Exhibit 4.9
DT INDUSTRIES, INC.
AND
THE BANK OF NEW YORK,
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 20, 2002
TO
INDENTURE
DATED AS OF JUNE 1, 1997
PROVIDING FOR AMENDMENTS TO THE INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental
Indenture"), dated as of June 20, 2002, is by and between DT INDUSTRIES, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation, as trustee (hereinafter called the "Trustee") under the Original
Indenture (as hereinafter defined).
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture dated as of June 1, 1997 (hereinafter called the "Original
Indenture"), to provide for the issuance of 7.16% Convertible Junior
Subordinated Deferrable Interest Debentures of the Company (as amended from time
to time, hereinafter referred to as the "Securities"), the current terms of
which are set forth in Article 3 of the Original Indenture; and
WHEREAS, all of the Securities are currently held by the property
trustee (the "Property Trustee") of DT Capital Trust, a statutory business trust
organized under the laws of the State of Delaware (the "Trust"); and
WHEREAS, in connection with the Restructuring (as hereinafter defined)
of the Company and pursuant to the Exchange Agreement dated as of May 9, 2002
among the parties hereto and certain other parties named therein (the "Exchange
Agreement"), the Company, the Trustee and each of the holders of the Preferred
Securities have agreed to amend the Original Indenture as a part of the
following series of transactions: (i) the ratable exchange of 700,000 of the
outstanding Preferred Securities held by the holders thereof for $35,000,000 in
aggregate principal amount of outstanding Securities held by the Property
Trustee, and the immediate exchange of such Securities for 4,375,000 shares of
the Company's common stock, par value $0.01 per share ("Common Stock"); (ii) the
ratable exchange of $15,085,254 in accrued and unpaid distributions on the
Preferred Securities held by the holders thereof for the rights to $15,085,254
in accrued and unpaid interest on the Securities held by the Property Trustee,
and the immediate exchange of such accrued and unpaid interest for 1,885,658
shares of Common Stock; (iii) the surrender and cancellation of all of the
accrued and unpaid distributions on the currently outstanding Common Securities
held by the Company, and the surrender and cancellation of all of the accrued
and unpaid interest on $2,165,000 in aggregate principal amount of outstanding
Securities held by the Property Trustee; and (iv) the amendment of the terms of
(A) the 700,000 of Preferred Securities that remain outstanding and held by the
holders thereof after the consummation of the transactions described above, (B)
the 43,300 of Common Securities that remain outstanding and held by the Company
after the consummation of the transactions described above, and (C) the
$37,165,000 in aggregate principal amount of Securities that remain outstanding
and held by the Property Trustee after the consummation of the transactions
described above as set forth in this First Supplemental Indenture; and
WHEREAS, Section 9.02 of the Original Indenture provides that to the
extent the Property Trustee is the sole Holder of the Securities, the Company
and the Trustee may enter into indentures supplemental to the Original Indenture
for, among other things, the
1
purpose of amending the Indenture, with the written consent of the holders of
100% of the outstanding Preferred Securities; and
WHEREAS, pursuant to Section 3(c) of the Exchange Agreement, the
holders of 100% of the outstanding Preferred Securities have consented in
writing to the amendments to the Original Indenture hereinafter set forth and
the execution of this First Supplemental Indenture;
WHEREAS, the Trustee has received an opinion of tax counsel as required
pursuant to the Amended and Restated Declaration of Trust dated June 1, 1997 as
amended by the Amendment to the Amended and Restated Declaration of Trust, dated
as of even date herewith, and an opinion of counsel as required pursuant to the
Original Indenture, both of which have been approved and deemed to satisfy such
requirements by the holders of the Preferred Securities; and
WHEREAS, the Company and the Trustee desire to enter into this First
Supplemental Indenture to effect the amendments to the Original Indenture,
including, without limitation, the amendment to the terms of the Debentures, as
set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and of the acceptance of this trust by the Trustee,
and for other valuable consideration the receipt of which is hereby
acknowledged,
IT IS HEREBY COVENANTED, DECLARED AND AGREED by and between the parties
hereto, for the benefit of present and future holders of the Securities issued
under the Original Indenture, as follows:
SECTION 1. RECITALS
The recitals set forth above are incorporated herein by this reference.
SECTION 2. DEFINITIONS
Capitalized terms used but not defined herein shall have the meanings
given to them in the Original Indenture. As used herein, the following terms
shall have the meanings set forth below:
"Effective Time" means immediately upon the consummation of the
Exchange (as defined in the Exchange Agreement).
"Restructuring" means the concurrent consummation of each of the
transactions contemplated by the Exchange Agreement to be effective as of the
Closing Date (as defined in the Exchange Agreement).
SECTION 3. ORGANIZATION OF AMENDMENTS
Upon the Effective Time, the Original Indenture shall be amended and
supplemented in accordance herewith, and this First Supplemental Indenture shall
form a
2
part of the Original Indenture for all purposes, and every holder of Securities
theretofore or thereafter authenticated and delivered under the Original
Indenture shall be bound thereby, as hereby amended and supplemented; provided,
however, that the provisions of this First Supplemental Indenture shall not
become operative until the Effective Time (and at such time the provisions of
this First Supplemental Indenture shall automatically become operative without
the requirement of any further action by or notice to the Company, the Trustee,
the Property Trustee or any holder of the Preferred Securities).
SECTION 4. AMENDMENTS TO THE ORIGINAL INDENTURE
SECTION 4.1. Effective as of the Effective Time, Section 3.01 of the
Original Indenture is hereby amended and restated in its entirety to read as
follows:
"Section 3.01. Title and Terms. The aggregate principal amount
of Securities that may be authenticated and delivered under this
Indenture is limited to $37,165,000, except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 3.04,
3.05, 3.06, 9.06, 11.08 or 13.01.
The Securities shall be known and designated as the "7.16%
Convertible Junior Subordinated Deferrable Interest Debentures Due
2008" of the Company. Their Stated Maturity shall be May 31, 2008, and
they shall bear interest at the rate of 7.16% per annum, from July 3,
2004 payable quarterly (subject to deferral as set forth herein), in
arrears, on March 31, June 30, September 30 and December 31 (each an
"Interest Payment Date") of each year, commencing September 30, 2004
until the principal thereof is paid or made available for payment, and
they shall be paid to the Person in whose name the Security is
registered at the close of business on the regular record date for such
interest installment, which shall be the close of business on the date
which is one day prior to each Interest Payment Date (the "Regular
Record Date"). Interest will compound quarterly and will accrue at the
rate of 7.16% per annum on any interest installment in arrears for more
than one quarter or during an extension of an interest payment period
as set forth in Section 3.12 hereof.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for
any period shorter than a full quarterly period for which interest is
computed, will be computed on the basis of the actual number of days
elapsed in such a 30-day month. In the event that any date on which
interest is payable on the Securities is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
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If at any time while the Property Trustee is the Holder of any
Securities, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any
other taxing authority, then, in any case, the Company will pay as
additional interest ("Additional Interest") on the Securities held by
the Property Trustee, such additional amounts as shall be required so
that the net amounts received and retained by the Trust and the
Property Trustee after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
The principal of and interest on the Securities shall be
payable at the office or agency of the Company in the United States
maintained for such purpose and at any other office or agency
maintained by the Company for such purpose in such coin or currency of
the United States of America as at the time of payment is legal tender
for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed
to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Securities shall be redeemable as provided in Article XI
hereof.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article XII hereof.
The Securities shall be convertible as provided in Article
XIII hereof."
SECTION 4.2. Effective as of the Effective Time, the first paragraph of
Section 3.07 of the Original Indenture is hereby amended and restated to read as
follows:
"From April 1, 2002 through and including July 2,
2004, no interest shall accrue or be payable on any Security.
Commencing on July 3, 2004, interest shall accrue on the outstanding
principal of the Securities, and interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date."
SECTION 4.3. Effective as of the Effective Time, Section 3.12(a) of the
Original Indenture is hereby amended and restated in its entirety to read as
follows:
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"Section 3.12. Extension of Interest Payment Period; Notice of
Extension. (a) At any time following October 1, 2004, if the Company
shall have paid on September 30, 2004 all interest accrued with respect
to the Securities as of such date, the Company shall have the right,
from time to time, to defer payments of interest by extending for
successive periods not exceeding 20 consecutive quarters for each such
period (an "Extended Interest Payment Period") but in no event shall
the Extended Interest Payment Period extend beyond the Maturity of the
Securities. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 3.12, will bear
interest thereon at 7.16% compounded quarterly for each quarter of the
Extended Interest Payment Period ("Compounded Interest"). At the end of
the Extended Interest Payment Period, the Company shall pay all
interest then accrued and unpaid on the Securities, including any
Compounded Interest that shall be payable to the Holders of the
Securities in whose names the Securities are registered in the Security
Register on the first Regular Record Date after the end of the Extended
Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such period,
provided that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarters or extend beyond the
Maturity of the Securities. Upon the termination of any Extended
Interest Payment Period and upon the payment of all interest then
accrued and unpaid on the Securities, including any Additional Payments
then due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements. No interest shall be due
and payable during an Extended Interest Payment Period except at the
end thereof. In the event the Company fails to pay the interest payment
due on September 30, 2004, the Company shall permanently forego its
right to utilize any Extended Interest Payment Periods."
SECTION 4.4. Effective as of the Effective Time, Section 13.01 of the Original
Indenture is hereby amended and restated in its entirety to read as follows:
"Section 13.01. Conversion Rights. Subject to and upon
compliance with the provisions of this Article, the Securities are
convertible, at the option of the Holder, at any time on or before
redemption as provided below or the close of business at their Stated
Maturity, into fully paid and nonassessable shares of Common Stock of
the Company at an initial conversion rate of 3.5714 shares of Common
Stock for each $50 in aggregate principal amount of Securities (equal
to a conversion price of $14.00 per share of Common Stock), subject to
adjustment as described in this Article XIII. A Holder of Securities
may convert any portion of the principal amount of the Securities into
that number of fully paid and nonassessable shares of Common Stock
(calculated as to each conversion to the nearest 1/100th of a share)
obtained by dividing the principal amount of the Securities to be
converted
5
by such conversion price. In case a Security or portion thereof is
called for redemption, such conversion right in respect of this
Security or portion so called shall expire at the close of business on
the corresponding Redemption Date, unless the Company defaults in
making the payment due upon redemption."
SECTION 4.5. Effective as of the Effective Time, Exhibit A-1 and
Exhibit A-2 of the Original Indenture shall be amended and restated in their
entirety in the form of Exhibit A-1 and Exhibit A-2 attached hereto.
SECTION 5. MISCELLANEOUS
SECTION 5.1. EXECUTION AS SUPPLEMENTAL INDENTURE. This First
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this First Supplemental Indenture forms a part thereof. Except as
specifically amended above, the Original Indenture shall remain in full force
and effect.
SECTION 5.2. RESPONSIBILITY FOR RECITALS, ETC. The recitals herein
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this First Supplemental Indenture.
SECTION 5.3. PROVISIONS BINDING ON THE COMPANY SUCCESSORS. All the
covenants, stipulations, promises and agreements contained in this First
Supplemental Indenture made by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 5.4. NEW YORK CONTRACT. This First Supplemental Indenture shall
be deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of such State
without regard to principles of conflicts of laws.
SECTION 5.5. EXECUTION AND COUNTERPARTS. This First Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
an original but such counterparts shall together constitute but one and the same
instrument.
[SIGNATURE PAGE(S) FOLLOW]
6
IN WITNESS WHEREOF, DT INDUSTRIES, INC. and THE BANK OF NEW YORK, as
Trustee, have caused this First Supplemental Indenture to be executed as of the
day and year first written above.
DT INDUSTRIES, INC.
By: /s/ Authorized Signatory
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Attest:
-------------------------
THE BANK OF NEW YORK, as Trustee
By: /s/ Authorized Signatory
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Attest:
-------------------------
7
EXHIBIT A-1
FORM OF SECURITY
[FORM OF FACE OF SECURITY]
[Include Restricted Securities Legend: THIS SECURITY (OR ITS PREDECESSOR), ANY
CONVERTIBLE JUNIOR SUBORDINATED DEBENTURE ISSUED IN EXCHANGE FOR THIS SECURITY
AND ANY COMMON STOCK ISSUED ON CONVERSION THEREOF HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAW AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (4) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF
CASES (1) THROUGH (4) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.]
A-1-1
DT INDUSTRIES, INC.
7.16% Convertible Junior Subordinated
Deferrable Interest Debenture Due 2008
No. $
[CUSIP No. ]
DT INDUSTRIES, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein called "the Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to The Bank of New York, as Property
Trustee for DT Capital Trust, or registered assigns, the principal sum
[indicated on Schedule A hereof](1) [of Dollars](2) ) ($ ) on
May 31, 2008.
Interest Payment Dates: March 31, June 30, September 30 and December 31,
commencing September 30, 2004
Regular Record Dates: the close of business on the day immediately preceding
each Interest Payment Date, commencing September 29,
2004
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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(1) Applicable to Global Securities only.
(2) Applicable to certificated Securities only.
A-1-2
IN WITNESS WHEREOF, the Company has caused this instrument to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
DT INDUSTRIES, INC.
By:
-----------------------------------------
Name:
Title.
[Seal]
Attest:
---------------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------------
Authorized Signatory
A-1-3
[FORM OF REVERSE OF SECURITY]
DT INDUSTRIES, INC.
7.16% Convertible Junior Subordinated
Deferrable Interest Debenture Due 2008(3)
1. Interest. DT Industries, Inc., a Delaware corporation (the
"Company"), is the issuer of this 7.16% Convertible Junior Subordinated
Deferrable Interest Debenture Due 2008 (the "Security") limited in aggregate
principal amount to $37,165,000 issued under the Indenture hereinafter referred
to. The Company promises to pay interest on the Security in cash from July 3,
2004 or from the most recent subsequent interest payment date to which interest
has been paid or duly provided for, quarterly (subject to deferral for up to 20
consecutive quarters as described in Section 3 hereof) in arrears on March 31,
June 30, September 30 and December 31 of each year (each such date, an "Interest
Payment Date"), commencing September 30, 2004, at the rate of 7.16% per annum
(subject to increase as provided in Section 13 hereto) plus Additional Interest,
if any, until the principal hereof shall have become due and payable.
The amount of interest payable for any period will be computed on the
basis of twelve 30-day months and a 360-day year. To the extent lawful, the
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest (without regard to
any applicable grace period) at the rate borne by the Security, compounded
quarterly. Any interest paid on this Security shall be increased to the extent
necessary to pay Additional Interest as set forth in this Security.
2. Additional Interest. The Company shall pay to DT Capital Trust (and
its permitted successors or assigns under the Declaration) (the "Trust") such
additional amounts as may be necessary in order that the amount of dividends or
other distributions then due and payable by the Trust on the Preferred
Securities that at any time remain outstanding in accordance with the terms
thereof shall not be reduced as a result of any additional taxes, duties and
other governmental charges of whatever nature (other than withholding taxes)
imposed by the United States or any other taxing authority.
3. Extension of Interest Payment Period. At any time following October
1, 2004, if the Company shall have paid on September 30, 2004 all interest
accrued with respect to the Security as of such date, the Company shall have the
right from time to time to defer payments of interest by extending the interest
payment period of such Security for up to 20 consecutive quarters (an "Extended
Interest Payment Period"), provided that such Extended Interest Payment Period
shall not extend beyond the Maturity of the Security. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to Section 3.12 of the
Indenture, will bear interest thereon at
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(3) All terms used in this Security which are defined in the Indenture or in
the Declaration referred to therein shall have the meanings assigned to
them in the Indenture or the Declaration, as the case may be.
A-1-4
7.16% compounded quarterly for each quarter of the Extended Interest Payment
Period ("Compounded Interest"). At the end of the Extended Interest Payment
Period, the Company shall pay all interest then accrued and unpaid on the
Security, including any Compounded Interest that shall be payable to the Holders
of the Security in whose names the Security are registered in the Security
Register on the first Regular Record Date after the end of the Extended Interest
Payment Period. Before the termination of any Extended Interest Payment Period,
the Company may further extend such period, provided that such period together
with all such further extensions thereof shall not exceed 20 consecutive
quarters or extend beyond the Maturity of the Security. Upon the termination of
any Extended Interest Payment Period and upon the payment of all Compounded
Interest and Additional Interest, if any, then due, the Company may commence a
new Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period
except at the end thereof. In the event the Company fails to pay the interest
payment due on September 30, 2004, the Company shall permanently forego its
right to utilize any Extended Interest Payment Period.
If the Property Trustee is the sole holder of the Security, the Company
shall give the Holder of this Security and the Trustee notice of its selection
of an Extended Interest Payment Period at least one Business Day prior to the
earlier of (i) the Interest Payment Date or (ii) if the Preferred Securities are
listed on the New York Stock Exchange or other stock exchange or quotation
system, the date the Trust is required to give notice to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of the
Preferred Securities on the record date or the date such distributions are
payable, but in any event not less than ten Business Days prior to such record
date.
If the Property Trustee is not the sole holder of the Security, the
Company shall give the Holders of the Security and the Trustee notice of its
selection of an Extended Interest Payment Period at least ten Business Days
prior to the earlier of (i) the Interest Payment Date or (ii) if the Preferred
Securities are listed on the New York Stock Exchange or other stock exchange or
quotation system, the date the Trust is required to give notice to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Security on the record date or the date such distributions are payable, but
in any event not less than two Business Days prior to such record date.
The quarter in which any notice is given pursuant to the second and
third paragraphs of this Section 3 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under the
first paragraph of this Section 3.
4. Method of Payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment, which shall be the close of business
on the day immediately preceding each Interest Payment Date (the "Regular Record
Date"), commencing September 29, 2004. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and
A-1-5
may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than
ten days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York,
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that, at the option of the Company, payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
5. Paying Agent and Security Registrar. The Trustee will act as Paying
Agent, Security Registrar and Conversion Agent. The Company may change any
Paying Agent, Security Registrar, co-registrar or Conversion Agent without prior
notice. The Company or any of its Affiliates may act in any such capacity.
6. Indenture. The Company issued the Securities under an indenture,
dated as of June 1, 1997, as supplemented from time to time (the "Indenture"),
between the Company and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by the Trust Indenture Act of
1939 (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb) ("TIA") as in effect on the date of the
Indenture. The Securities are subject to, and qualified by, all such terms,
certain of which are summarized hereon, and holders are referred to the
Indenture and the TIA for a statement of such terms. The Securities are
unsecured general obligations of the Company limited to $37,165,000 in aggregate
principal amount and subordinated in right of payment to all existing and future
Senior Indebtedness of the Company. No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed or to convert this Security as provided
in the Indenture.
7. Optional Redemption. The Securities are redeemable at the Company's
option at any time and from time to time after June 1, 2000, upon not less than
30 or more than 60 days' notice, at the following prices per $50 principal
amount of the Securities plus any accrued and unpaid interest, including
Additional Interest, if any, to the Redemption Date, if redeemed during the
12-month period ending June 1:
A-1-6
Price Per $50
Year Principal Amount
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2001................................ $52.51
2002................................ 52.15
2003................................ 51.79
2004................................ 51.43
2005................................ 51.07
2006 ............................... 50.72
2007................................ 50.36
and thereafter at $50 per $50 principal amount of the Securities plus, in each
case, accrued and unpaid interest, including Additional Interest, if any, to the
Redemption Date (subject to the right of holders of record on the relevant
record date to receive interest due on the Interest Payment Date). On or after
the Redemption Date, interest will cease to accrue on the Securities, or portion
thereof, called for redemption.
8. Optional Redemption Upon Tax Event. The Securities are subject to
redemption in whole, but not in part, at any time within 90 days, if a Tax Event
(as defined in the Declaration) shall occur and be continuing, at a redemption
price equal to $50 per $50 principal amount thereof plus accrued but unpaid
interest, including Additional Interest, if any, to the Redemption Date. Any
redemption pursuant to this Section 8 will be made upon not less than 30 or more
than 60 days' notice.
9. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
the Securities to be redeemed at his address of record. The Securities in
denominations larger than $50 may be redeemed in part but only in integral
multiples of $50. In the event of a redemption of less than all of the
Securities, the Securities will be chosen for redemption by the Trustee in
accordance with the Indenture. On and after the Redemption Date, interest ceases
to accrue on the Securities or portions of them called for redemption.
If this Security is redeemed subsequent to a Regular Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid to the person in
whose name this Security is registered at the close of business on such record
date.
10. Mandatory Redemption. The Securities will mature on May 31, 2008
and may be redeemed, in whole or in part, at any time after June 1, 2000, or at
any time in certain circumstances upon the occurrence of a Tax Event. Upon the
repayment of the Securities, whether at maturity or upon redemption, the
proceeds from such repayment or payment shall simultaneously be applied to
redeem Trust Securities (provided Trust Securities remain
A-1-7
outstanding) having an aggregate liquidation amount of the Securities so repaid
or redeemed at the applicable redemption price together with accrued and unpaid
distributions through the date of redemption; provided, that holders of the
Trust Securities shall be given not less than 30 nor more than 60 days notice of
such redemption. Upon the repayment of the Securities at maturity or upon any
acceleration, earlier redemption or otherwise, the proceeds from such repayment
will be applied to redeem the Preferred Securities, in whole, upon not less than
30 nor more than 60 days' notice. There are no sinking fund payments with
respect to the Securities.
11. Subordination. The payment of the principal of, interest on or any
other amounts due on the Securities is subordinated in right of payment to all
existing and future Senior Indebtedness (as defined below) of the Company, as
described in the Indenture. Each holder, by accepting a Security, agrees to such
subordination and authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and appoints the Trustee as its attorney-in-fact for such purpose.
Senior Indebtedness shall mean in respect of the Company (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii) all
capital lease obligations of such obligor, (iii) all obligations of such obligor
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such obligor and all obligations of such obligor under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of such obligor for the
reimbursement of any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction, (v) all obligations of the type referred
to in clauses (i) through (iv) above of other persons for the payment of which
such obligor is responsible or liable as obligor, guarantor or otherwise, (vi)
all obligations of the type referred to in clauses (i) through (v) above of
other persons secured by any lien on any property or asset of such obligor
(whether or not such obligation is assumed by such obligor), except for (1) any
such indebtedness that is by its terms subordinated to or pari passu with the
Securities and (2) any indebtedness (including all other debt securities and
guarantees in respect of those debt securities) initially issued to any other
trust, or a trustee of such trust, partnership, or other entity affiliated with
the Company that is, directly or indirectly, a financing vehicle of the Company
(a "Financing Entity") in connection with the issuance by such Financing Entity
of preferred securities or other similar securities and (vii) interest accruing
subsequent to events of bankruptcy of the Company and its subsidiaries at the
rate provided for in the documentation governing such Senior Indebtedness,
whether or not such interest is an allowed claim enforceable against the debtor
in a bankruptcy case under relevant bankruptcy law.
12. Conversion. The Holder of any Security has the right, exercisable at
any time prior to the close of business (New York time) on the date of this
Security's maturity, to convert the principal amount thereof (or any portion
thereof that is an integral multiple of $50) into shares of Common Stock at the
initial conversion rate of 3.5714 shares of Common Stock for each Security
(equivalent to a conversion price of $14.00 per share of Common Stock of the
Company), subject to adjustment under certain circumstances, except that if a
Security is called
A-1-8
for redemption, the conversion right will terminate at the close of business on
the Redemption Date.
To convert a Security, a Holder must (1) complete and sign a conversion
notice substantially in the form attached hereto, (2) surrender this Security to
a Conversion Agent, (3) furnish appropriate endorsements or transfer documents
if required by this Security Registrar or Conversion Agent and (4) pay any
transfer or similar tax, if required. Upon conversion, no adjustment or payment
will be made for interest or dividends, but if any Holder surrenders a Security
for conversion after the close of business on the Regular Record Date for the
payment of an installment of interest and prior to the opening of business on
the next Interest Payment Date, then, notwithstanding such conversion, the
interest payable on such Interest Payment Date will be paid to the registered
Holder of such Security on such Regular Record Date. In such event, such
Security, when surrendered for conversion, need not be accompanied by payment of
an amount equal to the interest payable on such Interest Payment Date on the
portion so converted. The number of shares issuable upon conversion of a
Security is determined by dividing the principal amount of this Security
converted by the conversion price in effect on the Conversion Date. No
fractional shares will be issued upon conversion but a cash adjustment will be
made for any fractional interest. The outstanding principal amount of any
Security shall be reduced by the portion of the principal amount thereof
converted into shares of Common Stock.
13. Registration, Transfer, Exchange and Denominations. As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
New York, New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
denominations of $50 and integral multiples thereof. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. Prior to due presentment of this
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary. In the event of redemption or conversion of
this Security in part only, a new Security or Securities for the unredeemed or
unconverted portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
14. Persons Deemed Owners. Except as provided in Section 3 hereof, the
registered Holder of a Security may be treated as its owner for all purposes.
A-1-9
15. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, holders of
Securities entitled to the money must look to the Company for payment unless an
abandoned property law designates another Person and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
16. Defaults and Remedies. The Securities shall have the Events of
Default as set forth in Section 5.01 of the Indenture. Subject to certain
limitations in the Indenture, if an Event of Default occurs and is continuing,
the Trustee by notice to the Company or the holders of at least 25% in aggregate
principal amount of the then outstanding Securities by notice to the Company and
the Trustee may declare all the Securities to be due and payable immediately;
provided that, if the Property Trustee is the sole Holder of this Security and
if upon an Event of Default, the Trustee or the holder or holders of not less
than 25% in aggregate principal amount of the then outstanding Securities fail
to declare the principal of all the Securities to be immediately due and
payable, the holders of at least 25% in aggregate liquidation amount of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration such
principal and all accrued interest shall become immediately due and payable;
provided that the payment of principal and interest on such Securities shall
remain subordinated to the extent provided in the Indenture.
The holders of a majority in principal amount of the Securities then
outstanding by written notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration. Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. Subject to certain limitations, holders of a majority
in principal amount of the then outstanding Securities issued under the
Indenture may direct the Trustee in its exercise of any trust or power. The
Company must furnish annually compliance certificates to the Trustee. The above
description of Events of Default and remedies is qualified by reference to, and
subject in its entirety by, the more complete description thereof contained in
the Indenture.
17. Amendments, Supplements and Waivers. The Indenture permits, subject
to the rights of the holders of Preferred Securities set forth therein and in
the Declaration and with certain other exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, subject to the
right of the holders of the Preferred Securities set forth therein and in the
Declaration, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver is
made
A-1-10
upon this Security. The above description of amendments, supplements and
waivers is qualified by reference to, and subject in its entirety by the more
complete description thereof contained in the Indenture.
18. Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity may become the owner or pledgee of the Securities and may
otherwise deal with the Company or an Affiliate with the same rights it would
have, as if it were not Trustee, subject to certain limitations provided for in
the Indenture and in the TIA. Any Agent may do the same with like rights.
19. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Securities by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
20. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THE SECURITIES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
21. Authentication. The Securities shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee
or an authenticating agent.
22. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
The Company will furnish to any Holder of the Securities upon written
request and without charge a copy of the Indenture. Request may be made to:
DT Industries, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention of: Vice President-Finance
A-1-11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to ___________________
------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
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(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
----------------------------------------------------
(Sign exactly as your name appears on the other side
of this Security)
Date:
----------------------------------------------------
Signature Guarantee:(4)
----------------------------------------------------
----------
(4) (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
A-1-12
[Include the following if this Security bears a Restricted Securities Legend -
In connection with any transfer of any of the Securities evidenced by this
certificate, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW
(1) [ ] exchanged for the undersigned's own account without transfer; or
(2) [ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933; or
(3) [ ] transferred pursuant to and in compliance with Regulation S
under the Securities Act of 1933; or
(4) [ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (3) or (4) is
checked, the Trustee may require, prior to registering any such transfer of the
Securities such legal opinions, certifications and other information as the
Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the exemption
provided by Rule 144 under such Act.
------------------------------
Signature
Signature Guarantee:(5)
------------------------------- ------------------------------]
Signature must be guaranteed Signature
------
(5) (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
A-1-13
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:
---------------------- -----------------------------------------------
NOTICE: to be executed by an executive officer]
A-1-14
(TO BE ATTACHED TO GLOBAL SECURITIES)
SCHEDULE A
The initial principal amount of this Global Security shall be
$_________. The following increases or decreases in the principal amount of this
Global Security have been made:
Principal Amount of Signature of
Amount of increase in Amount of decrease in this Global Security authorized signatory
Principal Amount of Principal Amount of following such of Trustee or
Date Made this Global Security this Global Security decrease or increase Securities Custodian
--------- -------------------- -------------------- -------------------- --------------------
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A-1-15
ELECTION TO CONVERT
To: DT Industries, Inc.
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or the portion below designated, into Common
Stock of DT INDUSTRIES, INC. in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon conversion, together with any check in payment for fractional
shares, be issued in the name of and delivered to the undersigned, unless a
different name has been indicated in the assignment below. If shares are to be
issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto.
Any holder, upon the exercise of its conversion rights in accordance
with the terms of the Indenture and this Security, agrees to be bound by the
terms of the Exchange Agreement by and among the Company, the Trustee and the
other parties named therein, dated May 9, 2002, relating to the Common Stock
issuable upon conversion of the Securities.
Date:
in whole _____________
Portions of Security to be converted ($50 or
integral multiples thereof):
$-------------
------------------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number
------------------------------------------
------------------------------------------
------------------------------------------
Signature Guarantee:(6)
-------------------
------
(6) (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF EXCHANGE SECURITY
[FORM OF FACE OF SECURITY]
DT INDUSTRIES, INC.
7.16% CONVERTIBLE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE DUE 2008
No. $
[CUSIP No. ]
DT INDUSTRIES, INC., a corporation duly organized and existing under
the laws of the State of Delaware (herein called "the Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to The Bank of New York, as Property
Trustee for DT Capital Trust, or registered assigns, the principal sum
[indicated on Schedule A hereof](7)[of ________ Dollars] 8/($________) on May
31, 2008.
Interest Payment Dates: March 31, June 30, September 30 and December 31,
commencing September 30, 2004
Regular Record Dates: the close of business on the day immediately
preceding each Interest Payment Date, commencing
September 29, 2004
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-------
(7) Applicable to Global Securities only.
(8) Applicable to certificated Securities only.
9/ All terms used in this Security which are defined in the Indenture
or in the Declaration referred to therein shall have the meanings assigned
to them in the Indenture or the Declaration, as the case may be.
A-2-1
IN WITNESS WHEREOF, the Company has caused this instrument to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
DT INDUSTRIES, INC.
By: /s/ Authorized Signatory
---------------------------------------------
Name:
Title.
[Seal]
Attest:
--------------------
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
THE BANK OF NEW YORK,
As Trustee
By: /s/ Authorized Signatory
--------------------------------------------
Authorized Signatory
A-2-2
[FORM OF REVERSE OF SECURITY]
DT INDUSTRIES, INC.
7.16% CONVERTIBLE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE DUE 2008(9)
1. Interest. DT Industries, Inc., a Delaware corporation (the
"Company"), is the issuer of this 7.16% Convertible Junior Subordinated
Deferrable Interest Debenture Due 2008 (the "Security") limited in aggregate
principal amount to $37,165,000 issued under the Indenture hereinafter referred
to. The Company promises to pay interest on the Security in cash from July 3,
2004 or from the most recent subsequent interest payment date to which interest
has been paid or duly provided for, quarterly (subject to deferral for up to 20
consecutive quarters as described in Section 3 hereof) in arrears on March 31,
June 30, September 30 and December 31 of each year (each such date, an "Interest
Payment Date"), commencing September 30, 2004, at the rate of 7.16% per annum
(subject to increase as provided in Section 13 hereto) plus Additional Interest,
if any, until the principal hereof shall have become due and payable.
The amount of interest payable for any period will be computed on the
basis of twelve 30-day months and a 360-day year. To the extent lawful, the
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest (without regard to
any applicable grace period) at the rate borne by the Securities, compounded
quarterly. Any interest paid on this Security shall be increased to the extent
necessary to pay Additional Interest as set forth in this Security.
2. Additional Interest. The Company shall pay to DT Capital Trust (and
its permitted successors or assigns under the Declaration) (the "Trust") such
additional amounts as may be necessary in order that the amount of dividends or
other distributions then due and payable by the Trust on the Preferred
Securities that at any time remain outstanding in accordance with the terms
thereof shall not be reduced as a result of any additional taxes, duties and
other governmental charges of whatever nature (other than withholding taxes)
imposed by the United States or any other taxing authority.
3. Extension of Interest Payment Period. At any time following October
1, 2004, if the Company shall have paid on September 30, 2004 all interest
accrued with respect to the Security as of such date, the Company shall have the
right, from time to time to defer payments of interest by extending the interest
payment period of such Security for up to 20 consecutive quarters (an "Extended
Interest Payment Period"), provided that such Extended Interest Payment Period
shall not extend beyond the Maturity of the Security. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to Section 3.12 of the
Indenture, will bear interest thereon at 7.16% compounded quarterly for each
quarter of the Extended Interest Payment Period ("Compounded Interest"). At
------
(9) All terms used in this Security which are defined in the Indenture
or in the Declaration referred to therein shall have the meanings assigned
to them in the Indenture or the Declaration, as the case may be.
A-2-3
the end of the Extended Interest Payment Period, the Company shall pay all
interest then accrued and unpaid on the Securities, including any Compounded
Interest that shall be payable to the Holders of the Securities in whose names
the Securities are registered in the Security Register on the first Regular
Record Date after the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Company may further
extend such period, provided that such period together with all such further
extensions thereof shall not exceed 20 consecutive quarters or extend beyond the
Maturity of this Security. Upon the termination of any Extended Interest Payment
Period and upon the payment of all Compounded Interest and Additional Interest,
if any, then due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period except at the end thereof. In
the event the Company fails to pay the interest payment due on September 30,
2004, the Company shall permanently forego its right to utilize any Extended
Interest Payment Period.
If the Property Trustee is the sole holder of this Security, the
Company shall give the Holder of this Security and the Trustee notice of its
selection of an Extended Interest Payment Period at least one Business Day prior
to the earlier of (i) the Interest Payment Date or (ii) if the Preferred
Securities are listed on the New York Stock Exchange or other stock exchange or
quotation system, the date the Trust is required to give notice to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Preferred Securities on the record date or the date such distributions are
payable, but in any event not less than ten Business Days prior to such record
date.
If the Property Trustee is not the sole holder of the Securities, the
Company shall give the Holders of the Securities and the Trustee notice of its
selection of an Extended Interest Payment Period at least ten Business Days
prior to the earlier of (i) the Interest Payment Date or (ii) if the Preferred
Securities are listed on the New York Stock Exchange or other stock exchange or
quotation system, the date the Trust is required to give notice to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Securities on the record date or the date such distributions are payable,
but in any event not less than two Business Days prior to such record date.
The quarter in which any notice is given pursuant to the second and
third paragraphs of this Section 3 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under the
first paragraph of this Section 3.
4. Method of Payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment, which shall be the close of business
on the day immediately preceding each Interest Payment Date (the "Regular Record
Date"), commencing September 29, 2004. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of
A-2-4
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than ten days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York,
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that, at the option of the Company, payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
5. Paying Agent and Security Registrar. The Trustee will act as Paying
Agent, Security Registrar and Conversion Agent. The Company may change any
Paying Agent, Security Registrar, co-registrar or Conversion Agent without prior
notice. The Company or any of its Affiliates may act in any such capacity.
6. Indenture. The Company issued the Securities under an indenture,
dated as of June 1, 1997, as supplemented from time to time (the "Indenture"),
between the Company and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by the Trust Indenture Act of
1939 (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb) ("TIA") as in effect on the date of the
Indenture. The Securities are subject to, and qualified by, all such terms,
certain of which are summarized hereon, and holders are referred to the
Indenture and the TIA for a statement of such terms. The Securities are
unsecured general obligations of the Company limited to $37,165,000 in aggregate
principal amount and subordinated in right of payment to all existing and future
Senior Indebtedness of the Company. No reference herein to the indenture and no
provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed or to convert this Security as provided
in the Indenture.
7. Optional Redemption. The Securities are redeemable at the Company's
option at any time and from time to time after June 1, 2000, upon not less than
30 or more than 60 days' notice, at the following prices per $50 principal
amount of the Securities plus any accrued and unpaid interest, including
Additional Interest, if any, to the Redemption Date, if redeemed during the
12-month period ending June 1:
A-2-5
Price Per $50
Year Principal Amount
--------------------- ---------------
2001................................ $52.51
2002................................ 52.15
2003................................ 51.79
2004................................ 51.43
2005................................ 51.07
2006 ............................... 50.72
2007................................ 50.36
and thereafter at $50 per $50 principal amount of the Securities plus, in each
case, accrued and unpaid interest, including Additional Interest, if any, to the
Redemption Date (subject to the right of holders of record on the relevant
record date to receive interest due on the Interest Payment Date). On or after
the Redemption Date, interest will cease to accrue on the Securities, or portion
thereof, called for redemption.
8. Optional Redemption Upon Tax Event. The Securities are subject to
redemption in whole, but not in part, at any time within 90 days, if a Tax Event
(as defined in the Declaration) shall occur and be continuing, at a redemption
price equal to $50 per $50 principal amount thereof plus accrued but unpaid
interest, including Additional Interest, if any, to the Redemption Date. Any
redemption pursuant to this Section 8 will be made upon not less than 30 nor
more than 60 days' notice.
9. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
the Securities to be redeemed at his address of record. The Securities in
denominations larger than $50 may be redeemed in part but only in integral
multiples of $50. In the event of a redemption of less than all of the
Securities, the Securities will be chosen for redemption by the Trustee in
accordance with the Indenture. On and after the Redemption Date, interest ceases
to accrue on the Securities or portions of them called for redemption.
If this Security is redeemed subsequent to a Regular Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid to the person in
whose name this Security is registered at the close of business on such record
date.
10. Mandatory Redemption. The Securities will mature on May 31, 2008
and may be redeemed, in whole or in part, at any time after June 1, 2000, or at
any time in certain circumstances upon the occurrence of a Tax Event. Upon the
repayment of the Securities, whether at maturity or upon redemption, the
proceeds from such repayment or payment shall simultaneously be applied to
redeem Trust Securities (provided that Trust Securities remain
A-2-6
outstanding) having an aggregate liquidation amount of the Securities so repaid
or redeemed at the applicable redemption price together with accrued and unpaid
distributions through the date of redemption; provided, that holders of the
Trust Securities shall be given not less than 30 nor more than 60 days notice of
such redemption. Upon the repayment of the Securities at maturity or upon any
acceleration, earlier redemption or otherwise, the proceeds from such repayment
will be applied to redeem the Preferred Securities, in whole, upon not less than
30 nor more than 60 days' notice. There are no sinking fund payments with
respect to the Securities.
11. Subordination. The payment of the principal of, interest on or any
other amounts due on the Securities is subordinated in right of payment to all
existing and future Senior Indebtedness (as defined below) of the Company, as
described in the Indenture. Each holder, by accepting a Security, agrees to such
subordination and authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and appoints the Trustee as its attorney-in-fact for such purpose.
Senior Indebtedness shall mean in respect of the Company (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii) all
capital lease obligations of such obligor, (iii) all obligations of such obligor
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such obligor and all obligations of such obligor under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of such obligor for the
reimbursement of any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction, (v) all obligations of the type referred
to in clauses (i) through (iv) above of other persons for the payment of which
such obligor is responsible or liable as obligor, guarantor or otherwise, (vi)
all obligations of the type referred to in clauses (i) through (v) above of
other persons secured by any lien on any property or asset of such obligor
(whether or not such obligation is assumed by such obligor), except for (1) any
such indebtedness that is by its terms subordinated to or pari passu with the
Securities and (2) any indebtedness (including all other debt securities and
guarantees in respect of those debt securities) initially issued to any other
trust, or a trustee of such trust, partnership, or other entity affiliated with
the Company that is, directly or indirectly, a financing vehicle of the Company
(a "Financing Entity") in connection with the issuance by such Financing Entity
of preferred securities or other similar securities and (vii) interest accruing
subsequent to events of bankruptcy of the Company and its subsidiaries at the
rate provided for in the documentation governing such Senior Indebtedness,
whether or not such interest is an allowed claim enforceable against the debtor
in a bankruptcy case under relevant bankruptcy law.
12. Conversion. The Holder of any Security has the right, exercisable
at any time prior to the close of business (New York time) on the date of this
Security's maturity, to convert the principal amount thereof (or any portion
thereof that is an integral multiple of $50) into shares of Common Stock at the
initial conversion rate of 3.5714 shares of Common Stock for each Security
(equivalent to a conversion price of $14.00 per share of Common Stock of the
Company), subject to adjustment under certain circumstances, except that if a
Security is called
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for redemption, the conversion right will terminate at the close of business on
the Redemption Date.
To convert a Security, a Holder must (1) complete and sign a conversion
notice substantially in the form attached hereto, (2) surrender this Security to
a Conversion Agent, (3) furnish appropriate endorsements or transfer documents
if required by the Security Registrar or Conversion Agent and (4) pay any
transfer or similar tax, if required. Upon conversion, no adjustment or payment
will be made for interest or dividends, but if any Holder surrenders a Security
for conversion after the close of business on the Regular Record Date for the
payment of an installment of interest and prior to the opening of business on
the next Interest Payment Date, then, notwithstanding such conversion, the
interest payable on such Interest Payment Date will be paid to the registered
Holder of such Security on such Regular Record Date. In such event, such
Security, when surrendered for conversion, need not be accompanied by payment of
an amount equal to the interest payable on such Interest Payment Date on the
portion so converted. The number of shares issuable upon conversion of a
Security is determined by dividing the principal amount of this Security
converted by the conversion price in effect on the Conversion Date. No
fractional shares will be issued upon conversion but a cash adjustment will be
made for any fractional interest. The outstanding principal amount of any
Security shall be reduced by the portion of the principal amount thereof
converted into shares of Common Stock.
13. Registration, Transfer, Exchange and Denominations. As provided in
the Indenture and subject to certain limitations therein set forth, the transfer
of this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
New York, New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
denominations of $50 and integral multiples thereof. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. Prior to due presentment of this
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary. In the event of redemption or conversion of
this Security in part only, a new Security or Securities for the unredeemed or
unconverted portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
14. Persons Deemed Owners. Except as provided in Section 3 hereof, the
registered Holder of a Security may be treated as its owner for all purposes.
A-2-8
15. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, holders of
Securities entitled to the money must look to the Company for payment unless an
abandoned property law designates another Person and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
16. Defaults and Remedies. The Securities shall have the Events of
Default as set forth in Section 5.01 of the Indenture. Subject to certain
limitations in the Indenture, if an Event of Default occurs and is continuing,
the Trustee by notice to the Company or the holders of at least 25% in aggregate
principal amount of the then outstanding Securities by notice to the Company and
the Trustee may declare all the Securities to be due and payable immediately;
provided that, if the Property Trustee is the sole Holder of this Security and
if upon an Event of Default, the Trustee or the holder or holders of not less
than 25% in aggregate principal amount of the then outstanding Securities fail
to declare the principal of all the Securities to be immediately due and
payable, the holders of at least 25% in aggregate liquidation amount of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration such
principal and all accrued interest shall become immediately due and payable;
provided that the payment of principal and interest on such Securities shall
remain subordinated to the extent provided in the Indenture.
The holders of a majority in principal amount of the Securities then
outstanding by written notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration. Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. Subject to certain limitations, holders of a majority
in principal amount of the then outstanding Securities issued under the
Indenture may direct the Trustee in its exercise of any trust or power. The
Company must furnish annually compliance certificates to the Trustee. The above
description of Events of Default and remedies is qualified by reference to, and
subject in its entirety by, the more complete description thereof contained in
the Indenture.
17. Amendments, Supplements and Waivers. The Indenture permits, subject
to the rights of the holders of Preferred Securities set forth therein and in
the Declaration and with certain other exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, subject to the
right of the holders of the Preferred Securities set forth therein and in the
Declaration, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver is
made
A-2-9
upon this Security. The above description of amendments, supplements and
waivers is qualified by reference to, and subject in its entirety by the more
complete description thereof contained in the Indenture.
18. Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity may become the owner or pledgee of the Securities and may
otherwise deal with the Company or an Affiliate with the same rights it would
have, as if it were not Trustee, subject to certain limitations provided for in
the Indenture and in the TIA. Any Agent may do the same with like rights.
19. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Securities by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
20. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THE SECURITIES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
21. Authentication. The Securities shall not be valid until
authenticated by the manual signature of an authorized signatory of the Trustee
or an authenticating agent.
22. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
The Company will furnish to any Holder of the Securities upon written
request and without charge a copy of the Indenture. Request may be made to:
DT Industries, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention of: Vice President--Finance
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to ____________________
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(Insert assignee's social security or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint______________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Your Signature: _____________________________________________
(Sign exactly as your name appears on the other
side of this Security)
Date: _____________________________________________
Signature Guarantee:(10) ________________________
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(10) (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
A-2-11
(TO BE ATTACHED TO GLOBAL SECURITIES)
SCHEDULE A
The initial principal amount of this Global Security shall be $
___________. The following increases or decreases in the principal amount of
this Global Security have been made:
Principal Amount of Signature of
Amount of increase in Amount of decrease in this Global Security authorized signatory
Principal Amount of Principal Amount of following such of Trustee or
Date Made this Global Security this Global Security decrease or increase Securities Custodian
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A-2-12
ELECTION TO CONVERT
To: DT Industries, Inc.
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or the portion below designated, into Common
Stock of DT INDUSTRIES, INC. in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon conversion, together with any check in payment for fractional
shares, be issued in the name of and delivered to the undersigned, unless a
different name has been indicated in the assignment below. If shares are to be
issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto.
Any holder, upon the exercise of its conversion rights in accordance
with the terms of the Indenture and this Security, agrees to be bound by the
terms of the Exchange Agreement by and among the Company, the Trustee and the
other parties named therein, dated May 9, 2002, relating to the Common Stock
issuable upon conversion of the Securities.
Date:
in whole ______________
Portions of Security to be
converted ($50 or integral
multiples thereof):
$-------------
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Signature (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number
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Signature Guarantee:(11)
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(11) (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
A-2-13
