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EXHIBIT 4.2
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FIRST SUPPLEMENTAL INDENTURE
between
EVI, Inc.
and
The Chase Manhattan Bank
Dated as of October 28, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE CONVERTIBLE DEBENTURES
SECTION 2.1. Designation and Principal Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
SECTION 2.2. Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
SECTION 2.3. Form and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
SECTION 2.4. Exchange and Registration of Transfer of Convertible
Debentures; Restrictions on Transfers; Depositary . . . . . . . . . . . . . . . . . . . . . -6-
SECTION 2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
SECTION 2.6. No Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 2.7. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
ARTICLE III
REDEMPTION OF THE CONVERTIBLE DEBENTURES
SECTION 3.1. Optional Redemption by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 3.2. No Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 4.2. Notice of Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
SECTION 4.3. Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
SECTION 5.2. Payment Upon Resignation or Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
ARTICLE VI
CONVERSION OF CONVERTIBLE DEBENTURES
SECTION 6.1. Conversion Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
SECTION 6.2. Conversion Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
SECTION 6.3. Conversion Price Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
SECTION 6.4. Merger, Consolidation, or Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . -21-
SECTION 6.5. Notice of Adjustments of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . -22-
SECTION 6.6. Prior Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
SECTION 6.7. Certain Additional Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
SECTION 6.8. Trustee Not Responsible for Determining Conversion
Price or Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
ARTICLE VII
FORM OF CONVERTIBLE DEBENTURE
SECTION 7.1. Form of Convertible Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
ARTICLE VIII
ORIGINAL ISSUE OF CONVERTIBLE DEBENTURES
SECTION 8.1. Original Issue of Convertible Debentures . . . . . . . . . . . . . . . . . . . . . . . . -40-
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture; First Supplemental Indenture
Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -40-
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Page
SECTION 9.2. Trustee Not Responsible for Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . -40-
SECTION 9.3. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -40-
SECTION 9.4. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -40-
SECTION 9.5. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -41-
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FIRST SUPPLEMENTAL INDENTURE, dated as of October 15, 1997
(the "First Supplemental Indenture"), between EVI, Inc., a Delaware corporation
(the "Company"), and The Chase Manhattan Bank, a New York banking corporation,
as trustee (the "Trustee") under the Indenture dated as of October 15, 1997
between the Company and the Trustee (the "Base Indenture" and together with the
First Supplemental Indenture, the "Indenture").
WHEREAS, the Company executed and delivered the Base Indenture
to the Trustee to provide for the future issuance of the Company's secured or
unsecured subordinated debt securities to be issued from time to time in one or
more series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the
Company desires to provide for the establishment of a new series of its
Debentures to be known as its 5% Convertible Subordinated Preferred Equivalent
Debentures due 2027 (the "Convertible Debentures"), the form and substance of
such Convertible Debentures and the terms, provisions and conditions thereof to
be set forth as provided in the Base Indenture and this First Supplemental
Indenture;
WHEREAS, the Company has requested that the Trustee execute
and deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Convertible Debentures, when executed by the Company
and authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance
of the Convertible Debentures by the Holders thereof, and for the purpose of
setting forth, as provided in the Base Indenture, the form and substance of the
Convertible Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
For all purposes of the First Supplemental Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms which are defined in the Base Indenture
have the same meanings when used in this First Supplemental Indenture;
(b) the terms defined in this Article have the meaning
assigned to them in this Article and include the plural as well as the
singular;
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(c) all other terms used herein which are defined in the
Trust Indenture Act, whether directly or by reference therein, have the
meanings assigned to them therein;
(d) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, and, except as otherwise
herein expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation;
(e) a reference to a Section or Article is to a Section
or Article of this First Supplemental Indenture;
(f) the words "herein"' "hereof" and "hereunder" and
other words of similar import refer to this First Supplemental Indenture as a
whole and not to any particular Article, Section or other subdivision; and
(g) headings are for convenience of reference only and do
not affect interpretation.
"Additional Interest" means any interest agreed by the Company
to be paid on the Convertible Debentures in excess of the amount agreed to be
paid thereon pursuant to this Supplemental Indenture and the form of
Convertible Debenture, whether pursuant to a registration rights agreement or
otherwise.
"Applicable Price" means (i) in the event of a Non-Stock
Fundamental Change in which the holders of the Common Stock receive only cash,
the amount of cash received by a holder of one share of Common Stock and (ii)
in the event of any other Fundamental Change, the average of the daily Closing
Price for one share of Common Stock during the 10 Trading Days immediately
prior to the record date for the determination of the holders of Common Stock
entitled to receive cash, securities, property or other assets in connection
with such Fundamental Change or, if there is no such record date, prior to the
date upon which the holders of the Common Stock shall have the right to receive
such cash, securities, property or other assets the adjustment shall be based
upon the consideration that the holders of the Common Stock received in the
transaction or event as a result of which more than 50% of the Common Stock
shall have been exchanged for, converted into or acquired for, or shall
constitute solely the right to receive, such cash, securities, property or
other assets.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Convertible Debentures and in whose name or in the name of a
nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book entry transfers and pledges of the Convertible
Debentures.
"Closing Price" of any common stock on any day shall mean the
last recorded sale price regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and asked prices
regular way of such common stock, in each case
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on the New York Stock Exchange Composite Tape or, if the common stock is not
listed or admitted to trading on such exchange, on the principal national
securities exchange on which such common stock is listed or admitted to
trading, or, if not listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices as furnished by any
New York Stock Exchange member firm selected from time to time by the Board of
Directors of the Company for that purpose or, if not so available in such
manner, as otherwise determined in good faith by the Board of Directors.
"Common Stock" means the common stock, par value $1.00 per
share, of EVI, Inc., a Delaware corporation, and any other shares of common
stock as may constitute "Common Stock" under the Indenture.
"Common Stock Fundamental Change" means any Fundamental Change
in which more than 50% of the value (as determined in good faith by the Board
of Directors of the Company) of the consideration received by holders of Common
Stock consists of common stock that, for the 10 Trading Days immediately prior
to such Fundamental Change, has been admitted for listing or admitted for
listing subject to notice of issuance on a national securities exchange or
quoted on The Nasdaq National Market; provided, however, that a Fundamental
Change shall not be a Common Stock Fundamental Change unless either (i) the
Company continues to exist after the occurrence of such Fundamental Change and
the outstanding Convertible Debentures continue to exist as outstanding
Convertible Debentures, or (ii) not later than the occurrence of such
Fundamental Change, the outstanding Convertible Debentures are converted into
or exchanged for debentures of a corporation succeeding to the business of the
Company, which debentures have terms substantially similar to those of the
Convertible Debentures.
"Compounded Interest" shall have the meaning specified in
Section 4.1.
"Convertible Preferred Securities" has the meaning specified
in the recitals to this First Supplemental Indenture.
"Conversion Price" has the meaning set forth in Section 6.1.
"Deferred Interest" has the meaning specified in Section 4.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Extended Interest Payment Period" has the meaning specified
in Section 4.1.
"Fundamental Change" means the occurrence of any transaction
or event or series of transactions or events pursuant to which all or
substantially all of the Common Stock shall be exchanged for, converted into,
acquired for or shall constitute solely the right to receive cash, securities,
property or other assets (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise); provided, however, in the case of any such
series of transactions or events, for purposes of adjustment of the Conversion
Price, such Fundamental Change shall be deemed to have occurred when
substantially all of the Common Stock shall have been exchanged for, converted
into or acquired for, or shall constitute solely the right to receive, such
cash, securities, property or
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other assets, but the adjustment shall be based upon the consideration that the
holders of Common Stock received in the transactions or events as a result of
which, taken together, more than 50% of the Common Stock shall have been
exchanged for, converted into or acquired for, or shall constitute solely the
right to receive, such cash, securities, property or other assets.
"Global Debenture" has the meaning specified in Section 2.4.
"Maturity Date" means the date on which the Convertible
Debentures mature and on which the principal shall be due and payable together
with all accrued and unpaid interest thereon including Compounded Interest and
Additional Interest, if any.
"Non-Stock Fundamental Change" means any Fundamental Change
other than a Common Stock Fundamental Change.
"Non-U.S. Person" means a Person other than a U.S. person (as
such term is defined in Regulation S).
"Optional Redemption Price" has the meaning specified in
Section 3.2.
"PORTAL Market" means the Private Offerings, Resales and
Trading through Automated Linkages Market operated by the National Association
of Securities Dealers, Inc., or any successor thereto.
"Purchaser Stock Price" means, with respect to any Common
Stock Fundamental Change, the average of the daily Closing Price for one share
of the common stock received by holders of Common Stock in such Common Stock
Fundamental Change during the 10 Trading Days immediately prior to the date
fixed for the determination of the holders of Common Stock entitled to receive
such common stock or, if there is no such date, prior to the date upon which
the holders of Common Stock shall have the right to receive such common stock.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Reference Market Price" initially means $43 and, in the event
of any adjustment to the Conversion Price other than as a result of a
Fundamental Change, the Reference Market Price shall also be adjusted so that
the ratio of the Reference Market Price to the Conversion Price after giving
effect to any such adjustment shall always be the same as the ratio of the
initial Reference Market Price to the initial Conversion Price.
"Regulation S" means Regulation S under the Securities Act, or
any successor provision.
"Rule 144A" means Rule 144A as promulgated under the
Securities Act, or any successor rule.
"Rule 144(k)" means Rule 144(k) as promulgated under the
Securities Act, or any successor rule.
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"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Trading Day" shall mean a day on which any securities are
traded on the national securities exchange or quotation system used to
determine the Closing Price.
ARTICLE II
GENERAL TERMS AND CONDITIONS
OF THE CONVERTIBLE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Debentures designated
the "5% Convertible Subordinated Preferred Equivalent Debentures due 2027,"
limited in aggregate principal amount to $402,500,000, which amount shall be as
set forth in any written order of the Company for the authentication and
delivery of Convertible Debentures pursuant to Section 3.3 of the Base
Indenture.
SECTION 2.2. Maturity.
The Maturity Date is November 1, 2027.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Convertible Debentures
shall be issued in fully registered certificated form without Coupons in
denominations of $50 in principal amount and integral multiples thereof.
Principal and interest on the Convertible Debentures issued in certificated
form will be payable, the transfer of such Convertible Debentures will be
registrable and such Convertible Debentures will be exchangeable for
Convertible Debentures bearing identical terms and provisions at the office or
agency of the Trustee; provided, however, that payment of interest may be made
at the option of the Company by check mailed to the Holder at such address as
shall appear in the Debenture Register. Notwithstanding the foregoing, so long
as the Holder of any Convertible Debentures is the Depositary, the payment of
the principal of and interest (including Compounded Interest and Additional
Interest, if any) on such Convertible Debentures held by the Depositary will be
made at such place and to such account as may be designated by the Depositary.
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SECTION 2.4. Exchange and Registration of Transfer of Convertible
Debentures; Restrictions on Transfers; Depositary.
The Convertible Debentures will be issued in accordance with
the following procedures:
(a) So long as Convertible Debentures are eligible for
book-entry settlement with the Depositary, or unless otherwise required by law,
all Convertible Debentures that are so eligible may be represented by one or
more Convertible Debentures in global form registered in the name of the
Depositary or the nominee of the Depositary, except as otherwise specified
below. The transfer and exchange of beneficial interests in any such
Convertible Debenture in global form shall be effected through the Depositary
in accordance with the Indenture and the procedures of the Depositary therefor.
Convertible Debentures that are issued to QIBs will be
represented by a global Convertible Debenture (the "144A Global Debenture").
Convertible Debentures that are issued to Non-U.S. Persons will be represented
by a global Convertible Debenture (the "Regulation S Global Debenture"). Each
of the 000X Xxxxxx Xxxxxxxxx and the Regulation S Global Debenture shall be
referred to herein as a Global Debenture. Convertible Debentures that are
issued to QIBs or to Non-U.S. Persons will be represented by definitive
Convertible Debentures as set forth in Section 2.4(b). If Global Debentures
are issued, transfers of interests in the Convertible Debentures between the
000X Xxxxxx Xxxxxxxxx and the Regulation S Global Debenture will be made in
accordance with the standing instructions and procedures of the Depositary and
its participants and the Trustee shall make appropriate endorsements to reflect
increases or decreases in the principal amounts of such Global Debentures to
reflect any such transfers.
Except as provided below, beneficial owners of a Convertible
Debenture in global form shall not be entitled to have certificates registered
in their names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered Holders of such
Convertible Debentures in global form.
(b) So long as the Convertible Debentures are eligible
for book-entry settlement, and to the extent that Convertible Debentures are
held by QIBs or Non-U.S. Persons, as the case may be, in a Global Debenture, or
unless otherwise required by law, upon any transfer of a definitive Convertible
Debenture to a QIB in accordance with Rule 144A or to a Non-U.S. Person in
accordance with Regulation S, unless otherwise requested by the transferor, and
upon receipt of the definitive Convertible Debenture or Convertible Debentures
being so transferred, together with a certification from the transferor that
the transfer is being made in compliance with Rule 144A or Regulation S, as the
case may be (or other evidence satisfactory to the Trustee), the Trustee shall
make an endorsement on any 000X Xxxxxx Xxxxxxxxx or any Regulation S Global
Debenture, as the case may be, to reflect an increase in the aggregate
principal amount of the Convertible Debentures represented by such Global
Debenture, and the Trustee shall cancel such definitive Convertible Debenture
or Convertible Debentures in accordance with the standing instructions and
procedures of the Depositary, the aggregate principal amount of Convertible
Debentures represented by such Global Debenture to be increased accordingly;
provided that no definitive Convertible Debenture, or portion thereof, in
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respect of which the Company or an Affiliate of the Company held any beneficial
interest shall be included in such Global Debenture until such definitive
Convertible Debenture is freely tradable in accordance with Rule 144(k);
provided further that the Trustee shall, at the written request of the Company,
issue Convertible Debentures in definitive form upon any transfer of a
beneficial interest in the Global Debenture to the Company or any Affiliate of
the Company.
Any Global Debenture may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of the Indenture as may be required by the Depositary, by the
New York Stock Exchange or by the National Association of Securities Dealers,
Inc. in order for the Convertible Debentures to be tradeable on the PORTAL
Market or as may be required for the Convertible Debentures to be tradeable on
any other market developed for trading of securities pursuant to Rule 144A or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Convertible
Debentures may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Convertible Debentures are subject.
(c) Each Convertible Debenture that bears or is required
to bear the legend set forth in this Section 2.4(c) (a "Restricted Security")
shall be subject to the restrictions on transfer provided in the legend set
forth in this Section 2.4(c), unless such restrictions on transfer shall be
waived by the written consent of the Company, and the Holder of each Restricted
Security, by such security holder's acceptance thereof, agrees to be bound by
such restrictions on transfer. As used in this Section 2.4(c) and in Section
2.4(d), the terms "transfer" encompasses any sale, pledge, transfer or other
disposition of any Restricted Security.
Prior to the Transfer Restriction Termination Date, any
certificate evidencing a Convertible Debenture shall bear a legend in
substantially the following form, unless otherwise agreed by the Company (with
written notice thereof to the Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT, PRIOR TO THE EXPIRATION OF
THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY
OR THE COMMON
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STOCK, IF ANY, ISSUABLE UPON CONVERSION OR EXCHANGE OF SUCH SECURITY
EXCEPT (A) TO EVI, INC., ("THE COMPANY") OR ANY SUBSIDIARY THEREOF,
(B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE CHASE MANHATTAN BANK, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE) (OR, IF THIS CERTIFICATE EVIDENCES
COMMON STOCK, THE TRANSFER AGENT FOR THE COMMON STOCK), A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE, SUCCESSOR
TRUSTEE OR TRANSFER AGENT AND THE COMPANY), (D) OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT
(AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER);(3)
PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(F)
ABOVE), AGREES THAT IT WILL FURNISH TO THE CHASE MANHATTAN BANK, AS
TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE OR
THE COMPANY MAY REASONABLY REQUIRE 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, AND
(4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY
EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE CHASE
MANHATTAN BANK, AS TRUSTEE (OR, IF THIS CERTIFICATE EVIDENCES COMMON
STOCK, SUCH HOLDER MUST FURNISH TO THE TRANSFER AGENT SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE 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 THIS CERTIFICATE
DOES NOT
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EVIDENCE COMMON STOCK AND THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE CHASE MANHATTAN
BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), AND THE
COMPANY, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
IT OR THE COMPANY MAY REASONABLY REQUIRE 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. THIS
LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(F) ABOVE OR UPON ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Following the Transfer Restriction Termination Date or the
sale of a Debenture pursuant to an effective registration statement or Rule 144
(or any successor provision) under the Securities Act, any Convertible
Debenture or security issued in exchange or substitution therefor (other than
(i) Convertible Debentures acquired by the Company or any Affiliate thereof and
(ii) Common Stock issued upon the conversion or exchange of any Convertible
Debenture described in clause (i) above) may upon surrender of such Convertible
Debenture for exchange to the security Registrar in accordance with the
provisions of this Section 2.4, be exchanged for a new Convertible Debenture or
Convertible Debentures, of like tenor and aggregate principal amount, which
shall not bear the restrictive legend required by this Section 2.4(c).
Notwithstanding any other provisions of the Indenture (other
than the provisions set forth in this Section 2.4(c)), a Global Debenture may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee to a successor Depositary or a nominee of such successor Depositary.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Convertible Debentures in global form.
Initially, the Global Debentures shall be issued to the Depositary, registered
in the name of Cede & Co., as the nominee of the Depositary, and deposited with
the Trustee as custodian for Cede & Co.
If at any time the Depositary for the Global Debentures
notifies the Company that it is unwilling or unable to continue as Depositary
for such Convertible Debentures, the Company may appoint a successor Depositary
with respect to such Convertible Debentures. If a successor Depositary for the
Convertible Debentures is not appointed by the Company within 90 days after the
Company receives such notice, the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for authentication and delivery of
Convertible
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Debentures, will authenticate and deliver, Convertible Debentures in definitive
form, in an aggregate principal amount equal to the principal amount of the
Global Debentures, in exchange for the such Global Debentures.
Definitive Convertible Debentures issued in exchange for all
or a part of a Global Debenture pursuant to this Section 2.4(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. Upon execution and authentication,
the Trustee shall deliver such definitive Convertible Debentures to the person
in whose names such definitive Convertible Debentures are so registered.
At such time as all interests in a Global Debenture have been
redeemed, converted, exchanged, repurchased or canceled, such Global Debenture
shall be, upon receipt thereof, canceled by the Trustee in accordance with
standing procedures and instructions of the Depositary. At any time prior to
such cancellation, if any interest in a Global Debenture is exchanged for
definitive Convertible Debentures, redeemed, converted, exchanged, repurchased
by the Company pursuant to Article III or canceled, or transferred for part of
a Global Debenture, the principal amount of such Global Debenture shall, in
accordance with the standing procedures and instructions of the Depositary be
reduced or increased, as the case may be, and an endorsement shall be made on
such Global Debenture by, or at the direction of, the Trustee to reflect such
reduction or increase.
(d) Any Convertible Debenture or Common Stock issued upon
the conversion or exchange of a Convertible Debenture that, prior to the
Transfer Restriction Termination Date, is purchased or owned by the Company or
any Affiliate thereof may not be resold by the Company or such Affiliate unless
registered under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction which results
in such Convertible Debentures or Common Stock, as the case may be, no longer
being "restricted securities" (as defined under Rule 144).
SECTION 2.5. Interest.
(a) Each Convertible Debenture will bear interest at the
rate of 5% per annum (the "Coupon Rate") from November 3, 1997 until the
principal thereof becomes due and payable, and on any overdue principal and (to
the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on February 1, May 1, August 1, and November 1 of each year (each, an
"Interest Payment Date), commencing on February 1, 1998, to the Person in whose
name such Convertible Debenture or any predecessor Convertible Debenture 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 fifteenth day
prior to that Interest Payment Date.
(b) 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 per
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30-day month. In the event that any date on which interest is payable on the
Convertible Debentures 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.
SECTION 2.6. No Satisfaction and Discharge.
The Convertible Debentures are not entitled to the benefit of
the Satisfaction and Discharge Provisions of Sections 4.3, 4.4, 4.5, and 4.6 of
the Base Indenture.
SECTION 2.7. Subordination.
The subordination terms of the Debentures are as set forth in
Article 15 of the Base Indenture, which terms are incorporated herein by
reference.
ARTICLE III
REDEMPTION OF THE CONVERTIBLE DEBENTURES
SECTION 3.1. Optional Redemption by Company. Subject to the provisions of
Article XI of the Base Indenture, except as otherwise may be specified
elsewhere in this First Supplemental Indenture, the Company shall have the
right to redeem the Convertible Debentures, in whole or in part, from time to
time, on or after November 4, 2000. Any redemption pursuant to this paragraph
will be made upon not less than 30 days nor more than 60 days notice to the
Holders of the Convertible Debentures, at the following prices (expressed as
percentages of the principal amount of the Convertible Debentures) (the
"Optional Redemption Price") together with accrued and unpaid interest,
including Compounded and Additional Interest to, but excluding, the Redemption
Date, if redeemed during the 12-month period beginning November 1:
Year Redemption Price
---- ----------------
2000 103.5%
2001 103.0
2002 102.5
2003 102.0
2004 101.5
2005 101.0
2006 100.5
and 100% if redeemed on or after November 1, 2007.
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If Convertible Debentures are redeemed on any February 1, May
1, August 1 or November 1, accrued and unpaid interest shall be payable to
holders of record on the relevant Regular Record Date.
If the Convertible Debentures are only partially redeemed
pursuant to this Section 3.1, the Convertible Debentures will be selected for
redemption by any method utilized by the Trustee. The Optional Redemption
Price, together with any required interest payment, shall be paid prior to
12:00 noon, New York time, on the Redemption Date or at such earlier time as
the Company determines provided that the Company shall deposit with the Trustee
an amount sufficient to pay the Optional Redemption Price, together with any
required interest payment, by 10:00 a.m., New York time, on the date such
amounts are to be paid.
SECTION 3.2. No Sinking Fund.
The Convertible Debentures are not entitled to the benefit
of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
As long as an Event of Default under Section 5.1(a) of the
Base Indenture shall not have occurred and be continuing, the Company shall
have the right, at any time and from time to time during the term of the
Convertible Debentures, to defer payments of interest by extending the interest
payment period of such Convertible Debentures for a period not exceeding 20
consecutive quarters (the "Extended Interest Payment Period"), during which
Extended Interest Payment Period no interest shall be due and payable; provided
that an Extended Interest Payment Period must commence and end on an Interest
Payment Date and no Extended Interest Payment Period may extend beyond the
Maturity Date or any earlier Redemption Date. 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 4.1, will
bear interest thereon at the Coupon Rate compounded quarterly for each quarter
of the Extended Interest Payment Period ("Compounded Interest"). On the next
day following the last day of the Extended Interest Payment Period, the Company
shall pay all interest accrued and unpaid on the Convertible Debentures,
including any Additional Interest and Compounded Interest (together, "Deferred
Interest") that shall be payable to the Holders of the Convertible Debentures
in whose names the Convertible Debentures are registered in the Debenture
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 Date or any earlier
Redemption Date. Upon the termination of any Extended Interest Payment Period
and upon the payment of all Deferred Interest 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, but the Company may prepay at any
time all or any portion of the interest accrued during an Extended Interest
Payment Period.
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SECTION 4.2. Notice of Extension.
(a) The Company shall give the Holders of the Convertible
Debentures and the Trustee written notice of its selection of such Extended
Interest Payment Period at least 15 Business Days before the earlier of (i) the
next succeeding Regular Record Date or (ii) the date the Company is required to
give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
Holders of the Convertible Debentures.
(b) The quarter in which any notice is given pursuant to
paragraph (a) of this Section 4.2 shall be counted as one of the 20 consecutive
quarters permitted in the maximum Extended Interest Payment Period permitted
under Section 4.1.
SECTION 4.3. Limitation of Transactions.
If the Company shall exercise its right to defer payment of
interest as provided in Section 4.1, then (i) the Company shall not declare or
pay any dividends on, make any distributions with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock (other than (A) as a result of a reclassification of its capital
stock or the exchange or conversion of one class or series of its capital stock
for another class or series of its capital stock or, (B) the purchase of
fractional interests in shares of its capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged) for Company capital stock, or (C) purchases or acquisitions of
shares of the Company's capital stock in connection with the satisfaction by
the Company of its obligations under any employee benefit plans, provided that
no purchases of Common Stock may be made by the Company with cash other than
pursuant to trust arrangements entered into in connection with such plans, or
(D) acquisitions of capital stock pursuant to purchase price adjustments and
indemnification provisions under acquisition agreements), (ii) the Company
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities issued by the Company which
rank pari passu with or junior to the Convertible Debentures and (iii) the
Company shall not make any guarantee payments with respect to the foregoing.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Convertible Debentures, the Company, in its capacity as borrower with respect
to the Convertible Debentures, shall pay all costs and expenses relating to the
offering, sale and issuance of the Convertible Debentures, including
commissions to the purchasers payable pursuant to the Placement Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 6.6 of the Base Indenture.
SECTION 5.2. Payment Upon Resignation or Removal.
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Upon termination of this First Supplemental Indenture or the
Base Indenture or the removal or resignation of the Trustee pursuant to Section
6.7 of the Base Indenture, the Company shall pay to the Trustee all amounts
accrued to the date of such termination, removal or resignation.
ARTICLE VI
CONVERSION OF CONVERTIBLE DEBENTURES
SECTION 6.1. Conversion Rights.
Subject to and upon compliance with the provisions of this
Article VI, the Convertible Debentures are convertible, at the option of the
Holder, at any time beginning 90 days following the date of original issue of
the Debentures through the close of business on October 31, 2027 (or, in the
case of Convertible Debentures called for redemption, prior to the close of
business on the Business Day prior to the corresponding Redemption Date) into
fully paid and nonassessable shares of Common Stock of the Company at an
initial conversion rate of .625 shares of Common Stock for each $50 in
aggregate principal amount of Convertible Debentures (equal to a conversion
price of $80 per share of Common Stock (the "Conversion Price")), subject to
adjustment as described in this Article VI. A Holder of Convertible Debentures
may convert any portion of the principal amount of the Convertible Debentures
(in integral multiples of $50) into that number of fully paid and nonassessable
shares of Common Stock obtained by dividing the principal amount of the
Convertible Debentures to be converted by such Conversion Price. All
calculations under this Article VI shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be.
SECTION 6.2. Conversion Procedures.
(a) In order to convert all or a portion of the
Convertible Debentures, the Holder thereof shall deliver to the Conversion
Agent an irrevocable Notice of Conversion setting forth the principal amount of
Convertible Debentures to be converted, together with the name or names, if
other than the Holder, in which the shares of Common Stock should be issued
upon conversion and, if such Convertible Debentures are definitive Convertible
Debentures, surrender to the Conversion Agent the Convertible Debentures to be
converted, duly endorsed or assigned to the Company or in blank.
If a Notice of Conversion is delivered on or after the Regular
Record Date and prior to the subsequent Interest Payment Date, the Holder will
be entitled to receive the interest payable on the subsequent Interest Payment
Date on the portion of Convertible Debentures to be converted notwithstanding
the conversion thereof prior to such Interest Payment Date. However, if a
Redemption Date falls between a Regular Record Date and the subsequent Interest
Payment Date, the Holder will be entitled to receive, on such Interest Payment
Date, the interest accrued to, but excluding, the Redemption Date. Except as
otherwise provided in the first and second sentences of this paragraph, in the
case of any Convertible Debenture which is converted, interest whose Stated
Maturity is after the date of conversion of such Convertible Debenture shall
not be payable, and the Company shall not make nor be required to make any
other payment, adjustment or allowance with respect to accrued but unpaid
interest on the Convertible
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Debentures being converted, which shall be deemed to be paid in full. Each
conversion shall be deemed to have been effected immediately prior to the close
of business on the day on which the Notice of Conversion was received (the
"Conversion Date") by the Conversion Agent from the Holder. The Person or
Persons entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such
Common Stock as of the Conversion Date. As promptly as practicable on or after
the Conversion Date, the Company shall issue and deliver at the office of the
Conversion Agent, unless otherwise directed by the Holder in the Notice of
Conversion, a certificate or certificates for the number of full shares of
Common Stock issuable upon such conversion, together with the cash payment, if
any, in lieu of any fraction of any share to the Person or Persons entitled to
receive the same. The Conversion Agent shall deliver such certificate or
certificates to such Person or Persons.
(b) The Company's delivery upon conversion of the fixed
number of shares of Common Stock into which the Convertible Debentures are
convertible (together with the cash payment, if any, in lieu of fractional
shares) shall be deemed to satisfy the Company's obligation to pay the
principal amount at Maturity of the portion of Convertible Debentures so
converted and any unpaid interest (including Compounded Interest) accrued on
such Convertible Debentures at the time of such conversion.
(c) No fractional shares of Common Stock will be issued
as a result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the Closing Price of such fractional interest on the date on which the
Convertible Debentures were duly surrendered to the Conversion Agent for
conversion, or, if such day is not a Trading Day, on the next Trading Day, and
the Conversion Agent in turn will make such payment, if any, to the Holder of
the Convertible Debentures or the holder of the Convertible Preferred
Securities so converted.
(d) In the event of the conversion of any Convertible
Debenture in part only, a new Convertible Debenture or Convertible Debentures
for the unconverted portion thereof will be issued in the name of the Holder
thereof upon the cancellation thereof in accordance with Section 14.2 of the
Base Indenture.
(e) In effecting the conversion transactions described
in this Section 6.2, the Conversion Agent is acting as agent of the Holders of
Convertible Debentures (in the conversion of Convertible Debentures into Common
Stock).
SECTION 6.3. Conversion Price Adjustments.
The Conversion Price shall be adjusted from time to time as
follows:
(a) In case the Company shall, while any of the
Convertible Debentures are outstanding, (i) pay a dividend or make a
distribution with respect to Common Stock in shares of Common Stock, (ii)
subdivide outstanding shares of Common Stock, (iii) combine outstanding shares
of Common Stock into a smaller number of shares or (iv) issue by
reclassification of its shares of Common Stock any shares of capital stock of
the Company, the conversion privilege and the Conversion Price for the
Convertible Debentures shall be adjusted so that the Holder of any Convertible
Debenture thereafter surrendered for conversion shall be entitled to receive
the
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number of shares of capital stock of the Company which such Holder would have
owned immediately following such action had such Convertible Debenture been
converted immediately prior thereto. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in the
case of a dividend or other distribution and shall become effective immediately
after the effective date in case of a subdivision, combination or
reclassification (or immediately after the record date if a record date shall
have been established for such event). If, as a result of an adjustment made
pursuant to this subsection (a), the Holder of any Convertible Debenture
thereafter surrendered for conversion shall become entitled to receive shares
of two or more classes or series of capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be described in a
Board Resolution filed with the Trustee) shall determine the allocation of the
adjusted Conversion Price for the Convertible Debentures between or among
shares of such classes or series of capital stock.
(b) In case the Company shall, while any of the
Convertible Debentures are outstanding, issue rights or warrants to all holders
of its Common Stock entitling them (for a period expiring within 45 days after
the record date mentioned below) to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price per share of
Common Stock (as determined pursuant to subsection (g) below) on the record
date mentioned below, the Conversion Price for the Convertible Debentures shall
be adjusted so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to the date of issuance of
such rights or warrants by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of shares which the aggregate offering price
of the total number of shares so offered for subscription or purchase would
purchase at such current market price, and of which the denominator shall be
the number of shares of Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of additional shares of Common Stock
offered for subscription or purchase. Such adjustment shall become effective
immediately after the record date for the determination of stockholders
entitled to receive such rights or warrants. To the extent that no shares of
Common Stock are so delivered after the expiration of such rights or warrants,
the Conversion Price shall be readjusted to the Conversion Price which would
then be in effect if such date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been fixed. For the
purposes of this subsection, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company. The
Company shall not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company. In case any rights or warrants
referred to in this subsection in respect of which an adjustment shall have
been made shall expire unexercised within 45 days after the same shall have
been distributed or issued by the Company, the Conversion Price shall be
readjusted at the time of such expiration to the Conversion Price that would
have been in effect if no adjustment had been made on account of the
distribution or issuance of such expired rights or warrants.
(c) Subject to the last sentence of this subsection (c),
in case the Company shall, by dividend or otherwise, distribute to all holders
of its Common Stock evidences of its indebtedness, shares of any class or
series of capital stock, cash or assets or rights or warrants to subscribe for
or purchase any of its securities (excluding any rights or warrants referred to
in subsection (b), any dividend or distribution paid exclusively in cash and
any dividend or distribution referred to in subsection (a) of this Section
6.3), the Conversion Price shall be
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reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this subsection (c) by a fraction of
which the numerator shall be the current market price per share (determined as
provided in subsection (g)) of the Common Stock on the date fixed for the
payment of such distribution (the "Reference Date") less the fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors),
on the Reference Date, of the portion of the evidences of indebtedness, shares
of capital stock, cash and assets so distributed or of such subscription rights
or warrants applicable to one share of Common Stock and the denominator shall
be such current market price per share of the Common Stock, such reduction to
become effective immediately prior to the opening of business on the day
following the Reference Date; provided, however, that in the event the
numerator shall be less than one, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder of Convertible Debentures shall
have the right to receive upon conversion the amount of such distribution such
Holder would have received had such Holder converted each Convertible Debenture
immediately prior to the Reference Date. In the event that no such dividend or
distribution is so paid or made, the Conversion Price shall again be adjusted
to be the Conversion Price which would then be in effect if such dividend or
distribution had not occurred. If the Board of Directors determines the fair
market value of any distribution for purposes of this subsection (c) by
reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider the prices in such
market over the same period used in computing the current market price per
share of Common Stock (determined as provided in subsection (g)). For purposes
of this subsection (c), any dividend or distribution that includes shares of
Common Stock or rights or warrants to subscribe for or purchase shares of
Common Stock shall be deemed instead to be (i) a dividend or distribution of
the evidences of indebtedness, shares of capital stock, cash or assets other
than such shares of Common Stock or such rights or warrants (making any
Conversion Price reduction required by this subsection (c)) immediately
followed by (ii) a dividend or distribution of such shares of Common Stock or
such rights or warrants (making any further Conversion Price reduction required
by subsection (a) or (b)), except (A) the Reference Date of such dividend or
distribution as defined in this subsection (c) shall be substituted as (1) "the
record date in the case of a dividend or other distribution," and (2) "the
record date for the determination of stockholders entitled to receive such
rights or warrants" and (3) "the date fixed for such determination" within the
meaning of subsections (a) and (b) and (B) any shares of Common Stock included
in such dividend or distribution shall not be deemed outstanding for purposes
of computing any adjustment of the Conversion Price in subsection (a).
(d) In case the Company shall pay or make a dividend or
other distribution on its Common Stock exclusively in cash (excluding any
quarterly cash dividend on Common Stock to the extent that the aggregate cash
dividend per share of Common Stock in any quarter does not exceed the greater
of (i) the amount per share of Common Stock of the next preceding quarterly
dividend on Common Stock to the extent such preceding quarterly dividend did
not require an adjustment of the Conversion Price pursuant to this subsection
(d) (as adjusted to reflect subdivisions or combinations of Common Stock), and
(ii) 3.75% of the current market price per share determined as provided in
subsection (g), and excluding any dividend or distribution in connection with
the liquidation, dissolution or winding-up of the Company), the Conversion
Price shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the
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Conversion Price reduction contemplated by this subsection (d) by a fraction of
which the numerator shall be the current market price per share (determined as
provided in subsection (g)) of the Common Stock on the date fixed for the
payment of such distribution less the amount of cash so distributed (and not
excluded as provided above) applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common Stock
(determined as provided in subsection (g)), such reduction to become effective
immediately prior to the opening of business on the day following the date
fixed for the payment of such distribution; provided, however, that in the
event the portion of the cash so distributed applicable to one share of Common
Stock is equal to or greater than the current market price per share (as
defined in subsection (g)) of the Common Stock on the record date mentioned
above, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of shares of Convertible Debentures shall have the right to
receive upon conversion the amount of cash such Holder would have received had
such Holder converted each Convertible Debenture immediately prior to the
record date for the distribution of the cash. If an adjustment is required to
be made pursuant to this subsection (d) as a result of a distribution that is a
quarterly dividend, such adjustment shall be based upon the amount by which
such distribution exceeds the amount of the quarterly cash dividend permitted
to be excluded as provided above. If an adjustment is required to be made
pursuant to this subsection (d) as a result of a distribution that is not a
quarterly dividend, such adjustment shall be based upon the full amount of the
distribution. In the event that no such dividend or distribution is so paid or
made, the Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such Record Date had not been fixed.
(e) In case a tender or exchange offer (other than an
odd-lot offer) made by the Company or any Subsidiary of the Company for all or
any portion of the Company's Common Stock shall expire and such tender or
exchange offer shall involve the payment by the Company or such subsidiary of
consideration per share of Common Stock having a fair market value (as
determined in good faith by the Board of Directors, whose determination shall
be conclusive and described in a resolution of the Board of Directors) at the
last time (the "Expiration Time") tenders or exchanges may be made pursuant to
such tender or exchange offer (as it shall have been amended) that exceeds the
Closing Price of the Common Stock on the Trading Day next succeeding the
Expiration Time, the Conversion Price shall be reduced so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the effectiveness of the Conversion Price reduction
contemplated by this subsection (e) by a fraction (which shall not be greater
than one) of which the numerator shall be the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) at the Expiration Time
multiplied by the Closing Price of the Common Stock on the Trading Day next
succeeding the Expiration Time and the denominator shall be the sum of (i) the
fair market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased Shares")
and (ii) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares) at the Expiration Time and the Closing Price of the
Common Stock on the Trading Day next succeeding the Expiration Time, such
reduction to become retroactively effective immediately prior to the opening of
business on the day following the Expiration Time.
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(f) In case a tender or exchange offer made by a Person
other than the Company or any Subsidiary of the Company for all or any portion
of the Common Stock shall expire and such tender or exchange offer shall
involve the payment by a Person other than the Company or any Subsidiary of the
Company of consideration per share of Common Stock having a fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors) at
the applicable Expiration Time that exceeds the Closing Price of the Common
Stock on the Trading Day next succeeding the applicable Expiration Time in
which as of the closing date of the offer the Board of Directors of the Company
is not recommending rejection of the offer, the Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this subsection (f) by a fraction
(which shall not be greater than one) of which the numerator shall be the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) at the Expiration Time multiplied by the Closing Price of the
Common Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (i) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and, (ii) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the Closing Price of the Common Stock on the Trading Day
next succeeding the Expiration Time, such reduction to become retroactively
effective immediately prior to the opening of business on the day following the
Expiration Time; provided, however, that the reduction of the Conversion Price
contemplated by this subsection (f) will only be made if the tender offer or
exchange offer is made for an amount which increases that Person's ownership of
Common Stock to more than 25% of the total shares of Common Stock outstanding
and provided, further, that the reduction of the Conversion Price contemplated
by this subsection (f) will not be made if as of the close of the offer, the
offering documents with respect to such offer disclose a plan or an intention
to cause the Company to engage in a consolidation or merger of the Company or a
sale of all or substantially all of the assets of the Company.
(g) For the purpose of any computation under subsection
(b), (c) or (d), the current market price per share of Common Stock on any date
in question shall be deemed to be the average of the daily Closing Prices for
the ten Trading Day period ending on the earlier of the day in question and, if
applicable, the day before the "ex" date with respect to the issuance or
distribution requiring such computation; provided, however, that if more than
one event occurs that would require an adjustment pursuant to subsections (a)
through (f), inclusive, the Board of Directors may make such adjustments to the
Closing Prices during such ten Trading Day period as it deems appropriate to
effectuate the intent of the adjustments in this Section 6.3, in which case any
such determination by the Board of Directors shall be set forth in a Board
Resolution and shall be conclusive. For purposes of this paragraph, the term
"ex" date, (1) when used with respect to any issuance or distribution, means
the first date on which the Common Stock trades regular way on the New York
Stock Exchange or on such successor securities exchange as the Common Stock may
be listed or in the relevant market from which the Closing Prices were obtained
without the right to receive such issuance or distribution, and (2) when used
with respect to any tender or exchange offer means the first date on which the
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Common Stock trades regular way on such securities exchange or in such market
after the Expiration Time of such offer.
(h) The Company may make such reductions in the
Conversion Price, in addition to those required by subsections (a) through (f),
as the Board of Directors considers to be advisable to avoid or diminish any
income tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes. The Company
from time to time may reduce the Conversion Price by any amount for any period
of time if the period is at least twenty (20) days, the reduction is
irrevocable during the period, and the Board of Directors shall have made a
determination that such reduction would be in the best interest of the Company,
which determination shall be conclusive. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the Company shall mail to Holders
of record of the Convertible Debentures a notice of the reduction at least 15
days prior to the date the reduced Conversion Price takes effect, and such
notice shall state the reduced Conversion Price and the period it will be in
effect.
(i) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in the Conversion Price; provided, however, that any adjustments which
by reason of this subsection (i) are not required to be made shall be carried
forward and taken into account in determining whether any subsequent adjustment
shall be required.
(j) If any action would require adjustment of the
Conversion Price pursuant to more than one of the provisions described above,
only one adjustment shall be made and such adjustment shall be the amount of
adjustment that has the highest absolute value to the Holder of Convertible
Debentures.
SECTION 6.4. Merger, Consolidation, or Sale of Assets.
(a) In the event that the Company shall be a party to any
transaction (including without limitation (i) any recapitalization or
reclassification of the Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination of the Common Stock), (ii) any consolidation of
the Company with, or merger of the Company into, any other Person, any merger
of another Person into the Company (other than a merger which does not result
in a reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock of the Company), (iii) any sale or transfer of all or
substantially all of the assets of the Company or (iv) any compulsory share
exchange) pursuant to which either shares of Common Stock shall be converted
into the right to receive other securities, cash or other property, or, in the
case of a sale or transfer of all or substantially all of the assets of the
Company, the holders of Common Stock shall be entitled to receive other
securities, cash or other property, then lawful provision shall be made as part
of the terms of such transaction whereby the Holder of each Convertible
Debenture then outstanding shall have the right thereafter to convert such
Convertible Debenture only into:
(A) in the case of any such transaction that does not
constitute a Common Stock Fundamental Change and subject to funds
being legally available for such purpose
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under applicable law at the time of such conversion, the kind and
amount of the securities, cash or other property that would have been
receivable upon such recapitalization, reclassification,
consolidation, merger, sale, transfer or share exchange by a holder of
the number of shares of Common Stock issuable upon conversion of such
Convertible Debenture immediately prior to such recapitalization,
reclassification, consolidation, merger, sale, transfer or share
exchange, after giving effect, in the case of any Non-Stock
Fundamental Change (as defined below), to any adjustment in the
Conversion Price in accordance with clause (i) of subsection (c) of
this Section 6.4; and
(B) in the case of any such transaction that constitutes
a Common Stock Fundamental Change, common stock of the kind received
by holders of Common Stock as a result of such Common Stock
Fundamental Change in an amount determined in accordance with clause
(ii) of subsection (c) of this Section 6.4.
(b) The company or the Person formed by such
consolidation or resulting from such merger or which acquired such assets or
which acquires the Company's shares, as the case may be, shall make provision
in its certificate or articles of incorporation or other constituent document
to establish such right. Such certificate or articles of incorporation or
other constituent document shall provide for adjustments which, for events
subsequent to the effective date of such certificate or articles of
incorporation or other constituent document, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article VI. The
above provisions shall similarly apply to successive transactions of the
foregoing type.
(c) Notwithstanding any other provision of this Section
6.4 to the contrary, if any Fundamental Change occurs, then the Conversion
Price in effect will be adjusted immediately after such Fundamental Change as
follows:
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price of the Convertible Debentures immediately following
such Non-Stock Fundamental Change shall be the lower of (A) the
Conversion Price in effect immediately prior to such Non-Stock
Fundamental Change, but after giving effect to any other prior
adjustments effected pursuant Section 6.3, and (B) the product of (1)
the greater of the Applicable Price and the then applicable Reference
Market Price and (2) a fraction, the numerator of which is $50 and the
denominator of which is (x) the amount of the Optional Redemption
Price set forth in Section 3.1 for $50 in principal amount of
Convertible Debentures if the redemption date were the date of such
Non-Stock Fundamental Change (or, for the twelve-month periods
commencing November 1, 1997, November 1, 1998 and November 1, 1999,
the product of 105.0%, 104.5%, and 104.0% respectively, times $50)
plus (y) any then-accrued and unpaid interest on $50 principal amount
of Convertible Debentures; and
(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price of the Convertible Debentures immediately following
such Common Stock Fundamental Change shall be the Conversion Price in
effect immediately prior to such Common Stock Fundamental Change, but
after giving effect to any other prior adjustments effected pursuant
to Section 6.3, multiplied by a fraction, the numerator of which is
the Purchaser Stock Price and the denominator of which is the
Applicable Price; provided, however,
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that in the event of a Common Stock Fundamental Change in which (A)
100% of the value of the consideration received by a holder of Common
Stock is common stock of the successor, acquiror or other third party
(and cash, if any, paid with respect to any fractional interests in
such common stock resulting from such Common Stock Fundamental Change)
and (B) all of the Common Stock shall have been exchanged for,
converted into or acquired for, common stock of the successor,
acquiror or other third party (and any cash with respect to fractional
interests), the Conversion Price of the Convertible Debentures
immediately following such Common Stock Fundamental Change shall be
the Conversion Price in effect immediately prior to such Common Stock
Fundamental Change multiplied by a fraction, the numerator of which is
one (1) and the denominator of which is the number of shares of common
stock of the successor, acquiror or other third party received by a
holder of one share of Common Stock as a result of such Common Stock
Fundamental Change.
SECTION 6.5. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion
Price and shall prepare a certificate signed by the Chief Financial Officer or
the Treasurer of the Company setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed with the Trustee and the transfer
agent for the Convertible Preferred Securities and the Convertible Debentures;
and
(b) a notice stating the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall as soon as
practicable be mailed by the Company to all record holders of Convertible
Preferred Securities and the Convertible Debentures at their last addresses as
they appear upon the transfer books of the Company and the Trust.
SECTION 6.6. Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any
other distribution) on its Common Stock, other than (A) a dividend payable in
shares of Common Stock or (B) a dividend payable in cash that would not require
an adjustment pursuant to Section 6.3(c) or (d) or (ii) authorize a tender or
exchange offer that would require an adjustment pursuant to Section 6.3(e);
(b) the Company shall authorize the granting to all
holders of Common Stock of rights or warrants to subscribe for or purchase any
shares of stock of any class or series or of any other rights or warrants;
(c) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value),
or of any consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company shall be
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required, or of the sale or transfer of all or substantially all of the assets
of the Company or of any compulsory share exchange whereby the Common Stock is
converted into other securities, cash or other property; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Debenture Register (and shall cause the
Depositary to mail such notice to the beneficial holders of the Convertible
Debentures appearing on the books of the Depositary), at least 15 days prior to
the applicable record or effective date hereinafter specified, a notice stating
(A) the date on which a record (if any) is to be taken for the purpose of such
dividend, distribution, rights or warrants or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined or (B) the
date on which such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up (but no failure to mail such notice or any defect therein or in
the mailing thereof shall affect the validity of the corporate action required
to be specified in such notice).
SECTION 6.7. Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare
or make a distribution on the Common Stock referred to in Section 6.3 (c) or
6.3(d) (including, without limitation, dividends or distributions referred to
in the last sentence of Section 6.3(e)), the Holder of the Convertible
Debentures, upon the conversion thereof subsequent to the close of business on
the date fixed for the determination of stockholders entitled to receive such
distribution and prior to the effectiveness of the Conversion Price adjustment
in respect of such distribution, shall also be entitled to receive for each
share of Common Stock into which the Convertible Debentures are converted, the
portion of the shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash and assets so distributed
applicable to one share of Common Stock; provided, however, that, at the
election of the Company (whose election shall be evidenced by a resolution of
the Board of Directors) with respect to all Holders so converting, the Company
may, in lieu of distributing to such Holder any portion of such distribution
not consisting of cash or securities of the Company, pay such Holder an amount
in cash equal to the fair market value thereof (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and described
in a resolution of the Board of Directors). If any conversion of Convertible
Debentures described in the immediately preceding sentence occurs prior to the
payment date for a distribution to holders of Common Stock which the Holder of
Convertible Debentures so converted is entitled to receive in accordance with
the immediately preceding sentence, the Company may elect (such election to be
evidenced by a resolution of the Board of Directors) to distribute to such
Holder a due xxxx for the shares of Common Stock, rights, warrants, evidences
of indebtedness, shares of capital stock, cash or assets to which such Holder
is so entitled, provided, that such due xxxx
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(a) meets any applicable requirements of the principal national securities
exchange or other market on which the Common Stock is then traded and (b)
requires payment or delivery of such shares of Common Stock, rights, warrants,
evidences of indebtedness, shares of capital stock, cash or assets no later
than the date of payment or delivery thereof to holders of shares of Common
Stock receiving such distribution.
SECTION 6.8. Trustee Not Responsible for Determining Conversion Price or
Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time
be under any duty or responsibility to any Holder of any Convertible Debenture
to determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or whether this
supplemental indenture need be entered into. Neither the Trustee nor any
Conversion Agent shall be accountable with respect to the validity or value (or
the kind of account) of any shares of Common Stock or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Convertible Debenture; and neither the Trustee nor any Conversion Agent
makes any representation with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to make
any cash payment or to issue, transfer or deliver any shares of Common Stock or
stock certificates or other securities or property upon the surrender of any
Convertible Debenture for the purpose of conversion.
ARTICLE VII
FORM OF CONVERTIBLE DEBENTURE
SECTION 7.1. Form of Convertible Debenture.
The Convertible Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the following
forms:
[(FORM OF FACE OF CONVERTIBLE DEBENTURE)]
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT THE
FOLLOWING - - THIS DEBENTURE IS A BOOK-ENTRY DEBENTURE WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS DEBENTURE IS EXCHANGEABLE FOR
CONVERTIBLE DEBENTURES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS DEBENTURE (OTHER THAN A TRANSFER OF THIS
DEBENTURE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
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UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX
XXXX) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY DEBENTURE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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No. CUSIP NO.
----------------- ---------------
EVI, INC.
5% CONVERTIBLE SUBORDINATED PREFERRED EQUIVALENT
DEBENTURE DUE 2027
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS,
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE
SECURITY EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT, PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY OR THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OR EXCHANGE OF
SUCH SECURITY EXCEPT (A) TO EVI, INC. (THE "COMPANY") OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE CHASE MANHATTAN BANK, AS TRUSTEE (OR, A SUCCESSOR TRUSTEE, AS
APPLICABLE) (OR, IF THIS CERTIFICATE EVIDENCES COMMON STOCK, THE TRANSFER AGENT
FOR THE COMMON STOCK), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE, SUCCESSOR
TRUSTEE OR TRANSFER AGENT AND THE COMPANY), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (F) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER); (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(F) ABOVE), AGREES THAT IT WILL FURNISH TO THE CHASE
MANHATTAN BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE
OR THE COMPANY MAY REASONABLY
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REQUIRE 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, AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED
HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE CHASE MANHATTAN BANK, AS TRUSTEE (OR, IF THIS CERTIFICATE
EVIDENCES COMMON STOCK, SUCH HOLDER MUST FURNISH TO THE TRANSFER AGENT SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY
REQUIRE 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 THIS CERTIFICATE DOES NOT EVIDENCE COMMON STOCK AND IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO
IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
CHASE MANHATTAN BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), AND
THE COMPANY, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT OR
THE COMPANY MAY REASONABLY REQUIRE 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. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO
CLAUSE 2(F) ABOVE OR UPON ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY UNDER
RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
EVI, Inc., a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to, Cede & Co. or registered
assigns, the principal sum of [Three Hundred Fifty Million Dollars
($350,000,000)]1 on November 1, 2027, and to pay interest on said principal sum
from October 31, 1997, or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
February 1, May 1, August 1 and November 1 of each year commencing February 1,
1998, at the rate of 5% per annum until the principal hereof
---------------------------------
(1) In the case of a Global Debenture the bracketed text will be replaced
with the following: "principal amount set forth on Schedule A hereto".
In the event any portion of an over-allotment is exercised an additional
Convertible Debenture in principal amount of up to $52,500,000 may be issued.
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shall have become due and payable, and on any overdue principal and premium, if
any, and (without duplication and to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of interest at
the same rate per annum compounded quarterly. The amount of interest payable
on any Interest Payment Date shall 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 per 30-day month. In the event that any date on which
interest is payable on this Convertible Debenture is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding
day that 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. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
(referred to on the reverse hereof) be paid to the person in whose name this
Convertible Debenture (or one or more Predecessor Debentures, as defined in
said Indenture) is registered on the Regular Record Date for such interest
installment, which shall be the close of business on the fifteenth day prior to
such Interest Payment Date unless otherwise provided in the Indenture. Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such Regular Record
Date and may be paid to the Person in whose name this Convertible Debenture (or
one or more Predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered Holders of
the Convertible Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Convertible
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of (and
premium, if any) and the interest on this Convertible Debenture shall be
payable at the office or agency of the Trustee maintained for that purpose in
any coin or currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered Holder at such address as shall appear in the
Debenture Register. Notwithstanding the foregoing, so long as the Holder of
this Convertible Debenture is The Depository Trust Company (the "Depositary"),
the payment of the principal of (and premium, if any) and interest on this
Convertible Debenture will be made at such place and to such account as may be
designated by the Depositary.
The indebtedness evidenced by this Convertible Debenture is,
to the extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness, and this
Convertible Debenture is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Convertible Debenture, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
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herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Convertible Debenture shall not be entitled to any
benefit under the Indenture hereinafter referred to, be valid or become
obligatory for any purpose until the Certificate of Authentication hereon shall
have been signed by or on behalf of the Trustee.
The provisions of this Convertible Debenture are continued on
the reverse side hereof and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument
to be executed.
EVI, INC.
By:
---------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title:
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[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Convertible Debentures described in the
within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK,
as Trustee
By
----------------------
Authorized Signatory
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[FORM OF REVERSE OF DEBENTURE]
This Convertible Debenture is one of a duly authorized series
of Debentures of the Company (herein sometimes referred to as the
"Debentures"), specified in the Indenture, all issued or to be issued in one or
more series under and pursuant to an Indenture dated as of October 15, 1997,
duly executed and delivered between the Company and The Chase Manhattan Bank,
as Trustee (the "Trustee"), as supplemented by the First Supplemental Indenture
dated as of October 28, 1997, between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), 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 Convertible
Debentures. By the terms of the Indenture, the Debentures are issuable
thereunder in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This series of
Debentures is limited in aggregate principal amount as specified in said First
Supplemental Indenture and herein sometimes referred to as the "Convertible
Debentures."
The Company shall have the right to redeem this Convertible
Debenture, upon not less than 30 nor more than 60 days notice, in whole or in
part at any time on or after November 4, 2000 (an "Optional Redemption") at the
following prices (expressed as percentages of the principal amount of the
Convertible Debentures) (the "Optional Redemption Price") together with accrued
and unpaid interest, including Additional Interest and Compounded Interest (as
defined in the Indenture), if any, to, but excluding, the redemption date, if
redeemed during the 12-month period beginning November 1:
Year Redemption Price
---- ----------------
2000 103.5%
2001 103.0
2002 102.5
2003 102.0
2004 101.5
2005 101.0
2006 100.5
and 100% if redeemed on or after November 1, 2007.
If Convertible Debentures are redeemed on any February 1, May
1, August 1 or November 1, accrued and unpaid interest shall be payable to
holders of record on the relevant record date.
If the Convertible Debentures are only partially redeemed by
the Company pursuant to an Optional Redemption, the Convertible Debentures will
be redeemed pro rata or by lot or by any other method utilized by the Trustee.
In the event of redemption of this Convertible Debenture in
part only, a new Convertible Debenture or Convertible Debentures of this series
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
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In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Convertible
Debentures may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Debentures of such series; provided, however, that no such supplemental
indenture shall (a) extend the fixed maturity of any Debenture of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or make any change that adversely affects the right to
convert any Debenture of any series or make any change in the subordination
provisions that adversely affects the rights of any Holders of any Debenture of
any series, without the consent of the Holder of each Debenture so affected, or
(b) reduce the aforesaid percentage of Debentures of such series, the Holders
of which are required to consent to any such supplemental indenture, without
the consent of the Holders of each Debenture of any series then outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the Debentures of any series at
the time outstanding affected thereby, on behalf of all of the Holders of the
Debentures of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default
in the payment of the principal of or premium, if any, or interest on any
Debentures of such series or a failure to convert any Debentures of such series
in accordance with its terms upon an election by the Holders thereof. Any such
consent or waiver by the registered Holder of this Convertible Debenture
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Convertible
Debenture and of any Convertible Debenture issued in exchange therefor or in
place hereof (whether by registration of transfer or otherwise), irrespective
of whether or not any notation of such consent or waiver is made upon this
Convertible Debenture.
No reference herein to the Indenture and no provision of this
Convertible Debenture or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal of
and premium, if any, and interest on this Convertible Debenture at the time and
place and at the rate and in the money herein prescribed.
As long as an Event of Default under Section 5.1(a) of the
Indenture shall not have occurred and be continuing, the Company shall have the
right at any time during the term of the Convertible Debentures and from time
to time to extend the interest payment period of such Convertible Debentures
for up to 20 consecutive quarters (an "Extended Interest Payment Period"), at
the end of which period the Company shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the
Convertible Debentures to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any such Extended
Interest Payment Period, the Company may further extend such Extended Interest
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Payment Period, provided that such Extended Interest Payment Period together
with all such further extensions thereof shall not exceed 20 consecutive
quarters. At the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any additional amounts
then due, the Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Convertible Debenture is transferable by
the registered Holder hereof on the Debenture Register of the Company, upon
surrender of this Convertible Debenture for registration of transfer at the
office or agency of the Trustee in the City and State of New York accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Convertible
Debentures of authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or transferees.
No service charge will be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Convertible Debenture, the Company, the Trustee, any paying agent and the
Debenture Registrar may deem and treat the registered holder hereof as the
absolute owner hereof (whether or not this Convertible Debenture shall be
overdue and notwithstanding any notice of ownership or writing hereon made by
anyone other than the Debenture Registrar) for the purpose of receiving payment
of or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Debenture Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Convertible Debenture, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
The Holder of any Convertible Debenture has the right,
exercisable at any time after 90 days following the date of the original issue
of the Convertible Debentures through the close of business (New York time) on
October 31, 2027 (or, in the case of a Convertible Debenture called for
redemption, prior to the close of business on the Business Day prior to the
corresponding redemption date), to convert the principal amount hereof (or any
portion hereof that is an integral multiple of $50) into shares of Common Stock
at the initial conversion rate of .625 shares of Common Stock for each
Convertible Debenture (equivalent to a Conversion Price of $80 per share of
Common Stock), subject to adjustment under certain circumstances.
To convert a Convertible Debenture, a Holder must (a) complete
and sign a conversion notice substantially in the form attached hereto, (b)
surrender the Convertible Debenture to a Conversion Agent, (c) furnish
appropriate endorsements or transfer documents
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if required by the Conversion Agent and (d) 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 Convertible Debenture for
conversion on or after 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 Convertible Debenture on such Regular Record Date (unless such Regular
Record Date falls within an Extended Interest Payment Period, in which event no
further interest shall be paid with respect to such Convertible Debenture). In
such event, such Convertible Debenture, 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. However, if a
Redemption Date falls between a Regular Record Date and the subsequent Interest
Payment Date, the Holder will be entitled to receive, on such Redemption Date,
the interest accrued to, but excluding, the Redemption Date. The number of
shares issuable upon conversion of a Convertible Debenture is determined by
dividing the principal amount of the Convertible Debenture 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 Convertible Debenture shall
be reduced by the portion of the principal amount thereof converted into shares
of Common Stock.
The Convertible Debentures of this series are issuable only in
registered form without Coupons in denominations of $50 and any integral
multiple thereof.2 This Global Debenture is exchangeable for Convertible
Debentures in definitive form only under certain limited circumstances set
forth in the Indenture. Convertible Debentures of this series so issued are
issuable only in registered form without Coupons in denominations of $50 and
any integral multiple thereof.3 As provided in the Indenture and subject to
certain limitations therein set forth, Convertible Debentures of this series
are exchangeable for a like aggregate principal amount of Convertible
Debentures of this series of a different authorized denomination, as requested
by the Holder surrendering the same.
All terms used in this Convertible Debenture that are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE CONVERTIBLE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
----------------------------
(2) This text will appear in the case of registered definitive
certificates issued to Institutional Accredited Investors.
(3) This text will appear in the case of a Global Debenture.
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[FORM OF ELECTION TO CONVERT]
ELECTION TO CONVERT
To: EVI, INC.
The undersigned owner of this Convertible Debenture hereby
irrevocably exercises the option to convert this Convertible Debenture, or the
portion below designated, into Common Stock of EVI, INC. in accordance with the
terms of the Indenture referred to in this Convertible Debenture, 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.
Date:
-----------,--
in whole Portions of Convertible Debenture 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: (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 Conversion Agent, which requirements include
membership of participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Conversion Agent in addition to, or in substitution for,
STAMP, all in accordance with the Securities and Exchange Act of 1934, as
amended.
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ASSIGNMENT
[FORM OF ASSIGNMENT FOR CONVERTIBLE DEBENTURES
THAT ARE NOT GLOBAL DEBENTURES]
For value received ____________ hereby sell(s), assign(s) and transfer(s) unto
_____________________ (Please insert Social security or other taxpayer
identification number of assignee) the within Security and hereby irrevocably
constitutes and appoints ____________ attorney to transfer the said Convertible
Debenture on the books of the Company, with full power of substitution in the
premises.
In connection with any transfer of the within Convertible Debenture occurring
prior to the Transfer Restriction Termination Date, the undersigned confirms
that such Security is being transferred:
[ ] To EVI, Inc. or a subsidiary thereof; or
[ ] Pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
[ ] To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such
Security is not being transferred to an "affiliate" of the Company as defined
in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
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Dated:
--------------------
----------------------------
----------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange.
----------------------------
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Security in every particular without
alteration or enlargement or any change whatever.
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[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURES
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global Debentures
============================================================================================
Principal Amount of
Securities by which this
Global Security Is To Be
Reduced or Increased, and Remaining Principal
Reason for Reduction or Amount of this Global Notation
Date Increase Security Made By
---- ------------------------- --------------------- -----------
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ARTICLE VIII
ORIGINAL ISSUE OF CONVERTIBLE DEBENTURES
SECTION 8.1. Original Issue of Convertible Debentures.
Convertible Debentures in the aggregate principal amount of up
to $402,500,000 may, upon execution of this First Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and
the Trustee shall thereupon authenticate and make available for delivery said
Convertible Debentures to or upon the written order of the Company, signed by
its Chairman, its Executive Vice President, its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture; First Supplemental Indenture
Controls.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided. The provisions of this First
Supplemental Indenture shall supersede the provisions of the Indenture to the
extent the Indenture is inconsistent herewith.
SECTION 9.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
SECTION 9.3. Governing Law.
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
SECTION 9.4. Separability.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Convertible Debentures shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this First Supplemental Indenture or of the Convertible
Debentures, but this First Supplemental Indenture and the Convertible
Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 9.5. Counterparts.
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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.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
EVI, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Xxxxx X. Xxxxx
Vice President and Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ X. X. Xxxxx
---------------------------------------------
Name: X. X. Xxxxx
-------------------------------------------
Title: Vice President
------------------------------------------
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