuers 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 Registrar or Paying Agent to deal
with Holders or an Affiliate of the Issuers.
SECTION 2.04. REGISTRAR AND PAYING AGENT.
(a) The Issuers 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 Issuers 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 Issuers may change
any Paying Agent or Registrar without notice to any Holder. The Issuers shall
notify the Trustee in writing of the name and address of any Paying Agent or
Registrar not a party to this Indenture. If the Issuers fail to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Issuers or any Subsidiary of an Issuer may act as Paying Agent or
Registrar.
(b) The Issuers initially appoint The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
(c) The Issuers initially appoint the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuers shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall 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 Issuers 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 Issuers 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 an Issuer or a Subsidiary of an
Issuer) shall have no further liability for the money. If the Issuers or a
Subsidiary of an Issuer 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 an
Issuer, the Trustee shall serve as Paying Agent for the Notes.
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<PAGE> 17
SECTION 2.06. 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 Issuers 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 or such
shorter time as the Trustee may allow, as the Trustee may reasonably require of
the names and addresses of the Holders of Notes and the Issuers shall otherwise
comply with TIA Section 312(a).
SECTION 2.07. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Note. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Issuers for Definitive Notes if (i) the Issuers
deliver to the Trustee notice from the Depositary that it is unwilling or unable
to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is
not appointed by the Company within 120 days after the date of such notice from
the Depositary or (ii) the Issuers in their sole discretion determine that the
Global Note (in whole but not in part) should be exchanged for Definitive Notes
and deliver a written notice to such effect to the Trustee. Upon the occurrence
of either of the preceding events in (i) or (ii) above, Definitive Notes shall
be issued in such names as the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.08 and 2.11 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.07 or Section 2.08 or 2.11 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.07(a),
although beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.07(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. In connection with all transfers
and exchanges of beneficial interests in a Global Note, the transferor of such
beneficial interest must deliver to the Registrar either (A) (1) a written order
from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given by
the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.07(g) hereof.
(c) Transfer or Exchange of Beneficial Interests in Global Notes
for Definitive Notes. Global Notes and beneficial interests therein shall be
exchangeable for Definitive Notes if (i) the
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Depositary (x) notifies the Issuers that it is unwilling or unable to continue
as depositary for the Global Note and the Issuers thereupon fail to appoint a
successor depositary or (y) has ceased to be a clearing agency registered under
the Exchange Act and the Issuers fail to appoint a successor, (ii) the Issuers,
at their option, notify the Trustee in writing that they elect to cause the
issuance of the Definitive Note or (iii) there shall have occurred and be
continuing a Default with respect to the Notes. In all cases, a Definitive Note
delivered in exchange for any Global Note or beneficial interests therein shall
be registered in the names, and issued in any approved denominations, requested
by or on behalf of the depositary (in accordance with the Applicable
Procedures). In such event, the Trustee shall cause the Global Note to be
canceled accordingly pursuant to Section 2.12 hereof, and the Issuers shall
execute and the Trustee shall authenticate and deliver to the Person designated
in the instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.07(c) shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Definitive
Note to the Persons in whose names such Note are so registered.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes. A Holder of a Definitive Note may exchange such Note
for a beneficial interest in a Global Note or transfer such Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in a
Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Definitive Note and increase
or cause to be increased the aggregate principal amount of one of the Global
Notes. If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to this Section 2.07(d) at a time when a Global
Note has not yet been issued, the Issuers shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.03 hereof, the Trustee shall
authenticate one or more Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Note so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.07(e), the Registrar shall register the
transfer or exchange of Definitive Note. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Note duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the provisions of this Section 2.07.
A Holder of Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of a Definitive Note. Upon receipt of a
request to register such a transfer, the Registrar shall register the Definitive
Note pursuant to the instructions from the Holder thereof.
(f) Legends. The following legend shall appear on the face of all
Global Notes issued under this Indenture unless specifically stated otherwise in
the applicable provisions of this Indenture.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE
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MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS."
(g) Cancellation or Adjustment of Global Note. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.12 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Issuers shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Issuers' order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Issuers may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.11, 3.06, and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Issuers, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
(v) The Issuers shall not be required (A) to issue, to
register the transfer of or to exchange any Note during a period
beginning at the opening of business 15 days before the day of any
selection of Note for redemption under Section 3.02 hereof and ending at
the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in
part or (c) to register the transfer of or to exchange a Note between a
record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuers may deem
and treat the Person in whose name any Note is
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<PAGE> 20
registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note and for all
other purposes, and none of the Trustee, any Agent or the Issuers shall
be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.03
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.07 to effect a registration of transfer or exchange may be
submitted by facsimile.
SECTION 2.08. REPLACEMENT NOTES.
(a) If any mutilated Note is surrendered to the Trustee or the
Issuers and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Issuers shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Issuers, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Issuers to protect the Issuers, the Trustee,
any agent of the Trustee from any loss that any of them may suffer if a Note is
replaced. The Issuers may charge for their expenses in replacing a Note.
(b) Every replacement Note is an additional obligation of the
Issuers and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes of that series duly issued hereunder.
SECTION 2.09. OUTSTANDING NOTES.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.10 hereof, or as otherwise provided in a Supplemental Indenture, Notes
do not cease to be outstanding because the Issuers or an Affiliate of the
Issuers hold Notes.
(b) 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.
(c) 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.
(d) If the Paying Agent (other than the Issuers, 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 2.10. 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 Issuers, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuers, shall
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<PAGE> 21
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 the Trustee knows are so owned
shall be so disregarded.
SECTION 2.11. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of Definitive Notes but may have variations that the Issuers consider
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Issuers 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.
SECTION 2.12. CANCELLATION.
The Issuers 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 upon direction by the Issuers 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
requirements of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Issuers. The Issuers may not issue new
Notes to replace Notes that they have paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Issuers default in a payment of interest on the Notes,
they 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 Issuers 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 Issuers shall fix or cause to be fixed
each such special record date and payment date; provided, however, that no such
special record date shall be less than 10 days prior to the related payment date
for such defaulted interest. At least 10 days before the special record date,
the Issuers (or, upon the written request of the Issuers, the Trustee in the
name and at the expense of the Issuers) 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.
SECTION 2.14. CUSIP NUMBERS.
The Issuers in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuers will promptly notify the
Trustee of any change in the "CUSIP" numbers.
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ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Issuers elect to redeem Notes of a series pursuant to the
terms of the Notes of such series, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of the applicable Supplemental
Indenture governing such series 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.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes of a series are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall select the
Notes of such series to be redeemed or purchased among the Holders of the Notes
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis, by lot or in accordance with any other customary
method of 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 Issuers 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 whole 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 a 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.
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Issuers 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 Note 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;
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(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Issuers default 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 Note 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 Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' names and at their expense; provided, however, that
the Issuers shall have delivered to the Trustee, at least 45 days, or such
shorter period allowed by the Trustee, 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.
On or one Business Day prior to the redemption date, the Issuers
shall deposit with the Trustee or with the Paying Agent money 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 Issuers any
money deposited with the Trustee or the Paying Agent by the Issuers in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
If the Issuers comply 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 Issuers 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 Note and
in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Issuers
shall issue and, upon the Issuers; written request, the Trustee shall
authenticate for the Holder at the expense of the Issuers a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
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ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
(a) The Issuers 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 Issuers
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Issuers in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due.
(b) The Issuers 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.
(a) The Issuers 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 Issuers in respect of the Notes and this Indenture may be
served. The Issuers 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 Issuers 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.
(b) The Issuers 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 Issuers of their obligations to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Issuers 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.
(c) The Issuers hereby designate the Corporate Trust Office of
the Trustee as one such office or agency of the Issuers in accordance with
Section 2.04.
SECTION 4.03. REPORTS.
(a) Whether or not the Issuers are required to do so by the rules
and regulations of the SEC, so long as any Notes of a series are outstanding,
the Issuers shall furnish to the Holders of the Notes (a) all quarterly and
annual financial and other information with respect to the Issuers and their
consolidated Subsidiaries that would be required to be contained in a filing
with the SEC on Forms 10-Q and 10-K if the Issuers were required to file such
forms, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" that describes the financial condition and results of
operations of the Issuers and their consolidated Subsidiaries, showing in
reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in Management's Discussion
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and Analysis of Financial Condition and Results of Operations, the financial
condition and results of operations of the Issuers and their Restricted
Subsidiaries separate from the financial information and results of operations
of the Unrestricted Subsidiaries of the Issuers and, with respect to the annual
information only, a report thereon by the Issuers' certified independent
accountants, and (b) all current reports that would be required to be filed with
the SEC on Form 8-K if the Issuers were required to file such reports.
(b) After the effectiveness of the Shelf Registration Statement,
whether or not required by the rules and regulations of the SEC, the Issuers
shall file a copy of all of the information and reports required to be delivered
pursuant to clause (a) of this Section 4.03 with the SEC for public
availability, unless the SEC shall not accept such a filing, and from and after
the date hereof shall make this information available to securities analysts and
prospective investors upon request. In addition, for so long as any Notes remain
outstanding, the Issuers shall file with the Trustee and the SEC (unless the SEC
shall not accept such filing) the information required to be delivered pursuant
to clause (a) of this Section 4.03 within the time periods specified in the
SEC's rules and regulations and furnish that information to Holders of the
Notes, securities analysts and prospective investors upon their request.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Issuers shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that they
made a due diligence inquiry into their compliance during the prior fiscal year
with the Indenture and any indenture supplements with a view to determining
whether the Issuers have kept, observed, performed and fulfilled their
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 Issuers
have kept, observed, performed and fulfilled each and every covenant contained
in this Indenture and are 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 Issuers are
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 Issuers are taking or propose 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 statements delivered pursuant to Section 4.03(a) above shall be
accompanied by a written statement of the Issuers' 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
Issuers have violated any provisions of Article 4 or Article 5 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 Issuers 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 Issuers are taking or propose to
take with respect thereto.
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SECTION 4.05. TAXES.
The Issuers shall pay, and shall cause each of their 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 Issuers covenant (to the extent that they may lawfully do so)
that they 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 Issuers (to the extent
that they may lawfully do so) hereby expressly waive all benefit or advantage of
any such law, and covenant that they 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.
SECTION 4.07. RESTRICTIONS ON ACTIVITIES OF FINANCE SUB AND RELEASE OF
OBLIGATIONS
Prior to the consummation of a Holding Company Reorganization,
neither Finance Sub nor any wholly owned subsidiary of Finance Sub formed solely
for the purpose of consummating the Holding Company Reorganization shall (1)
hold any material assets; (2) consolidate or merge with or into any other
Person, other than in connection with the Holding Company Reorganization; (3)
become liable or pay for any Indebtedness or other obligations; provided,
however, that Finance Sub may: (a) become liable for or pay for its obligations
under the indenture, the supplemental indentures and the notes; (b) become
liable for or pay for any judgments; and (c) be a co-obligor with respect to
Indebtedness if the Company is also an obligor of that Indebtedness and the net
proceeds of that Indebtedness are received by the Company or one or more of its
Restricted Subsidiaries other than Finance Sub; or (4) engage in any business
activities other than incident to maintaining Finance Sub's corporate existence
or consummating a Holding Company Reorganization.
Upon consummation of the Holding Company Reorganization, the
obligation of (I) Finance Sub with respect to the Notes will automatically be
extinguished and only the Company will continue as the sole obligor on the
Notes, if the Holding Company Reorganization is of the type contemplated by
clause (1) of the definition of Holding Company Reorganization, or (II) the
Company with respect to the Notes will automatically be extinguished and only
Finance Sub will continue as the sole obligor on the Notes, if the Holding
Company Reorganization is of the type contemplated by clauses (2) or (3) of the
definition of Holding Company Reorganization.
In the event that a Holding Company Reorganization is
consummated, the Trustee shall, at the request of either Issuer, enter into a
Supplemental Indenture to evidence the release of the Company or Finance Sub, as
the case may be, from its obligations on the Notes.
SECTION 4.08. CORPORATE EXISTENCE.
Subject to Article 5 hereof, each of the Issuers 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
Issuers or any such Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Issuers and its Subsidiaries; provided,
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however, that the Issuers shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any of
their Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuers and their Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Holders of the Notes.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
Unless provided otherwise in a Supplemental Indenture, the
Company shall not consolidate or merge with or into another Person or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions, to another
Person unless (a) the Company is the surviving corporation of such consolidation
or merger or the lessor or transferor in such sale, conveyance, lease or
transfer; (b) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made (the "Successor Company")
(i) is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia, and (ii) expressly assumes, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory thereto, all the obligations of the Company under the
Notes and this Indenture pursuant to a Supplemental Indenture, including all
obligations of the Company for due and punctual payment of principal of,
premium, if any, and interest on all Notes, and the performance and observance
of all covenants contained herein or in any indenture supplemental hereto; (c)
immediately after such transaction, no Default has occurred or is continuing;
and (d) the Company or such Person shall have delivered to the Trustee and
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or sale, transfer, lease or conveyance and such
supplemental indenture comply with this Article 5 and that all conditions
precedent herein for relating to such transaction have been satisfied.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture, any
indenture supplemental hereto and the Notes, with the same effect as if such
successor Person had been named as the Company herein and therein.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Unless provided otherwise in an indenture supplemental hereto,
the each of the following shall constitute an "Event of Default":
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(a) the Issuers default in the payment when due of interest on
the Notes, whether or not prohibited by Section 4.01, and such default continues
for a period of 60 days;
(b) the Issuers default in the payment when due of principal of
or premium, if any, on the Notes, whether or not prohibited by Section 4.01;
(c) the Issuers default in the deposit of any sinking fund
payment when and as due pursuant to the terms of the Notes and any Supplemental
Indenture hereto;
(d) default in the performance, or breach, of any covenant or
warranty of the Issuers or the Guarantor in this Indenture, and continuance of
such default or breach for 60 days after notice to the Issuers by the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Note of the affected series;
(e) an Issuer or any Significant Subsidiary of an Issuer or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against
it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due;
or
(f) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Issuers or any of their
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in an involuntary case;
or
(ii) appoints a Custodian of the Issuers or any of their
Significant Subsidiaries or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Issuers or any of their
Significant Subsidiaries or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of any Issuer or any
Significant Subsidiary of an Issuer or any group of Restricted
Subsidiaries that, taken as a whole, would constitute such a Significant
Subsidiary,
and the order or decree remains unstayed and in effect for 60 consecutive
days; or
(g) any other Event of Default provided with respect to Notes of
that series.
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SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified
in clause (e) or (f) of Section 6.01 hereof with respect to the Issuers), occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount, or principal amount at Maturity, as applicable, of the then outstanding
Notes may declare the principal amount or, the Notes of that series are Original
Issue Discount Notes, such portion of the principal amount as may be specified
in the terms of that series, of all the Notes of that series to be due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (e) or (f) of Section 6.01 hereof occurs with respect to the
Issuers, all outstanding Notes shall be due and payable immediately without
further action or notice. The Holders of a majority in aggregate principal
amount of the Notes then outstanding by written notice to the Trustee may on
behalf of all of the Holders 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, interest or premium, if any,
that has become due solely because of the acceleration) have been cured or
waived.
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.
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 acquiescence 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, or principal amount at Maturity, as applicable, of the Notes of any
series then outstanding 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) a continuing Default or Event of Default in
the payment of the principal of, premium, if any, or interest on, the Notes, or
(b) in respect of a covenant or provision which under this Indenture or any
indenture supplemental hereto cannot be modified or amended without the consent
of the Holders of all or more than a majority in principal amount, or principal
amount at Maturity, as applicable, of the outstanding Notes of such series
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Notwithstanding anything to the contrary in this Article 6, at
any time after a declaration of acceleration with respect to Notes of any series
has been made, the Holders of a majority in principal amount, or principal
amount at Maturity, as applicable, of the outstanding Notes of that series, or
of all series, as the case may be, by written notice to the Issuers and the
Trustee, may rescind and annul the declaration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration. Such a rescission
will not affect any subsequent default or impair any right consequent to a
subsequent rescission.
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SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount, or principal amount at
Maturity, as applicable, 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 Note 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, or principal
amount at Maturity, as applicable, of the then outstanding Notes of that series
make a written request to the Trustee to pursue the remedy;
(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 10% in principal
amount, or principal amount at Maturity, as applicable, of the then outstanding
Notes do not give the Trustee a direction inconsistent with the request.
A Holder of a Note 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 of, 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 Issuers 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 Issuers
(or any other obligor upon the Notes), their creditors or their 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 Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders 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
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Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount,
or principal amount at Maturity, as applicable, 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.
(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 and Section 7.02.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any financial liability in the performance
of any of its duties hereunder. 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.
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(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 Issuers.
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. The
Trustee may consult with nationally recognized 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 reliance thereon, provided, however
that this provision shall not protect the Trustee from liability for its own
gross negligence or willful misconduct.
(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.
(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 Issuers 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.
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 Issuers or any
Affiliate of the Issuers with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest 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.
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 Issuers' use of the proceeds from the Notes or
any money paid to the Issuers or upon the Issuers' 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.
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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 of that series, or in the payment of any sinking
fund installment with respect to the Notes of that series, 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 120 days after each December 31, beginning with December
31, 2000, 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 Issuers and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Issuers shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Issuers shall pay to the Trustee from time to time reasonable
compensation for the Trustee's 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 Issuers shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in accordance with this Indenture in addition to
the compensation for the Trustee's services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Issuers shall indemnify the Trustee (in its capacity as
Trustee) against any and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or administration of this
trust and the Trustee's duties under this Indenture, including the reasonable
costs and expenses of enforcing this Indenture against the Issuers (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Issuers 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 or a portion thereof may be
attributable to its negligence, willful misconduct, recklessness or bad faith.
The Trustee shall notify the Issuers promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the
Issuers of their obligations hereunder. The Issuers shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Issuers shall pay the reasonable fees and expenses of such
counsel. The Issuers need not pay for any settlement made without their consent,
which consent shall not be unreasonably withheld. The Issuers need not reimburse
any expense or indemnify against any loss liability or expense incurred by the
Trustee through the Trustee's own willful misconduct, negligence, recklessness
or bad faith.
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The obligations of the Issuers under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture and the resignation or
removal of the Trustee.
To secure the Issuers' 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 and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(e) or (f) 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.
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 Issuers. The Holders of Notes
of a majority in principal amount, or principal amount at Maturity, as
applicable, of the then outstanding Notes may remove the Trustee by so notifying
the Trustee and the Issuers in writing. The Issuers 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 receiver, a custodian or a 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 Issuers shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount, or principal amount at Maturity, as
applicable, of the then outstanding Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers,
or the Holders of Notes of at least 10% in principal amount, or principal amount
at Maturity, as applicable, 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.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. 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. Subject to the Lien provided for in Section
7.07 hereof, the retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee; provided, however, that all sums owing
to the Trustee hereunder shall have been paid. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Issuers' 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 million 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 Issuers may, at the option of their Boards 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 of a series upon compliance with the conditions set forth below in this
Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Issuers' exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Issuers shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from their obligations with respect to all outstanding
Notes of a series on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Issuers shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes of such series, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture
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referred to in (a) and (b) below, and to have satisfied all of their other
obligations under such Notes, this Indenture and any Supplemental Indenture
hereto (and the Trustee, on demand of and at the expense of the Issuers, shall
execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged
hereunder and thereunder: (a) the rights of Holders of outstanding Notes to
receive (i) solely from the trust fund described in Section 8.04 hereof and in
an indenture supplemental hereto, 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, and (ii) shares of Common Stock or other
securities from the Issuers upon conversion of any convertible Notes issued
hereunder and thereunder; (b) the Issuers' 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 thereunder and the Issuers'
obligations in connection therewith and (d) this Article Eight and any
corresponding defeasance provisions contained in any indenture supplemental
hereto. Subject to compliance with this Article Eight, the Issuers may exercise
their option under this Section 8.02 notwithstanding the prior exercise of their
option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Issuers' exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Issuers shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from their obligations under the covenants contained in sections hereof and of
any Supplemental Indenture hereto, and the operation of Section 5.01(d) hereof,
with respect to the outstanding Notes on and after the date the conditions set
forth in Section 8.04 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 Issuers 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.
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 of a series. In
order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuers must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, (i) cash in United States dollars, (ii)
non-callable Government Obligations, or (c) a combination thereof, in such
amounts as shall be sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of, premium, if any, and
interest on the outstanding Notes of that series on the stated date for payment
thereof or on the applicable redemption date, as the case may be, and any
mandatory sinking fund payments or analogous payments applicable to the
outstanding Notes on the day on which those payments are due and payable,
provided that the Issuers must specify whether the Notes are being defeased to
Maturity or to a particular redemption date and must deliver to the Trustee
irrevocable instructions to apply the proceeds of any Government Obligations to
the payments required to be made to those Notes;
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(b)such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture and
any material agreement or instrument to which the Issuers or any of their
Restricted Subsidiaries is a party or by which the Issuers or any of their
Restricted Subsidiaries is bound;
(c)such Legal Defeasance or Covenant Defeasance shall comply with
any additional or substitute terms, conditions or limitations set forth in any
Supplemental Indenture hereto;
(d)the Issuers 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 OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Obligations (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 an Issuer 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 Issuers shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Obligations deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuers from time to time upon the
request of the Issuers any money or non-callable Government Obligations held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants 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.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuers, in trust for the payment of the principal of, premium, if
any, or interest on any Notes 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 Issuers on their request or (if then held by the Issuers) shall be
discharged from such trust; and the Holder of such Notes shall thereafter, as an
unsecured creditor, look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuers 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 Issuers 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
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not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Issuers.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Obligations 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 Issuers' 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 Issuers make
any payment of principal of, premium, if any, or interest on any Notes following
the reinstatement of their obligations, the Issuers 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 Issuers and
the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note to:
(a) cure any ambiguity, defect or inconsistency;
(b) effect or maintain the qualification of the indentures
under the Trust Indenture Act;
(c) secure any Notes;
(d) add covenants for the protection of the Holders of Notes;
(e) establish the forms or terms of Notes of any series;
(f) make any other change that does not adversely affect in
any material respect the rights under such indenture of
the Holders of Notes thereunder;
(g) add a guarantee of the Issuers' payment obligations under
the Indentures by a subsidiary or other party;
(h) evidence the acceptance of appointment by a successor
trustee;
(i) evidence and effect the Holding Company Reorganization;
and
(j) evidence the succession of another person to an Issuer and
the assumption by any such successor of their obligations
in accordance with the Indentures and the Notes.
Upon the request of the Issuers accompanied by a resolution of
their respective Boards of Directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by
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the Trustee of the documents described in Section 7.02(b) hereof, the Trustee
shall join with the Issuers 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 Issuers and
the Trustee may amend or supplement this Indenture (including Section 3.09, 4.10
and 4.14 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 of any
Series (including additional Notes, if any, of such series) then outstanding
voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, 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, or principal amount at Maturity, as applicable, of
the then outstanding Notes of such Series (including additional Notes, if any,
of such series) voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes).
Upon the request of the Issuers accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 7.02 hereof, the Trustee shall join with the
Issuers in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly 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 Issuers shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Issuers 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, or principal amount at
Maturity, as applicable, of the Notes (including additional Notes, if any, of
such series) then outstanding voting as a single class may waive compliance in a
particular instance by the Issuers with any provision of this Indenture or the
Notes. However, without the consent of each Holder affected, an amendment or
waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note;
(2) reduce the principal amount or the rate of interest or any
premium, if any, payable upon the redemption of any Note;
35
<PAGE> 41
(3) reduce the accreted amount of an Original Issue Discount
Note that would be due and payable upon a declaration of
acceleration of the Maturity of the Notes under the
Indentures or the amount due at Maturity;
(4) adversely affect, after the event giving rise to any right
of repayment occurs, any right of repayment at the option
of any Holder of any Note, or change any place of payment
described in the Indentures where any Note or any premium,
if any, or the interest thereon is payable;
(5) impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity of the Notes,
or, in the case of repayment at the option of the holder,
on or after the repayment date;
(6) adversely affect any right to convert or exchange any
Notes as may be provided under the Indentures; or
(7) reduce the percentage in principal amount of the
outstanding Notes of any series, the consent of whose
holders is required for any such supplemental indenture,
for any waiver of compliance with provisions of the
Indentures or defaults thereunder and their consequences
provided for in the Indentures.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Notes, or which modifies the
rights of the Holders of Notes of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Notes of any other series. Any such supplemental indenture
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture, or modifying in any manner the rights of the
Holders of Notes of such series, shall not affect the rights under this
Indenture of the Holders of Notes of any other series.
It shall not be necessary for any act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a 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.
36
<PAGE> 42
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Notes thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, 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.
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 Issuers 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 and (subject to Section 7.01 hereof)
shall be fully protected in relying upon, in addition to the documents required
by Section 10.04 hereof, 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 10.
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Issuers 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 Issuers:
Metricom, Inc. or
Metricom Finance, Inc. c/o Metricom, Inc.
980 University Avenue
Los Gatos, California
Attention: Chief Financial Officer
Telecopy No.: 408-354-1024
37
<PAGE> 43
With copies to:
Cooley Godward LLP
1 Maritime Plaza
San Francisco, California
Attention: Kenneth Guernsey, Esq.
Telecopy No.: 415-951-3699
If to the Trustee:
Bank One Trust Company, N.A.
One North State Street
9th Floor
Chicago, Illinois 60602
Telecopy No.: 312-407-1708
Attention: Corporate Trust Administration
The Issuers 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; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders; provided, however,
that notices to the Trustee shall be deemed delivered upon receipt.
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 Issuers mail a notice or communication to Holders, they
shall mail a copy to the Trustee and each Agent at the same time ; provided,
however, that notices to the Trustee shall be deemed delivered upon receipt.
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
Issuers, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuers to the Trustee to
take any action under this Indenture, the Issuers shall furnish to the Trustee:
38
<PAGE> 44
(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.
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 Issuers or the Guarantor, as such, shall have
any liability for any obligations of the Issuers or any Guarantor under the
Notes, the Guarantees, 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 and the Guarantees. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the SEC that such a waiver is against public policy.
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 SECURITY WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
39
<PAGE> 45
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 Issuers or their 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 Issuers in this Indenture and the Notes
shall bind their 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.
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.
ARTICLE 11.
SATISFACTION AND DISCHARGE
SECTION 11.01. SATISFACTION AND DISCHARGE.
This Indenture shall, upon a written request or order signed by
an Officer and delivered to the Trustee, cease to be of further effect with
respect to any series of Notes, except as to any surviving rights of
registration of transfer or exchange or conversion of Notes of that series
expressly provided for, and the Trustee will be required to execute proper
instruments acknowledging satisfaction and discharge of such indenture as to
that series when:
(a) either (i) all Notes of that series previously authenticated
and delivered, other than (A) Notes that have been destroyed, lost or stolen and
which have been replaced or paid, as provided in the Indentures, and (B) Notes
for which money sufficient to make all payment on the Notes has previously been
deposited in trust with the Trustee or any Paying Agent or segregated and held
in trust by us with any remaining amounts to thereafter be repaid to us, as
provided in the Indentures, have been delivered to the trustee for cancellation;
or (ii) all Notes, other than any convertible Notes, of such series (A) have
become due and payable, (B) will become due and payable at their Stated Maturity
within one year, or (C) if redeemable at the option of the Issuers, are to be
called for redemption within one year under arrangements reasonably satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at expense of the Issuers,
40
<PAGE> 46
(b) the Issuers has paid or caused to be paid all other sums
payable under the Notes by the Issuers; and
(c) the Issuers have delivered an Officers' Certificate and an
Opinion of Counsel to the Trustee, each stating that all conditions precedent
provided for relating to the satisfaction and discharge of the Indentures as to
such series have been satisfied.
SECTION 11.02. APPLICATION OF TRUST MONEY.
All money to be deposited with the Trustee pursuant to Section
11.01 shall be irrevocably deposited with the Trustee as trust funds in trust an
amount of money or Government Obligations sufficient to pay and discharge the
entire Indebtedness on those Notes not previously delivered to the Trustee for
cancellation, including all principal of and any premium, if any, and
installments of interest to the date of such deposit in the case of Notes which
have become due and payable or to the Stated Maturity or redemption date of the
Notes, as the case may be.
ARTICLE 12.
NOTE GUARANTEE
SECTION 12.01. GUARANTEE.
Subject to this Article 12, the Company hereby unconditionally
guarantees the obligations of Finance Sub under the Notes, this Indenture and
any Supplemental Indenture with respect to the matters set forth below to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Issuers hereunder or
thereunder, that: (a) the principal of premium, if any, and interest on the
Notes shall be promptly paid in full when due, whether at Maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Issuers to the Holders or the Trustee hereunder or thereunder shall be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that same shall be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at Stated Maturity, by acceleration pursuant to Section 6.02 hereof or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantor shall be jointly
and severally obligated to pay the same immediately. The Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection. The Note
Guarantee shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Guarantor.
The Guarantor hereby agrees that its obligations with regard to
this Note Guarantee shall be unconditional, irrespective of the validity or
enforceability of the Notes or the obligations of the Issuers under this
Indenture, the absence of any action to enforce the same, the recovery of any
judgment against the Issuers or any other obligor with respect to this
Indenture, the Notes or the obligations of the Issuers under this Indenture or
the Notes, any action to enforce the same or any other circumstances (other than
complete performance) which might otherwise constitute a legal or equitable
discharge or defense of the Guarantor. The Guarantor further, to the extent
permitted by law, waives and relinquishes all claims, rights and remedies
accorded by applicable law to guarantors and agrees not to assert or take
advantage of any such claims, rights or remedies, including but not limited to:
(a) any right to require any of the Trustee, the Holders or the Issuers (each a
"Benefited Party"), as a condition of payment or performance by such Guarantor,
to (1) proceed against the Issuers or any other Person, (2) proceed against or
exhaust
41
<PAGE> 47
any security held from the Issuers or any other Person, (3) proceed against or
have resort to any balance of any deposit account or credit on the books of any
Benefited Party in favor of the Issuers or any other Person, or (4) pursue any
other remedy in the power of any Benefited Party whatsoever; (b) any defense
arising by reason of the incapacity, lack of authority or any disability or
other defense of the Issuers including any defense based on or arising out of
the lack of validity or the unenforceability of the obligations under the Note
Guarantee or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Issuers from any cause other than payment in
full of the obligations under the Note Guarantees; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety must
be neither larger in amount nor in other respects more burdensome than that of
the principal; (d) any defense based upon any Benefited Party's errors or
omissions in the administration of the obligations under the Note Guarantees,
except behavior which amounts to bad faith; (e)(1) any principles or provisions
of law, statutory or otherwise, which are or might be in conflict with the terms
of the Note Guarantees and any legal or equitable discharge of such Guarantor's
obligations hereunder, (2) the benefit of any statute of limitations affecting
such Guarantor's liability hereunder or the enforcement hereof, (3) any rights
to set-offs, recoupments and counterclaims and (4) promptness, diligence and any
requirement that any Benefited Party protect, secure, perfect or insure any
security interest or lien or any property subject thereto; (f) notices, demands,
presentations, protests, notices of protest, notices of dishonor and notices of
any action or inaction, including acceptance of the Note Guarantee, notices of
default under the Notes or any agreement or instrument related thereto, notices
of any renewal, extension or modification of the obligations under the Note
Guarantee or any agreement related thereto, and notices of any extension of
credit to the Issuers and any right to consent to any thereof; (g) to the extent
permitted under applicable law, the benefits of any "One Action" rule and (h)
any defenses or benefits that may be derived from or afforded by law which limit
the liability of or exonerate guarantors or sureties, or which may conflict with
the terms of the Note Guarantee. The Guarantor hereby covenants that its Note
Guarantee shall not be discharged except by complete performance of the
obligations contained in its Note Guarantee and this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers, the Guarantor or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuers or
the Guarantor, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
The Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
The Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the Maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the
purposes of this Note Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (y) in the event of any declaration of acceleration of
such obligations as provided in Section 6.02 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantor
for the purpose of this Note Guarantee.
SECTION 12.02. LIMITATION ON GUARANTOR LIABILITY.
The Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Note Guarantee. To effectuate the foregoing intention,
the Trustee, the Holders and the Guarantor hereby irrevocably agree that the
obligations of such Guarantor under this Article 12 shall be limited to the
maximum amount as
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<PAGE> 48
shall, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, result in
the obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
SECTION 12.03. EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence its Note Guarantee set forth in Section 12.01 hereof,
the Guarantor hereby agrees that a notation of such Note Guarantee shall be
endorsed by an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf of
such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 12.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Guarantor.
SECTION 12.04. RELEASE FOLLOWING HOLDING COMPANY REORGANIZATION.
Upon the completion of a Holding Company Reorganization, the
Guarantee automatically, and without further notice to or action by the Holders
of the Notes, will be released entirely and shall cease to be of any force and
effect. After that time, all references in this Indenture or any Supplemental
Indenture to an obligor of the Notes will refer only to the holding company
being the surviving . In that event, the Trustee shall, at the request of either
the Company or Finance Sub, enter into a Supplemental Indenture to evidence the
release of the Guarantee.
[Signatures on following page]
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<PAGE> 49
SIGNATURES
Dated as of December 29, 1999
METRICOM, INC.
By: /s/ James Wall
--------------------------------
Name: James Wall
Title: Chief Financial Officer
METRICOM FINANCE, INC.
By: /s/ James Wall
--------------------------------
Name: James Wall
Title: Chief Financial Officer
BANK ONE TRUST COMPANY, N.A.
as Trustee
By: /s/ Donna V. Fanning
--------------------------------
Name: Donna V. Fanning
Title: Vice President
[Signature Page for Senior Indenture]
<PAGE> 1
EXHIBIT 4.5
- --------------------------------------------------------------------------------
METRICOM, INC.
METRICOM FINANCE, INC.
SUBORDINATED INDENTURE
DATED AS OF DECEMBER 29, 1999
BANK ONE TRUST COMPANY, N.A.
TRUSTEE
- --------------------------------------------------------------------------------
<PAGE> 2
CROSS-REFERENCE TABLE*
Trust Indenture Act
<TABLE>
<CAPTION>
Section Indenture
<S> <C>
310 (a)(1).................................................................7.10
(a)(2) ................................................................7.10
(a)(3).................................................................N.A.
(a)(4).................................................................N.A.
(a)(5).................................................................7.10
(b)....................................................................7.10
(c)....................................................................N.A.
311(a).....................................................................7.11
(b)....................................................................7.11
(c)....................................................................N.A.
312 (a)....................................................................2.06
(b)....................................................................10.03
(c)....................................................................10.03
313(a).....................................................................7.06;
(b)(2).................................................................7.06;
(c)....................................................................7.07
10.02
314(a).....................................................................4.03;
10.02
(c)(1).................................................................10.04
(c)(2).................................................................10.04
(c)(3).................................................................N.A.
(e)....................................................................10.05
(f)....................................................................NA
315 (a)....................................................................7.01
(b)....................................................................7.05,
10.02
(c)....................................................................7.01
(d)....................................................................7.01
(e)....................................................................6.11
316 (a)(last sentence).....................................................2.09
(a)(1)(A)..............................................................6.05
(a)(1)(B)..............................................................6.04
(a)(2).................................................................N.A.
(b)....................................................................6.07
(c)....................................................................2.12
317 (a)(1).................................................................6.08
(a)(2).................................................................6.09
(b)....................................................................2.04
318 (a)....................................................................10.01
(b)....................................................................N.A.
(c)....................................................................10.01
</TABLE>
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
<PAGE> 3
INDENTURE dated as of December 29, 1999 between Metricom, Inc., a
Delaware corporation (the "Company"), Metricom Finance, Inc., a Delaware
corporation ("Finance Sub" and, together with the Company, the "Issuers" and
each an "Issuer"), and Bank One Trust Company, N.A., a national banking
association, as trustee (the "Trustee").
The Issuers have duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of their unsecured
debentures, securities or other evidence of indebtedness (herein called the
"Notes"), which may or may not be convertible into or exchangeable for any
securities of any Person (including the Company), to be issued in one or more
series as provided in this Indenture.
The Issuers and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the holders of the Notes or
of any series thereof (the "Holders"), as follows:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
Unless otherwise provided in a Supplemental Indenture, the
following terms have the indicated meaning for purposes of this Indenture:
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control" and
correlative meanings, the terms "controlling," "controlled by" and "under common
control with," as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Authenticating Agent" means any person authorized by the Trustee
to act on behalf of the Trustee to authenticate the Notes.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Board of Directors" means (1) in respect of a limited liability
company, the board of advisors of that company; (2) in respect of a corporation,
the board of directors of the corporation, or any authorized committee thereof;
and (3) in respect of any other Person, the board or committee of that Person
serving a similar function.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of an Issuer to have been duly adopted by
the Board of Directors (or a committee of the Board of Directors empowered to
adopt such resolution) and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
<PAGE> 4
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, in equity of such Person, whether now outstanding
or issued after the date the Notes are issued, including, without limitation,
all Common Stock and Preferred Stock of such Person.
"Cedel" means Cedel Bank, S.A., or its successor.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, of that Person's equity, other than Preferred
Stock of that Person, whether now outstanding or issued after the date the notes
are issued, including without limitation, all series and classes of that common
stock.
"Company" means Metricom, Inc., a Delaware corporation, and any
and all successors thereto.
"Corporate Trust Office" 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 Issuers.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Note" means a certificated security registered in the
name of the Holder thereof and issued in accordance with Section 2.07 hereof, in
substantially the form of Exhibit A hereto except that such note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.04 hereof
as the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock, but excluding any Indebtedness that is
convertible into, or exchangeable for, Capital Stock.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear systems.
"Exchange Act" means the Notes Exchange Act of 1934, as amended.
"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, the statements and
pronouncements of the Financial Accounting Standards Board and such other
statements by such other entities as have been approved by a significant segment
of the accounting
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<PAGE> 5
profession, which are applicable at the date of any determination made under
this Indenture or any Supplemental Indenture.
"Global Note" means a Note bearing the legend specified in
Section 2.07(f) evidencing all or a part of a series of Notes issued in
accordance with Section 2.01, 2.07(b), 2.07(d) or 2.07(f) hereof.
"Global Note Legend" means the legend set forth in Section
2.07(f), which is required to be placed on all Global Notes issued under this
Indenture.
"Government Obligations" means direct obligations, or
certificates representing an ownership interest in such obligations, of the
United States, including any agency or instrumentality of the United States, for
the payment of which the full faith and credit of the United States is pledged
and which are not callable or redeemable at the issuer's option.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including by way of a pledge of assets or
through letters of credit or reimbursement agreements in respect thereof), of
all or any part of any Indebtedness.
"Guarantor" means Metricom, Inc. and any other Person that may
from time to time become a guarantor of the Notes, until any such party is
released from such guarantee pursuant to the provisions of this Indenture, and
each of their respective successors.
"Hedging Obligations" means, with respect to any Person, the net
payment obligations of that Person under (1) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and (2) other
agreements or arrangements in the ordinary course of business and pursuant to
past practices designed to protect that Person against fluctuations in commodity
prices, interest rates or currency exchange rates, in any case, not entered into
for speculative purposes.
"Holder" means a Person in whose name a Note is registered.
"Holding Company Reorganization" means a transaction in which the
Company either:
(1) contributes all or substantially of the Company's assets to Finance
Sub, but retains the Company's obligations under the Notes and any other
Indebtedness providing for such a transaction;
(2) a wholly owned subsidiary of Finance Sub formed solely for the
purpose of effecting the Holding Company Reorganization merges with the
Company, and in which Finance Sub becomes the sole holder of all of the
issued and outstanding Capital Stock of the surviving entity and all of
the holders of the Capital Stock of the Company become the holders of
all of the issued and outstanding shares of the Capital Stock of Finance
Sub; or
(3) a merger of the Company with and into a single-member limited
liability company, all of the issued and outstanding Capital Stock of
which is owned by Finance Sub and all of the holders of the Capital
Stock of the Company become the holders of all of the issued and
outstanding shares of the Capital Stock of Finance Sub.
"Indebtedness" means, with respect to any Person, any
indebtedness of that Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or
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<PAGE> 6
similar instruments or letters of credit, or reimbursement agreements in respect
of letters of credit, or banker's acceptances or representing Capital Lease
Obligations, the balance deferred and unpaid of the purchase price of any
property or representing any Hedging Obligations, except any such balance that
constitutes an accrued expense or trade payable, or all Disqualified Stock
valued at the greater of the Person's voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends, if and to the extent any of
the foregoing indebtedness, other than letters of credit and Hedging
Obligations, would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
by a Lien on any asset of that Person, whether or not such Indebtedness is
assumed by that Person, and, to the extent not otherwise included, the guarantee
by such Person of any Indebtedness of any other Person, and any liability,
whether or not contingent, whether or not it appears on the balance sheet of
that Person. The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value thereof, in the case of any Indebtedness that
does not require current payments of interest, and
(2) the principal amount of Indebtedness, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time by one or more Supplemental Indentures hereto in accordance with
Article 9 hereof.
"Indentures" means this Indenture, the Senior Indenture, and any
Supplemental Indentures hereto and thereto.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Interest Payment Date," when used with respect to any series of
Notes, means the Stated Maturity of an installment of interest on such Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York 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 on such payment for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in any asset and any filing of or agreement to give any
financing statement under the Uniform Commercial Code or equivalent statutes of
any jurisdiction.
"Maturity," when used with respect to any Indebtedness, means the
date on which the principal of such Indebtedness or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
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<PAGE> 7
"Non-Recourse Debt" means Indebtedness: (1) as to which neither
the Issuers nor any of their Restricted Subsidiaries (a) provides credit support
of any kind, including any undertaking, agreement or instrument that would
constitute Indebtedness, (b) is directly or indirectly liable, as a guarantor or
otherwise, or (c) constitutes the lender; (2) no default with respect to which,
including any rights that the holders of that Indebtedness may have to take
enforcement action against an Unrestricted Subsidiary, would permit upon notice,
lapse of time or both any holder of any other of their Indebtedness, other than
the notes, or of the Indebtedness of any of their Restricted Subsidiaries to
declare a default on that other Indebtedness or cause the payment of that other
Indebtedness to be accelerated or payable prior to its Stated Maturity; and (3)
as to which the lenders have been notified in writing that they will not have
any recourse to their stock or assets or the stock or assets of any of their
Restricted Subsidiaries.
"Note Guarantee" means the Guarantee by the Company of Finance
Sub's payment obligations under this Indenture and on the Notes.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Notes" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Notes
authenticated and delivered under this Indenture, exclusive, however, of Notes
of any series as to which such Person is not Trustee.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice-President of such
Person.
"Officers' Certificate" means a certificate signed on behalf of
an Issuer by at least one Officer of such Issuer, who must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of such Issuer, that, if applicable, meets the
requirements of Sections 10.04 and 10.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
10.04 and 10.05 hereof. The counsel may be an employee of or counsel to an
Issuer, any Subsidiary of an Issuer or the Trustee.
"Original Issue Discount Note" means any Note which provides for
an amount less than the principal amount thereof to be due and payable upon
Maturity thereof.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively, and, with respect to the DTC, shall include Euroclear and Cedel.
"Paying Agent" means any Person (including the Issuers acting as
Paying Agent) authorized by the Issuers to pay the principal, premium, if any,
or interest on any Notes on behalf of the Issuers.
"Person" means any natural person, limited liability company,
corporation, partnership, government, agency or instrumentality of a government,
or any other entity.
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<PAGE> 8
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, of that Person's equity that have a preference as
to the payment of dividends or as to payments upon a liquidation of that Person,
whether now outstanding or issued after the date the Notes are issued, including
without limitation, all series and classes of that Preferred Stock.
"principal" of Indebtedness means the principal of the
Indebtedness plus the premium, if any,, if and when applicable, on the
Indebtedness.
"redemption date," when used with respect to any Notes, or series
thereof, to be redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"redemption price," when used with respect to any Note, or series
thereof, to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any of Subsidiary of a Person other
than an Unrestricted Subsidiary of that Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means Indebtedness provided for in
accordance with that certain Senior Indebtedness evidenced by a written
agreement between the Company and lender parties thereto providing for term loan
borrowings, revolving credit borrowings, leveraged lease borrowings, letters of
credit or other indebtedness or obligations, and including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, in each case, as amended, extended, renewed, restated,
supplemented or otherwise modified (in whole or in part, and without limitation
as to amount, terms, conditions, covenants and other provisions) from time to
time, and any agreement (and related document) governing Indebtedness incurred
to refinance, in whole or in part, the borrowings and commitments then
outstanding or permitted to be outstanding under such Senior Credit Facility or
a successor Senior Credit Facility, whether by the same or any other lender or
group of lenders.
"Senior Indebtedness" of the Company means (a) the principal,
premium, if any, and interest with respect to all indebtedness for money
borrowed of the Company whether outstanding on the date hereof or thereafter
created, incurred, assumed or guaranteed, unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that such indebtedness is not senior or prior in right of
payment to the Securities and (b) amendments, supplements, deferrals, renewals,
extensions, modifications and refundings of any liability of the types referred
to in clause (a) above.
"Senior Credit Facility" means Indebtedness provided for in
accordance with that certain Senior Indebtedness evidenced by a written
agreement between the Company and lender parties thereto
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<PAGE> 9
providing for term loan borrowings, revolving credit borrowings, leveraged lease
borrowings, letters of credit or other indebtedness or obligations, and
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case, as amended, extended,
renewed, restated, supplemented or otherwise modified (in whole or in part, and
without limitation as to amount, terms, conditions, covenants and other
provisions) from time to time, and any agreement (and related document)
governing Indebtedness incurred to refinance, in whole or in part, the
borrowings and commitments then outstanding or permitted to be outstanding under
such Senior Credit Facility or a successor Senior Credit Facility, whether by
the same or any other lender or group of lenders.
"Senior Indebtedness" of any Person means (a) the principal,
premium, if any, and interest with respect to all indebtedness for money
borrowed of the Person whether outstanding on the date hereof or thereafter
created, incurred, assumed or guaranteed, unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that such indebtedness is not senior or prior in right of
payment to the Securities and (b) amendments, supplements, deferrals, renewals,
extensions, modifications and refundings of any liability of the types referred
to in clause (a) above.
"Senior Indenture" means that certain Senior Notes Indenture by
and among the Issuers and Bank One Trust Company, N.A., as trustee, dated as of
December 29, 1999 relating to the Senior Notes.
"Senior Notes" means those securities issued from time to time in
one or more series under the Subordinated Indenture and any indentures
supplemental thereto.
"Shelf Registration Statement" means the shelf registration
statement filed by the Issuers with the SEC on Form S-3 under the Securities
Act, in connection with the Notes.
"Significant Subsidiary" means any Subsidiary of the Company or
Finance Sub that is a "significant subsidiary" within the meaning of Rule
1-02(w) of Regulation S-X under the Securities Act.
"Stated Maturity" means, (1) with respect to any Indebtedness,
the date specified in such Indebtedness as the fixed date on which the final
installment of principal of such Indebtedness is due and payable and (2) with
respect to any scheduled installment of principal of or interest on any
Indebtedness, the date specified in such Indebtedness as the fixed date on which
such installment is due and payable.
"Subsidiary" means, with respect to any Person, (1) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled, without regard to the
occurrence of any contingency, to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
that Person and (2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or an entity described in clause (1) and
related to such Person or (b) the only general partners of which are such Person
or of one or more entities described in clause (1) and related to such Person or
(c) any combination entities described in clauses (1) and (2).
"Supplemental Indenture" means one or more indentures
supplemental to one or both of the Indentures in accordance with Article 9
hereof and thereof.
"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.
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"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" means any Subsidiary that is designated
by a Board of Directors as an Unrestricted Subsidiary pursuant to a resolution
of the Board of Directors, but only to the extent that such Subsidiary: (1) has
no Indebtedness other than Non-Recourse Debt; (2) is a Person with respect to
which neither the Issuers nor any of their Restricted Subsidiaries has any
direct or indirect obligation (a) to subscribe for additional Equity Interests,
or (b) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results.
"Voting Stock" of any Person as of any date means the Capital
Stock of that Person that is at the time entitled to vote in the election of
directors or similar individuals of that Person.
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Defined in
Term Section
<S> <C>
"Authentication Order"........................................2.03
"Benefited Party".............................................12.01
"Covenant Defeasance".........................................8.03
"DTC".........................................................2.04
"Event of Default"............................................6.01
"Legal Defeasance" ...........................................8.02
"Paying Agent"................................................2.04
"Payment Default".............................................6.01
"Registrar"...................................................2.04
"Successor Company"...........................................5.01
</TABLE>
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
(a) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
(b) 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" means the Trustee; and
"obligor" on the Notes means the Issuers and any successor
obligor upon the Notes.
(c) 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.
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<PAGE> 11
SECTION 1.04. RULES OF CONSTRUCTION.
(a) 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. "including" means "including without limitation";
6. provisions apply to successive events and transactions;
and
7. references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE SECURITIES
SECTION 2.01. FORM OF NOTES.
(a) Form of Notes. Notes of each series shall be in substantially
the form as shall be established by or pursuant to a Board Resolution or in one
or more Supplemental Indentures hereto, in each case with appropriate notations,
legends or endorsements required by law, stock exchange rule or usage. Notes
issued in global form shall include the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto. Notes
issued in definitive form shall be substantially in the form of a Global Note,
but shall not include the Global Note Legend or "Schedule of Exchanges of
Interests in the Global Note." Each Global Note shall represent such of the
outstanding Notes of a series as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount, or principal
amount at Maturity, as applicable, of outstanding Notes of such series from time
to time endorsed thereon and that the aggregate principal amount, or principal
amount at Maturity, as applicable, of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount, or principal amount at
Maturity, as applicable, of outstanding Notes of a series represented thereby
shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as required by
Section 2.06 hereof.
Each Note shall be dated the date of its authentication. Unless
otherwise specified in an indenture supplemental hereto with respect to any
series of Notes, 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
Issuers and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
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<PAGE> 12
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Form of Trustee's Certificate of Authentication. The form of
Trustee's certificate of authentication shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein
referred to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.
as Trustee,
By:
Authorized Signatory
Dated:
(c) Euroclear and Cedel Procedures Applicable. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in Global Notes that are held by Participants through
Euroclear or Cedel.
SECTION 2.02. TERMS OF NOTES.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited. The Notes issued
under this Indenture shall rank pari passu with all other unsecured and
unsubordinated Indebtedness of the Issuers.
The Notes may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 2.03, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more Supplemental Indentures hereto, prior to the issuance of Notes of
any series, any or all of the following, as applicable, as may be determined
from time to time by the Issuers with respect to unissued Notes of the series
and set forth in such Notes of the series when issued from time to time:
(i) the designation and title of the Notes;
(ii) the aggregate principal amount, or principal amount
at Maturity, as applicable, of the Notes;
(iii) the percentage of the principal amount, or principal
amount at Maturity, as applicable, at which the Issuers will issue and
sell the Notes;
(iv) the date or dates on which the Notes will mature;
(v) the rate or rates per annum, if any, at which the
Notes will bear or accrete interest, or the method of determination of
the interest rate or rates;
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<PAGE> 13
(vi) the times and places at which the interest, if any,
will be payable;
(vii) provisions for sinking, purchase or other analogous
funds, if any;
(viii) whether the Notes will be issued as Original Issue
Discount Notes;
(ix) the date or dates or particular events, if any, after
which the Issuers may redeem the Notes at their option, as well as the
redemption price or prices;
(x) the date or dates or particular events, if any, after
which the Issuers must offer to repurchase the Notes from Holders, as
well as the repurchase price or prices;
(xi) the date or the dates, if any, after which the
Holders may convert the Notes into shares of Common Stock of the Company
and the terms for that conversion;
(xii) any transfer restrictions, procedures or other
requirements; and
(xiii) any other material terms of, including any
covenants or defined terms applicable to, the Notes.
All Notes of any one series shall be substantially identical
except as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 2.03) and set forth in such Officers' Certificate or in any
Supplemental Indenture hereto. Not all Notes of any one series need be issued at
the same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Notes of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.03. EXECUTION, AUTHENTICATION AND DELIVERY.
(a) At least one Officer of each Issuer shall sign the Notes for
each Issuer by manual or facsimile signature. The Issuers' respective seals may
be reproduced on the Notes and may be in facsimile form; provided, however, that
no seal shall be required to be reproduced on the Notes.
(b) 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.
(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee. The Trustee's manual signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
(d) At any time and from time to time following the execution of
this Indenture, the Issuers may deliver Notes executed by the Issuers to the
Trustee for authentication, and the Trustee shall, upon a written order of the
Issuers signed by at least one Officer of each Issuer (an "Authentication
Order"), authenticate Notes for original issue up to the aggregate principal
amount or principal amount at Maturity, as applicable, stated in the Notes. The
aggregate principal amount or principal amount at Maturity, as applicable, of
Notes outstanding at any time may not exceed such amount except as provided in
Section 2.07 hereof.
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<PAGE> 14
(e) The Trustee may appoint an Authenticating Agent acceptable to
the Issuers 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 Registrar or Paying Agent to deal
with Holders or an Affiliate of the Issuers.
SECTION 2.04. REGISTRAR AND PAYING AGENT.
(a) The Issuers 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 Issuers 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 Issuers may change
any Paying Agent or Registrar without notice to any Holder. The Issuers shall
notify the Trustee in writing of the name and address of any Paying Agent or
Registrar not a party to this Indenture. If the Issuers fail to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Issuers or any Subsidiary of an Issuer may act as Paying Agent or
Registrar.
(b) The Issuers initially appoint The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
(c) The Issuers initially appoint the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuers shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall 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 Issuers 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 Issuers 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 an Issuer or a Subsidiary of an
Issuer) shall have no further liability for the money. If the Issuers or a
Subsidiary of an Issuer 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 an
Issuer, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.06. 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 Issuers 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 or such
shorter time as the Trustee may allow, as the Trustee may reasonably require of
the names and addresses of the Holders of Notes and the Issuers shall otherwise
comply with TIA Section 312(a).
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SECTION 2.07. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Note. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Issuers for Definitive Notes if (i) the Issuers
deliver to the Trustee notice from the Depositary that it is unwilling or unable
to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is
not appointed by the Issuers within 120 days after the date of such notice from
the Depositary or (ii) the Issuers in their sole discretion determine that the
Global Note (in whole but not in part) should be exchanged for Definitive Notes
and deliver a written notice to such effect to the Trustee. Upon the occurrence
of either of the preceding events in (i) or (ii) above, Definitive Notes shall
be issued in such names as the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.08 and 2.11 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.07 or Section 2.08 or 2.11 hereof, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.07(a),
although beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.07(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. In connection with all transfers
and exchanges of beneficial interests in a Global Note, the transferor of such
beneficial interest must deliver to the Registrar either (A) (1) a written order
from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given by
the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.07(g) hereof.
(c) Transfer or Exchange of Beneficial Interests in Global Notes
for Definitive Notes. Global Notes and beneficial interests therein shall be
exchangeable for Definitive Notes if (i) the Depositary (x) notifies the Issuers
that it is unwilling or unable to continue as depositary for the Global Note and
the Issuers thereupon fail to appoint a successor depositary or (y) has ceased
to be a clearing agency registered under the Exchange Act and the Issuers fail
to appoint a successor, (ii) the Issuers, at their option, notify the Trustee in
writing that they elect to cause the issuance of the Definitive Note or (iii)
there shall have occurred and be continuing a Default with respect to the Notes.
In all cases, a Definitive Note delivered in exchange for any Global Note or
beneficial interests therein shall be registered in the names, and issued in any
approved denominations, requested by or on behalf of the depositary (in
accordance with the Applicable Procedures). In such event, the Trustee shall
cause the Global Note to be canceled accordingly pursuant to Section 2.12
hereof, and the Issuers shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
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the appropriate principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.07(c) shall be registered in such
name or names and in such authorized denomination or denominations as the holder
of such beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Note to the Persons in whose names such Note are
so registered.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes. A Holder of a Definitive Note may exchange such Note
for a beneficial interest in a Global Note or transfer such Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in a
Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Definitive Note and increase
or cause to be increased the aggregate principal amount of one of the Global
Notes. If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to this Section 2.07(d) at a time when a Global
Note has not yet been issued, the Issuers shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.03 hereof, the Trustee shall
authenticate one or more Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Note so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.07(e), the Registrar shall register the
transfer or exchange of Definitive Note. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Note duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the provisions of this Section 2.07.
A Holder of Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of a Definitive Note. Upon receipt of a
request to register such a transfer, the Registrar shall register the Definitive
Note pursuant to the instructions from the Holder thereof.
(f) Legends. The following legend shall appear on the face of all
Global Notes issued under this Indenture unless specifically stated otherwise in
the applicable provisions of this Indenture.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF
THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS."
(g) Cancellation or Adjustment of Global Note. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.12 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person
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who shall take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who shall take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Issuers shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Issuers' order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Issuers may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.11, 3.06, and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Issuers, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
(v) The Issuers shall not be required (A) to issue, to
register the transfer of or to exchange any Note during a period
beginning at the opening of business 15 days before the day of any
selection of Note for redemption under Section 3.02 hereof and ending at
the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in
part or (c) to register the transfer of or to exchange a Note between a
record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuers may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes, and
none of the Trustee, any Agent or the Issuers shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.03
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.07 to effect a registration of transfer or exchange may be
submitted by facsimile.
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SECTION 2.08. REPLACEMENT NOTES.
(a) If any mutilated Note is surrendered to the Trustee or the
Issuers and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Issuers shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Issuers, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Issuers to protect the Issuers, the Trustee,
any agent of the Trustee from any loss that any of them may suffer if a Note is
replaced. The Issuers may charge for their expenses in replacing a Note.
(b) Every replacement Note is an additional obligation of the
Issuers and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes of that series duly issued hereunder.
SECTION 2.09. OUTSTANDING NOTES.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.10 hereof, or as otherwise provided in a Supplemental Indenture, Notes
do not cease to be outstanding because the Issuers or an Affiliate of the
Issuers hold Notes.
(b) 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.
(c) 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.
(d) If the Paying Agent (other than the Issuers, 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 2.10. 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 Issuers, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuers, 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 the Trustee knows are so owned
shall be so disregarded.
SECTION 2.11. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of Definitive Notes but may have variations that the Issuers consider
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without
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unreasonable delay, the Issuers 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.
SECTION 2.12. CANCELLATION.
The Issuers 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 upon direction by the Issuers 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
requirements of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Issuers. The Issuers may not issue new
Notes to replace Notes that they have paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Issuers default in a payment of interest on the Notes,
they 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 Issuers 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 Issuers shall fix or cause to be fixed
each such special record date and payment date; provided, however, that no such
special record date shall be less than 10 days prior to the related payment date
for such defaulted interest. At least 10 days before the special record date,
the Issuers (or, upon the written request of the Issuers, the Trustee in the
name and at the expense of the Issuers) 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.
SECTION 2.14. CUSIP NUMBERS.
The Issuers in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuers will promptly notify the
Trustee of any change in the "CUSIP" numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Issuers elect to redeem Notes of a series pursuant to the
terms of the Notes of such series, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of the applicable Supplemental
Indenture governing such series 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 of a series are to be redeemed or
purchased in an offer to purchase at any time, the Trustee shall select the
Notes of such series to be redeemed or purchased among the Holders of the Notes
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis, by lot or in accordance with any other customary
method of 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 Issuers 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 whole 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 a 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.
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Issuers 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 Note 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;
(f) that, unless the Issuers default 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 Note 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.
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At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' names and at their expense; provided, however, that
the Issuers shall have delivered to the Trustee, at least 45 days, or such
shorter period allowed by the Trustee, 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.
On or one Business Day prior to the redemption date, the Issuers
shall deposit with the Trustee or with the Paying Agent money 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 Issuers any
money deposited with the Trustee or the Paying Agent by the Issuers in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
If the Issuers comply 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 Issuers 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 Note and
in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Issuers
shall issue and, upon the Issuers; written request, the Trustee shall
authenticate for the Holder at the expense of the Issuers a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
(a) The Issuers 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 Issuers
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Issuers in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due.
(b) The Issuers 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
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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.
(a) The Issuers 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 Issuers in respect of the Notes and this Indenture may be
served. The Issuers 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 Issuers 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.
(b) The Issuers 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 Issuers of their obligations to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Issuers 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.
(c) The Issuers hereby designate the Corporate Trust Office of
the Trustee as one such office or agency of the Issuers in accordance with
Section 2.04.
SECTION 4.03. REPORTS.
(a) Whether or not the Issuers are required to do so by the rules
and regulations of the SEC, so long as any Notes of a series are outstanding,
the Issuers shall furnish to the Holders of the Notes (a) all quarterly and
annual financial and other information with respect to the Issuers and their
consolidated Subsidiaries that would be required to be contained in a filing
with the SEC on Forms 10-Q and 10-K if the Issuers were required to file such
forms, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" that describes the financial condition and results of
operations of the Issuers and their consolidated Subsidiaries, showing in
reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in Management's Discussion and Analysis of Financial
Condition and Results of Operations, the financial condition and results of
operations of the Issuers and their Restricted Subsidiaries separate from the
financial information and results of operations of the Unrestricted Subsidiaries
of the Issuers and, with respect to the annual information only, a report
thereon by the Issuers' certified independent accountants, and (b) all current
reports that would be required to be filed with the SEC on Form 8-K if the
Issuers were required to file such reports.
(b) After the effectiveness of the Shelf Registration Statement,
whether or not required by the rules and regulations of the SEC, the Issuers
shall file a copy of all of the information and reports required to be delivered
pursuant to clause (a) of this Section 4.03 with the SEC for public
availability, unless the SEC shall not accept such a filing, and from and after
the date hereof shall make this information available to securities analysts and
prospective investors upon request. In addition, for so long as any Notes remain
outstanding, the Issuers shall file with the Trustee and the SEC (unless the SEC
shall not accept such filing) the information required to be delivered pursuant
to clause (a) of this Section
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4.03 within the time periods specified in the SEC's rules and regulations and
furnish that information to Holders of the Notes, securities analysts and
prospective investors upon their request.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Issuers shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that
they have made a due diligence inquiry into their compliance during the prior
fiscal year with the Indenture and any indenture supplements with a view to
determining whether the Issuers have kept, observed, performed and fulfilled
their 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
Issuers have kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and are 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 Issuers are 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 Issuers are taking or propose 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 statements delivered pursuant to Section 4.03(a) above shall be
accompanied by a written statement of the Issuers' 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
Issuers have violated any provisions of Article 4 or Article 5 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 Issuers 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 Issuers are taking or propose to
take with respect thereto.
SECTION 4.05. TAXES.
The Issuers shall pay, and shall cause each of their 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 Issuers covenant (to the extent that they may lawfully do so)
that they 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 Issuers (to the extent
that they may lawfully do so) hereby expressly waive all benefit or advantage of
any such law, and covenant that they 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. RESTRICTIONS ON ACTIVITIES OF FINANCE SUB AND RELEASE
OF OBLIGATIONS.
Prior to the consummation of a Holding Company Reorganization,
neither Finance Sub nor any wholly owned subsidiary of Finance Sub formed solely
for the purpose of consummating the Holding Company Reorganization shall (1)
hold any material assets; (2) consolidate or merge with or into any other
Person, other than in connection with the Holding Company Reorganization; (3)
become liable or pay for any Indebtedness or other obligations; provided,
however, that Finance Sub may: (a) become liable for or pay for its obligations
under the indenture, the supplemental indentures and the notes; (b) become
liable for or pay for any judgments; and (c) be a co-obligor with respect to
Indebtedness if the Company is also an obligor of that Indebtedness and the net
proceeds of that Indebtedness are received by the Company or one or more of its
Restricted Subsidiaries other than Finance Sub; or (4) engage in any business
activities other than incident to maintaining Finance Sub's corporate existence
or consummating a Holding Company Reorganization.
Upon consummation of the Holding Company Reorganization, the
obligation of (I) Finance Sub with respect to the Notes will automatically be
extinguished and only the Company will continue as the sole obligor on the
Notes, if the Holding Company Reorganization is of the type contemplated by
clause (1) of the definition of Holding Company Reorganization, or (II) the
Company with respect to the Notes will automatically be extinguished and only
Finance Sub will continue as the sole obligor on the Notes, if the Holding
Company Reorganization is of the type contemplated by clauses (2) or (3) of the
definition of Holding Company Reorganization.
In the event that a Holding Company Reorganization is
consummated, the Trustee shall, at the request of either Issuer, enter into a
Supplemental Indenture to evidence the release of the Company or Finance Sub, as
the case may be, from its obligations on the Notes.
SECTION 4.08. CORPORATE EXISTENCE.
Subject to Article 5 hereof, each of the Issuers 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
Issuers or any such Subsidiary and (ii) the rights (charter and statutory),
licenses and franchises of the Issuers and its Subsidiaries; provided, however,
that the Issuers shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of their
Subsidiaries, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuers and
their Subsidiaries, taken as a whole, and that the loss thereof is not adverse
in any material respect to the Holders of the Notes.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
Unless provided otherwise in a Supplemental Indenture, the
Company shall not consolidate or merge with or into another Person or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions, to another
Person unless (a) the Company is the surviving corporation of such consolidation
or merger or the lessor or transferor in such sale, conveyance, lease or
transfer; (b) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment, transfer, lease,
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conveyance or other disposition shall have been made (the "Successor Company")
(i) is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia, and (ii) expressly assumes, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory thereto, all the obligations of the Company under the
Notes and this Indenture pursuant to a Supplemental Indenture, including all
obligations of the Company for due and punctual payment of principal of,
premium, if any, and interest on all Notes, and the performance and observance
of all covenants contained herein or in any indenture supplemental hereto; (c)
immediately after such transaction, no Default has occurred or is continuing;
and (d) the Company or such Person shall have delivered to the Trustee and
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or sale, transfer, lease or conveyance and such
supplemental indenture comply with this Article 5 and that all conditions
precedent herein for relating to such transaction have been satisfied.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture, any
indenture supplemental hereto and the Notes, with the same effect as if such
successor Person had been named as the Company herein and therein.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Unless provided otherwise in an indenture supplemental hereto,
the each of the following shall constitute an "Event of Default":
(a) the Issuers default in the payment when due of interest on
the Notes, whether or not prohibited by Section 4.01, and such default continues
for a period of 60 days;
(b) the Issuers default in the payment when due of principal of
or premium, if any, on the Notes, whether or not prohibited by Section 4.01;
(c) the Issuers default in the deposit of any sinking fund
payment when and as due pursuant to the terms of the Notes and any Supplemental
Indenture hereto;
(d) default in the performance, or breach, of any covenant or
warranty of the Issuers or the Guarantor in this Indenture, and continuance of
such default or breach for 60 days after notice to the Issuers by the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Note of the affected series;
(e) an Issuer or any Significant Subsidiary of an Issuer or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, pursuant to or within the meaning of Bankruptcy Law:
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(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against
it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due;
or
(f) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Issuers or any of their
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in an involuntary case;
or
(ii) appoints a Custodian of the Issuers or any of their
Significant Subsidiaries or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Issuers or any of their
Significant Subsidiaries or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of any Issuer or any
Significant Subsidiary of an Issuer or any group of Restricted
Subsidiaries that, taken as a whole, would constitute such a Significant
Subsidiary,
and the order or decree remains unstayed and in effect for 60 consecutive
days; or
(g) any other Event of Default provided with respect to Notes of
that series.
SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified
in clause (e) or (f) of Section 6.01 hereof with respect to the Issuers), occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount, or principal amount at Maturity, as applicable, of the then outstanding
Notes may declare the principal amount or, the Notes of that series are Original
Issue Discount Notes, such portion of the principal amount as may be specified
in the terms of that series, of all the Notes of that series to be due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (e) or (f) of Section 6.01 hereof occurs with respect to the
Issuers, all outstanding Notes shall be due and payable immediately without
further action or notice. The Holders of a majority in aggregate principal
amount of the Notes then outstanding by written notice to the Trustee may on
behalf of all of the Holders 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, interest or premium, if any,
that has become due solely because of the acceleration) have been cured or
waived.
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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.
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 acquiescence 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, or principal amount at Maturity, as applicable, of the Notes of any
series then outstanding 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) a continuing Default or Event of Default in
the payment of the principal of, premium, if any, or interest on, the Notes, or
(b) in respect of a covenant or provision which under this Indenture or any
indenture supplemental hereto cannot be modified or amended without the consent
of the Holders of all or more than a majority in principal amount, or principal
amount at Maturity, as applicable, of the outstanding Notes of such series
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Notwithstanding anything to the contrary in this Article 6, at
any time after a declaration of acceleration with respect to Notes of any series
has been made, the Holders of a majority in principal amount, or principal
amount at Maturity, as applicable, of the outstanding Notes of that series, or
of all series, as the case may be, by written notice to the Issuers and the
Trustee, may rescind and annul the declaration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration. Such a rescission
will not affect any subsequent default or impair any right consequent to a
subsequent rescission.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount, or principal amount at
Maturity, as applicable, 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 Note only if:
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(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, or principal
amount at Maturity, as applicable, of the then outstanding Notes of that series
make a written request to the Trustee to pursue the remedy;
(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 10% in principal
amount, or principal amount at Maturity, as applicable, of the then outstanding
Notes do not give the Trustee a direction inconsistent with the request.
A Holder of a Note 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 SECURITIES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal of, 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 Issuers 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.
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 Issuers
(or any other obligor upon the Notes), their creditors or their 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,
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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 Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders 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, or principal amount at Maturity, as applicable, 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:
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(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.
(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 and Section 7.02.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any financial liability in the performance
of any of its duties hereunder. 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 Issuers.
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. The
Trustee may consult with nationally recognized 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 reliance thereon, provided, however
that this provision shall not protect the Trustee from liability for its own
gross negligence or willful misconduct.
(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.
(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.
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(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 Issuers 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.
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 Issuers or any
Affiliate of the Issuers with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest 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.
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 Issuers' use of the proceeds from the Notes or
any money paid to the Issuers or upon the Issuers' 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 of that series, or in the payment of any sinking
fund installment with respect to the Notes of that series, 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 SECURITIES.
Within 120 days after each December 31, beginning with December
31, 2000, 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).
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A copy of each report at the time of its mailing to the Holders
of Notes shall be mailed to the Issuers and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Issuers shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Issuers shall pay to the Trustee from time to time reasonable
compensation for the Trustee's 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 Issuers shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in accordance with this Indenture in addition to
the compensation for the Trustee's services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Issuers shall indemnify the Trustee (in its capacity as
Trustee) against any and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or administration of this
trust and the Trustee's duties under this Indenture, including the reasonable
costs and expenses of enforcing this Indenture against the Issuers (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Issuers 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 or a portion thereof may be
attributable to its negligence, willful misconduct, recklessness or bad faith.
The Trustee shall notify the Issuers promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the
Issuers of their obligations hereunder. The Issuers shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Issuers shall pay the reasonable fees and expenses of such
counsel. The Issuers need not pay for any settlement made without their consent,
which consent shall not be unreasonably withheld. The Issuers need not reimburse
any expense or indemnify against any loss liability or expense incurred by the
Trustee through the Trustee's own willful misconduct, negligence, recklessness
or bad faith.
The obligations of the Issuers under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture and the resignation or
removal of the Trustee.
To secure the Issuers' 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 and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(e) or (f) 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.
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.
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The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Issuers. The Holders of Notes
of a majority in principal amount, or principal amount at Maturity, as
applicable, of the then outstanding Notes may remove the Trustee by so notifying
the Trustee and the Issuers in writing. The Issuers 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 receiver, a custodian or a 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 Issuers shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount, or principal amount at Maturity, as
applicable, of the then outstanding Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers,
or the Holders of Notes of at least 10% in principal amount, or principal amount
at Maturity, as applicable, 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 Issuers. 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. Subject to the Lien provided for in Section
7.07 hereof, the retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee; provided, however, that all sums owing
to the Trustee hereunder shall have been paid. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Issuers' 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
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state authorities and that has a combined capital and surplus of at least $50
million 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 THE ISSUERS.
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 Issuers may, at the option of their Boards 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 of a series upon compliance with the conditions set forth below in this
Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Issuers' exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Issuers shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from their obligations with respect to all outstanding
Notes of a series on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Issuers shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes of such series, 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 of their other obligations under such Notes, this Indenture and
any Supplemental Indenture hereto (and the Trustee, on demand of and at the
expense of the Issuers, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder and thereunder: (a) the rights of Holders of
outstanding Notes to receive (i) solely from the trust fund described in Section
8.04 hereof and in an indenture supplemental hereto, 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, and (ii) shares of Common
Stock or other securities from the Issuers upon conversion of any convertible
Notes issued hereunder and thereunder; (b) the Issuers' 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 thereunder and the
Issuers' obligations in connection therewith and (d) this Article Eight and any
corresponding defeasance provisions contained in any indenture supplemental
hereto. Subject to compliance with this Article Eight, the Issuers may exercise
their option under this Section 8.02 notwithstanding the prior exercise of their
option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Issuers' exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Issuers shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from their obligations under the covenants contained in sections hereof and of
any
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Supplemental Indenture hereto, and the operation of Section 5.01(d) hereof, with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 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 Issuers 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.
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 of a series. In
order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuers must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, (i) cash in United States dollars, (ii)
non-callable Government Obligations, or (c) a combination thereof, in such
amounts as shall be sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of, premium, if any, and
interest on the outstanding Notes of that series on the stated date for payment
thereof or on the applicable redemption date, as the case may be, and any
mandatory sinking fund payments or analogous payments applicable to the
outstanding Notes on the day on which those payments are due and payable,
provided that the Issuers must specify whether the Notes are being defeased to
Maturity or to a particular redemption date and must deliver to the Trustee
irrevocable instructions to apply the proceeds of any Government Obligations to
the payments required to be made to those Notes;
(b) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture and
any material agreement or instrument to which the Issuers or any of their
Restricted Subsidiaries is a party or by which the Issuers or any of their
Restricted Subsidiaries is bound;
(c) such Legal Defeasance or Covenant Defeasance shall comply
with any additional or substitute terms, conditions or limitations set forth in
any Supplemental Indenture hereto;
(d) the Issuers 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 OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Obligations (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
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and this Indenture, to the payment, either directly or through any Paying Agent
(including an Issuer 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 Issuers shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Obligations deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuers from time to time upon the
request of the Issuers any money or non-callable Government Obligations held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants 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.
SECTION 8.06. REPAYMENT TO THE ISSUERS.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuers, in trust for the payment of the principal of, premium, if
any, or interest on any Notes 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 Issuers on their request or (if then held by the Issuers) shall be
discharged from such trust; and the Holder of such Notes shall thereafter, as an
unsecured creditor, look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuers 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 Issuers 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
shall be repaid to the Issuers.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Obligations 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 Issuers' 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 Issuers make
any payment of principal of, premium, if any, or interest on any Notes following
the reinstatement of their obligations, the Issuers 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.
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ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Issuers and
the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note to:
(a) cure any ambiguity, defect or inconsistency;
(b) effect or maintain the qualification of the
indentures under the Trust Indenture Act;
(c) secure any Notes;
(d) add covenants for the protection of the Holders of
Notes;
(e) establish the forms or terms of Notes of any series;
(f) make any other change that does not adversely affect
in any material respect the rights under such indenture of the Holders of Notes
thereunder;
(g) add a guarantee of the Issuers' payment obligations
under the Indentures by a subsidiary or other party;
(h) evidence the acceptance of appointment by a successor
trustee;
(i) evidence and effect the Holding Company
Reorganization; and
(j) evidence the succession of another person to an Issuer
and the assumption by any such successor of their obligations in accordance with
the Indentures and the Notes.
Upon the request of the Issuers accompanied by a resolution of
their respective Boards 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(b) hereof, the Trustee shall join with the
Issuers 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 SECURITIES.
Except as provided below in this Section 9.02, the Issuers and
the Trustee may amend or supplement this Indenture (including Section 3.09, 4.10
and 4.14 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 of any
Series (including additional Notes, if any, of such series) then outstanding
voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than
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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, or principal amount at Maturity, as applicable, of
the then outstanding Notes of such Series (including additional Notes, if any,
of such series) voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes).
Upon the request of the Issuers accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 7.02 hereof, the Trustee shall join with the
Issuers in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly 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 Issuers shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Issuers 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, or principal amount at
Maturity, as applicable, of the Notes (including additional Notes, if any, of
such series) then outstanding voting as a single class may waive compliance in a
particular instance by the Issuers with any provision of this Indenture or the
Notes. However, without the consent of each Holder affected, an amendment or
waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Note;
(ii) reduce the principal amount or the rate of interest
or any premium, if any, payable upon the redemption of any Note;
(iii) reduce the accreted amount of an Original Issue
Discount Note that would be due and payable upon a declaration of
acceleration of the Maturity of the Notes under the Indentures or the
amount due at Maturity;
(iv) adversely affect, after the event giving rise to any
right of repayment occurs, any right of repayment at the option of any
Holder of any Note, or change any place of payment described in the
Indentures where any Note or any premium, if any, or the interest
thereon is payable;
(v) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity of the Notes, or, in the
case of repayment at the option of the holder, on or after the repayment
date;
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(vi) adversely affect any right to convert or exchange any
Notes as may be provided under the Indentures; or
(vii) reduce the percentage in principal amount of the
outstanding Notes of any series, the consent of whose holders is
required for any such supplemental indenture, for any waiver of
compliance with provisions of the Indentures or defaults thereunder and
their consequences provided for in the Indentures.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Notes, or which modifies the
rights of the Holders of Notes of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Notes of any other series. Any such supplemental indenture
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture, or modifying in any manner the rights of the
Holders of Notes of such series, shall not affect the rights under this
Indenture of the Holders of Notes of any other series.
It shall not be necessary for any act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a 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 SECURITIES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Notes thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, 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.
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
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immunities of the Trustee. The Issuers 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 and (subject to
Section 7.01 hereof) shall be fully protected in relying upon, in addition to
the documents required by Section 10.04 hereof, 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 10.
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 10.02. NOTICES.
Any notice or communication by the Issuers 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 Issuers:
Metricom, Inc. or
Metricom Finance, Inc. c/o Metricom, Inc.
980 University Avenue
Los Gatos, California
Attention: Chief Financial Officer
Telecopy No.: 408-354-1024
With copies to:
Cooley Godward LLP
1 Maritime Plaza
San Francisco, California
Attention: Kenneth Guernsey, Esq.
Telecopy No.: 415-951-3699
If to the Trustee:
Bank One Trust Company, N.A.
One North State Street
9th Floor
Chicago, Illinois 60602
Telecopy No.: 312-407-1708
Attention: Corporate Trust Administration
The Issuers or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
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All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders; provided, however,
that notices to the Trustee shall be deemed delivered upon receipt.
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 Issuers mail a notice or communication to Holders, they
shall mail a copy to the Trustee and each Agent at the same time; provided,
however, that notices to the Trustee shall be deemed delivered upon receipt.
SECTION 10.03. COMMUNICATION BY HOLDERS OF SECURITIES WITH OTHER HOLDERS OF
SECURITIES.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuers, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuers to the Trustee to
take any action under this Indenture, the Issuers 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;
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(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.
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 Issuers or the Guarantor, as such, shall have
any liability for any obligations of the Issuers or any Guarantor under the
Notes, the Guarantees, 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 and the Guarantees. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the SEC that such a waiver is against public policy.
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 WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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 Issuers or their 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 Issuers in this Indenture and the Notes
shall bind their 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.
ARTICLE 11.
SATISFACTION AND DISCHARGE
SECTION 11.01. SATISFACTION AND DISCHARGE.
This Indenture shall, upon a written request or order signed by
an Officer and delivered to the Trustee, cease to be of further effect with
respect to any series of Notes, except as to any surviving rights of
registration of transfer or exchange or conversion of Notes of that series
expressly provided for, and the Trustee will be required to execute proper
instruments acknowledging satisfaction and discharge of such indenture as to
that series when:
(a) either (i) all Notes of that series previously authenticated
and delivered, other than (A) Notes that have been destroyed, lost or stolen and
which have been replaced or paid, as provided in the Indentures, and (B) Notes
for which money sufficient to make all payment on the Notes has previously been
deposited in trust with the Trustee or any Paying Agent or segregated and held
in trust by us with any remaining amounts to thereafter be repaid to us, as
provided in the Indentures, have been delivered to the trustee for cancellation;
or (ii) all Notes, other than any convertible Notes, of such series (A) have
become due and payable, (B) will become due and payable at their Stated Maturity
within one year, or (C) if redeemable at the option of the Issuers, are to be
called for redemption within one year under arrangements reasonably satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at expense of the Issuers,
(b) the Issuers has paid or caused to be paid all other sums
payable under the Notes by the Issuers; and
(c) the Issuers have delivered an Officers' Certificate and an
Opinion of Counsel to the Trustee, each stating that all conditions precedent
provided for relating to the satisfaction and discharge of the Indentures as to
such series have been satisfied.
SECTION 11.02. APPLICATION OF TRUST MONEY.
All money to be deposited with the Trustee pursuant to Section
11.01 shall be irrevocably deposited with the Trustee as trust funds in trust an
amount of money or Government Obligations sufficient to pay and discharge the
entire Indebtedness on those Notes not previously delivered to the Trustee for
cancellation, including all principal of and any premium, if any, and
installments of interest to
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the date of such deposit in the case of Notes which have become due and payable
or to the Stated Maturity or redemption date of the Notes, as the case may be.
ARTICLE 12.
SECURITY GUARANTEES
SECTION 12.01. GUARANTEE.
Subject to this Article 12, the Company hereby unconditionally
guarantees the obligations of Finance Sub under the Notes, this Indenture and
any Supplemental Indenture with respect to the matters set forth below to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Issuers hereunder or
thereunder, that: (a) the principal of premium, if any, and interest on the
Notes shall be promptly paid in full when due, whether at Maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other obligations of the
Issuers to the Holders or the Trustee hereunder or thereunder shall be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that same shall be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at Stated Maturity, by acceleration pursuant to Section 6.02 hereof or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantor shall be jointly
and severally obligated to pay the same immediately. The Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection. The Note
Guarantee shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Guarantor.
The Guarantor hereby agrees that its obligations with regard to
this Note Guarantee shall be unconditional, irrespective of the validity or
enforceability of the Notes or the obligations of the Issuers under this
Indenture, the absence of any action to enforce the same, the recovery of any
judgment against the Issuers or any other obligor with respect to this
Indenture, the Notes or the obligations of the Issuers under this Indenture or
the Notes, any action to enforce the same or any other circumstances (other than
complete performance) which might otherwise constitute a legal or equitable
discharge or defense of the Guarantor. The Guarantor further, to the extent
permitted by law, waives and relinquishes all claims, rights and remedies
accorded by applicable law to guarantors and agrees not to assert or take
advantage of any such claims, rights or remedies, including but not limited to:
(a) any right to require any of the Trustee, the Holders or the Issuers (each a
"Benefited Party"), as a condition of payment or performance by such Guarantor,
to (1) proceed against the Issuers or any other Person, (2) proceed against or
exhaust any security held from the Issuers or any other Person, (3) proceed
against or have resort to any balance of any deposit account or credit on the
books of any Benefited Party in favor of the Issuers or any other Person, or (4)
pursue any other remedy in the power of any Benefited Party whatsoever; (b) any
defense arising by reason of the incapacity, lack of authority or any disability
or other defense of the Issuers including any defense based on or arising out of
the lack of validity or the unenforceability of the obligations under the Note
Guarantee or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Issuers from any cause other than payment in
full of the obligations under the Note Guarantees; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety must
be neither larger in amount nor in other respects more burdensome than that of
the principal; (d) any defense based upon any Benefited Party's errors or
omissions in the administration of the obligations under the Note Guarantees,
except behavior which amounts to bad faith; (e)(1) any principles or provisions
of law, statutory or otherwise, which are or might be in conflict with the terms
of the Note Guarantees and any legal or equitable discharge of such Guarantor's
obligations hereunder, (2)
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the benefit of any statute of limitations affecting such Guarantor's liability
hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and
counterclaims and (4) promptness, diligence and any requirement that any
Benefited Party protect, secure, perfect or insure any security interest or lien
or any property subject thereto; (f) notices, demands, presentations, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance of the Note Guarantee, notices of default under the Notes
or any agreement or instrument related thereto, notices of any renewal,
extension or modification of the obligations under the Note Guarantee or any
agreement related thereto, and notices of any extension of credit to the Issuers
and any right to consent to any thereof; (g) to the extent permitted under
applicable law, the benefits of any "One Action" rule and (h) any defenses or
benefits that may be derived from or afforded by law which limit the liability
of or exonerate guarantors or sureties, or which may conflict with the terms of
the Note Guarantee. The Guarantor hereby covenants that its Note Guarantee shall
not be discharged except by complete performance of the obligations contained in
its Note Guarantee and this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers, the Guarantor or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuers or
the Guarantor, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
The Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
The Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the Maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the
purposes of this Note Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (y) in the event of any declaration of acceleration of
such obligations as provided in Section 6.02 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantor
for the purpose of this Note Guarantee.
SECTION 12.02. LIMITATION ON GUARANTOR LIABILITY.
The Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Note Guarantee. To effectuate the foregoing intention,
the Trustee, the Holders and the Guarantor hereby irrevocably agree that the
obligations of such Guarantor under this Article 12 shall be limited to the
maximum amount as shall, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Guarantor that are relevant under
such laws, result in the obligations of such Guarantor under its Note Guarantee
not constituting a fraudulent transfer or conveyance.
SECTION 12.03. EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence its Note Guarantee set forth in Section 12.01 hereof,
the Guarantor hereby agrees that a notation of such Note Guarantee shall be
endorsed by an Officer of such Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf of
such Guarantor by one of its Officers.
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Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 12.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Guarantor.
SECTION 12.04. RELEASE FOLLOWING HOLDING COMPANY REORGANIZATION.
Upon the completion of a Holding Company Reorganization, the
Guarantee automatically, and without further notice to or action by the Holders
of the Notes, will be released entirely and shall cease to be of any force and
effect. After that time, all references in this Indenture or any Supplemental
Indenture to an obligor of the Notes will refer only to the holding company
being the surviving . In that event, the Trustee shall, at the request of either
the Company or Finance Sub, enter into a Supplemental Indenture to evidence the
release of the Guarantee.
ARTICLE 13.
SUBORDINATION
SECTION 13.01. AGREEMENT TO SUBORDINATE.
The Issuer agree, and each Holder by accepting a Note agrees,
that the Indebtedness evidenced by, and the payment of principal, premium and
interest on, the Notes is subordinated in right of payment, to the extent and in
the manner provided in this Article 13, to the prior payment in full of all
Senior Indebtedness (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Indebtedness.
SECTION 13.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
In the event: (a) of any insolvency or bankruptcy proceedings, or
any receivership, liquidation, reorganization or other similar proceedings in
respect of us or a substantial part of their property, or (b) that (i) a default
occurs with respect to the payment of principal of, and any premium or interest
on, or other monetary amounts due and payable on any Senior Indebtedness or (ii)
there occurs an Event of Default, other than a Default in the payment of
principal, and any premium or interest, or other monetary amounts due and
payable, with respect to any Senior Indebtedness, permitting the Holder or
Holders of that Senior Indebtedness to accelerate the maturity of that Senior
Indebtedness, with notice or lapse of time, or both, and such Event of Default
continues beyond the period of grace, if any, in respect of that Default or
Event of Default, and the Default or Event of Default is not cured or waived or
ceases to exist; or (iii) the principal of and accrued interest on, or the
accreted amount of, the Notes is declared due and payable as a result of an
Event of Default of this Indenture and that declaration is not rescinded and
annulled as provided under this Indenture, then the Holders of all Senior
Indebtedness will be entitled to receive payment, in cash or cash equivalents,
of the full amount unpaid on that Senior Indebtedness first, or provision will
be made for that payment in money or money's worth, before the Holders of any of
the Notes are entitled to receive a payment on account of the principal of, and
any premium or interest on, the Indebtedness evidenced by such Notes.
44
<PAGE> 47
SECTION 13.03. DEFAULT ON SENIOR INDEBTEDNESS.
The Issuers may not pay principal, premium or interest with
respect to Notes of any series or make any deposit pursuant to the provisions
described under Article 8 and may not repurchase, redeem or otherwise retire any
Notes (collectively, "pay the Notes") if, at the time of such payment or
immediately after giving effect thereto, there shall exist with respect to any
Senior Indebtedness of the Issuers or any agreement pursuant to which any Senior
Indebtedness is issued, any default in the payment of principal, premium and
interest with respect of such Senior Indebtedness beyond any applicable grace
period thereto.
The Issuers shall give prompt written notice to the Trustee of
any default in the payment of any Senior Indebtedness or any acceleration under
any Senior Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued. Failure to give such notice shall not affect
the subordination of the Notes to the Senior Indebtedness or the application of
the other provisions provided in this Article 13.
SECTION 13.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of a Default, the Issuers
shall promptly notify holders of Senior Indebtedness of the acceleration.
SECTION 13.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee receives or is holding, or any Holder
receives, any payment of any principal, premium and interest with respect to the
Notes at a time when the Trustee or such Holder, as applicable, has actual
knowledge (in the case of the Trustee as described in Section 13.11 hereof),
that such payment is prohibited by Section 13.02 or 13.03 hereof, such payment
shall be held by the Trustee or such Holder, in trust for the benefit of, and
shall be paid forthwith over and delivered to, the holders of Senior
Indebtedness as their interests may appear or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Indebtedness may
have been issued, as their respective interests may appear, for application to
the payment of all obligations with respect to the Senior Indebtedness remaining
unpaid to the extent necessary to pay such obligations in full in accordance
with their terms, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall mistakenly pay over or
distribute to or on behalf of Holders or the Issuers or any other Person money
or assets to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article 13, except if such payment is made as a result of the
willful misconduct or gross negligence of the Trustee.
SECTION 13.06. NOTICE BY THE ISSUERS.
The Issuers shall promptly notify the Trustee and the Paying Agent of
any facts known to the Issuers that would cause a payment of any obligations
with respect to the Notes to violate this Article 13, but failure to give such
notice shall not affect the subordination of the Notes to the Senior
Indebtedness as provided in this Article 13.
45
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SECTION 13.07. SUBROGATION.
After all Senior Indebtedness is paid in full and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Indebtedness. A distribution made under this Article to
holders of Senior Indebtedness that otherwise would have been made to Holders is
not, as between the Issuers and Holders, a payment by the Issuers on the Notes.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article 13 shall have been applied,
pursuant to the provisions of this Article 13, to the payment of all amounts
payable under the Senior Indebtedness, then and in such case the Holders shall
be entitled to receive from the holders of such Senior Indebtedness at the time
outstanding any payments or distributions received by such holders of such
Senior Indebtedness in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Indebtedness in full; provided,
however, that such payments or distributions shall be paid first pro rata to
Holders that previously paid amounts then pro rata to all Holders.
SECTION 13.08. RELATIVE RIGHTS.
This Article 13 defines the relative rights of Holders and holders of
Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Issuers and Holders, the obligations
of the Issuers, which are absolute and unconditional, to pay principal, premium
and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Issuers other than their rights in relation to holders of Senior Indebtedness;
or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders and owners
of Senior Indebtedness to receive distributions and payments otherwise payable
to Holders.
If the Issuers fail because of this Article 13 to pay principal,
premium and interest on a Note on the due date, the failure is still a Default.
SECTION 13.09. SUBORDINATION MAY NOT BE IMPAIRED BY THE ISSUERS.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Issuers or any Holder or by the failure of the
Issuers or any Holder to comply with this Indenture.
SECTION 13.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to
holders of Senior Indebtedness, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets of the Issuers
referred to in this Article 13, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent
46
<PAGE> 49
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness of the Issuers, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 13.
SECTION 13.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 13 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless an authorized Officer of the Trustee shall
have received at its office at least two Business Days prior to the due date of
such payment written notice of facts that would cause the payment of any
principal, premium and interest with respect to the Notes to violate this
Article 13. Only the Issuers or a Representative may give the notice. Nothing in
this Article 13 shall impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights.
SECTION 13.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 13, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration of the
time to file such claim, a Representative of Designated Senior Indebtedness is
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Notes and the Trustee shall have no liability therefor.
SECTION 13.13. PAYMENT.
A payment with respect to a Note or with respect to principal of
or interest on a Note shall include payment of principal, premium and interest
on any Notes, any payment on account of any mandatory or optional repurchase or
redemption of any Notes and any payment or recovery on any claim (whether for
rescission or damages and whether based on contract, tort, duty imposed by law,
or any other theory of liability) relating to or arising out of the offer, sale
or purchase of any Notes provided that any such payment, other payment or
recovery (i) not prohibited pursuant to this Article 13 at the time actually
made shall not be subject to any recovery by any holder of Senior Indebtedness
or Representative therefor or other Person pursuant to this Article 13 at any
time thereafter (unless such payment is a voluntary prepayment on the Securities
made at the time a Default exists under this Indenture) and (ii) made by or from
any Person other than the Issuers shall not be subject to any recovery by any
holder of Senior Indebtedness or Representative therefor or other Person
pursuant to this Article 13 at any time thereafter except to the extent such
Person recovers any such amount paid from the Issuers, whether pursuant to
rights of indemnity, rescission or otherwise.
[Signatures on following page]
47
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SIGNATURES
Dated as of December 29, 1999
METRICOM, INC.
By: /s/ James Wall
--------------------------------
Name: James Wall
Title: Chief Financial Officer
METRICOM FINANCE, INC.
By: /s/ James Wall
--------------------------------
Name: James Wall
Title: Chief Financial Officer
BANK ONE TRUST COMPANY, N.A.
as Trustee
By: /s/ Donna V. Fanning
--------------------------------
Name: Donna V. Fanning
Title: Vice President
[Signature Page for Subordinated Indenture]
<PAGE> 51
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE...............................1
Section 1.01. Definitions....................................................1
Section 1.02. Other Definitions..............................................8
Section 1.03. Incorporation by Reference of Trust Indenture Act..............8
Section 1.04. Rules of Construction..........................................8
ARTICLE 2. THE SECURITIES...........................................................9
Section 2.01. Form of Securities.............................................9
Section 2.02. Terms of Securities...........................................10
Section 2.03. Execution, Authentication and Delivery........................11
Section 2.04. Registrar and Paying Agent....................................12
Section 2.05. Paying Agent to Hold Money in Trust...........................12
Section 2.06. Holder Lists..................................................12
Section 2.07. Transfer and Exchange.........................................13
Section 2.08. Replacement Securities........................................16
Section 2.09. Outstanding Securities........................................16
Section 2.10. Treasury Securities...........................................16
Section 2.11. Temporary Securities..........................................16
Section 2.12. Cancellation..................................................17
Section 2.13. Defaulted Interest............................................17
Section 2.14. CUSIP Numbers.................................................17
ARTICLE 3. REDEMPTION AND PREPAYMENT...............................................17
Section 3.01. Notices to Trustee............................................17
Section 3.02. Selection of Securities to Be Redeemed........................18
Section 3.03. Notice of Redemption..........................................18
Section 3.04. Effect of Notice of Redemption................................19
Section 3.05. Deposit of Redemption Price...................................19
Section 3.06. Notes Redeemed in Part........................................19
ARTICLE 4. COVENANTS...............................................................19
Section 4.01. Payment of Notes..............................................19
Section 4.02. Maintenance of Office or Agency...............................20
Section 4.03. Reports.......................................................20
Section 4.04. Compliance Certificate........................................21
Section 4.05. Taxes.........................................................21
Section 4.06. Stay, Extension and Usury Laws................................21
Section 4.07. Restrictions on Activities of Finance Sub.....................22
Section 4.08. Corporate Existence...........................................22
ARTICLE 5. SUCCESSORS..............................................................22
Section 5.01. Merger, Consolidation, or Sale of Assets......................22
Section 5.02. Successor Corporation Substituted.............................23
ARTICLE 6. DEFAULTS AND REMEDIES...................................................23
Section 6.01. Events of Default.............................................23
</TABLE>
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TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
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<S> <C>
Section 6.02. Acceleration..................................................24
Section 6.03. Other Remedies................................................25
Section 6.04. Waiver of Past Defaults.......................................25
Section 6.05. Control by Majority...........................................25
Section 6.06. Limitation on Suits...........................................25
Section 6.07. Rights of Holders of Securities to Receive Payment............26
Section 6.08. Collection Suit by Trustee....................................26
Section 6.09. Trustee May File Proofs of Claim..............................26
Section 6.10. Priorities....................................................27
Section 6.11. Undertaking for Costs.........................................27
ARTICLE 7. TRUSTEE.................................................................27
Section 7.01. Duties of Trustee.............................................27
Section 7.02. Rights of Trustee.............................................28
Section 7.03. Individual Rights of Trustee..................................29
Section 7.04. Trustee's Disclaimer..........................................29
Section 7.05. Notice of Defaults............................................29
Section 7.06. Reports by Trustee to Holders of the Securities...............29
Section 7.07. Compensation and Indemnity....................................30
Section 7.08. Replacement of Trustee........................................30
Section 7.09. Successor Trustee by Merger, etc..............................31
Section 7.10. Eligibility; Disqualification.................................31
Section 7.11. Preferential Collection of Claims Against the Issuers.........32
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE................................31
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance......32
Section 8.02. Legal Defeasance and Discharge................................32
Section 8.03. Covenant Defeasance...........................................32
Section 8.04. Conditions to Legal or Covenant Defeasance....................33
Section 8.05. Deposited Money and Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.........................33
Section 8.06. Repayment to the Issuers......................................34
Section 8.07. Reinstatement.................................................34
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER........................................35
Section 9.01. Without Consent of Holders of Notes...........................35
Section 9.02. With Consent of Holders of Securities.........................35
Section 9.03. Compliance with Trust Indenture Act...........................37
Section 9.04. Revocation and Effect of Consents.............................37
Section 9.05. Notation on or Exchange of Securities.........................37
Section 9.06. Trustee to Sign Amendments, etc...............................37
ARTICLE 10. MISCELLANEOUS...........................................................37
Section 10.01. Trust Indenture Act Controls.................................38
Section 10.02. Notices......................................................38
Section 10.03. Communication by Holders of Securities with Other Holders of
Securities...................................................39
</TABLE>
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TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
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<S> <C>
Section 10.04. Certificate and Opinion as to Conditions Precedent...........39
Section 10.05. Statements Required in Certificate or Opinion................39
Section 10.06. Rules by Trustee and Agents..................................39
Section 10.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.................................................40
Section 10.08. Governing Law................................................40
Section 10.09. No Adverse Interpretation of Other Agreements................40
Section 10.10. Successors...................................................40
Section 10.11. Severability.................................................40
Section 10.12. Counterpart Originals........................................41
Section 10.13. Table of Contents, Headings, etc.............................41
ARTICLE 11. SATISFACTION AND DISCHARGE..............................................41
Section 11.01. Satisfaction and Discharge...................................41
Section 11.02. Application of Trust Money...................................41
ARTICLE 12. SECURITY GUARANTEES.....................................................41
Section 12.01. Guarantee....................................................42
Section 12.02. Limitation on Guarantor Liability............................43
Section 12.03. Execution and Delivery of Note Guarantee.....................43
Section 12.04. Release Following Holding Company Reorganization.............44
ARTICLE 13. SUBORDINATION...........................................................44
Section 13.01. Agreement to Subordinate.....................................44
Section 13.02. Liquidation; Dissolution; Bankruptcy.........................44
Section 13.03. Default On Senior Indebtedness...............................45
Section 13.04. Acceleration of Notes........................................45
Section 13.05. When Distribution Must Be Paid Over..........................45
Section 13.06. Notice By The Issuers........................................45
Section 13.07. Subrogation..................................................46
Section 13.08. Relative Rights..............................................46
Section 13.09. Subordination May Not Be Impaired By The Issuers.............46
Section 13.10. Distribution Or Notice To Representative.....................46
Section 13.11. Rights Of Trustee And Paying Agent...........................47
Section 13.12. Authorization To Effect Subordination........................47
Section 13.13. Payment......................................................47
</TABLE>
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<PAGE> 1
EXHIBIT 5.1
[COOLEY GODWARD LLP LETTERHEAD]
December 30, 1999
Metricom, Inc.
Metricom Finance, Inc.
980 University Avenue
Los Gatos, CA 95030-2375
Ladies and Gentlemen:
We have acted as counsel to Metricom, Inc., a Delaware corporation ("Metricom"),
and Metricom Finance, Inc., a Delaware corporation ("Finance"), in connection
with the registration under the Securities Act of 1933, as amended (the
"Securities Act"), on Form S-3 (file no. 333-91359) of (i) senior debt
securities (the "Senior Debt Securities") and/or subordinated debt securities
(the "Subordinated Debt Securities" and, together with the Senior Debt
Securities, the "Debt Securities") of Metricom and Finance, and which Debt
Securities are, as to Finance's obligations thereunder, fully and
unconditionally guaranteed by Metricom (the "Guarantees") to the extent set
forth in the respective indentures governing the Senior Debt Securities (the
"Senior Indenture") and the Subordinated Debt Securities (the "Subordinated
Indenture") and (ii) shares of common stock, par value $0.001, of Metricom (the
"Common Stock"), to be offered and sold by Metricom from time to time pursuant
to Rule 415 of the General Rules and Regulations promulgated under the
Securities Act (the "Securities Act Rules"), with aggregate gross proceeds of up
to $1,200,000,000, in each case pursuant to terms and conditions to be
designated by Metricom and/or Finance at the time of offering. The Debt
Securities, Guarantees and Common Stock are collectively referred to as the
"Securities."
In connection with this opinion, we have examined and relied upon the originals,
or copies certified to our satisfaction, of such records, documents,
certificates, opinions, memoranda and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below. As
to certain factual matters, we have relied upon certificates of the officers of
Metricom and Finance and have not sought to independently verify such matters.
In rendering this opinion, we have assumed: the genuineness and authenticity of
all signatures on original documents; the authenticity of all documents
submitted to us as originals; the conformity to originals of all documents
submitted to us as copies; the accuracy, completeness and authenticity of
certificates of public officials; and the due authorization, execution and
delivery of all documents where authorization, execution and delivery are
prerequisites to the effectiveness of such documents.
In rendering this opinion, we have also assumed that, prior to any offering and
sale of Securities, the Board of Directors (or a special committee thereof
authorized to act on its behalf) of Metricom and/or Finance, as applicable, will
duly authorize the terms of and the prices at which (A) the Debt Securities are
to be issued and sold in accordance with the terms of the Senior Indenture or
the Subordinated Indenture, as applicable (and, if Debt Securities are
convertible
<PAGE> 2
Cooley Godward LLP
Metricom, Inc.
Metricom Finance, Inc.
December 30, 1999
Page Two
into or exchangeable for Common Stock, the issuance of such Common Stock upon
such conversion or exchange and the terms thereof) and (B) shares of Common
Stock are to be issued and sold.
We express no opinion herein concerning any laws other than the federal laws of
the United States, the laws of the State of California and the Delaware General
Corporation Law, as well as applicable provisions of the Constitution of the
State of Delaware and applicable case law. We express no opinion as to whether
the laws of any jurisdiction other than those identified above are applicable to
the subject matter hereof. We are not rendering any opinion as to compliance
with any antifraud law, rule or regulation relating to securities, or to the
sale or issuance thereof.
On the basis of the foregoing and in reliance thereon, and subject to the
qualifications herein stated, we are of the opinion that:
1. With respect to any offering of any series of Debt Securities and
related Guarantees (the "Offered Debt Securities"), when (i) the Registration
Statement, as finally amended (including all necessary post effective
amendments), has become effective; (ii) an appropriate Prospectus Supplement
with respect to the Offered Debt Securities has been prepared, delivered and
filed in compliance with the Securities Act and the applicable Securities Act
Rules thereunder; (iii) if the Offered Debt Securities are to be sold pursuant
to a purchase agreement with respect to the Offered Debt Securities, such
purchase agreement has been duly authorized, executed and delivered by Metricom,
Finance and the other parties thereto; (iv) the terms of the Offered Debt
Securities and of their issuance and sale have been duly established in
conformity with the Senior Indenture or Subordinated Indenture, as applicable,
if any, so as not to violate any applicable law, the operative certificate of
incorporation or by-laws of Metricom and/or Finance, as applicable, or result in
a default under or breach of any agreement or instrument binding upon Metricom
and/or Finance, as applicable, and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
Metricom and/or Finance, as applicable; (v) the Senior Indenture or Subordinated
Indenture, as applicable, has been qualified under the Trust Indenture Act of
1939, as amended; (vi) each of the Senior Indenture and the Subordinated
Indenture has been duly authorized, executed and delivered by the relevant
Trustee and (vii) the Offered Debt Securities have been duly executed and
manually authenticated by duly authorized officers of the relevant Trustee in
accordance with the provisions of the Senior Indenture or the Subordinated
Indenture, as applicable, and duly delivered to the purchasers thereof upon
payment of the agreed upon consideration therefor; then (1) the Offered Debt
Securities, when issued and sold in accordance with the Senior Indenture or
Subordinated Indenture, as applicable, if any, and a duly authorized, executed
and delivered purchase agreement, will be valid and binding obligations of
Metricom and Finance, enforceable against Metricom and Finance in accordance
with their respective terms, subject to (a) general equity principles and the
limitations on the availability of equitable relief, including,
<PAGE> 3
Cooley Godward LLP
Metricom, Inc.
Metricom Finance, Inc.
December 30, 1999
Page Three
without limitation, specific performance; (b) the effect of applicable
bankruptcy, insolvency, fraudulent transfer or conveyance, reorganization,
arrangement, suretyship, dissolution, moratorium, receivership or other similar
laws relating to or affecting creditors' rights generally; (c) limitations
created by or arising under statute or case law on a debtor's or surety's
ability to waive rights or benefits, including without limitation, the possible
right of exoneration of a guarantor if the creditor materially alters the
original obligation of the principal without the consent of the guarantor,
elects remedies for default that impair the subrogation or reimbursement rights
of the guarantor against the principal, or otherwise takes, without notifying
the guarantor, any action that materially prejudices such guarantor; (d)
limitations created by or arising under statute or case law on the
enforceability of certain covenants and provisions of agreements where (i) the
breach of such covenants or provisions imposes restrictions or burdens upon the
debtor or surety and it cannot be demonstrated that the enforcement of such
restrictions or burdens is reasonably necessary for the protection of the
creditor or (ii) the creditor's enforcement of such covenants or provisions
under the circumstances would violate the creditor's implied covenant of good
faith and fair dealing; (e) limitations on the right of a lender to impose added
charges for late payments or defaults by the borrower, where it is determined
that such charges bear no reasonable relation to the damage suffered by the
lender as a result of such late payments or defaults or where the requirements
of California Civil Code Section 2954.5 are not met; (f) the effect of
California Civil Code Section 1717 on the recovery of attorneys' fees in
contract actions; (g) the effect of California Civil Code Section 3433; (h)
limitations imposed by law and public policy on indemnification and exculpation;
(i) defenses available to guarantors generally; and (j) any other limitations
which, in the event of any default by Metricom or Finance in its obligations
under the Offered Debt Securities, would act as a limitation on the rights of
the creditor in accordance with California law, but which would not prevent the
creditor from exercising legally adequate remedies for realization of the
principal benefits intended to be provided by the Offered Debt Securities and
(2) if shares of Common Stock are issuable upon conversion or exchange of any
convertible Offered Debt Securities, the shares of Common Stock issuable upon
conversion or exchange will be validly issued, fully paid and nonassessable,
assuming the execution, authentication, issuance and delivery of the Offered
Debt Securities and conversion or exchange of the Offered Debt Securities in
accordance with the terms of the Senior Indenture or Subordinated Indenture, as
applicable, if any, relating thereto and that a sufficient number of shares of
Common Stock are authorized or reserved and available for issuance and that the
consideration for the issuance of such shares of Common Stock is not less than
the par value of the Common Stock.
2. With respect to any offering of shares of Common Stock, when (i) the
Registration Statement, as finally amended (including all necessary
post-effective amendments), has become effective; (ii) an appropriate Prospectus
Supplement with respect to the shares of Common Stock has been prepared,
delivered and filed in compliance with the Securities Act and the applicable
Securities Act Rules thereunder; (iii) if the shares of Common Stock are to be
sold
<PAGE> 4
Cooley Godward LLP
Metricom, Inc.
Metricom Finance, Inc.
December 30, 1999
Page Four
pursuant to a purchase agreement with respect to the shares of Common Stock,
such purchase agreement has been duly authorized, executed and delivered by
Metricom and the other parties thereto; (iv) the Board of Directors, including
any appropriate committee appointed thereby, and appropriate officers of
Metricom have taken all necessary corporate action to approve the issuance and
terms of the shares of Common Stock and related matters; and (v) the terms of
the shares of Common Stock and of their issuance and sale have been duly
established in conformity with the operative certificate of incorporation and
by-laws of Metricom so as not to violate any applicable law, the operative
certificate of incorporation or by-laws of Metricom or result in a default under
or breach of any agreement or instrument binding upon Metricom and so as to
comply with any requirement or restriction imposed by any court or governmental
body having jurisdiction over Metricom, the shares of Common Stock, when issued
and sold in accordance with a duly authorized, executed and delivered purchase
agreement, will be duly authorized, validly issued, fully paid and
nonassessable, assuming that a sufficient number of shares of Common Stock are
authorized or reserved and available for issuance and that the consideration for
the issuance and sale of such shares of Common Stock is not less than the par
value of the Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to this firm under the caption "Legal
Matters" in the Prospectus forming a part of the Registration Statement.
Sincerely,
Cooley Godward LLP
/s/ KENNETH L. GUERNSEY
Kenneth L. Guernsey
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
February 1, 1999 (except with respect to the matter discussed in Note 12, as to
which the date is November 17, 1999) included in the Metricom, Inc.'s Form
10-K/A for the year ended December 31, 1998, and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Jose, California
December 30, 1999
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, N.A.
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------
METRICOM, INC. METRICOM FINANCE, INC.
(EXACT NAME OF OBLIGOR (EXACT NAME OF OBLIGOR
AS SPECIFIED IN ITS CHARTER) AS SPECIFIED IN ITS CHARTER)
DELAWARE DELAWARE
(STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF)
INCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION)
77-0294597 77-0529272
(I.R.S. EMPLOYER (I.R.S. EMPLOYER
IDENTIFICATION NUMBER) IDENTIFICATION NUMBER)
980 UNIVERSITY AVENUE
LOS GATOS, CALIFORNIA
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
95030-2375
(ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
<PAGE> 2
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY
TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of Governors
of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee as to either obligor.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.
2. A copy of the certificate of authority of the trustee to
commence business.
3. A copy of the authorization of the trustee to exercise
corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, a
national banking association organized and existing under the laws of
the United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 21st day of December, 1999.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
TRUSTEE
BY /S/ SANDRA L. CARUBA
-------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 4
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
<PAGE> 5
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time
<PAGE> 6
determine and at such price as the Board of Directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
<PAGE> 7
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for
its duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions consistent
with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall
restrict the power of shareholders to increase or decrease the capital
of the association in accordance with law, and nothing shall raise or
lower from two-thirds the percentage for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
<PAGE> 8
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate
<PAGE> 9
supervisory or regulatory authority; and provided further that there shall be no
indemnification of Directors, officers, or employees against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by an appropriate regulatory agency which proceeding or action
results in a final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of payments to
the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
<PAGE> 10
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE> 11
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
---------------------------
Comptroller of the Currency
<PAGE> 12
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter No.
16235) was granted, under the hand and seal of the Comptroller, the right to act
in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
-----------------------------
Comptroller of the Currency
<PAGE> 13
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
<PAGE> 14
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by
<PAGE> 15
appointment of the remaining Directors, and any Director so appointed shall hold
office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole
<PAGE> 16
benefit and which are concurrent and duplicative with meetings attended or Board
service for an affiliate of the Bank for which the Director receives payment;
and provided further that fees hereunder shall not be paid in the case of any
Director in the regular employment of the Bank or of one of its affiliates. Each
member of the Board of Directors, whether or not such Director is in the regular
employment of the Bank or of one of its affiliates, shall be reimbursed for
travel expenses incident to attendance at Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
<PAGE> 17
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and employees
as he or she may deem necessary, including the fixing of salaries and the
dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
<PAGE> 18
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment Management and Trust
Committee shall carry out the policies of the Bank, as adopted by the Board of
Directors, which shall be formulated and executed in accordance with State and
Federal Law, Regulations of the Comptroller of the Currency, and sound fiduciary
principles. In carrying out the policies of the Bank, each Investment Management
and Trust Committee is hereby authorized to establish management teams whose
duties and responsibilities shall be specifically set forth in the policies of
the Bank. Each such management team shall report such proceedings and the
actions taken thereby to the Investment Management and Trust Committee. Each
Managing Director shall then report such proceedings and the actions taken
thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
<PAGE> 19
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank. Any
member of the Bank's management staff or any employee of the Bank designated as
an officer on the Bank's payroll system is hereby authorized for and on behalf
of the Bank to execute any indemnity and fidelity bonds, trust agreements,
proxies or other papers or documents of like or different character necessary,
desirable or incidental to the appointment of the Bank in any fiduciary
capacity, the conduct of its business in any fiduciary capacity, or the conduct
of its other banking business; to sign and issue checks, drafts, orders for the
payment of money and certificates of deposit; to sign and endorse bills of
exchange, to sign and countersign foreign and domestic letters of credit, to
receive and receipt for payments of principal, interest, dividends, rents, fees
and payments of every kind and description paid to the Bank, to sign receipts
for money or other property acquired by or entrusted to the Bank, to guarantee
the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
<PAGE> 20
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
<PAGE> 21
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
<PAGE> 22
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers
and Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers
and Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
<PAGE> 23
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 21, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture among Metricom, Inc.,
Metricom Finance, Inc. and Bank One Trust Company, National Association, as
Trustee, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY: /S/ SANDRA L. CARUBA
---------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 24
EXHIBIT 7
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98ST-BK:
Address: 100 Broad Street 17-1630 FFIEC 032
City, State Zip: Columbus, OH 43271 Page RC-1
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
----
RCON BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1) ........ 0081 159,911 1.a
b. Interest-bearing balances(2) ................................. 0071 16,874 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) .... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D).. 1773 7,403 2.b
3. Federal funds sold and securities purchased under
agreements to resell ............................................ 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
----
RC-C) ........................................................... 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses .................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve ........................ 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
----
reserve (item 4.a minus 4.b and 4.c)............................. 2125 32,593 4.d
5. Trading assets (from Schedule RD-D).............................. 3545 0 5.
6. Premises and fixed assets (including capitalized leases) ........ 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M) .................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).......... ........................ 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding .... 2155 0 9.
10. Intangible assets (from Schedule RC-M) .......................... 2143 31,392 10.
11. Other assets (from Schedule RC-F)................................ 2160 127,322 11.
12. Total assets (sum of items 1 through 11) ........................ 2170 970,653 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK:
Address: 100 East Broad Street 171630 FFIEC 032
City, State Zip: Columbus, OH 43271 Page RC-2
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
-----------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1) .................................... 2200 802,791 13.a
</TABLE>
<PAGE> 25
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
<S> <C> <C> <C>
(1) Noninterest-bearing(1)...................................... 6631 727,720 13.a1
(2) Interest-bearing............................................ 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)
(1) Noninterest bearing.........................................
(2) Interest-bearing............................................
14. Federal funds purchased and securities sold under agreements
to repurchase: .................................................... RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury ....................... RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D)........................ RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less ..................... 2332 0 16.a
b. With original maturity of more than one year .................. A547 0 16.b
c. With original maturity of more than three years ................ A548 0 16.c
17. Not applicable ....................................................
18. Bank's liability on acceptance executed and outstanding ........... 2920 0 18.
19. Subordinated notes and debentures....... .......................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)............................. 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20) .................... 2948 867,433 21.
22. Not applicable ....................................................
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ..................... 3838 0 23.
24. Common stock....................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) .......... 3839 35,157 25.
26. a. Undivided profits and capital reserves ......................... 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities...................................................... 8434 56 26.b
27. Cumulative foreign currency translation adjustments ............... 3284 0 27.
28. Total equity capital (sum of items 23 through 27) ................. 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).............................. 3300 970,653 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external Number auditors as of any date during 1996 .............
RCFD 6724
1= Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2= Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3= Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
M.1.
4= Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5= Review of the bank's financial statements by external auditors
6= Compilation of the bank's financial statements by external auditors
7= Other audit procedures (excluding tax preparation work)
8= No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
