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EXHIBIT 1.2
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 19, 1997
TO
INDENTURE
DATED AS OF DECEMBER 19, 0000
XXXXXXX
XXXXXXXXXXX XXXXXX XXXXXXXX, XXX.
XXX
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK
AS TRUSTEE
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[ ]% CONVERTIBLE SUBORDINATED DEBENTURES
DUE 2002
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of December 19, 1997 between
Alternative Living Services, Inc., a Delaware corporation (the "Company"), and
United States Trust Company of New York, a New York State banking corporation
(the "Trustee"), to that certain Indenture, dated as of December 19, 1997,
between the Company and the Trustee (the "Indenture").
WHEREAS, the parties hereto have entered into the Indenture which
provides for the issuance by the Company of the individual series of securities
thereunder, upon the Company and Trustee entering into a supplemental indenture
to the Indenture authorizing such series; and
WHEREAS, the Company wishes to issue its first series of securities
thereunder, designated its[ ]% Convertible Subordinated Debentures Due 2002 (the
"Debentures"); and
WHEREAS, all acts necessary to constitute this First Supplemental
Indenture as a valid, binding and legal obligation of the Company have been done
and performed.
NOW, THEREFORE, witnesseth that, in consideration of the premises
and of the covenants contained herein, it is hereby agreed as follows:
ARTICLE ONE
The Terms of the Debentures
In accordance with Sections 2.01 and 2.02 of the Indenture, the
Company will issue the Debentures in the aggregate principal amount of
$125,000,000. Each Debenture shall be substantially in the following form:
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ALTERNATIVE LIVING SERVICES, INC.
[ ]% Convertible Subordinated Debenture Due 2002
ALTERNATIVE LIVING SERVICES, INC., a Delaware corporation, promises to
pay to
SPECIMEN
or registered assigns, the principal sum of _____ Dollars, on _____, 2002
Cusip [ ]
Interest Payment Dates: [ ] and [ ]
Record Dates: [ ] and [ ]
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: __________,
ALTERNATIVE LIVING SERVICES, INC.
By:
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Xxxxxxx X. Xxxxx
Chief Executive Officer
By:
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Xxxxxx X. Xxxxxx
Senior Vice President, Chief Financial Officer and
Secretary
[SEAL]
CERTIFICATE OF AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee, certifies that this is one of the
Securities referred to in the within
mentioned Indenture.
By:
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Authorized Signatory
[SEAL]
Dated: ______________, 1997
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ALTERNATIVE LIVING SERVICES, INC.
[ ]% Convertible Subordinated Debenture Due 2002
1. Interest. Alternative Living Services, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Security at the rate per annum shown above. The Company will pay interest
semiannually on [ ] and [ ] of each year beginning [ ], 1998. Interest on the
Securities will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from [ ], 1997; provided that, if there is no
existing Default in the payment of interest, and if this Security is
authenticated between a record date referred to on the face hereof and the next
succeeding interest payment date, interest shall accrue from such interest
payment date. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment. The Company will pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders of the Securities at the close of business on the [ ] or [ ] next
preceding the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal and interest by its check payable in such money. It may mail an
interest check to a Holder's registered address.
The final installment of principal of and premium, if any, on this
Security shall be payable only upon surrender of this Security at the office or
agency of the Trustee in the Borough of Manhattan, City and State of New York.
Payments of principal of and premium, if any, and interest on this Security
shall be made at the office or agency of the Trustee maintained in the Borough
of Manhattan, City and State of New York or, in the case of any such payments
other than the final payment of principal and premium, if any, at the Company's
option, by check mailed to the Person entitled thereto at such Person's address
last appearing on the Company's register.
3. Registrar and Agents. Initially, United States Trust Company of
New York will act as Registrar, Paying Agent, Conversion Agent and agent for
service of notices and demands. The Company may change any Registrar,
co-registrar, Paying Agent, Conversion Agent and agent for service of notices
and demands without notice. The Company or any of its Subsidiaries may act as
Paying Agent or Conversion Agent. The address of United States Trust Company of
New York is 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
4. Indenture; Limitations. The Company issued the Securities under
an Indenture dated as of December 19, 1997 (the "Indenture") between the Company
and United States Trust Company of New York (the "Trustee"). Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code " 77aaa-77bbbb) as in effect on the date of the Indenture. The Securities
are
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subject to all such terms, and the Holders of the Securities are referred to the
Indenture and said Act for a statement of them.
The Securities are general unsecured obligations of the Company
limited to $125,000,000 aggregate principal amount. The Indenture imposes
certain limitations on the ability of the Company to, among other things, make
payments in respect of its Capital Stock, merge or consolidate with any other
Person and sell, lease, transfer or otherwise dispose of its properties or
assets.
5. Redemption by the Company. Subject to Section 7 herein, the
Company may redeem the Securities, in whole or from time to time in part, at its
option at any time on or after [ ], 2000, at a redemption price equal to 100% of
the principal amount thereof, plus accrued interest to the redemption date.
6. 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 Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 principal amount may be redeemed in part, but
only in whole multiples thereof. On and after the Redemption Date interest
ceases to accrue on Securities or portions of them called for redemption.
7. Conversion. A Holder of a Security may convert such Security into
shares of common stock of the Company commencing 180 days after[December , 1997]
and thereafter at any time prior to maturity, subject to the following
provisions of this Section 7. If the Security is called for redemption, the
Holder may convert it at any time before the close of business on the date fixed
for such redemption. The initial conversion price is $[ ] per share, subject to
adjustment in certain events. In the event the holder of this Security seeks to
convert all or any portion of this Security into Common Stock at a time when the
Company does not have sufficient authorized shares of Common Stock to satisfy
such conversion, such conversion shall not be permitted, in which event the
holder will have the right to require the Company to repurchase this Security
for an amount payable in cash equal to the principal amount of this Security
plus accrued interest. The Company has agreed to seek stockholder approval at
its 1998 Annual Meeting of Stockholders of an amendment to its Restated
Certificate of Incorporation ("Certificate") increasing the number of authorized
shares of Common Stock to an amount at least sufficient to permit the conversion
of all the Securities. Until such date as the Company's Certificate has been so
amended, the Company will not (i) exercise its right to voluntarily redeem the
Debentures pursuant to Section 5 hereof or (ii) issue additional shares of
Common Stock or securities convertible into or exchangeable for Common Stock
except for (A) employee stock options to acquire Common Stock granted under the
Company's existing stock option plans and (B) shares of Common Stock issuable
upon conversion of any Security or Other Debentures or upon the exercise of
stock options.
To convert a Security, a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender the Security to the
Conversion Agent, (3) furnish appropriate endorsements and transfer documents if
required by the Registrar or Conversion
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Agent and (4) pay any transfer or similar tax if required. No payment or
adjustment is to be made on conversion for interest accrued hereon or for
dividends on shares of common stock issued on conversion; provided, however,
that if a Security is surrendered for conversion after the record date for a
payment of interest and on or before the interest payment date, then,
notwithstanding such conversion, the interest falling due to such interest
payment date will be paid to the Person in whose name the Security is registered
at the close of business on such record date and any Security surrendered for
conversion during the period from the close of business on any regular record
payment date to the opening of business on the corresponding interest payment
date must be accompanied by payment of an amount equal to the interest payable
on such interest payment date. A Holder may convert a portion of a Security if
the portion is $1,000 principal amount or an integral multiple thereof.
To determine the number of shares issuable upon conversion of a
Security, divide the principal amount to be converted by the conversion price in
effect on the conversion date. The Company will deliver a check for any
fractional share.
If the Company is a party to a consolidation or merger or a transfer
or lease of all or substantially all of its assets, the right to convert a
Security into shares of common stock may be changed into a right to convert it
into securities, cash or other assets of the Company or another Person.
8. Subordination. This Security is subordinated to all Senior
Indebtedness of the Company. To the extent and in the manner provided in the
Indenture, Senior Indebtedness must be paid before any payment may be made to
any Holders of Securities. Any Securityholder by accepting this Security agrees
to the subordination and authorizes the Trustee to give it effect.
In addition to all other rights of Senior Indebtedness described in
the Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of any instrument relating to the
Senior Indebtedness or extension or renewal of the Senior Indebtedness.
This Security shall rank pari passu with the Company's 7%
Convertible Subordinated Debentures due 2004 and 6.75% Convertible Subordinated
Debentures due 2006 (collectively, the "Other Debentures").
9. Denominations, Transfer, Exchange. This Security is one of a duly
authorized issue of Securities of the Company designated as its [ ]% Convertible
Subordinated Debentures due 2002 limited in aggregate principal amount to
$125,000,000. The Securities are in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. A
Holder may register the transfer of or exchange Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities
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selected for redemption or register the transfer of or exchange any Securities
for a period of 15 days before a selection of Securities to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Security may
be treated as its owner for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest on any Securities remains unclaimed for three years, the Trustee and
the Paying Agent will pay the money back to the Company at its request. After
that, Holders may look only to the Company for payment.
12. Discharge Prior to Redemption or Maturity. The Indenture will be
discharged and canceled except for certain sections thereof upon payment of all
the Securities, or upon the irrevocable deposit with the Trustee of funds or
U.S. Government Obligations maturing on or before such payment date or
Redemption Date, sufficient to pay principal, premium, if any, and interest on
such payment or redemption.
13. Amendment and Waiver. Subject to certain exceptions, without
notice to the Holders of the Securities, the Indenture or the Securities may be
amended with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding and any existing default or compliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities then outstanding. Without the consent of
or notice to any Securityholder, the Company may amend the Indenture or the
Securities to, among other things, provide for uncertificated Securities, to
establish another series of securities as permitted by the Indenture, to cure
any ambiguity, defect or inconsistency or make any other change that does not
adversely affect the rights of any Securityholder.
14. Successors. When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
15. Defaults and Remedies. If an Event of Default, as defined in the
Indenture, occurs and is continuing, the Trustee or the Holders of a majority in
principal amount of Securities may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it,
subject to the provisions of the TIA, before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in its exercise
of any trust or power with respect to the Securities. The Company is required to
file periodic reports with the Trustee as to the absence of any Default or Event
of Default.
16. Trustee Dealings with the Company. United States Trust Company
of New York, the Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
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17. No Recourse Against Others. No stockholder, director, officer or
incorporator, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation 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 a Security
by accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Securities.
18. Authentication. This Security shall not be valid until the
Trustee or an authenticating agent appointed by the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations. Customary abbreviations may be used in the name
of a Securityholder or an assignee, such as: TEN COM (=tenants in common), TEN
ENT (=tenants by the entireties), JT TEN (=joint tenants with rights 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 SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. IT ALSO WILL FURNISH THE TEXT OF
THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO: ALTERNATIVE LIVING
SERVICES, INC., 000 XXXXX XXXXXXXXXX XXXX, XXXXX 000, XXXXXXXXXX, XXXXXXXXX
00000, ATTENTION: CHIEF FINANCIAL OFFICER.
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ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and have
your signature guaranteed:
For value received, I or we assign and transfer this Security to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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agent to transfer this
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Security on the books of the Company. The agent may substitute another to act
for him.
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Date:
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Your signature:
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(Sign exactly as your name appears on the other
side of this Security)
Signature Guarantee:
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CONVERSION NOTICE
To convert this Security into shares of common stock of the Company, check the
box:
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To convert only part of this Security, state the principal amount to be
converted (which must be a minimum of $1,000 or any multiple thereof):
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$
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If you want the Security certificate, if any, made out in another person's name,
fill in the form below:
(INSERT OTHER PERSON'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
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(Print or type other person's name, address and zip code)
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Date:
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Your signature:
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(Sign exactly as your name appears on the other
side of this Security)
Signature Guaranteed By:
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date first written
above.
ALTERNATIVE LIVING SERVICES, INC.
By:
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Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
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Authorized Signatory