Exhibit 4.1
[FACE OF NOTE]
[Global Notes Legend]
[The following legend shall appear
on the face of each Global Note:
THIS NOTE IS A GLOBAL NOTE WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND
ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS NOTE FOR ALL
PURPOSES.]
[The following legend shall appear
on the face of each Global Note for which The Depository Trust
Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY THE AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OR DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR REGISTERED NOTES IN DEFINITIVE REGISTERED FORM
IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS
GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT 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
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OR SUCH SUCCESSOR DEPOSITARY.]
[Restricted Note Legend]
[The following legend shall appear
on the face of each Restricted Note:
THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT. THE HOLDER HEREOF, BY PURCHASING THIS
NOTE, AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS NOTE EVIDENCED
HEREBY AND THE LAST DATE ON WHICH THE COMPANY OR ANY
“AFFILIATE” (AS DEFINED IN RULE 144 UNDER THE
SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF THE SECURITY (THE
“RESTRICTION TERMINATION DATE”) RESELL OR OTHERWISE
TRANSFER THIS NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE
UPON CONVERSION OF SUCH NOTE OTHER THAN (1) TO THE COMPANY,
(2) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN
OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS
(1) A QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S.
PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR
AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE
902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE
HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTIONS WITH REGARD TO THIS NOTE OR ANY COMMON STOCK
ISSUABLE UPON CONVERSION OF THIS NOTE EXCEPT AS PERMITTED BY THE
SECURITIES ACT.
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The Providence Service Corporation
6.5% Convertible Senior Subordinated
Notes Due May 15, 2014
CUSIP No.
[ ] 1
$
No. A-
The Providence Service Corporation,
a Delaware corporation (the “Company,” which term
includes any successor under the Indenture hereinafter referred
to), for value received, promises to pay to
,
or its registered assigns, the principal sum of
DOLLARS
($ )
on May 15, 2014[, which principal amount may from time to time
be increased or decreased to such other principal amount (which,
taken together with the principal amounts of all other outstanding
Notes, shall not exceed $70,000,000) by adjustments on the Schedule
of Exchanges of Notes on the other side of this Note in accordance
with the Indenture.] 1
Initial Interest Rate: 6.5% per
annum.
Interest Payment Dates: May 15
and November 15, commencing May 15, 2008.
Regular Record Dates: May 1 and
November 1.
Reference is hereby made to the
further provisions of this Note set forth on the reverse hereof,
which will for all purposes have the same effect as if set forth at
this place.
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Include only if the Note is a
Global Note
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IN WITNESS WHEREOF, the Company has
caused this Note to be signed manually or by facsimile by its duly
authorized officers.
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Date:
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THE PROVIDENCE
SERVICE CORPORATION
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By:
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Name:
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Fletcher Jay
McCusker
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Title:
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Chief Executive
Officer
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Attest:
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By:
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Name:
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Michael N.
Deitch
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Title:
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Secretary
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Trustee’s Certificate of
Authentication
This is one of the 6.5% Convertible
Senior Subordinated Notes Due May 15, 2014 described in the
Indenture referred to in this Note.
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Dated:
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THE BANK OF NEW
YORK TRUST COMPANY, N.A., AS TRUSTEE
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By:
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Name:
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Title:
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Authorized
Signatory
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REVERSE SIDE OF NOTE
The Providence Service
Corporation
6.5% Convertible Senior Subordinated
Notes Due May 15, 2014
1. Principal and Interest
.
The Company promises to pay the
principal of this Note on May 15, 2014.
The Company promises to pay interest
on the principal amount of this Note on each Interest Payment Date,
as set forth on the face of this Note, at the rate of 6.5% per
annum (subject to adjustment as provided below); provided, however,
that if the Company Repurchases this Note pursuant to
Section 3.06 of the Indenture the Company shall not be
obligated to pay interest on the principal amount of this
Note.
Interest will be payable
semiannually in arrears (to the holders of record of the Notes at
the close of business on the May 1 or November 1
immediately preceding the interest payment date) on each interest
payment date, commencing May 15, 2008.
Interest on this Note will accrue
from the most recent date to which interest has been paid on this
Note or the Note surrendered in exchange for this Note (or, if
there is no existing default in the payment of interest and if this
Note is authenticated between a regular record date and the next
interest payment date, from such interest payment date) or, if no
interest has been paid, from the Issue Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day
months.
The Company will pay interest on
overdue principal, premium, if any, and, to the extent lawful,
interest at a rate per annum of 8.5%. Interest not paid when due
and any interest on principal, premium or interest not paid when
due will be paid to the Persons that are Holders on a special
record date, which will established as set forth in the Indenture
referred to below.
Additional interest will accrue on
the Notes at an additional rate per year equal to 0.50% per
annum of the principal amount of the Notes under the circumstances
set forth in the Registration Rights Agreement (as defined
below).
Any payment required to be made on
any day that is not a Business Day will be made on the next
succeeding Business Day, without additional interest.
2. Registration Rights
Agreement .
The Holder of this Note is entitled
to the benefits of the Registration Rights Agreement, dated
November 13, 2007, between the Company and the Purchasers
named therein (the “Registration Rights Agreement”). In
the event of a Registration Default, as defined in the Registration
Rights Agreement, the Holder is entitled to additional interest for
the period from and including the day following the occurrence of
the Registration Default to, but excluding, the earlier of the day
on which the Registration Default has been cured or the date on
which there are no Registrable Securities, as defined in the
Registration Rights Agreement. Additional interest will accrue at
an additional rate per year equal to 0.50% per annum of the
principal amount of the Notes.
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3. Method of Payment .
Subject to the terms and conditions
of the Indenture, the Company shall pay interest on this Note to
the person who is the Holder of this Note at the close of business
on the Regular Record Date next preceding the related Interest
Payment Date. The Company will pay any Cash amounts in money of the
United States that at the time of payment is legal tender for
payment of public and private debts.
4. Paying Agent, Conversion Agent
and Registrar .
Initially, the Trustee will act as
Paying Agent, Conversion Agent and Registrar. The Company may
appoint and change any Paying Agent, Conversion Agent, Registrar or
co-registrar without notice, other than notice to the Trustee. The
Company or any of its Subsidiaries or any of their Affiliates may
act as Paying Agent, Conversion Agent, Registrar or co-registrar.
The Company may maintain deposit accounts and conduct other banking
transactions with the Trustee in the normal course of
business.
5. Indenture .
This is one of the Notes issued
under an Indenture dated as of November 13, 2007 (as amended
from time to time, the “Indenture”), between the
Company and The Bank of New York Trust Company, N.A., as Trustee.
Capitalized terms used herein are used as defined in the Indenture
unless otherwise indicated. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act. The Notes are subject to all
such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of all such terms. To the extent
permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the
terms of the Indenture will control.
The Notes are general unsecured
obligations of the Company.
6. Repurchase at the Option of
the Holder upon a Fundamental Change and on the Mandatory
Repurchase Date .
At the option of the Holder and
subject to the terms and conditions of the Indenture, the Company
shall become obligated to purchase the Notes held by such Holder on
the date, at the purchase price and as otherwise provided in the
Indenture.
Holders have the right to withdraw
any Fundamental Change Purchase Notice by delivering to the Paying
Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
If Cash (and/or securities if
permitted under the Indenture) sufficient to pay the Fundamental
Change Purchase Price of, together with any accrued and unpaid
interest with respect to, all Notes or portions thereof to be
purchased as of the Fundamental Change Purchase Date is deposited
with the Paying Agent on or prior to the third Business Day
following the Fundamental Change Purchase Date, interest shall
cease to accrue on such Notes (or portions thereof) immediately
after such Fundamental Change Purchase Date whether or not the Note
is delivered to the Paying Agent, and the Holder thereof shall have
no other rights as such (other than the right to receive the
Fundamental Change Purchase Price and accrued and unpaid interest
upon surrender of such Notes).
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If the Acquisition is not
consummated on or prior to the Mandatory Repurchase Date, then the
Company shall be required on the Mandatory Repurchase Date to
repurchase all of the Notes at a price payable in cash equal to the
Mandatory Repurchase Price.
7. Conversion .
Subject to and upon compliance with
the provisions of the Indenture, a Holder may surrender for
conversion any Note that is $1,000 principal amount or integral
multiples thereof.
8. Defaults and Remedies
.
If an Event of Default, as defined
in the Indenture, occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Notes may
declare all the Notes to be due and payable, subject to certain
limitations set forth in the Indenture. If a bankruptcy or
insolvency default with respect to the Company occurs and is
continuing, the Notes automatically become due and payable. Holders
may not enforce the Indenture or the Notes except as provided in
the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain
limitations, Holders of a majority in principal amount of the Notes
then outstanding may direct the Trustee in its exercise of
remedies.
9. Subordination .
To the extent provided in the
Indenture, the Notes are subordinated to Senior Debt, as defined in
the Indenture. To the extent provided in the Indenture, Senior Debt
must be paid in full before the Notes may be paid. The Company
agrees, and each Holder by accepting a Note agrees, to the
subordination provisions contained in the Indenture and authorizes
the Trustee to give it effect and appoints the Trustee as
attorney-in-fact for such purpose.
10. Amendment and Waiver
.
Subject to certain exceptions set
forth in the Indenture, the Indenture and the Notes may be amended,
or default may be waived, with the consent of the Holders of a
majority in principal amount of the outstanding Notes. Without
notice to or the consent of any Holder, the Company and the Trustee
may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency or if such
amendment or supplement does not adversely affect the interests of
the Holders in any material respect.
11. Registered Form;
Denominations; Transfer; Exchange .
The Notes are issued in registered
form without coupons in denominations of $1,000 principal amount
and integral multiples of $1,000. A Holder may register the
transfer or exchange of Notes in accordance with the Indenture. The
Trustee may require a Holder to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. Pursuant to the Indenture, there
are certain periods during which the Trustee will not be required
to issue, register the transfer of or exchange any Note or certain
portions of a Note.
12. Persons Deemed Owners
.
The registered Holder of this Note
may be treated as the owner of this Note for all
purposes.
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13. Unclaimed Money or Notes .
The Trustee and the Paying Agent
shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect
to the Notes that remains unclaimed for two years, subject to
applicable unclaimed property laws. After return to the Company,
Holders entitled to the money or securities must look to the
Company for payment as general creditors unless an applicable
abandoned property law designates another person.
14. Trustee Dealings with the
Company .
Subject to certain limitations
imposed by the Trust Indenture Act, the Trustee under the
Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates with the same
rights it would have if it were not Trustee.
15. No Recourse Against
Others .
A director, officer, incorporator,
agent, subsidiary, employee, member or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Notes or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation.
By accepting a Note, each Noteholder waives and releases all of the
foregoing from such liability. The waiver and release are part of
the consideration for the issue of the Notes.
16. Authentication
.
This Note shall not be valid until
an authorized officer of the Trustee manually signs the
Trustee’s Certificate of Authentication on the other side of
this Note.
17. Governing Law
.
THE LAW OF THE STATE OF NEW YORK
SHALL GOVERN THE INDENTURE AND THIS NOTE.
18. Abbreviations
.
Customary abbreviations may be used
in the name of a Holder or an assignee, such as: TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint