Attached files
file | filename |
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8-K - FORM 8-K - BEAZER HOMES USA INC | g21753e8vk.htm |
EX-5.1 - EX-5.1 - BEAZER HOMES USA INC | g21753exv5w1.htm |
EX-5.2 - EX-5.2 - BEAZER HOMES USA INC | g21753exv5w2.htm |
EX-4.1 - EX-4.1 - BEAZER HOMES USA INC | g21753exv4w1.htm |
EX-1.1 - EX-1.1 - BEAZER HOMES USA INC | g21753exv1w1.htm |
EX-4.4 - EX-4.4 - BEAZER HOMES USA INC | g21753exv4w4.htm |
EX-1.2 - EX-1.2 - BEAZER HOMES USA INC | g21753exv1w2.htm |
EX-99.1 - EX-99.1 - BEAZER HOMES USA INC | g21753exv99w1.htm |
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 12, 2010
between
BEAZER HOMES USA, INC.
and
U.S. BANK NATIONAL ASSOCIATION, as Trustee
71/2% MANDATORY CONVERTIBLE SUBORDINATED NOTES DUE 2013
First Supplement to Indenture Dated as of January 12, 2010
Table of Contents
Page | ||||||
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS | 1 | |||||
Section 1.01 |
Nature of Supplemental Indenture | 1 | ||||
Section 1.02 |
Establishment of New Series | 2 | ||||
Section 1.03 |
Definitions | 2 | ||||
Section 1.04 |
Waiver of Jury Trial | 10 | ||||
Section 1.05 |
Counterparts | 10 | ||||
Section 1.06 |
No Recourse Against Others | 10 | ||||
Section 1.07 |
Company Responsible for Making Calculations | 10 | ||||
Section 1.08 |
Company-owned Notes Disregarded | 10 | ||||
Section 1.09 |
Relationship with Base Indenture | 11 | ||||
ARTICLE II FORM AND ADMINISTRATION OF THE NOTES | 11 | |||||
Section 2.01 |
Form of Notes Generally; Denomination; Registrar, Conversion Agent and Paying Agent | 11 | ||||
ARTICLE III PAYMENT AND DELIVERY OBLIGATIONS UNDER THE NOTES | 13 | |||||
Section 3.01 |
Mandatory Conversion on the Stated Maturity Date | 13 | ||||
Section 3.02 |
Conversion at the Option of the Holder | 14 | ||||
Section 3.03 |
Conversion Upon Fundamental Change | 14 | ||||
Section 3.04 |
Covenant Event at the Option of the Company; No Redemption | 17 | ||||
Section 3.05 |
Conversion Procedures Upon Any Mandatory Conversion | 17 | ||||
Section 3.06 |
Conversion Procedures Upon Optional Conversion | 18 | ||||
Section 3.07 |
Interest Payments | 19 | ||||
Section 3.08 |
No Fractional Shares | 20 | ||||
Section 3.09 |
Charges and Taxes | 20 | ||||
ARTICLE IV ADJUSTMENTS | 20 | |||||
Section 4.01 |
Anti-Dilution Adjustments to the Fixed Conversion Rates | 20 | ||||
ARTICLE V EVENTS OF DEFAULT; ACCELERATION; REMEDIES | 29 | |||||
Section 5.01 |
Events of Default | 29 | ||||
Section 5.02 |
Acceleration Event | 31 | ||||
Section 5.03 |
Collection of Interest and Suits for Enforcement by Trustee | 32 | ||||
Section 5.04 |
Application of Money Collected | 32 | ||||
Section 5.05 |
Unconditional
Right of Holders to Receive Interest Payments under the Notes and to
Convert; Right of Holders to Institute Suit |
32 |
i
Page | ||||||
ARTICLE VI SATISFACTION AND DISCHARGE | 33 | |||||
Section 6.01 |
Satisfaction and Discharge of the Supplemental Indenture | 33 | ||||
Section 6.02 |
Application of Trust Money | 33 | ||||
Section 6.03 |
Paying Agent to Repay Monies Held | 34 | ||||
Section 6.04 |
Return of Unclaimed Monies | 34 | ||||
Section 6.05 |
Reinstatement | 34 | ||||
ARTICLE VII THE TRUSTEE | 34 | |||||
Section 7.01 |
Amendments to the Base Indenture | 34 | ||||
ARTICLE VIII SUPPLEMENTAL INDENTURES | 35 | |||||
Section 8.01 |
Amendments or Supplements Without Consent of Holders | 35 | ||||
Section 8.02 |
Amendments, Supplements or Waivers With Consent of Holders | 35 | ||||
ARTICLE IX CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE | 36 | |||||
Section 9.01 |
Amendments to the Base Indenture | 36 | ||||
ARTICLE X COVENANTS | 36 | |||||
Section 10.01 |
Amendments to the Base Indenture | 36 | ||||
ARTICLE XI HOLDERS LIST AND REPORTS | 37 | |||||
Section 11.01 |
Amendments to the Base Indenture | 37 | ||||
ARTICLE XII INAPPLICABLE PROVISIONS OF THE BASE INDENTURE | 37 | |||||
Section 12.01 |
Redemption of Securities | 37 | ||||
Section 12.02 |
Sinking Funds; Defeasance and Covenant Defeasance; Guarantees | 37 | ||||
Section 12.03 |
Guarantees | 37 | ||||
EXHIBIT A Form of Note |
ii
FIRST SUPPLEMENTAL INDENTURE, dated as of January 12, 2010 (this Supplemental
Indenture, together with the Base Indenture (as defined below), the Indenture), between Beazer
Homes USA, Inc., a Delaware corporation (the Company), and U.S. Bank National Association, acting
as indenture trustee (the Trustee).
RECITALS OF THE COMPANY
WHEREAS, the Company and U.S. Bank National Association executed and delivered the indenture,
dated as of January 12, 2010 (the Base Indenture).
WHEREAS, the Company desires and has requested the Trustee pursuant to Section 9.1 of the Base
Indenture to join with it in the execution and delivery of this Supplemental Indenture in order to
supplement the Base Indenture as and to the extent set forth herein to provide for the issuance and
the terms of the Companys 71/2% Mandatory Convertible Subordinated Notes due 2013 (the Notes) in
the aggregate principal amount of $57,500,000.
WHEREAS, Section 9.1(7) of the Base Indenture provides that a supplemental indenture may be
entered into by the Company and the Trustee without the consent of any Holders to establish the
form or terms of all or any Securities (as defined in the Base Indenture) of any series as
permitted by Sections 2.1 and 3.1 of the Base Indenture.
WHEREAS, the execution and delivery of this Supplemental Indenture have been duly authorized
by a Board Resolution of the Company, and all things necessary to make the Notes, when the Notes
are executed by the Company and authenticated and delivered hereunder, the valid obligations of the
Company have been done. Further, all things necessary to duly authorize the issuance of the Common
Stock issuable upon the conversion of the Notes, and to duly reserve for issuance the number of
shares of Common Stock issuable upon such conversion, have been done.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
it is mutually agreed by the Company and the Trustee, for the equal and proportionate benefit of
all Holders, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS
Section 1.01 Nature of Supplemental Indenture. This Supplemental Indenture supplements the Base Indenture and does, and shall be deemed to,
form a part of, and shall be construed in connection with and as part of, the Indenture for any and
all purposes.
1
Section 1.02 Establishment of New Series. Pursuant to Article III of the Base Indenture, there is hereby established the Notes having the
terms set forth in the Base Indenture as supplemented, amended or replaced by the terms of this
Supplemental Indenture and as set forth in the form of Note attached to this Supplemental Indenture
as Exhibit A, which is incorporated herein as a part of this Supplemental Indenture.
Section 1.03 Definitions. For all purposes of this Supplemental Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(a) capitalized terms used but not defined herein shall have the respective meanings assigned
to them in the Trust Indenture Act or the Base Indenture;
(b) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular, and nouns and pronouns of the masculine gender include
the feminine and neuter genders;
(c) the words herein, hereof and hereunder and other words of similar import refer to
this Supplemental Indenture as a whole and not to any particular Article, Section, Exhibit or other
subdivision; and
(d) the following terms have the meanings given to them in this Section 1.03(d):
Acceleration Cash Obligation has the meaning set forth in Section 5.02.
Acceleration Date has the meaning set forth in Section 5.02.
Acceleration Event has the meaning set forth in Section 5.02.
Acceleration Obligations means the Acceleration Cash Obligation and the Acceleration Stock
Obligation.
Acceleration Stock Obligation has the meaning set forth in Section 5.02.
Agent means any Registrar, Paying Agent, or Conversion Agent.
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Applicable Market Value has the meaning set forth in Section 3.01 with respect to Common
Stock and the meaning set forth in Section 4.01(e) with respect to Exchange Property.
Bankruptcy Law means title 11 of the United States Code, as amended, or any similar federal
or state law for the relief of debtors.
Base Indenture has the meaning ascribed to it in the first paragraph under the caption
Recitals of the Company.
Business Day means any day other than a Saturday or Sunday, a legal holiday or a day on
which banking institutions or trust companies in the place of payment are authorized or obligated
by law to close.
Closing Price with respect to Exchange Property has the meaning set forth in Section 4.01(e)
and with respect to a share of the Common Stock on any given date:
(1) the closing price on that date or, if no closing price is reported, the last reported sale
price of shares of Common Stock on the NYSE on that date; or
(2) if the Common Stock is not traded on the NYSE, the closing price on that date as reported
in composite transactions for the principal U.S. national or regional securities exchange on which
the Common Stock is so traded or, if no closing price is reported, the last reported sale price of
the Common Stock on the principal U.S. national or regional securities exchange on which the Common
Stock is so traded; or
(3) if the Common Stock is not traded on a U.S. national or regional securities exchange, the
last quoted bid price on that date for the Common Stock in the over-the-counter market as reported
by Pink OTC Markets Inc. or a similar organization; or
(4) if the Common Stock is not so quoted by Pink OTC Markets Inc. or a similar organization,
the market value of the Common Stock on that date as determined by the Board of Directors.
All references herein to the closing price of Common Stock and the last reported sale price of
Common Stock on the NYSE shall be such closing price and such last reported sale price as reflected
on the website of the NYSE (www.nyse.com) and as reported by Bloomberg Professional Service;
provided that in the event that there is a discrepancy between the closing price and the last
reported sale price as reflected on the website of the NYSE and as reported by
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Bloomberg Professional Service, the closing price and the last reported sale price on the website
of the NYSE shall govern.
Common Stock means the common stock of the Company, par value $0.001 per share.
Consolidated Tangible Net Worth as of any date means the stockholders equity (including any
Preferred Stock) of the Company that is classified as equity under GAAP, other than Disqualified
Stock of the Company and its Restricted Subsidiaries on a consolidated basis at the end of the
fiscal quarter immediately preceding such date, as determined in accordance with GAAP, plus any
amount of unvested deferred compensation included, in accordance with GAAP, as an offset to
stockholders equity, less the amount of Intangible Assets reflected on the consolidated balance
sheet of the Company and its Restricted Subsidiaries as of the end of the fiscal quarter
immediately preceding such date.
Conversion Agent has the meaning set forth in Section 2.3(a)(i) of the Base Indenture, as
amended by Section 2.01.
Conversion Date means the Early Conversion Date or the Mandatory Conversion Date.
Conversion Rate means the number of shares of Common Stock deliverable upon conversion of
each Note on the applicable Conversion Date.
Covenant Event has the meaning set forth in Section 3.04(b).
Covenant Event Interest Make-Whole Amount has the meaning set forth in Section 3.04(b).
Current Market Price per share of Common Stock on any date means for the purposes of
determining an adjustment to the Fixed Conversion Rate:
(a) for purposes of adjustments pursuant to Section 4.01(a)(ii), Section 4.01(a)(iv) in the
event of an adjustment not relating to a Spin-Off, and Section 4.01(a)(v), the average of the
Closing Prices over the five consecutive Trading Day period ending on the Trading Day immediately
preceding the Ex-Date with respect to the issuance or distribution requiring such computation;
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(b) for purposes of adjustments pursuant to Section 4.01(a)(iv) in the event of an adjustment
relating to a Spin-Off, the average of the Closing Prices over the first ten consecutive Trading
Days commencing on and including the fifth Trading Day following the Ex-Date for such distribution;
and
(c) for purposes of adjustments pursuant to Section 4.01(a)(vi), the average of the Closing
Prices over the five consecutive Trading Day period ending on the seventh Trading Day after the
Tender Offer Expiration Date of the relevant tender offer or exchange offer.
Custodian means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Default means any event, act or condition that is, or after notice or the passage of time,
or both, would be, an Event of Default.
Disqualified Stock has the meaning set forth in the Secured Notes Indenture.
DTC means The Depository Trust Company, New York, New York, and any successor thereto.
Early Conversion has the meaning set forth in Section 3.02.
Early Conversion Date has the meaning set forth in Section 3.06(c).
Event of Default has the meaning set forth in Section 5.01.
Exchange Property has the meaning set forth in Section 4.01(e)(iv).
Ex-Date when used with respect to any issuance or distribution, means the first date on
which shares of the Common Stock trade without the right to receive such issuance or distribution.
Fair Market Value means the fair market value as determined in good faith by the Board of
Directors (or an authorized committee thereof), whose determination shall be conclusive and set
forth in a resolution of the Board of Directors (or such authorized committee).
Fixed Conversion Rates means the Maximum Conversion Rate and the Minimum Conversion Rate.
5
Fundamental Change has the meaning set forth in Section 3.03(c).
Fundamental Change Conversion Period has the meaning set forth in Section 3.03(a).
Fundamental Change Conversion Rate has the meaning set forth in Section 3.03(a).
Fundamental Change Effective Date has the meaning set forth in Section 3.03(a).
Fundamental Change Interest Make-Whole Amount has the meaning set forth in Section 3.03(g).
Global Note means a Note that is a Global Security.
Holder means, with respect to a Note, the Person in whose name the Note is registered in the
Security Register.
Incur means to, directly or indirectly, create, incur, assume, guarantee, extend the
maturity of, or otherwise become liable with respect to any Indebtedness; provided,
however, that neither the accrual of interest (whether such interest is payable in cash or
kind) nor the accretion of original issue discount shall be considered an Incurrence of
Indebtedness.
Indenture has the meaning ascribed to it in the first paragraph of this Supplemental
Indenture.
Initial Price has the meaning set forth in Section 3.01(ii).
Intangible Assets has the meaning set forth in the Secured Notes Indenture.
Interest Payment Date means each January 15, April 15, July 15 and October 15 of each year,
commencing April 15, 2010.
Interest Payments or Interest means the interest payments payable by the Company on the
Interest Payment Dates in respect of each Note, calculated based on the Interest Rate and the
principal amount of such Note.
6
Interest Rate means a rate per annum of 7.50%.
Interest Record Date means, with respect to any Interest Payment payable on any Interest
Payment Date, the date fifteen calendar days immediately preceding the relevant Interest Payment
Date.
Issue Date means January 12, 2010.
Mandatory Conversion Date means the date designated as a conversion date pursuant to Section
3.01, Section 3.04, and Section 5.02.
Mandatory Conversion Rate has the meaning set forth in Section 3.01.
Material Subsidiary has the meaning set forth in the Secured Notes Indenture.
Maximum Conversion Rate has the meaning set forth in Section 3.01(iii).
Minimum Conversion Rate has the meaning set forth in Section 3.01(i).
Non-Recourse Indebtedness with respect to any Person means Indebtedness of such Person for
which (i) the sole legal recourse for collection of principal and interest on such Indebtedness is
against the specific property identified in the instruments evidencing or securing such
Indebtedness and such property was acquired with the proceeds of such Indebtedness or such
Indebtedness was Incurred within 90 days after the acquisition of such property and (ii) no other
assets of such Person may be realized upon in collection of principal or interest on such
Indebtedness.
Notes has the meaning set forth in the second paragraph under the caption Recitals of the
Company.
NYSE means the New York Stock Exchange, Inc., together with any successor thereto.
Paying Agent has the meaning set forth in Section 2.01. The Paying Agent shall initially be
the Trustee.
Preferred Stock has the meaning set forth in the Secured Notes Indenture.
7
Present Value of Interest Payments means the present value of all remaining Interest
Payments on the Notes through and including the Stated Maturity Date computed using a discount rate
equal to the Treasury Yield plus 50 basis points
Registrar has the meaning set forth in Section 2.01. The Registrar shall initially be the
Trustee.
Reorganization Event has the meaning set forth in Section 4.01(e)(iv).
Responsible Officer, when used with respect to the Trustee, means any officer within the
corporate trust department (or any successor group) who shall have direct responsibility for the
administration of this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
Restricted Subsidiaries has the meaning set forth in the Secured Notes Indenture.
Secured Notes Indenture means the Indenture, dated as of September 11, 2009, among Beazer
Homes USA, Inc., the Subsidiary Guarantors named on Schedule I thereto, U.S. Bank National
Association, as Trustee, and Wilmington Trust FSB, as Notes Collateral Agent, governing the
Companys 12% Senior Secured Notes due 2017.
Spin-Off means a dividend or other distribution to all or substantially all holders of
Common Stock consisting of Capital Stock of, or similar equity interests in, or relating to a
Subsidiary or other business unit of the Company.
Stated Maturity Date means January 15, 2013.
Stock Price has the meaning set forth in Section 3.03(e).
Supplemental Indenture means this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more agreements supplemental hereto entered into
pursuant to the applicable provisions hereof.
Tender Offer Expiration Date has the meaning set forth in Section 4.01(a).
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Tender Offer Expiration Time has the meaning set forth in Section 4.01(a)(vi).
Threshold Appreciation Price has the meaning set forth in Section 3.01.
Trading Day means a day on which the Common Stock:
(1) is not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business; and
(2) has traded at least once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the Common Stock.
Treasury Yield means the weekly average yield at the time of computation for United States
Treasury securities at constant maturity as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) that has become publicly available at least two Business
Days prior to the Conversion Date (or, if such Statistical Release is no longer published, any
publicly available source for similar market data) most nearly equal to the then-remaining term to
January 15, 2013; provided, however, that if the then-remaining term to January 15, 2013 is not
equal to the constant maturity of a United States Treasury security for which a weekly average
yield is given, the Treasury Rate will be obtained by straightline interpolation between the two
most comparable constant maturities.
Trust Indenture Act means the Trust Indenture Act of 1939, and any statute successor
thereto, in each case as amended form time to time, together with the rules and regulations
promulgated thereunder.
Trustee means the Person named as the Trustee in the first paragraph of this Supplemental
Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter Trustee shall mean such Person.
Underwriters has the meaning set forth in the Underwriting Agreement.
Underwriting Agreement means the Underwriting Agreement, dated as of January 6, 2010,
between the Company and the Underwriters named therein relating to the Notes.
9
Section 1.04 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF,
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO EACH OF THIS INDENTURE OR THE
NOTES.
Nothing in this Section 1.04 shall affect the right of any party hereto to serve process in
any manner permitted by law, or limit any right to bring proceedings against any other party hereto
in the courts of any jurisdiction or to enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction.
Section 1.05 Counterparts. This Supplemental Indenture may be executed in any number of counterparts by the parties hereto
on separate counterparts, each of which, when so executed and delivered, shall be deemed an
original, but all such counterparts shall together constitute one and the same instrument.
Section 1.06 No Recourse Against Others. No director, officer, employee, incorporator or shareholder of the Company, as such, shall have
any liability for any obligations of the Company under the Notes or this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
Section 1.07 Company Responsible for Making Calculations. The Company will be responsible for making all calculations and determinations called for under
this Indenture. These calculations and determinations include, but are not limited to,
determination of the Closing Prices of Common Stock, the Applicable Market Value, the Conversion
Rate, whether a Fundamental Change has occurred, whether adjustments to the Fixed Conversion Rates,
Initial Price, Threshold Appreciation Price or Applicable Market Value are required under this
Indenture, the amount of the Interest Payments payable on the Notes and the amount of the
Acceleration Obligations, if applicable. The Company or its agent will make these calculations and
determinations in good faith, and, absent manifest error, such calculations and determinations will
be final and binding on the Holders, and the Trustee shall have no responsibility with respect
thereto. The Company shall provide a schedule of these calculations and determinations to the
Trustee, and the Trustee shall be entitled to rely upon the accuracy of these calculations without
independent verification thereof. The Trustee will forward these calculations and determinations
to any Holder upon the written request of such Holder.
Section 1.08 Company-owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent, waiver or other action under this Indenture, Notes that are
owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such direction, consent,
waiver or other action, only Notes that a Responsible Officer actually knows are so owned shall be
so disregarded.
10
Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes
of this Section 1.08 if the pledgee shall establish to the satisfaction of the Trustee the
pledgees right to vote such Notes and that the pledgee is not the Company or any Affiliate of the
Company. In the case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the
Company shall furnish to the Trustee promptly an Officers Certificate listing and identifying all
Notes, if any, known by the Company to be owned or held by or for the account of the Company or any
Affiliate of the Company, and, subject to this Section 1.08, the Trustee shall be entitled to
accept such Officers Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are outstanding for the purpose of any such determination.
Section 1.09 Relationship with Base Indenture. The terms and provisions contained in the Base Indenture shall constitute, and are hereby
expressly made, a part of this Supplemental Indenture and the Company and the Trustee, by their
execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions
and to be bound thereby. However, to the extent any provision of the Base Indenture conflicts with
the express provisions of this Supplemental Indenture, the provisions of this Supplemental
Indenture shall govern and be controlling.
The Trustee accepts the amendments of the Base Indenture effected by this Supplemental
Indenture and agrees to execute the trust created by the Base Indenture as hereby amended, but only
upon the terms and conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee in the performance of the
trust created by the Base Indenture, and without limiting the generality of the foregoing, the
Trustee shall not be responsible in any manner whatsoever for or with respect to any of the
recitals or statements contained herein, all of which recitals or statements are made solely by the
Company, or for or with respect to (a) the validity or sufficiency of this Supplemental Indenture
or any of the terms or provisions hereof, (b) the proper authorization hereof by the Company, (c)
the due execution hereof by the Company or (d) the consequences (direct or indirect and whether
deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no
representation with respect to any such matters.
ARTICLE II
FORM AND ADMINISTRATION OF THE NOTES
Section 2.01 Form of Notes Generally; Denomination; Registrar, Conversion Agent and Paying
Agent. Article II of the Base Indenture is hereby amended and restated in its entirety with
respect to the Notes as follows:
FORM AND ADMINISTRATION OF THE NOTES
Section 2.1 Form of Notes Generally; Denomination.
(a) The Notes shall be in substantially the form set forth in Exhibit A to the
First Supplemental Indenture, dated as of January 12,
11
2010, between the Company and the Trustee (the First Supplemental Indenture),
which Exhibit is incorporated in and made part of this Indenture. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage. The Company and the Trustee shall approve the form of the Notes and any such
notations, legends or endorsements on them.
(b) The aggregate principal amount of the Notes outstanding at any time may not
exceed $57,500,000.
(c) Upon initial issuance, the Notes shall be represented by one or more Global
Notes. The Notes shall be issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof and shall be deposited with
the Trustee as custodian for DTC and registered in the name of DTC or its nominee.
Section 2.2 Form of Trustees Certificate of Authentication. The Trustees
certificate of authentication shall be substantially in the form set forth in
Exhibit A to the First Supplemental Indenture, which Exhibit is incorporated in and
made part of this Indenture.
Section 2.3 Registrar, Conversion Agent and Paying Agent.
(a) The Company shall maintain an office or agency in New York City, New York
where:
(i) the Notes may be presented or surrendered for conversion (the
Person performing such functions at such office or agency, the Conversion
Agent),
(ii) the Notes may be presented or surrendered for registration of
transfer or for exchange (the Person performing such functions at such
office or agency, the Registrar),
(iii) the Notes may be presented for Interest Payments (the Person
performing such functions at such office or agency, the Paying Agent),
and
(iv) notices and demands in respect of the Notes and this Indenture
may be served.
12
(b) The Company shall enter into an appropriate agency agreement with any Agent
not party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent.
(c) The duly appointed Registrar, Conversion Agent and Paying Agent for the
Notes shall initially be U.S. Bank National Association. The Company may, in its
sole discretion, remove the Registrar, Conversion Agent and Paying Agent in
accordance with the agreement between the Company and the Registrar, Conversion
Agent and Paying Agent, as the case may be; provided that if the Company
removes U.S. Bank National Association, the Company shall appoint a successor
Registrar, Conversion Agent and Paying Agent, as the case may be, who shall accept
such appointment prior to the effectiveness of such removal. Upon any such removal
or appointment, the Company shall send notice thereof by first-class mail, postage
prepaid, to the Holders.
ARTICLE III
PAYMENT AND DELIVERY OBLIGATIONS UNDER THE NOTES
Section 3.01 Mandatory Conversion on the Stated Maturity Date. The Notes
shall automatically convert (unless previously converted) on the Stated Maturity Date,
into a number of shares of Common Stock equal to the Mandatory Conversion Rate. In
addition to the shares of Common Stock issuable upon conversion of each Note at its
maturity, Holders will have the right to receive an amount in cash equal to all accrued
and unpaid Interest on such Notes up to (but excluding) the Stated Maturity Date.
The Conversion Rate in respect of each $25 principal amount of the Notes shall be as set forth
below, subject in each case to adjustment as set forth in Section 3.03, Section 3.04 and Section
4.01 (the Mandatory Conversion Rate):
(i) if the Applicable Market Value is greater than or equal to $5.61 (the Threshold
Appreciation Price), then the Conversion Rate will be 4.4547 shares of Common Stock per Note (the
Minimum Conversion Rate);
(ii) if the Applicable Market Value is less than the Threshold Appreciation Price but greater
than $4.60 (the Initial Price), then the Conversion Rate will be the quotient obtained by
dividing $25 by the Applicable Market Value; and
(iii) if the Applicable Market Value is less than or equal to the Initial Price, then the
Conversion Rate will be 5.4348 shares of Common Stock per Note (the Maximum Conversion Rate).
13
The Applicable Market Value means, with respect to Common Stock the average of the
Closing Prices of Common Stock over the 20 consecutive Trading Day period ending on the third
Trading Day immediately preceding the Mandatory Conversion Date.
Section 3.02 Conversion at the Option of the Holder. (a) Holders shall
have the right to convert their Notes, in whole or in part, at any time prior
to Stated Maturity Date (Early Conversion), into shares of Common Stock at the Minimum Conversion
Rate (other than during a Fundamental Change Conversion Period), subject in each case to adjustment
as set forth in Section 4.01.
(b) In addition to the number of shares of Common Stock issuable upon such conversion, each
Holder that elects to convert its Notes prior to the Stated Maturity Date shall have the right to
receive an amount in cash equal to all accrued and unpaid Interest on such converted Notes up to
the Interest Payment Date that is on or immediately preceding the date of such Early Conversion.
Accrued and unpaid Interest from such Interest Payment Date to (but not including) the Early
Conversion Date, will be deemed to be paid in full rather than cancelled, extinguished or
forfeited. Except as described herein, upon any optional conversion of the Notes, the Company shall
make no payment or allowance for unpaid Interest on the Notes.
(c) If Notes are converted after any regular Interest Record Date but prior to the related
Interest Payment Date, Holders of such Notes at the close of business on such Interest Record Date
will receive the Interest Payment on the related Interest Payment Date notwithstanding the optional
conversion.
Section 3.03 Conversion Upon Fundamental Change. (a) If a Fundamental Change occurs prior to January 15, 2013, the Company shall provide
for the conversion of the Notes by:
(i) permitting Holders to submit their Notes for conversion at any time during the
period (the Fundamental Change Conversion Period) beginning on the effective date of such
Fundamental Change (the Fundamental Change Effective Date) and ending on the earlier of
(A) the Stated Maturity Date and (B) the date that is 20 days after the Fundamental Change
Effective Date, in either case, at the Conversion Rate (the Fundamental Change Conversion
Rate) set forth in clauses (d) and (e) below; and
(ii) paying to converting Holders the Fundamental Change Interest Make-Whole Amount or
increasing the Conversion Rate in lieu thereof as set forth in clause (g) below.
(b) The Company shall notify Holders, to the extent practicable, at least 20 days prior to the
anticipated effective date of such Fundamental Change, of the anticipated Fundamental Change
Effective Date and the corresponding Fundamental Change Conversion
14
Period, but in any event not
later than two Business Days following the Company becoming aware of the occurrence of a
Fundamental Change. In addition, if the Company elects to deliver the Fundamental Change Interest
Make-Whole Amount in shares of Common Stock, such notice shall indicate such election.
(c) A Fundamental Change shall be deemed to have occurred at any time after the Notes are
originally issued upon the occurrence of any of the following:
(i) the Common Stock or other common stock into which the Notes are convertible is
neither listed for trading on a United States national securities exchange nor approved for
trading on an established automated over-the-counter trading market in the United States;
or
(ii) the consummation of any acquisition (whether by means of a liquidation, share
exchange, tender offer, consolidation, recapitalization, reclassification, merger of us or
any sale, lease or other transfer of the consolidated assets of the Company and its
Subsidiaries) or a series of related transactions or events pursuant to which: (A) 90% or
more of the Common Stock is exchanged for, converted into or constitutes solely the right
to receive cash, securities or other property; and (B) more than 10% of the cash,
securities or other property consists of cash, securities or other property that are not,
or upon issuance will not be, traded on a United States national securities exchange nor
approved for trading on an established automated over-the-counter trading market in the
United States.
(d) The following table sets forth the Fundamental Change Conversion Rate per Note for each
hypothetical stock price and Fundamental Change Effective Date set forth below:
Stock Price | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Fundamental | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Change Effective | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Date | $1.00 | $3.00 | $4.00 | $4.50 | $4.60 | $4.75 | $5.00 | $5.25 | $5.50 | $5.61 | $6.00 | $7.00 | $10.00 | $15.00 | $50.00 | |||||||||||||||||||||||||||||||||||||||||||||
January 12, 2010 |
5.2063 | 4.6289 | 4.4833 | 4.4372 | 4.4302 | 4.4192 | 4.4041 | 4.3912 | 4.3804 | 4.3753 | 4.3633 | 4.3436 | 4.3373 | 4.3580 | 4.3882 | |||||||||||||||||||||||||||||||||||||||||||||
January 15, 2011 |
5.3350 | 4.8158 | 4.6219 | 4.5551 | 4.5443 | 4.5284 | 4.5049 | 4.4847 | 4.4678 | 4.4613 | 4.4405 | 4.4074 | 4.3851 | 4.3968 | 4.4105 | |||||||||||||||||||||||||||||||||||||||||||||
January 15, 2012 |
5.4061 | 5.0873 | 4.8262 | 4.7216 | 4.7024 | 4.6764 | 4.6373 | 4.6027 | 4.5732 | 4.5622 | 4.5270 | 4.4702 | 4.4292 | 4.4311 | 4.4329 | |||||||||||||||||||||||||||||||||||||||||||||
January 15, 2013 |
5.4348 | 5.4348 | 5.4348 | 5.4348 | 5.4348 | 5.2632 | 5.0000 | 4.7619 | 4.5455 | 4.4547 | 4.4547 | 4.4547 | 4.4547 | 4.4547 | 4.4547 |
(e) The Fundamental Change Conversion Rate will be determined by reference to the table
in clause (d) above, based on the Fundamental Change Effective Date and the stock price in the
Fundamental Change (the Stock Price), which will be:
15
(i) in the case of a Fundamental Change described in Section 3.03(c)(ii) in which the
holders of Common Stock receive only cash in the Fundamental Change, the Stock Price shall
be the cash amount paid per share of Common Stock; and
(ii) otherwise, the average of the Closing Prices of Common Stock over the 10
consecutive Trading Day period ending on the Trading Day preceding the Fundamental Change
Effective Date.
(f) The exact Stock Price and Fundamental Change Effective Date may not be set forth on the
table, in which case:
(i) if the applicable Stock Price is between two Stock Price amounts on the table or
the Fundamental Change Effective Date is between two dates on the table, the Fundamental
Change Conversion Rate shall be determined by straightline interpolation between the
Fundamental Change Conversion Rates set forth for the higher and lower Stock Price amounts
and the two dates, as applicable, based on a 365-day year;
(ii) if the applicable Stock Price is in excess of $50 per share (subject to
adjustment as set forth in Section 4.01(c)), then the Fundamental Change Conversion Rate
shall be the Minimum Conversion Rate, subject to adjustment as set forth in Section
4.01(c); and
(iii) if the applicable Stock Price is less than $1.00 per share (subject to
adjustment as set forth in Section 4.01(c)), then the Fundamental Change Conversion Rate
shall be the Maximum Conversion Rate, subject to adjustment as set forth in Section
4.01(c).
(g) For any Notes that are converted during the applicable Fundamental Change Conversion
Period, in addition to the shares of Common Stock delivered upon conversion, the Company shall
either:
(i) pay the Holders of such Notes, in cash, the sum (the Fundamental Change Interest
Make-Whole Amount) of (A) an amount equal to any accrued and unpaid Interest on the Notes,
and (B) the Present Value of Interest Payments on the Notes; or
(ii) increase the number of shares of Common Stock to be issued upon conversion by a
number of shares of Common Stock equal to the Fundamental Change Interest Make-Whole Amount
divided by the Stock Price.
16
Section 3.04 Covenant Event at the Option of the Company; No Redemption.
(a) Following the occurrence of a Covenant Event and during the continuation thereof,
the Company may require Holders to convert all, but not less than all, of the Notes then
outstanding for shares of Common Stock at the Maximum Conversion Rate. The Company shall provide a
notice of a Covenant Event and its election to specify a related Mandatory Conversion Date as soon
as practicable following the end of the fiscal quarter on which the Covenant Event has occurred
(but in no event later than 10 days following the Company making such financial statement for such
fiscal quarter publicly available), specifying the applicable Mandatory Conversion Date, which
notice shall be issued not less than 15 nor more than 45 calendar days prior to the Mandatory
Conversion Date, by mail to the Trustee, the Paying Agent and each Holder of Notes. Such notice
shall specify whether the Company elected to deliver the Covenant Event Interest Make-Whole Amount
in cash or shares of Common Stock.
(b) In addition to the shares of Common Stock delivered upon conversion pursuant to this
Section 3.04 and any other amounts that may then be due to Holders upon conversion (including for
the avoidance of doubt under Section 3.03(d), (e) and (f)), the Company shall either:
(i) pay the Holders of such Notes, in cash, the sum (the Covenant Event Interest
Make-Whole Amount) of (A) an amount equal to any accrued and unpaid Interest on the
converted Notes, and (B) the Present Value of all remaining Interest Payments on the
converted Notes through and including the Stated Maturity Date, calculated as set forth in
Section 3.03, or
(ii) increase the number of shares of Common Stock to be issued on conversion by a
number of shares of Common Stock equal to the Covenant Event Interest Make-Whole Amount
divided by the average of the Closing Prices of Common Stock over the 5 consecutive Trading
Day period ending on the third Trading Day immediately preceding the Mandatory Conversion
Date.
A Covenant Event shall have been deemed to occur and continue during any quarter if the
Consolidated Tangible Net Worth of the Company shall be less than $85,000,000 as of the last day of
the Companys immediately preceding fiscal quarter.
(c) The Company may not redeem or cause the conversion of the Notes before the Stated Maturity
Date, except as described under in this Section 3.04.
Section 3.05 Conversion Procedures Upon Any Mandatory Conversion. The Persons entitled to
receive the shares of Common Stock issuable upon any mandatory
conversion of the Notes (either on the Stated Maturity Date or as a result of a Covenant Event or
Event of Default) will be treated as the record holder(s) of such shares as of 5:00 p.m., New York
City time, on the Mandatory Conversion Date. Prior to 5:00 p.m. New York City time on the Mandatory
Conversion Date, the shares of Common Stock issuable upon
17
conversion of the Notes will not be
deemed to be outstanding for any purpose and Holders will have no rights with respect to such
shares of Common Stock by virtue of holding the Notes, including voting rights, rights to respond
to tender offers and rights to receive any dividends or other distributions on the Common Stock.
Section 3.06 Conversion Procedures Upon Optional Conversion. If a Holder elects to
convert its Notes prior to the Stated Maturity Date, in the
manner described in Section 3.02 and Section 3.03, the Holder must observe the following conversion
procedures:
(a) If a Holder holds a beneficial interest in a Global Note, to convert the Holder must
deliver to DTC the appropriate instruction form for conversion pursuant to DTCs conversion program
and, if required, pay all taxes or duties, if any.
(b) If a Holder holds Notes in certificated form, to convert the Holder must:
(i) complete and manually sign the conversion notice on the back of the Note or a
facsimile of the conversion notice;
(ii) deliver the completed conversion notice and the certificated Notes to be
converted to the Conversion Agent;
(iii) if required, furnish appropriate endorsements and transfer documents; and
(iv) if required, pay all transfer or similar taxes or duties, if any.
(c) The conversion will be effective on the date on which a Holder has satisfied all of the
foregoing requirements, to the extent applicable (the Early Conversion Date). A Holder will not
be required to pay any taxes or duties relating to the issuance or delivery of Common Stock if such
Holder exercises its conversion rights, but such Holder will be required to pay any transfer or
similar tax or duty that may be payable relating to any transfer involved in the issuance or
delivery of Common Stock in a name other than the name of such
Holder. A certificate representing Common Stock will be issued and delivered only after all
applicable taxes and duties, if any, payable by the Holder have been paid in full.
(d) The person or persons entitled to receive the Common Stock issuable upon Early Conversion
or in connection with a Fundamental Change shall be treated for all purposes as the record
holder(s) of such shares of Common Stock as of 5:00 p.m., New York City time, on the applicable
Early Conversion Date. Prior to such applicable Early Conversion
18
Date, shares of Common Stock
issuable upon conversion of any Notes shall not be deemed outstanding for any purpose, and Holders
shall have no rights with respect to the Common Stock (including voting rights, rights to respond
to tender offers for the Common Stock and rights to receive any dividends or other distributions on
the Common Stock) by virtue of holding Notes.
(e) In case any Notes in a denomination greater than $25 shall be surrendered for partial
Early Conversion, the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of the Notes so surrendered, without charge, new Notes in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered Notes.
(f) Upon the Early Conversion of an interest in a Global Note, the Trustee (or other
Conversion Agent appointed by the Company) shall make a notation on such Global Note as to the
reduction in the principal amount represented thereby. The Company shall notify the Trustee in
writing of any Early Conversions of Notes effected through any Conversion Agent other than the
Trustee.
(g) The Company shall deliver the shares of Common Stock and the amount of cash, if any, to
which the Holder converting pursuant to Section 3.02 is entitled on or prior to the third Trading
Day immediately following the Early Conversion Date.
Section 3.07 Interest Payments. The first paragraph of
Section 3.7 of the Base Indenture is hereby amended and
restated in its entirety with respect to the Notes as follows:
The Company shall pay, on each Interest Payment Date, the Interest Payments
payable in respect of principal amount of each Note to the Person in whose name a
Note is registered at 5:00 p.m., New York City time, on the Interest Record Date
relating to such Interest Payment Date. If any Interest Payment Date is not a
Business Day, the Company will pay the related Interest Payment on the next
Business Day (without any interest or other payment resulting from the delay).
Interest Payments will be computed on the basis of a 360-day year of twelve 30-day
months and, in the case of any incomplete month, the actual number of days elapsed
during the month. If the Stated Maturity Date or any Conversion Date
for the Notes falls on a day that is not a Business Day, the Company will pay the
Interest Payment on the next Business Day (without any interest or other payment
resulting from the delay). Interest Payments will include accrued Interest from
the Issue Date, or from the most recent date to which Interest Payments have been
paid, as the case may be, up to (but excluding) the Interest Payment Date or the
Stated Maturity Date or Conversion Date, as the case may be. The Interest
Payments will be payable at the office of the Paying Agent in New York City
maintained for that purpose, by wire transfer of immediately available funds to an
account appropriately designated by the Holder entitled
19
thereto or by check mailed
to the address of the Person entitled
thereto at such Persons address as it
appears on the Security Register.
Section 3.08 No Fractional Shares.
(a) No fractional shares of Common Stock shall be issued to Holders upon conversion.
(b) In lieu of any fractional shares of Common Stock otherwise issuable in respect of the
aggregate principal amount of Notes of any Holder that are converted, that Holder shall be entitled
to receive an amount in cash (computed to the nearest cent) equal to the same fraction of:
(i) in the case of a mandatory conversion or conversion in connection with a
Fundamental Change, the average of the Closing Prices of Common Stock over the 10
consecutive Trading Days immediately preceding the Conversion Date; or
(ii) in the case of each Early Conversion, the Closing Price per share of Common Stock
on the second Trading Day immediately preceding the Conversion Date.
(c) The number of full shares of Common Stock shall be computed on the basis of the aggregate
principal amount of the Notes surrendered by such Holder.
Section 3.09 Charges and Taxes. The Company will pay all stock transfer and similar taxes
attributable to the delivery of the Common Stock pursuant to the Notes; provided, however, that the
Company shall not be required to pay any such tax or taxes that may be payable in respect of any
registration of a share of Common Stock in a name other than that of the registered Holder
surrendered in respect of the Notes evidenced thereby, other than in the name of the Trustee, as
custodian for such Holder, and the Company shall not be required to deliver such share certificates
unless and until the Person or Persons requesting the transfer or registration thereof shall have
paid to the Company the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
ARTICLE IV
ADJUSTMENTS
Section 4.01 Anti-Dilution Adjustments to the Fixed Conversion Rates. (a) Each Fixed Conversion
Rate shall be subject to the following adjustments:
(i) Stock Dividends and Distributions. If the Company issues Common Stock
to all or substantially all of the holders of Common Stock as a dividend or other
distribution, each Fixed Conversion Rate in effect at 5:00 p.m., New York City
20
time, on the
date fixed for determination of the holders of Common Stock entitled to receive such
dividend or other distribution will be divided by a fraction:
(A) the numerator of which is the number of shares of Common Stock
outstanding at 5:00 p.m., New York City time, on the date fixed for such
determination, and
(B) the denominator of which is the sum of the number of shares of
Common Stock outstanding at 5:00 p.m., New York City time, on the date fixed for
such determination and the total number of shares of Common Stock constituting such
dividend or other distribution.
Any adjustment made pursuant to this clause (i) will become effective immediately
after 5:00 p.m., New York City time, on the date fixed for such determination. If any
dividend or distribution described in this clause (i) is declared but not so paid or made,
each Fixed Conversion Rate shall be readjusted, effective as of the date the Board of
Directors publicly announces its decision not to make such dividend or distribution, to
such Fixed Conversion Rate that would be in effect if such dividend or distribution had not
been declared. For the purposes of this clause (i), the number of shares of Common Stock
outstanding at 5:00 p.m., New York City time, on the date fixed for such determination
shall not include shares held in treasury by the Company but shall include any shares
issuable in respect of any scrip certificates issued in lieu of fractions of shares of
Common Stock. The Company shall not pay any dividend or make any distribution on shares of
Common Stock held in treasury by the Company.
(ii) Issuance of Stock Purchase Rights. If the Company issues to all or
substantially all holders of Common Stock rights or warrants (other than rights or warrants
issued pursuant to a dividend reinvestment plan or share purchase plan or other similar
plans), entitling such holders, for a period of up to 45 calendar days from the date of
issuance of such rights or warrants, to subscribe for or purchase shares of Common Stock at
a price per share less than the Current Market Price, each Fixed Conversion Rate in effect
at 5:00 p.m., New York City time, on the date fixed for determination of the holders of
Common Stock entitled to receive such rights or warrants will be increased by multiplying
such Fixed Conversion Rate by a fraction:
(A) the numerator of which is the sum of the number of shares of
Common Stock outstanding at 5:00 p.m., New York City time, on the
date fixed for such determination and the number of shares of Common Stock
issuable pursuant to such rights or warrants, and
(B) the denominator of which is the sum of the number of shares of
Common Stock outstanding at 5:00 p.m., New York City time, on the date fixed for
such determination and the number of shares of Common Stock equal to the quotient of
the aggregate offering price payable to exercise such rights or warrants divided by
the Current Market Price.
21
Any adjustment made pursuant to this clause (ii) will become effective immediately
after 5:00 p.m., New York City time, on the date fixed for such determination. In the event
that such rights or warrants described in this clause (ii) are not so issued, each Fixed
Conversion Rate shall be readjusted, effective as of the date the Board of Directors
publicly announces its decision not to issue such rights or warrants, to such Fixed
Conversion Rate that would then be in effect if such issuance had not been declared. To the
extent that such rights or warrants are not exercised prior to their expiration or shares
of Common Stock are otherwise not delivered pursuant to such rights or warrants upon the
exercise of such rights or warrants, each Fixed Conversion Rate shall be readjusted to such
Fixed Conversion Rate that would then be in effect had the adjustment made upon the
issuance of such rights or warrants been made on the basis of the delivery of only the
number of shares of Common Stock actually delivered. In determining the aggregate offering
price payable to exercise such rights or warrants, there shall be taken into account any
consideration received for such rights or warrants and the value of such consideration (if
other than cash, to be determined by the Board of Directors (or an authorized committee
thereof), whose determination shall be conclusive). For the purposes of this clause (ii),
the number of shares of Common Stock at the time outstanding shall not include shares held
in treasury by the Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company shall not
issue any such rights or warrants in respect of shares of Common Stock held in treasury by
the Company.
(iii) Subdivisions and Combinations of the Common Stock. If outstanding
shares of Common Stock shall be subdivided into a greater number of shares of Common Stock
or combined into a lesser number of shares of Common Stock, each Fixed Conversion Rate in
effect at 5:00 p.m., New York City time, on the effective date of such subdivision or
combination shall be multiplied by a fraction:
(A) the numerator of which is the number of shares of Common Stock
that would be outstanding immediately after, and solely as a result of, such
subdivision or combination, and
(B) the denominator of which is the number of shares of Common Stock
outstanding immediately prior to such subdivision or combination.
Any adjustment made pursuant to this clause (iii) shall become effective immediately
after 5:00 p.m., New York City time, on the effective date of such subdivision or
combination.
(iv) Debt or Asset Distribution. (A) If the Company distributes to all or
substantially all holders of Common Stock evidences of its indebtedness, shares of capital
stock, securities, cash or other assets (excluding (1) any dividend or distribution covered
by Section 4.01(a)(i), (2) any rights or warrants covered by Section 4.01(a)(ii), (3) any
dividend or distribution covered by Section 4.01(a)(v) and (4) any Spin-Off to which the
provisions set forth in Section 4.01(a)(iv)(B) apply), each Fixed Conversion Rate in effect
at 5:00 p.m., New York City time, on the date fixed for the determination
22
of holders of
Common Stock entitled to receive such distribution will be multiplied by a fraction:
1. the numerator of which is the Current Market Price, and
2. the denominator of which is the Current Market Price
minus the Fair Market Value, on such date fixed for determination, of the
portion of the evidences of indebtedness, shares of capital stock,
securities, cash or other assets so distributed applicable to one share of
Common Stock.
(B) In the case of a Spin-Off, each Fixed Conversion Rate in effect
at 5:00 p.m., New York City time, on the date fixed for the determination of holders
of Common Stock entitled to receive such distribution will be multiplied by a
fraction:
1. the numerator of which is the sum of (x) the Current
Market Price and (y) the Fair Market Value of the portion of those shares of
capital stock or similar equity interests so distributed which is applicable
to one share of Common Stock as of the fifteenth Trading Day after the
Ex-Date for such distribution (or, if such shares of capital stock or equity
interests are listed on a national or regional securities exchange, the
average of the Closing Prices of such securities for the ten consecutive
Trading Day period ending on such fifteenth Trading Day), and
2. the denominator of which is the Current Market Price.
Any adjustment made pursuant to this clause (iv) shall become effective immediately
after 5:00 p.m., New York City time, on the date fixed for the determination of the holders
of Common Stock entitled to receive such distribution. In the event that such distribution
described in this clause (iv) is not so made, each Fixed Conversion Rate shall be
readjusted, effective as of the date the Board of Directors publicly announces its
decision not to pay such dividend or distribution, to such Fixed Conversion Rate that
would then be in effect if such distribution had not been declared. If an adjustment to
each Fixed Conversion Rate is required under this clause (iv) during any settlement period
in respect of the Notes that have been tendered for conversion, delivery of the shares of
Common Stock issuable upon conversion will be delayed to the extent necessary in order to
complete the calculations provided for in this clause (iv).
(v) Cash Distributions. If the Company distributes an amount exclusively in
cash to all or substantially all holders of Common Stock (excluding (1) any cash that is
distributed in a Reorganization Event to which Section 4.01(e) applies, (2) any dividend or
distribution in connection with the liquidation, dissolution or
23
winding up of the Company
or (3) any consideration payable in as part of a tender or exchange offer by the Company or
any Subsidiary of the Company), each Fixed Conversion Rate in effect at 5:00 p.m., New York
City time, on the date fixed for determination of the holders of Common Stock entitled to
receive such distribution will be multiplied by a fraction:
(A) the numerator of which is the Current Market Price, and
(B) the denominator of which is the Current Market Price minus the
amount per share of Common Stock of such distribution.
Any adjustment made pursuant to this clause (v) shall become effective immediately
after 5:00 p.m., New York City time, on the date fixed for the determination of the holders
of Common Stock entitled to receive such distribution. In the event that any distribution
described in this clause (v) is not so made, each Fixed Conversion Rate shall be
readjusted, effective as of the date the Board of Directors publicly announces its decision
not to pay such distribution, to such Fixed Conversion Rate which would then be in effect
if such distribution had not been declared.
(vi) Self Tender Offers and Exchange Offers. If the Company or any Subsidiary
of the Company successfully completes a tender or exchange offer pursuant to a Schedule TO
or registration statement on Form S-4 for Common Stock (excluding any securities
convertible or exchangeable for Common Stock), where the cash and the value of any other
consideration included in the payment per share of Common Stock exceeds the Current Market
Price, each Fixed Conversion Rate in effect at 5:00 p.m., New York City time, on the date
of expiration of the tender or exchange offer (the Tender Offer Expiration Date) will be
multiplied by a fraction:
(A) the numerator of which shall be equal to the sum of:
a. the aggregate cash and Fair Market Value on the Tender
Offer Expiration Date of any other consideration paid or payable for shares
of Common Stock validly tendered or exchanged and not withdrawn as of the
Tender Offer Expiration Date; and
b. the product of the Current Market Price and the number
of shares of Common Stock outstanding immediately after the last time
tenders or exchanges may be made pursuant to such tender or exchange offer
(the Tender Offer Expiration Time) on the Tender Offer Expiration Date;
and
(B) the denominator of which shall be equal to the product of the
Current Market Price and the number of shares of Common Stock outstanding
immediately prior to the Tender Offer Expiration Time on the Tender Offer Expiration
Date.
24
Any adjustment made pursuant to this clause (vi) shall become effective immediately
after 5:00 p.m., New York City time, on the seventh Trading Day immediately following the
Tender Offer Expiration Date. In the event that the Company or one of its Subsidiaries is
obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange
offer, but the Company or such Subsidiary is permanently prevented by applicable law from
effecting any such purchases, or all such purchases are rescinded, then each Fixed
Conversation Rate shall be readjusted to such Fixed Conversion Rate that would then be in
effect if such tender offer or exchange offer had not been made. Except as set forth in the
preceding sentence, if the application of this clause (vi) to any tender offer or exchange
offer would result in a decrease in each Fixed Conversation Rate, no adjustment shall be
made for such tender offer or exchange offer under this clause (vi). If an adjustment to
each Fixed Conversion Rate is required pursuant to this clause (vi) during any settlement
period in respect of the Notes that have been tendered for conversion, delivery of the
related conversion consideration will be delayed to the extent necessary in order to
complete the calculations provided for in this clause (vi).
(vii) Except with respect to a Spin-Off, in cases where the Fair Market Value
of assets (including cash), debt securities or certain rights, warrants or options to
purchase securities of the Company as to which Section 4.01(a)(iv) or Section 4.01(a)(v)
apply, applicable to one share of Common Stock, distributed to holders of Common Stock
equals or exceeds the average of the Closing Prices of the Common Stock over the five
consecutive Trading Day period ending on the Trading Day before the Ex-Date for such
distribution, rather than being entitled to an adjustment in each Fixed Conversion Rate,
Holders shall be entitled to receive upon conversion, in addition to a number of shares of
Common Stock equal to the applicable conversion rate in effect on the applicable Conversion
Date, the kind and amount of assets (including cash), debt securities or rights, warrants
or options comprising the distribution that such Holder would have received if such Holder
had converted its Notes immediately prior to the date fixed for determination of the
holders of Common Stock entitled to receive the distribution calculated by multiplying the
kind and amount of assets (including cash), debt securities or rights, warrants or options
comprising such distribution by the number of shares of Common Stock equal to the Minimum
Conversion Rate in effect on the applicable Conversion Date.
(viii) Rights Plans. To the extent that the Company has a rights plan in effect
with respect to the Common Stock on any Conversion Date, upon conversion of any Notes,
Holders shall receive, in addition to the Common Stock, the rights under such rights plan,
unless, prior to such Conversion Date, the rights have separated from the Common Stock, in
which case each Fixed Conversion Rate shall be adjusted at the time of separation of such
rights as if the Company made a distribution to all holders of the Common Stock as
described in Section 4.01(a)(iv), subject to readjustment in the event of the expiration,
termination or redemption of such rights.
(b) Adjustment for Tax Reasons. The Company may make such increases in each Fixed
Conversion Rate, in addition to any other increases required by this Section 4.01, as
25
the Company
deems advisable to avoid or diminish any income tax to holders of the Common Stock resulting from
any dividend or distribution of shares of Common Stock (or issuance of rights or warrants to
acquire shares of Common Stock) or from any event treated as such for income tax purposes or for
any other reasons; provided that the same proportionate adjustment must be made to each
Fixed Conversion Rate.
(c) Calculation of Adjustments; Adjustments to Threshold Appreciation Price,
Initial Price and Stock Price. (i) All adjustments to each Fixed Conversion Rate shall be
calculated to the nearest 1/10,000th of a share of Common Stock. Prior to the Mandatory Conversion
Date, no adjustment in a Fixed Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent therein; provided, that any
adjustments which by reason of this Section 4.01(c)(i) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; provided, however that
with respect to adjustments to be made to the Fixed Conversion Rates in connection with cash
dividends paid by the Company, the Fixed Conversion Rates shall be adjusted regardless of whether
such aggregate adjustments amount to one percent or more of the Fixed Conversion Rates no later
than March 15 of each calendar year; provided, further that on the earlier of the
Mandatory Conversion Date, an Early Conversion Date and the Effective Date of a Fundamental Change,
adjustments to each Fixed Conversion Rate shall be made with respect to any such adjustment carried
forward and which has not been taken into account before such date.
(ii) If an adjustment is made to the Fixed Conversion Rates pursuant to
Sections 4.01(a) or 4.01(b), an inversely proportional adjustment shall also be made to the
Threshold Appreciation Price and the Initial Price solely for purposes of determining which
of clauses (i), (ii) and (iii) of Section 3.01 shall apply on the Mandatory Conversion
Date. Such adjustment shall be made by dividing each of the Threshold Appreciation Price
and the Initial Price by a fraction, the numerator of which shall be either Fixed
Conversion Rate immediately after such adjustment pursuant to Sections 4.01(a) or 4.01(b)
and the denominator of which shall be such Fixed Conversion Rate immediately before such
adjustment. The Company shall make appropriate adjustments to the Closing Prices prior to
the relevant Ex-Date, effective date or Tender Offer Expiration Date, as the case may be,
used to calculate the Applicable Market Value to account for any adjustments to the Initial
Price, the Threshold Appreciation Price and the Fixed Conversion Rates that become
effective during the 20 consecutive Trading Day period used for calculating the Applicable
Market Value.
(iii) If:
(A) the record date for a dividend or distribution on Common Stock
occurs after the end of the 20 consecutive Trading Day period used for calculating
the Applicable Market Value and before the Mandatory Conversion Date; and
(B) such dividend or distribution would have resulted in an
adjustment of the number of shares of Common Stock issuable to the Holders had
26
such
record date occurred on or before the last Trading Day of such 20-Trading Day
period,
then the Company shall deem the Holders to be holders of record of Common Stock for
purposes of that dividend or distribution. In this case, the Holders would receive the
dividend or distribution on Common Stock together with the number of shares of Common Stock
issuable upon the Mandatory Conversion Date.
(iv) If an adjustment is made to the Fixed Conversion Rates pursuant to
Sections 4.01(a) or 4.01(b), a proportional adjustment shall be made to each Stock Price
column heading set forth in the table included in Section 3.03(d). Such adjustment shall be
made by multiplying each Stock Price included in such table by a fraction, the numerator of
which is the Minimum Conversion Rate immediately prior to such adjustment and the
denominator of which is the Minimum Conversion Rate immediately after such adjustment. Each
of the Conversion Rates in the table included in Section 3.03(d) will be subject to
adjustment in the same manner as each Fixed Conversion Rate as set forth in this Section
4.01.
(v) No adjustment to the Fixed Conversion Rates shall be made if Holders may
participate in the transaction that would otherwise give rise to an adjustment. In
addition, the applicable Conversion Rate shall not be adjusted:
(A) upon the issuance of any shares of Common Stock pursuant to any
present or future plan providing for the reinvestment of dividends or interest
payable on the Companys securities and the investment of additional optional
amounts in shares of Common Stock under any plan;
(B) upon the issuance of any shares of Common Stock or rights or
warrants to purchase those shares pursuant to any present or future employee,
director or consultant benefit plan or program of or assumed by the Company or any
of its subsidiaries;
(C) upon the issuance of any shares of Common Stock pursuant to any
option, warrant, right or exercisable, exchangeable or convertible security
outstanding as of the Issue Date; or
(D) for a change in the par value or no par value of the Common Stock.
(d) Notice of Adjustment. Whenever the Fixed Conversion Rates and the Fundamental
Change Conversion Rates are to be adjusted, the Company shall:
(i) compute such adjusted Fixed Conversion Rates and Fundamental Change
Conversion Rates and prepare and transmit to the Trustee and any Conversion Agent an
Officers Certificate setting forth such adjusted Fixed Conversion Rates and Fundamental
Change Conversion Rates, the method of calculation thereof in
27
reasonable detail and the
facts requiring such adjustment and upon which such adjustment is based;
(ii) within five Business Days following the occurrence of an event that
requires an adjustment to the Fixed Conversion Rates and the Fundamental Change Conversion
Rates (or if the Company is not aware of such occurrence, as soon as practicable after
becoming so aware), provide, or cause to be provided, a written notice to the Holders of
the occurrence of such event; and
(iii) within five Business Days following the determination of such adjusted
Fixed Conversion Rates and Fundamental Change Conversion Rates provide, or cause to be
provided, to the Holders a statement setting forth in reasonable detail the method by which
the adjustment to such Fixed Conversion Rates and Fundamental Change Conversion Rates, as
applicable, was determined and setting forth such adjusted Fixed Conversion Rates or
Fundamental Change Conversion Rates.
(e) Reorganization Events. In the event of:
(i) any consolidation or merger of the Company with or into another Person
(other than a merger or consolidation in which the Company is the continuing corporation
and in which the Common Stock outstanding immediately prior to the merger or consolidation
is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or
substantially all of the property and assets of the Company;
(iii) any reclassification of Common Stock into securities including
securities other than Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person
(other than in connection with a merger or acquisition),
in each case, as a result of which the Companys Common Stock would be converted into, or exchanged
for, securities, cash or property (each, a Reorganization Event), each Note outstanding
immediately prior to such Reorganization Event shall, without the consent of
Holders, become convertible into the kind of securities, cash and other property (the Exchange
Property) that such Holder would have been entitled to receive if such Holder had converted its
Notes into Common Stock immediately prior to such Reorganization Event. For purposes of the
foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that
causes the Common Stock to be converted into the right to receive more than a single type of
consideration (determined based in part upon any form of shareholder election) will be deemed to be
the weighted average of the types and amounts of consideration received by the holders of Common
Stock that affirmatively make such an election. The number of units of Exchange Property for each
Note converted following the Effective Date of such Reorganization Event shall be determined based
on the Mandatory Conversion Rate, Minimum Conversion Rate or
28
Fundamental Change Conversion Rate, as
the case may be, then in effect on the applicable Conversion Date (without any interest thereon and
without any right to dividends or distributions thereon which have a record date that is prior to
the Conversion Date). The applicable Conversion Rate shall be (1) in the case of an Early
Conversion Date, the Minimum Conversion Rate, and (2) otherwise, the Mandatory Conversion Rate as
determined under Section 3.01 based upon the Applicable Market Value.
For purposes of this Section 4.01(e), Applicable Market Value shall be deemed to refer to
the Applicable Market Value of the Exchange Property and such value shall be determined (A) with
respect to any publicly traded securities that compose all or part of the Exchange Property, based
on the Closing Price of such securities, (B) in the case of any cash that composes all or part of
the Exchange Property, based on the amount of such cash and (C) in the case of any other property
that composes all or part of the Exchange Property, based on the value of such property, as
determined by a nationally recognized independent investment banking firm retained by the Company
for this purpose. For purposes of this Section 4.01(e), the term Closing Price shall be deemed to
refer to the closing sale price, last quoted bid price or mid-point of the last bid and ask prices,
as the case may be, of any publicly traded securities that comprise all or part of the Exchange
Property. For purposes of this Section 4.01(e), references to Common Stock in the definition of
Trading Day shall be replaced by references to any publicly traded securities that comprise all
or part of the Exchange Property.
The above provisions of this Section 4.01(e) shall similarly apply to successive
Reorganization Events and the provisions of Section 4.01 shall apply to any shares of capital stock
of the Company (or any successor) received by the holders of Common Stock in any such
Reorganization Event.
The Company (or any successor) shall, within 20 days of the occurrence of any Reorganization
Event, provide written notice to the Holders of such occurrence of such event and of the kind and
amount of the cash, securities or other property that constitute the Exchange Property. Failure to
deliver such notice shall not affect the operation of this Section 4.01(e).
ARTICLE V
EVENTS OF DEFAULT; ACCELERATION; REMEDIES
EVENTS OF DEFAULT; ACCELERATION; REMEDIES
Section 5.01
Events of Default. Section 5.1 of the Base Indenture is hereby amended and restated in
its entirety with respect to the Notes as follows:
Section 5.1 Events of Default (a) Each of the following
events is an Event of Default (whatever the reason for such Event of
Default and whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental
body):
29
(i) the failure of the Company to pay any Interest Payment on any
Note when the same becomes due and payable and the continuance of such
failure for a period of 30 days;
(ii) the failure of the Company to issue the required number of
shares of Common Stock upon conversion of any Note at maturity, upon
acceleration or otherwise;
(iii) the failure by the Company to comply with any of its agreements
or covenants in, or provisions of, the Notes or the Indenture and such
failure continues for the period and after the notice specified below;
(iv) the acceleration of any indebtedness (other than Non-Recourse
Indebtedness) of the Company or any of its Subsidiaries that has an
outstanding principal amount of $25.0 million or more in the aggregate;
(v) the failure by the Company or any of its Subsidiaries to make any
principal or interest payment in respect of Indebtedness (other than
Non-Recourse Indebtedness) of the Company or any of its Subsidiaries with
an outstanding aggregate amount of $25.0 million or more within five days
of such principal or interest payment becoming due and payable (after
giving effect to any applicable grace period set forth in the documents
governing such Indebtedness); provided that if such failure to pay
shall be remedied, waived or extended, then the Event of Default hereunder
shall be deemed likewise to be remedied, waived or extended without further
action by the Company;
(vi) a final judgment or judgments that exceed $25.0 million or more
in the aggregate, for the payment of money, having been entered by a court
or courts of competent jurisdiction against the Company or any of its
Subsidiaries and such judgment or judgments is not satisfied, stayed,
annulled or rescinded within 60 days of being entered;
(vii) the Company or any Material Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
30
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Material
Subsidiary as debtor in an involuntary case,
(B) appoints a Custodian of the Company or any Material
Subsidiary or a Custodian for all or substantially all of the
property of the Company or any Material Subsidiary, or
(C) orders the liquidation of the Company or any Material
Subsidiary and the order or decree remains unstayed and in effect
for 60 days.
(b) A Default under Section 5.1(a)(iii) hereof shall not be deemed an Event
of Default until the Trustee notifies the Company, or the Holders of not less than
25% of the aggregate principal amount of the then outstanding Notes notify the
Company and the Trustee, of the Default and the Company does not cure the Default
within 60 days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a Notice of Default. If
such a Default is cured within such time period, it ceases.
Section 5.02
Acceleration Event. Section 5.2 of the Base Indenture is hereby amended and restated
in its entirety with respect to the Notes as follows:
Section 5.2 Acceleration Event. (a) The Holders may not enforce the
provisions of the Indenture or the Notes except as provided in the Indenture.
(b) If an Event of Default shall have occurred and be continuing, the Trustee
by notice to the Company, or the Holders of at least 25% in principal
amount of the Notes then outstanding by notice to the Company and the Trustee,
may declare all Notes to be due and payable immediately (other than an Event of
Default specified in Section 5.1(a)(vii) and (viii), in which case no declaration of
acceleration or notice shall be required). Upon such acceleration (the Acceleration
Event), the Notes will automatically convert into shares of Common Stock as set
forth in Section 3.01 of the First Supplemental Indenture at the Maximum Conversion
Rate; such obligation (the Acceleration Stock
31
Obligation), together with (i) all
accrued and unpaid Interest up to, but excluding, the date of acceleration (the
Acceleration Date) and (ii) the Present Value of Interest Payments on the Notes
((i) and (ii) together, the Acceleration Cash Obligation), shall become
immediately due and payable. The Holders of a majority in principal amount of the
Notes then outstanding by written notice to the Trustee and the Company may waive
such default or Event of Default (other than any default or Event of Default in
Interest Payments) on the Notes. Holders of a majority in principal amount of the
then outstanding Notes may rescind an Acceleration Event and its consequence (except
an Acceleration Event due to nonpayment of Interest on the Notes under Section
5.1(a)(i)) if the rescission would not conflict with any judgment or decree and if
all existing Events of Default have been cured or waived.
Section 5.03 Collection of Interest and Suits for
Enforcement by Trustee. Section 5.3
of the Base Indenture is hereby amended with respect to the Notes as follows:
(a) Clause (2) is hereby amended and restated in its entirety with respect to the Notes as
follows: (2) default is made in delivery of shares of Common Stock and/or cash (if any) on any
Conversion Date under Article III of the First Supplemental Indenture or the delivery of
Acceleration Obligations under Section 5.02 of the First Supplemental Indenture,.
(b) The phrases principal and any premium and and on any overdue principal and premium and
in the proviso immediately following clause (2) shall not apply to the Notes.
Section 5.04
Application of Money Collected. Section 5.6 of the Base Indenture is hereby amended
with respect to the Notes as follows:
(a) The phrase principal or any premium or in the first paragraph thereof shall not apply to
the Notes.
(b) The phrases principal of and any premium and, principal and any premium and, and ,
respectively in the paragraph thereof commencing with the word SECOND shall not apply to the
Notes.
Section 5.05 Unconditional Right of Holders to Receive Interest Payments under the Notes
and to Convert; Right of Holders to Institute Suit.
Section 5.8 of the Base Indenture is hereby amended and restated in its entirety with
respect to the Notes as follows:
Section 5.8 Unconditional Right of Holders to Receive Interest Payments
under the Notes and to Convert; Right of Holders to Institute Suit.
Notwithstanding any other provision in this Indenture, the Holder of any Security
shall have the
32
right, which is absolute and unconditional, to receive payment of
interest on such Security in accordance with its terms, and to convert such
Security in accordance with its terms, and to institute suit for the enforcement
of any such payment and, if applicable, any such right to convert, and such rights
shall not be impaired without the consent of such Holder.
ARTICLE VI
SATISFACTION AND DISCHARGE
Section 6.01 Satisfaction and Discharge of the Supplemental Indenture. The
satisfaction and discharge provisions set forth in this Article VI shall, with respect to the
Notes, supersede the entirety of Article IV of the Base Indenture, and all references in the Base
Indenture to Article IV thereof and satisfaction and discharge provisions therein, as the case may
be, shall, with respect to the Notes, be deemed to be references to this Article VI and the
satisfaction and discharge provisions set forth in this Article VI, respectively. When the Company
shall deliver to the Trustee for cancellation all Notes theretofore authenticated (other than any
Notes that have been destroyed, lost or stolen and in lieu of or in substitution for which other
Notes shall have been authenticated and delivered) and not theretofore canceled, or all the Notes
not theretofore canceled or delivered to the Trustee for cancellation shall have become due and
payable (whether upon conversion at Stated Maturity or otherwise) and the Company shall deposit
with the Trustee, in trust, or deliver to the Holders, as applicable, cash and shares of Common
Stock sufficient to pay all amounts due on all of such Notes (other than any Notes that shall have
been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes
shall have been authenticated and delivered) not theretofore canceled or delivered to the Trustee
for cancellation, including Interest due and all amounts due upon conversion, accompanied by a
verification report as to the sufficiency of the deposited amount from an independent certified
accountant or other financial professional reasonably satisfactory to the Trustee (which may
include any of the Underwriters), and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, then this Supplemental Indenture shall cease to be of
further effect (except as to rights hereunder of Holders of the Notes to receive all amounts owing
upon the Notes and the other rights, duties and obligations of Holders of the Notes, as
beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee and the
rights, obligations and immunities of the Trustee hereunder), and the Trustee, upon receipt of a
Company Request accompanied by an Officers Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Supplemental Indenture with respect to the Notes have been complied
with, and at the cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Supplemental Indenture; the Company, however, hereby agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the
Trustee and to compensate the Trustee for any services thereafter reasonably and properly rendered
by the Trustee in connection with this Supplemental Indenture or the Notes.
Section 6.02 Application of Trust Money. Subject to Section 6.04, all monies deposited with
the Trustee pursuant to Section 6.01 shall be held in trust for the sole benefit of the Holders,
and such monies shall be applied by the Trustee to the payment, either
33
directly or through any
Paying Agent (including the Company if acting as its own Paying Agent), to the Holders of the
particular Notes for the payment of which such monies have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest, if any. The Company may direct by
Company Order the investment of any money deposited with the Trustee pursuant to Section 6.01 in
(1) United States Treasury Securities with a maturity date of one year or less or (2) a money
market fund that invests solely in short term United States Treasury Securities and from time to
time the Company may direct the reinvestment of all or a portion of such money in other securities
or funds meeting the criteria specified in clause (1) or (2) of this sentence.
Section 6.03
Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of this
Indenture, all monies then held by any Paying Agent of the Notes (other than the Trustee) shall,
upon written request of the Company, be repaid to the Company or paid to the Trustee, and thereupon
such Paying Agent shall be released from all further liability with respect to such monies.
Section 6.04
Return of Unclaimed Monies. Subject to the requirements of applicable law, any
monies deposited with or paid to the Trustee for payment of Interest on the Notes and not applied
but remaining unclaimed by the Holders of the Notes for two years after the date upon which the
Interest on such Notes shall have become due and payable, shall be repaid to the Company by the
Trustee on demand and all liability of the Trustee shall thereupon cease with respect to such
monies; and the Holder of any of the Notes shall thereafter look only to the Company for any
payment that such Holder of the Notes may be entitled to collect unless an applicable abandoned
property law designates another Person.
Section 6.05 Reinstatement. If the Trustee or the Paying Agent is unable to apply any money
in accordance with Section 6.02 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the Companys
obligations under this Supplemental Indenture, the Base Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 6.01 until such time as the
Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 6.02;
provided, however , that if the Company makes any payment of interest on or
principal of any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE VII
THE TRUSTEE
Section 7.01
Amendments to the Base Indenture. Article VI of the Base Indenture is hereby amended
with respect to the Notes as follows:
(a) The reference in Section 6.2 of the Base Indenture to Section 5.1(4) thereof shall be
deemed a reference to Section 5.1(a)(iii) thereof, as amended by Section 5.01 of this Supplemental
Indenture;
34
(b) the following text shall be inserted after the first sentence of Section 6.2 of the Base
Indenture: Notwithstanding the preceding sentence, except in the case of an Event of Default
described in Section 5.1(a)(vii) or Section 5.1(a)(viii), the Trustee may withhold the notice if
and so long the Trustee determines in good faith that withholding such notice is in the best
interest of the Holders of Notes.
(c) The reference in Section 6.7(3) of the Base Indenture to Section 5.1(5) thereof shall be
deemed reference to Section 5.1(a)(vii) thereof, as amended by Section 5.01, and the reference in
Section 6.7(3) of the Base Indenture to Section 5.1(6) thereof shall be deemed a reference to
Section 5.1(a)(viii) thereof, as amended by Section 5.01 of this Supplemental Indenture.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.01 Amendments or Supplements Without Consent of Holders. In addition to any
permitted amendment or supplement to the Indenture pursuant to Section 9.1 of the Base Indenture,
the Company and the Trustee, at any time and from time to time, may amend or supplement the
Indenture or the Notes without notice to or the consent of any Holder of the Notes:
(a) In order to comply with any requirement of the SEC in connection with the qualification of
the Indenture under the Trust Indenture Act; or
(b) to conform this Supplemental Indenture and the form or terms of the Notes to the section
entitled Description of the Notes as set forth in the final prospectus supplement related to the
offering and sale of the Notes dated January 6, 2010.
Section 8.02 Amendments, Supplements or Waivers With Consent of Holders. Notwithstanding the
foregoing provision and Section 10.6 of the Base
Indenture and in addition to the provisions of Section 9.2 of the Base Indenture, no amendment
or waiver, including a waiver in relation to a past Event of Default shall, without the consent of
each Holder affected thereby, other than to conform this Supplemental Indenture and the form or
terms of the Notes to the section entitled Description of the Notes as set forth in the final
prospectus supplement related to the offering and sale of the Notes dated January 6, 2010:
(a) make any change that adversely affects the conversion rights of any Notes; or
(b) reduce any Fixed Conversion Rates, Fundamental Change Conversion Rate, Fundamental Change
Interest Make-Whole Amount, Covenant Event Interest
35
Make-Whole Amount, or amend or modify in any
manner adverse to the Holders the Companys obligation to make any delivery or payment upon
conversion, whether through an amendment or waiver of provisions in the covenants or definitions
related thereto or otherwise.
ARTICLE IX
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.01
Amendments to the Base Indenture. Section 8.1(1) of the Base Indenture is hereby
amended with respect to the Notes by deleting the phrase the principal of and any premium and.
ARTICLE X
COVENANTS
Section 10.01
Amendments to the Base Indenture.
(a) Section 10.1 of the Base Indenture is hereby amended with respect to the Notes by deleting
the phrase the principal of and any premium and.
(b) Section 10.3 of the Base Indenture is hereby amended with respect to the Notes by deleting
the phrase the principal of or any premium or in the first and fifth paragraphs and by deleting
the phrase principal, premium or in the fifth paragraph thereof.
(c) The Company shall deliver to the Trustee a quarterly statement regarding compliance with
the Indenture, and include in such statement, if any officer of the Company is aware of any Default
or Event of Default, a statement specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto. In addition, the Company shall deliver
to the Trustee prompt written notice of the occurrence of any Default or Event of Default and any
other development, financial or otherwise, which might
materially affect its business, properties or affairs or the ability of the Company to perform
its obligations under the Indenture.
36
ARTICLE XI
HOLDERS LIST AND REPORTS
Section 11.01 Amendments to the Base Indenture. Section 7.1(1) of the Base Indenture
is hereby amended and restated in its entirety with respect
to the Notes as follows:
(1) quarterly, not later than January 15, April 15, July 15 and October 15
in each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the immediately preceding January 1,
April 1, July 1 or October 1 as the case may be, and
ARTICLE XII
INAPPLICABLE PROVISIONS OF THE BASE INDENTURE
Section 12.01 Redemption of Securities. The
provisions of Article XI of the Base Indenture shall not apply to the Notes.
Section 12.02 Sinking Funds; Defeasance and Covenant Defeasance; Guarantees. The
provisions of Articles XII and XIII of the Base Indenture shall not apply to the Notes.
Section 12.03 Guarantees. The
provisions of Article XIV of the Base Indenture shall not apply to the Notes.
[SIGNATURES ON THE FOLLOWING PAGE]
37
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the day and year first above written.
BEAZER HOMES USA, INC. |
||||
By: | /s/ Allan P. Merrill | |||
Name: | Allan P. Merrill | |||
Title: | Executive Vice President and Chief Financial Officer | |||
U.S. BANK NATIONAL ASSOCIATION, as Trustee |
||||
By: | /s/ William Bryan Echols | |||
Name: | William Bryan Echols | |||
Title: | Vice President | |||
38
EXHIBIT A
[FORM OF FACE OF NOTE]
[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (THE DEPOSITARY), THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS NOTE IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED
EXCEPT IN LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]1
1 | This language should be included if the Note is a Global Security. |
A-F-1
No. ____ CUSIP No. 07556Q 402
BEAZER HOMES USA, INC.
71/2% MANDATORY CONVERTIBLE SUBORDINATED NOTE DUE 2013
PRINCIPAL AMOUNT: $ [As revised by the Schedule of Increases and Decreases in Global Note attached
hereto]2
This Note certifies that is the registered Holder of the Note in the
aggregate principal amount set forth above. This Note consists of the rights of the Holder under
such Note and obligations of Beazer Homes USA, Inc., a Delaware corporation (the Company, which
term shall include any successor corporation under the Indenture (as defined on the reverse
hereof)). All capitalized terms used herein which are defined in the Indenture have the meaning set
forth therein.
The Company promises to pay, on each Interest Payment Date, the Interest Payments payable in
respect of the principal amount of each Note to the Person in whose name a Note is registered at
5:00 p.m., New York City time, on the Interest Record Date relating to such Interest Payment Date.
If any Interest Payment Date is not a Business Day, the Company will pay the related Interest
Payment on the next Business Day (without any interest or other payment resulting from the delay).
Interest Payments will be computed on the basis of a 360-day year of twelve 30-day months and, in
the case of any incomplete month, the actual number of days elapsed during the month. If the
Stated Maturity Date or any Conversion Date for the Notes falls on a day that is not a Business
Day, the Company will pay the Interest Payment on the next Business Day (without any interest or
other payment resulting from the delay). Interest Payments will include accrued Interest from the
Issue Date, or from the most recent date to which Interest Payments have been paid, as the case may
be, up to (but excluding) the Interest Payment Date or the Stated Maturity Date or Conversion Date,
as the case may be. Any Interest which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called Defaulted Interest) will forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid (a) to the Person in whose name this Note (or its Predecessor
Security) is registered at the close of business on a Special Record Date or (b) at any time in any
other lawful manner not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
2 | Include bracketed language if Note is a Global Security. |
A-F-2
Interest Payments on the Notes will be payable at the office of the Paying Agent in New York
City, by wire transfer of immediately available funds or by check mailed to the address of the
Person entitled thereto as such address appears on the Security Register.
Reference is hereby made to the further provisions set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth at this place.
A-F-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
BEAZER HOMES USA, INC. |
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By: | ||||
Name: | ||||
Title: | ||||
A-F-4
CERTIFICATE OF AUTHENTICATION
OF TRUSTEE
OF TRUSTEE
This is one of the Notes designated herein and referred to in the within mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee |
||||
By: | ||||
Authorized Signatory | ||||
Dated:
A-F-5
(FORM OF REVERSE OF NOTE)
This Note is governed by an Indenture, dated as of January 12, 2010, and a First Supplemental
Indenture, dated as of January 12, 2010, each as may be supplemented from time to time in
accordance with the terms thereof (together, the Indenture), between the Company and U.S. Bank
National Association, as Trustee (including its successors thereunder, the Trustee), to which
Indenture reference is hereby made for a description of the respective rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders
and of the terms upon which the Notes are, and are to be, executed and delivered.
This Note is one of a duly authorized issue of 71/2% Mandatory Convertible Subordinated Notes
due 2013 (the Notes), limited in aggregate principal amount of $57,500,000. Unless converted
prior to the Stated Maturity Date, this Note obligates the Company to deliver to the Holder of this
Note, with respect to each $25 principal amount, on the Stated Maturity Date a number of shares of
Common Stock equal to the Conversion Rate.
Holders also have the right to convert their Notes, in whole or in part, at any time prior to
the Stated Maturity Date, into shares of Common Stock at the Minimum Conversion Rate (unless such
conversion takes place during a Fundamental Change Conversion Period), in addition to accrued and
unpaid interest to the Interest Payment Date that is on or immediately preceding the date of such
optional conversion.
If a Fundamental Change occurs prior to the Stated Maturity Date, Holders may convert their
Notes into Common Stock during the Fundamental Change Conversion Period at the Fundamental Change
Conversion Rate. In addition to any Common Stock delivered upon conversion during a Fundamental
Change Conversion Period, the Company will either pay Holders of such Notes a cash Fundamental
Change Interest Make-Whole Amount or increase the number of shares of Common Stock to be delivered
upon conversion in an amount equal to the Fundamental Change Interest Make-Whole Amount divided by
the Stock Price.
The Company also has the right to require Holders to convert all of the Notes outstanding for
shares of Common Stock at the Maximum Conversion Rate in the event of a Covenant Event. In
addition to any Common Stock delivered upon mandatory conversion following a Covenant Event and any
other amounts which may then be due to Holders, the Company will pay Holders a cash Covenant Event
Interest Make-Whole Amount or increase the number of shares of Common Stock to be delivered upon
conversion in an amount equal to the Covenant Event Interest Make-Whole Amount divided by the
average of the Closing Prices of Common Stock over the 5 consecutive Trading Day period ending on
the third Trading Day immediately preceding the Mandatory Conversion Date.
A-R-1
The Conversion Rate with respect to each $25 principal amount of this Note, subject in each
case to adjustment as set forth in the Indenture and rounded upward or downward to the nearest
1/10,000th of a share (or if there is not a nearest 1/10,000th of a share, to the next lower
1/10,000th of a share), is equal to:
(1) if the Applicable Market Value (as defined below) is greater than or equal to $5.61 (the
Threshold Appreciation Price), 4.4547 shares of Common Stock per Note (the Minimum Conversion
Rate);
(2) if the Applicable Market Value is less than the Threshold Appreciation Price but greater
than $4.60 (the Initial Price), the quotient obtained by dividing $25 by the Applicable Market
Value; and
(3) if the Applicable Market Value is less than or equal to the Initial Price, 5.4348 shares
of Common Stock per Note (the Maximum Conversion Rate).
No fractional shares of Common Stock will be issued upon conversion of this Note, as provided
in Section 3.08 of the Supplemental Indenture.
The Applicable Market Value means the average of the Closing Prices of Common Stock over the
20 consecutive Trading Day period ending on the third Trading Day immediately preceding the
Mandatory Conversion Date.
Closing Price with respect to Exchange Property shall be deemed to refer to the closing sale
price, last quoted bid price or mid-point of the last bid and ask prices, as the case may be, of
any publicly traded securities that comprise all or part of the Exchange Property, and with respect
to a share of the Common Stock on any date of determination means:
(1) the closing price on that date or, if no closing price is reported, the last reported sale
price, of shares of Common Stock on the NYSE on that date; or
(2) if the Common Stock is not traded on the NYSE, the closing price on that date as reported
in composite transactions for the principal U.S. national or regional securities exchange on which
the Common Stock is so traded or, if no closing price is reported, the last reported sale price of
the Common Stock on the principal U.S. national or regional securities exchange on which the Common
Stock is so traded; or
(3) if the Common Stock is not traded on a U.S. national or regional securities exchange, the
last quoted bid price on that date for the Common Stock in the over-the-counter market as reported
by Pink OTC Markets Inc. or a similar organization; or
A-R-2
(4) if the Common Stock is not so quoted by Pink OTC Markets Inc. or a similar organization,
the market value of the Common Stock on that date as determined by the Board of Directors.
For purposes of the definition of the Closing Price of the Exchange Property, references to
Common Stock in the definition of Trading Day shall be replaced by references to any publicly
traded securities that comprise all or part of the Exchange Property.
All references herein to the closing price of Common Stock and the last reported sale price of
the Common Stock on the New York Stock Exchange shall be such closing price and such last reported
sale price as reflected on the website of the NYSE (www.nyse.com) and as reported by Bloomberg
Professional Service; provided that in the event that there is a discrepancy between the closing
price and the last reported sale price as reflected on the website of the NYSE and as reported by
Bloomberg Professional Service, the closing price and the last reported sale price on the website
of the NYSE shall govern.
A Trading Day means a day on which the Common Stock:
(1) is not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business; and
(2) has traded at least once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the Common Stock.
The Notes are issuable only in registered form without coupons in denominations of $25 and any
integral multiple thereof. The transfer of any Note will be registered and Notes may be exchanged
as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Indenture. No service charge shall
be required for any such registration of transfer or exchange, but the Company and the Trustee may
require payment of a sum sufficient to cover any tax or other governmental charges payable in
connection therewith.
The Company agrees to treat, and by its acceptance or acquisition of this Note or beneficial
interest therein, the Holder of, and any Person that acquires a beneficial interest in, this Note
intend and agree to treat this Note as equity in the Company rather than as a debt instrument or as
a prepaid forward contract to purchase the Common Stock for all United States federal, state and
local tax purposes.
A-R-3
Subject to certain exceptions, the provisions of the Indenture may be amended with the consent
of the Holders of a majority of the aggregate principal amount of the Outstanding Notes.
This Note shall be governed by, and construed in accordance with, the laws of the State of New
York.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Note is registered as the owner of this Note for the purpose of receiving Interest
Payments, for the purpose of conversion and for all other purposes whatsoever, whether or not such
Note be overdue and notwithstanding any notice to the contrary, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Notes shall not, prior to the conversion thereof, entitle the Holder to any of the rights
of a holder of Common Stock.
A copy of the Indenture is available for inspection at the offices of the Trustee.
SCHEDULE OF EXCHANGES OF NOTES3
The following exchanges, increases/decreases in principal amount, repurchases or conversions of a
part of this Global Note have been made:
Principal Amount of | Signatory of | |||||||||||||||||
this Global Note | Authorized | |||||||||||||||||
Amount of Decrease | Amount of Increase | Following Such | Signatory of | |||||||||||||||
in Principal Amount | in Principal Amount | Decrease or | Trustee or | |||||||||||||||
Date of Exchange | of this Global Note | of this Global Note | Increase | Custodian |
3 | This schedule should be included only if the Note is a Global Security. |
A-R-4
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM:
|
as tenants in common | |||
UNIF GIFT MIN ACT:
|
Custodian | |||
(cust) (minor) | ||||
Under Uniform Gifts to Minors Act of | ||||
TENANT:
|
as tenants by the entireties | |||
JT TEN:
|
as joint tenants with right of survivorship and not as tenants in common |
Additional abbreviations may also be used though not in the above list.
A-R-5
ASSIGNMENT FORM4
To assign this Note, fill in the form below:
For value received hereby sell(s), assign(s) and transfer(s) unto
(Please insert social
security or other Taxpayer Identification Number of assignee) the within Note, and hereby
irrevocably constitutes and appoints attorney to transfer said Note on the books of the Company,
with full power of substitution in the premises.
Dated:
Signature(s) must be guaranteed by an an institution which is a member of one of the following recognized signature Guarantee Programs: | ||||
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP) or (iv) another guarantee program acceptable to the Trustee. | ||||
4 | This form should be included only if the Note is a certificated Security. |
A-R-6
CONVERSION INSTRUCTIONS5
The undersigned Holder directs that a certificate for Common Stock deliverable upon conversion
of this Note (or the portion thereof below designated) be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below. If shares are to be
registered in the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated: |
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Signature |
||||||
Signature Guarantee: | ||||||
(if assigned to another Person) | ||||||
If shares are to be registered in the name
of and delivered to a Person other than
the Holder, please (i) print such Persons
name and address and (ii) provide a
guarantee of your signature: |
||||||
Principal amount to be converted (in a
minimum principal amount of $25 or an
integral multiple thereof, if less than
all): |
||||||
$ |
||||||
Address
|
Address | |||||
Social Security or other Taxpayer Identification Number, if any |
5 | This form should be included only if the Note is a certificated Security. |
A-R-7