Exhibit 99.3
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF AFG
ENTERPRISES USA, INC. THAT (A) PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THIS NOTE UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION), THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (I) TO AFG ENTERPRISES USA, INC. OR ANY SUBSIDIARY THEREOF,
(II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE. THIS
LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS NOTE PURSUANT TO
CLAUSE (A)(IV) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(K) UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER THE TRANSFER OF THIS NOTE
IN VIOLATION OF THE FOREGOING RESTRICTION.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE BANK OF NEW YORK AS CUSTODIAN
FOR THE INITIAL DEPOSITARY PURSUANT TO THE TERMS OF THAT CERTAIN DEPOSIT
AGREEMENT BETWEEN THE BANK OF NEW YORK, AS DEPOSITARY AND AFG ENTERPRISES USA,
INC., ISSUER, DATED AS OF MARCH 29, 2006, OR A NOMINEE THEREOF. THIS NOTE MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF
THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
1
AFG Enterprises USA, Inc.
Senior Secured Nonconvertible Notes Due 2011
No. 0001 CUSIP NO. 00106F AA 7 U.S. $50,000,000.00
AFG Enterprises USA, Inc., a corporation duly organized and
validly existing under the laws of the State of Nevada (herein called the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received hereby promises to pay to
Hare & Co. pursuant to the Indenture, or registered assigns, the principal sum
of FIFTY MILLION United States Dollars ($50,000,000.00) (which amount may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Initial Depositary, in accordance with the rules
and procedures of the Initial Depositary) on March 29, 2011 and to pay interest
on said principal sum quarterly on March 31, June 30, September 30 and December
31 of each year commencing June 30, 2006, at the rate specified in Section 12.01
of the Indenture to Holders of record on the immediately preceding March 15,
June 15, September 15 and December 15 which interest has been paid, or if no
interest has been paid, from March 29, 2006 until the Principal Amount is paid
or duly made available for payment. Except as otherwise provided in the
Indenture, the interest payable on this Note pursuant to the Indenture on any
March 31, June 30, September 30 and December 31 will be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the Record Date, which shall be March 15, June 15,
September 15 and December 15 (whether or not a Trading Day) next preceding such
March 31, June 30, September 30 and December 31, respectively. Payment of the
principal of and interest accrued on this Note shall be made by check mailed to
the address of the Holder of this Note specified in the register of Notes, or,
upon written application by a Holder of an aggregate Principal Amount of greater
than U.S.$2 million to the Note Registrar setting forth wire instructions not
later than ten (10) days prior to the relevant payment date, such Holder may
receive payment by wire transfer in immediately available funds, in such lawful
money of the United States of America as at the time of payment shall be legal
tender for the payment of public and private debts.
The Issue Date of this Note is March 29, 2006.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, including, without limitation, provisions requiring
the redemption of such part of this Note as set forth in the Indenture (a) (i)
in respect of a Holder's vote against an Approved Business Combination
Transaction or (ii) if the Holder votes against all Approved Business
transactions and, (b) at the option of the Holder, (w) after the failure by the
Company to achieve the numbers of subscribers required by Section 10.17(b) of
the Indenture in any two consecutive fiscal quarters; (x) after the 18 month
anniversary of the issuance of the Notes; (y) in connection with the Holder's
making an Additional Contribution; or (z) if the Company does not raise at least
$7,000,000 in additional capital within 6 months of the issuance of the Notes,
subject to the limitations referred to on the reverse hereof and as more fully
specified in the Indenture. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place. Capitalized terms used
but not defined herein shall have such meanings as are ascribed to such terms in
the Indenture.
2
This Note 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 and governed by the laws of said State.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by the Trustee or a duly authorized authenticating agent under the
Indenture.
[Signature page follows]
3
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
AFG ENTERPRISES USA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇, CEO
--------------------------------------
Authorized Signatory
4
This Note is one of a duly authorized issue of Notes of the
Company, designated as its Senior Secured Nonconvertible Notes Due 2011 (the
"Notes"), all issued or to be issued under and pursuant to an Indenture, dated
as of March 29, 2006 (the "Indenture"), between the Company and The Bank of New
York (the "Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Notes.
The indebtedness evidenced by the Notes is senior secured
indebtedness of the Company and ranks superior to the Company's unsecured and
subordinated indebtedness.
1. Interest Rate. Interest on the Notes shall accrue at
a rate equal to the greater of (A) 4.51% and (B) the
three month U.S. Treasury Rate (as reported on
Bloomberg). The applicable Interest Rate shall be
determined for each quarterly interest period on the
first Trading Day of such period. Interest on the
Notes shall accrue from the most recent date to which
interest has been paid, or if no interest has been
paid, from March 29 2006, until the Principal Amount
is paid or duly made available for payment.
2. Redemption Right of the Holder. Upon the consummation
of an Approved Business Combination Transaction, the
Company shall automatically redeem the Business
Combination Pro Rata Transaction Amount of Holders of
Nonconvertible Notes voting against the applicable
Approval Business Combination Transaction and if a
Holder votes against all Approved Business
Combination Transactions, thirty-one days after the
Threshold Acquisition Date, the remaining outstanding
amount of the Note.
3. Redemption by the Company at the Option of the
Holder. Subject to the terms and conditions of the
Indenture, the Company shall become obligated, at the
option of the Holder, (i) to redeem the Notes upon
the request of such Holder after the failure by the
Company to achieve the numbers of subscribers
required by Section 10.17(b) of the Indenture in any
two consecutive fiscal quarters, (ii) to redeem the
Notes upon the request of such Holder at any time
after the 18 month anniversary of the original
issuance of the Nonconvertible Notes, (iii) in
connection with the Holder's making an Additional
Contribution, or (iv) if the Company does not raise
at least $7,000,000 in additional capital pursuant to
an equity offering within 6 months of the initial
issuance of the Notes at the Optional Redemption
Price, (which Optional Redemption Price will be paid
in cash).
4. Repurchase by the Company at the Option of the Holder
Upon a Fundamental Change. Subject to the terms and
conditions of the Indenture, the Company shall become
obligated, at the option of the Holder, to repurchase
the Notes if a Fundamental Change occurs at any time
prior to the Stated Maturity at the Fundamental
Change Repurchase Price, (which Fundamental Change
Repurchase Price, excluding the Make-Whole Premium,
will be paid in cash, plus any Make-Whole Premium
required by the terms of the Indenture).
5
5. Withdrawal of Fundamental Change Repurchase Notice.
Holders have the right to withdraw, in whole or in
part, any Fundamental Change Repurchase Notice, by
delivering to the Paying Agent a written notice of
withdrawal in accordance with the provisions of the
Indenture.
6. Payment of Redemption Price and Fundamental Change
Repurchase Price. If cash sufficient to pay the
Redemption Price or Fundamental Change Repurchase
Price as the case may be, of all Notes or portions
thereof to be redeemed or repurchased on a Redemption
Date or on a Fundamental Change, as the case may be,
is deposited with the Paying Agent on the Trading Day
preceding the Redemption Date or the Fundamental
Change Settlement Date, as the case may be, the Notes
to be redeemed or repurchased will cease to be
Outstanding and interest and Liquidated Damages, if
any, will cease to accrue on such Notes (or portions
thereof) immediately after such Redemption Date or
Fundamental Change Settlement Date, as the case may
be, and the Holder thereof shall have no other rights
as such (other than the right to receive the
Redemption Price or Fundamental Change Repurchase
Price as the case may be) upon surrender of such
Note.
7. Business Combination Transactions. At any time after
the date hereof, the Company may seek the approval of
the Nonconvertible Holders to a Business Combination
Proposal by delivering a Business Combination Notice
to the Nonconvertible Holders no earlier than sixty
(60) Trading Days and no later than twenty (20)
Trading Days prior to the date of the Business
Combination Vote. The record date for any Business
Combination Vote shall be such date as set by the
Company in the Business Combination Notice, which
shall be at least five (5) Trading Days prior to the
date of such Business Combination Vote. The
affirmative vote of Nonconvertible Holders of at
least 75% in aggregate Principal Amount of the
Outstanding Notes are required to approve any
Business Combination Proposal. Within ten (10)
Trading Days following the consummation of such
Business Combination Transaction, the Trustee shall
deliver a notice to each Nonconvertible Holder
listing the Available Amount of the Company following
the consummation of such Business Combination
Transaction and the Holder's Business Combination
Transaction Pro Rata Amount of such Business
Combination Transaction.
8. Penalty for Failure to Consummate Business
Combination. If Holders of at least 75% in aggregate
Principal Amount of the Outstanding Nonconvertible
Notes fail to vote in favor of a Business Combination
Proposal, the Company will not be permitted to
present any further Business Combination Proposals to
the Holders for a thirty day period thereafter.
6
In the event of a deposit or withdrawal of an interest in this
Note, including an exchange, transfer, repurchase or conversion of this Note in
part only, the Trustee, as custodian of the Initial Depositary, shall make an
adjustment on its records to reflect such deposit or withdrawal in accordance
with the rules and procedures of the Initial Depositary.
Subject to certain limitations in the Indenture, at any time
when the Company is not subject to Section 13 or 15(d) of the United States
Securities Exchange Act of 1934, as amended, upon the request of a Holder of a
Restricted Note, the Company will promptly furnish or cause to be furnished Rule
144A Information (as defined below) to such Holder of Restricted Notes, or to a
prospective purchaser of any such Note designated by any such Holder, to the
extent required to permit compliance by any such Holder with Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"). "Rule 144A
Information" shall be such information as is specified pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto).
If an Event of Default shall occur and be continuing, the
Principal Amount plus accrued and unpaid interest and Liquidated Damages, if
any, through such date on all the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain 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 Notes under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate Principal Amount of the
Outstanding Notes. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate Principal Amount of the Outstanding Notes,
on behalf of the Holders of all the Notes, 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
any provision of or applicable to this Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any proceeding in
respect of the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default in respect of the Notes,
the Holders of not less than 25% in aggregate Principal Amount of the
Outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity satisfactory to it, the Trustee shall not have
received from the Holders of a majority in Principal Amount of Outstanding Notes
a direction inconsistent with such request, and the Trustee shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of said principal
hereof or interest hereon on or after the respective due dates expressed herein
or for the enforcement of any conversion right.
7
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the Principal Amount or Fundamental
Change Repurchase Price of or interest and Liquidated Damages, if any, on, this
Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate Principal Amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form in
denominations of any integral multiple of $1.00, as provided in the Indenture
and subject to certain limitations therein set forth. Notes are exchangeable for
a like aggregate Principal Amount of Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
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 Note 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 Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
8
ASSIGNMENT FORM
If you want to assign this Note, fill in the form below and have your signature
guaranteed:
I or we assign and transfer this Note to:
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: Signed:
-----------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
-----------------------------------------------------
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
9
In connection with any transfer of this Note occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), covering resales of this Note
(which effectiveness shall not have been suspended or terminated at the date of
the transfer) and (ii) the second anniversary of the Issue Date set forth on the
face of this Note, the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that
this Note is being transferred:
[Check One]
(1) _____ to the Company or a subsidiary thereof; or
(2) _____ to a "Qualified Institutional Buyer" pursuant to and in compliance
with Rule 144A under the Securities Act; or
(3) _____ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act.
Unless one of the above boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any Person other
than the registered Holder thereof, provided that if box (3) is checked, the
Company may require, prior to registering any such transfer of the Notes, in its
sole discretion, such legal opinions, certifications and other information as
the Company may reasonably request 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.
If none of the foregoing boxes is checked, the Trustee or Note Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 3.09 of the Indenture shall have
been satisfied.
Date: Signed:
-----------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
-----------------------------------------------------
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
10
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account in respect of 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
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.
Date: Signed:
-----------------------------------------------
NOTICE: To be executed by an executive officer.
11
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Bank of New York, as Trustee, certifies that this is one
of the Notes referred to in the within-mentioned Indenture.
Date: The Bank of New York, as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Authorized Signatory
12
