As filed with the Securities and Exchange Commission on August 30,
2019
Registration No.
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TG THERAPEUTICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
|
Delaware
|
36-3898269
|
|
(State or Other Jurisdiction of Incorporation or
Organization)
|
(I.R.S. Employer Identification No.)
|
2
Gansevoort Street, 9th Floor
New York, New York 10014
(212) 554-4484
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant’s Principal Executive
Offices)
Sean
Power
Chief Financial Officer
TG Therapeutics, Inc.
2 Gansevoort Street, 9th Floor
New York, New York 10014
(212) 554-4484
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
The
Commission is requested to send copies of all communications
to:
Mark F. McElreath, Esq.
Alston & Bird LLP
90 Park Avenue
New York, New York 10016
Telephone: (212) 210-9595
Facsimile: (212) 922-3995
Approximate date of commencement of proposed
sale to the public: From time to time
after the effective date of this registration
statement.
If the
only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☒
If this
Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ☐ ______
If this
Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same
offering. ☐ ______
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box.
☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See definition of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act.
|
Large accelerated filer
|
☒ |
Accelerated filer
|
☐
|
|
Non-accelerated filer
|
☐ |
Smaller reporting company
|
☐
|
|
|
|
Emerging growth company
|
☐
|
If
an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act. ☐
CALCULATION OF REGISTRATION FEE
|
Title of Each Class of
Securities to be Registered
|
Amount
to be Registered (1)(2)
|
Proposed Maximum Offering Price Per Unit (1)(2)
|
Proposed Maximum Aggregate Offering Price (1)(2)
|
Amount of Registration Fee (3)
|
|
Common
Stock, $0.001 par value per share(4)
|
—
|
—
|
—
|
—
|
|
Preferred Stock,
$0.001 par value per share(4)
|
—
|
—
|
—
|
—
|
|
Warrants
|
—
|
—
|
—
|
—
|
|
Debt
Securities
|
—
|
—
|
—
|
—
|
|
Units(5)
|
—
|
—
|
—
|
—
|
|
TOTAL
|
—
|
—
|
—
|
—
|
(1)
Not applicable
pursuant to Form S-3 General Instruction II(E).
(2)
Securities
registered hereunder may be sold separately, together or as units
with other securities registered hereunder. An indeterminate
aggregate initial offering price or number of Common Stock,
Preferred Stock, Warrants, Debt Securities, and Units of TG
Therapeutics, Inc. is being registered as may from time to time be
issued at currently indeterminable prices and as may be issuable
upon conversion, redemption, repurchase, exchange or exercise of
any securities registered hereunder, including under any applicable
anti-dilution provisions. Separate consideration may or may not be
received for securities that are issuable upon exercise, conversion
or exchange of other securities.
(3)
In accordance with
Rule 456(b) and Rule 457(r), the registrant is deferring payment of
all of the registration fee.
(4)
Includes an
indeterminate number of shares of common stock or preferred stock
as may be issued by the registrant upon exercise, conversion or
exchange of any securities that provide for such issuance, or that
may from time to time become issuable by reason of any stock split,
stock dividend or similar transaction, for which no separate
consideration will be received by registrant.
(5)
Each unit will be
issued under a unit agreement and will represent an interest in two
or more other securities, which may or may not be separable from
one another.
The
Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states
that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or
until the registration statement shall become effective on such
date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
PROSPECTUS
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
The
following are types of securities that we may offer, issue and sell
from time to time, together or separately:
●
shares of our
common stock;
●
shares of our
preferred stock;
●
warrants;
●
debt securities;
and
●
units consisting of
any combination of our common stock, preferred stock, warrants or
debt securities.
We
may offer our securities in one or more offerings in amounts, at
prices, and on terms determined at the time of the offering. We may
sell our securities through agents we select or through
underwriters and dealers we select. If we use agents, underwriters
or dealers, we will name them and describe their compensation in a
prospectus or prospectus supplement.
This prospectus provides a general description of
the securities we may offer. Each time we sell securities, we will
provide specific terms of the securities offered in a supplement to
this prospectus. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read
this prospectus and the applicable prospectus supplement carefully
before you invest in any securities. This prospectus may not be
used to consummate a sale of securities unless accompanied by the
applicable prospectus supplement.
Our
common stock is traded on the Nasdaq Capital Market under the
symbol “TGTX.” On August 29, 2019, the per share
closing price of our common stock as reported on the Nasdaq Capital
Market was $6.40 per share.
Investing
in our securities involves certain risks. See “Risk
Factors” in our Annual Report on Form 10-K for the year ended
December 31, 2018, as well as our Quarterly Reports on Form 10-Q
for the periods ended March 31, 2019 and June 30, 2019, which have
been filed with the SEC and are incorporated by reference into this
prospectus. You should read the entire prospectus carefully before
you make your investment decision.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this prospectus is August 30, 2019.
TABLE OF CONTENTS
Prospectus
|
ABOUT
THIS PROSPECTUS
|
1
|
|
|
|
|
TG
THERAPEUTICS, INC.
|
1
|
|
|
|
|
RISK
FACTORS
|
2
|
|
|
|
|
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
|
3
|
|
|
|
|
USE OF
PROCEEDS
|
4
|
|
|
|
|
DESCRIPTION OF
COMMON STOCK
|
5
|
|
|
|
|
DESCRIPTION OF
WARRANTS
|
7
|
|
|
|
|
DESCRIPTION OF DEBT
SECURITIES
|
8
|
|
|
|
|
DESCRIPTION OF
UNITS
|
11
|
|
|
|
|
PLAN OF
DISTRIBUTION
|
12
|
|
|
|
|
WHERE
YOU CAN FIND MORE INFORMATION
|
13
|
|
|
|
|
INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
|
14
|
|
|
|
|
LEGAL
MATTERS
|
15
|
|
|
|
|
EXPERTS
|
15
|
ABOUT THIS PROSPECTUS
This
prospectus is part of an automatic “shelf registration”
statement on Form S-3 that we filed with the Securities and
Exchange Commission (“Commission” or
“SEC”), as a “well-known seasoned issuer”
as defined in Rule 405 under the Securities Act of 1933, as amended
(the “Securities Act”). Under this shelf process, we
may sell any combination of the securities described in this
prospectus in one or more offerings. This prospectus provides you
with a general description of the securities we may offer. We will
provide the terms of these securities in supplements to this
prospectus. The prospectus supplement may also add, update, or
change information contained in this prospectus. We urge you to
read both this prospectus and any prospectus supplement together
with additional information described under the heading
“Where You Can Find More Information” on page
13.
You
should rely only on the information contained or incorporated by
reference in this prospectus and any prospectus or prospectus
supplement. We have not authorized any other person to provide you
with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. We will not
make an offer to sell securities in any jurisdiction where the
offer or sale is not permitted. You should assume that the
information appearing in this prospectus, as well as information we
previously filed with the SEC and have incorporated by reference,
is accurate as of the date on the front cover of this prospectus
only, or when such document was filed with the SEC. Our business,
financial condition, results of operations and prospects may have
changed since the relevant date.
We will
not use this prospectus to offer and sell securities unless it is
accompanied by a prospectus or prospectus supplement that more
fully describes the terms of the offering.
When
used in this prospectus, the terms “company,”
“TGTX,” “issuer,” “we,”
“our,” and “us” may refer to TG
Therapeutics, Inc. and our consolidated subsidiaries, unless
otherwise specified.
TG THERAPEUTICS, INC.
We
are a biopharmaceutical company dedicated to developing and
delivering medicines for patients with B-cell mediated diseases,
including Chronic Lymphocytic Leukemia (CLL), non-Hodgkin Lymphoma
(NHL) and Multiple Sclerosis (MS). We have developed a robust
B-cell directed research and development (R&D) platform for
identification of key B-cell pathways of interest and rapid
clinical testing. Currently, we have five B-cell targeted drug
candidates in clinical development, with the lead two therapies,
ublituximab (TG-1101) and umbralisib (TGR-1202), in pivotal trials
for CLL and NHL, with ublituximab also in pivotal trials for MS.
Ublituximab is a novel anti-CD20 monoclonal antibody (mAb) that has
been glycoengineered for enhanced potency over first generation
antibodies. Umbralisib is an oral, once daily inhibitor of PI3K
delta. Umbralisib also uniquely inhibits CK1-epsilon, which may
allow it to overcome certain tolerability issues associated with
first generation PI3K delta inhibitors. When used together in
combination therapy, ublituximab and umbralisib are referred to as
“U2”. Additionally, we have recently brought into Phase
1 clinical development TG-1501, an anti-PD-L1 monoclonal antibody,
TG-1701, a covalently-bound Bruton’s Tyrosine Kinase (BTK)
inhibitor, and TG-1801, an anti-CD47/CD19 bispecific
antibody.
We
also actively evaluate complementary products, technologies and
companies for in-licensing, partnership, acquisition and/or
investment opportunities. To date, we have not received approval
for the sale of any of our drug candidates in any market and,
therefore, have not generated any product sales from our drug
candidates.
Our
principal executive offices are located at 2 Gansevoort Street, 9th
Floor, New York, New York 10014, and our telephone number is
212-554-4484. We maintain a website on the Internet at
www.tgtherapeutics.com and our e-mail address is info@tgtxinc.com.
Our Internet website, and the information contained on it, are not
to be considered part of this prospectus.
1
RISK FACTORS
Investing in our
securities involves risks. You should carefully consider any
specific risks discussed or incorporated by reference in the
applicable prospectus supplement, together with all other
information contained in the prospectus supplement or incorporated
by reference in this prospectus. You should also consider the
risks, uncertainties and assumptions discussed under the caption
“Risk Factors” included in our Annual Report on Form
10-K for the year ended December 31, 2018, as well as our Quarterly
Reports on Form 10-Q for the periods ended March 31, 2019 and June
30, 2019, which have been filed with the SEC and are incorporated
by reference in this prospectus, and which may be amended,
supplemented or superseded from time to time by other reports we
file with the SEC in the future.
2
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, any prospectus supplement, the documents incorporated
by reference herein and therein, other public filings and oral and
written statements by us and our management, may include statements
that constitute “forward-looking statements” within the
meaning of the United States securities laws. These statements are
based on the beliefs and assumptions of our management and on
information available to us at the time such statements are made.
Forward-looking statements include information concerning possible
or assumed future results of our operations, expenses, earnings,
liquidity, cash flows and capital expenditures, industry or market
conditions, assets under management, acquisitions and divestitures,
debt levels and our ability to obtain additional financing or make
payments, regulatory developments, demand for and pricing of our
products, the prospects for certain legal contingencies, and other
aspects of our business or general economic conditions. In
addition, when used in this prospectus, the documents incorporated
by reference herein or such other documents or statements, words
such as “believes,” “expects,”
“anticipates,” “intends,”
“plans,” “estimates,”
“projects,” “forecasts,” and future or
conditional verbs such as “will,” “may,”
“could,” “should,” and “would,”
and any other statement that necessarily depends on future events,
are intended to identify forward-looking statements.
Forward-looking
statements are not guarantees of performance. They involve risks,
uncertainties and assumptions. Although we make such statements
based on assumptions that we believe to be reasonable, there can be
no assurance that actual results will not differ materially from
our expectations. We caution investors not to rely unduly on any
forward-looking statements.
The
factors described in this prospectus, incorporated by reference
into this prospectus or contained in our other filings with the
Commission, among others, could cause our results to differ
materially from any results described in any forward-looking
statements.
For
more discussion of the risks affecting us, please refer to the
section above entitled “Risk Factors.”
You
should consider the areas of risk described above in connection
with any forward-looking statements that may be made by us and our
businesses generally. We expressly disclaim any obligation to
update any of the information in this or any other public filing if
any forward-looking statement later turns out to be inaccurate,
whether as a result of new information, future events or otherwise.
For all forward-looking statements, we claim the “safe
harbor” provided by Section 27A of the Securities Act
and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).
3
USE
OF PROCEEDS
Unless
otherwise specified in connection with a particular offering of
securities, the net proceeds from the sale of the securities
offered by this prospectus will be used for general corporate
purposes.
4
DESCRIPTION OF COMMON STOCK
The
following summary of the terms of our common stock may not be
complete and is subject to, and qualified in its entirety by
reference to, the terms and provisions of our amended and restated
certificate of incorporation and our restated bylaws. You should
refer to, and read this summary together with, our amended and
restated certificate of incorporation and restated bylaws to review
all of the terms of our common stock that may be important to
you.
Common Stock
Under
our certificate of incorporation, we are authorized to issue a
total of 150,000,000 shares of common stock, par value $0.001 per
share. As of August 23, 2019, we had 94,884,218 shares issued and
94,842,909 shares outstanding of our common stock. As of August 23,
2019, we have approximately 242 holders of record. All outstanding
shares of our common stock are fully paid and nonassessable. Our
common stock is listed on the Nasdaq Capital Market under the
symbol “TGTX.”
Dividends
Subject
to the dividend rights of the holders of any outstanding series of
preferred stock, holders of our common stock are entitled to
receive ratably such dividends and other distributions of cash or
any other right or property as may be declared by our board of
directors out of our assets or funds legally available for such
dividends or distributions.
Voting Rights
The
holders of our common stock are entitled to one vote for each share
of common stock owned by that stockholder on every matter properly
submitted to the stockholders for their vote. Stockholders are not
entitled to vote cumulatively for the election of
directors.
Liquidation and Dissolution
In the
event of any voluntary or involuntary liquidation, dissolution or
winding up of our affairs, holders of common stock would be
entitled to share ratably in our assets that are legally available
for distribution to stockholders after payment of liabilities. If
we have any preferred stock outstanding at such time, holders of
the preferred stock may be entitled to distributions and/or
liquidation preferences. In either such case, we must pay the
applicable distribution to the holders of our preferred stock (if
any) before we may pay distributions to the holders of common
stock.
Other
Holders
of our common stock have no conversion, redemption, preemptive,
subscription or similar rights.
Transfer Agent
American Stock
Transfer and Trust Company serves as the transfer agent and
registrar for all of our common stock.
Preferred Stock
Under
the terms of our restated certificate of incorporation, our board
of directors is authorized to issue up to 10,000,000 shares of
preferred stock, par value $0.001 per share. Our board of directors
may issues shares of preferred stock in one or more series without
stockholder approval, and has the discretion to determine the
rights, preferences, privileges and restrictions, including voting
rights, dividend rights, conversion rights, redemption privileges
and liquidation preferences, of each series of preferred stock. We
may amend from time to time our restated certificate of
incorporation to increase the number of authorized shares of
preferred stock. Any such amendment would require the approval of
the holders of a majority of the voting power of the shares
entitled to vote thereon. As of the date of this prospectus, we
have 10,000,000 shares of preferred shares authorized, but no
shares of preferred stock outstanding.
5
It
is not possible to state the actual effect of the issuance of any
shares of preferred stock upon the rights of the holders of common
stock until the board of directors determines the specific rights
of the holders of preferred stock. However, effects of the issuance
of preferred stock include restricting dividends on common stock,
diluting the voting power of common stock, impairing the
liquidation rights of common stock, and making it more difficult
for a third party to acquire us, which could have the effect of
discouraging a third party from acquiring, or deterring a third
party from paying a premium to acquire, a majority of our
outstanding voting stock.
The
particular terms of any series of preferred stock being offered by
us will be described in the prospectus supplement relating to that
series of preferred stock. Those terms may include:
●
the title and
liquidation preference per share of the preferred stock and the
number of shares offered;
●
the purchase price
of the preferred stock;
●
the dividend rate
(or method of calculation);
●
the dates on which
dividends will be paid and the date from which dividends will begin
to accumulate;
●
any redemption or
sinking fund provisions of the preferred stock;
●
any listing of the
preferred stock on any securities exchange or market;
●
any conversion
provisions of the preferred stock;
●
the voting rights,
if any, of the preferred stock; and
●
any additional
dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions of the
preferred stock.
The
preferred stock will, when issued, be fully paid and
non-assessable.
6
DESCRIPTION OF WARRANTS
We
may issue warrants to purchase shares of our common stock and/or
preferred stock in one or more series together with other
securities or separately, as described in each applicable
prospectus supplement.
The
prospectus supplement relating to any warrants we offer will
include specific terms relating to the offering. These terms will
include some or all of the following:
●
the title of the
warrants;
●
the aggregate
number of warrants offered;
●
the designation,
number and terms of the shares of common stock purchasable upon
exercise of the warrants and procedures by which those numbers may
be adjusted;
●
the exercise price
of the warrants;
●
the dates or
periods during which the warrants are exercisable;
●
the designation and
terms of any securities with which the warrants are
issued;
●
if the warrants are
issued as a unit with another security, the date on and after which
the warrants and the other security will be separately
transferable;
●
if the exercise
price is not payable in U.S. dollars, the foreign currency,
currency unit or composite currency in which the exercise price is
denominated;
●
any minimum or
maximum amount of warrants that may be exercised at any one
time;
●
any terms relating
to the modification of the warrants;
●
any terms,
procedures and limitations relating to the transferability,
exchange or exercise of the warrants; and
●
any other specific
terms of the warrants.
7
DESCRIPTION OF DEBT SECURITIES
We
may offer debt securities which may be senior, subordinated or
junior subordinated and may be convertible. Unless otherwise
specified in the applicable prospectus supplement, our debt
securities will be issued in one or more series under an indenture
to be entered into between us and a trustee. We will issue the debt
securities offered by this prospectus and any accompanying
prospectus supplement under an indenture to be entered into between
us and the trustee identified in the applicable prospectus
supplement. The terms of the debt securities will include those
stated in the indenture and those made part of the indenture by
reference to the Trust Indenture Act of 1939, as in effect on the
date of the indenture. We have filed a copy of the form of
indenture as an exhibit to the registration statement in which this
prospectus is included. The indenture will be subject to and
governed by the terms of the Trust Indenture Act of
1939.
The
following description briefly sets forth certain general terms and
provisions of the debt securities that we may offer. The particular
terms of the debt securities offered by any prospectus supplement
and the extent, if any, to which these general provisions may apply
to the debt securities, will be described in the related prospectus
supplement. Accordingly, for a description of the terms of a
particular issue of debt securities, reference must be made to both
the related prospectus supplement and to the following
description.
Debt Securities
The
aggregate principal amount of debt securities that may be issued
under the indenture is unlimited. The debt securities may be issued
in one or more series as may be authorized from time to time
pursuant to a supplemental indenture entered into between us and
the trustee or an order delivered by us to the trustee. For each
series of debt securities we offer, a prospectus supplement
accompanying this prospectus will describe the following terms and
conditions of the series of debt securities that we are offering,
to the extent applicable:
● title and aggregate principal
amount;
● whether the debt securities will be senior,
subordinated or junior subordinated;
● applicable subordination provisions, if
any;
● provisions regarding whether the debt securities
will be convertible or exchangeable into other securities or
property of the Company or any other person;
● percentage or percentages of principal amount at
which the debt securities will be issued;
● maturity date(s);
● interest rate(s) or the method for determining the
interest rate(s);
● whether interest on the debt securities will be
payable in cash or additional debt securities of the same
series;
● dates on which interest will accrue or the method
for determining dates on which interest will accrue and dates on
which interest will be payable;
● whether the amount of payment of principal of,
premium, if any, or interest on the debt securities may be
determined with reference to an index, formula or other
method;
● redemption, repurchase or early repayment
provisions, including our obligation or right to redeem, purchase
or repay debt securities under a sinking fund, amortization or
analogous provision;
● if other than the debt securities’ principal
amount, the portion of the principal amount of the debt securities
that will be payable upon declaration of acceleration of the
maturity;
● authorized denominations;
● form;
8
● amount of discount or premium, if any, with which
the debt securities will be issued, including whether the debt
securities will be issued as “original issue discount”
securities;
● the place or places where the principal of,
premium, if any, and interest on the debt securities will be
payable;
● where the debt securities may be presented for
registration of transfer, exchange or
conversion;
● the place or places where notices and demands to
or upon the Company in respect of the debt securities may be
made;
● whether the debt securities will be issued in
whole or in part in the form of one or more global
securities;
● if the debt securities will be issued in whole or
in part in the form of a book-entry security, the depository or its
nominee with respect to the debt securities and the circumstances
under which the book-entry security may be registered for transfer
or exchange or authenticated and delivered in the name of a person
other than the depository or its nominee;
● whether a temporary security is to be issued with
respect to such series and whether any interest payable prior to
the issuance of definitive securities of the series will be
credited to the account of the persons entitled
thereto;
● the terms upon which beneficial interests in a
temporary global security may be exchanged in whole or in part for
beneficial interests in a definitive global security or for
individual definitive securities;
● the guarantors, if any, of the debt securities,
and the extent of the guarantees and any additions or changes to
permit or facilitate guarantees of such debt
securities;
● any covenants applicable to the particular debt
securities being issued;
● any defaults and events of default applicable to
the debt securities, including the remedies available in connection
therewith;
● currency, currencies or currency units in which
the purchase price for, the principal of and any premium and any
interest on, such debt securities will be
payable;
● time period within which, the manner in which and
the terms and conditions upon which the Company or the purchaser of
the debt securities can select the payment
currency;
● securities exchange(s) on which the debt
securities will be listed, if any;
● whether any underwriter(s) will act as market
maker(s) for the debt securities;
● extent to which a secondary market for the debt
securities is expected to develop;
● provisions relating to
defeasance;
● provisions relating to satisfaction and discharge
of the indenture;
● any restrictions or conditions on the
transferability of the debt securities;
● provisions relating to the modification of the
indenture both with and without the consent of holders of debt
securities issued under the indenture;
● any addition or change in the provisions related
to compensation and reimbursement of the
trustee;
● provisions, if any, granting special rights to
holders upon the occurrence of specified
events;
9
● whether the debt securities will be secured or
unsecured, and, if secured, the terms upon which the debt
securities will be secured and any other additions or changes
relating to such security; and
● any other terms of the debt securities that are
not inconsistent with the provisions of the Trust Indenture Act
(but may modify, amend, supplement or delete any of the terms of
the indenture with respect to such series of debt
securities).
General
One
or more series of debt securities may be sold as “original
issue discount” securities. These debt securities would be
sold at a substantial discount below their stated principal amount,
bearing no interest or interest at a rate which at the time of
issuance is below market rates. One or more series of debt
securities may be variable rate debt securities that may be
exchanged for fixed rate debt securities.
United
States federal income tax consequences and special considerations,
if any, applicable to any such series will be described in the
applicable prospectus supplement.
Debt
securities may be issued where the amount of principal and/or
interest payable is determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors.
Holders of such debt securities may receive a principal amount or a
payment of interest that is greater than or less than the amount of
principal or interest otherwise payable on such dates, depending
upon the value of the applicable currencies, commodities, equity
indices or other factors. Information as to the methods for
determining the amount of principal or interest, if any, payable on
any date, the currencies, commodities, equity indices or other
factors to which the amount payable on such date is linked and
certain additional United States federal income tax considerations
will be set forth in the applicable prospectus
supplement.
The
term “debt securities” includes debt securities
denominated in U.S. dollars or, if specified in the applicable
prospectus supplement, in any other freely transferable currency or
units based on or relating to foreign currencies.
We
expect most debt securities to be issued in fully registered form
without coupons and in denominations of $2,000 and any integral
multiples thereof. Subject to the limitations provided in the
indenture and in the prospectus supplement, debt securities that
are issued in registered form may be transferred or exchanged at
the principal corporate trust office of the trustee, without the
payment of any service charge, other than any tax or other
governmental charge payable in connection therewith.
Global Securities
The
debt securities of a series may be issued in whole or in part in
the form of one or more global securities that will be deposited
with, or on behalf of, a depositary identified in the prospectus
supplement. Global securities will be issued in registered form and
in either temporary or definitive form. Unless and until it is
exchanged in whole or in part for the individual debt securities, a
global security may not be transferred except as a whole by the
depositary for such global security to a nominee of such depositary
or by a nominee of such depositary to such depositary or another
nominee of such depositary or by such depositary or any such
nominee to a successor of such depositary or a nominee of such
successor. The specific terms of the depositary arrangement with
respect to any debt securities of a series and the rights of and
limitations upon owners of beneficial interests in a global
security will be described in the applicable prospectus
supplement.
Governing Law
The
indenture and the debt securities shall be construed in accordance
with and governed by the laws of the State of New
York.
10
DESCRIPTION OF UNITS
We
may issue, in one more series, units comprised of shares of our
common stock or preferred stock, warrants to purchase common stock
or preferred stock, debt securities or any combination of those
securities. Each unit will be issued so that the holder of the unit
is also the holder of each security included in the unit. Thus, the
holder of a unit will have the rights and obligations of a holder
of each included security. The unit agreement under which a unit is
issued may provide that the securities included in the unit may not
be held or transferred separately, at any time or at any time
before a specified date.
We
may evidence units by unit certificates that we issue under a
separate agreement. We may issue the units under a unit agreement
between us and one or more unit agents. If we elect to enter into a
unit agreement with a unit agent, the unit agent will act solely as
our agent in connection with the units and will not assume any
obligation or relationship of agency or trust for or with any
registered holders of units or beneficial owners of units. We will
indicate the name and address and other information regarding the
unit agent in the applicable prospectus supplement relating to a
particular series of units if we elect to use a unit
agent.
We
will describe in the applicable prospectus supplement the terms of
the series of units being offered, including:
●
the designation and
terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may
be held or transferred separately;
●
any provisions of
the governing unit agreement that differ from those described
herein; and
●
any provisions for
the issuance, payment, settlement, transfer or exchange of the
units or of the securities comprising the units.
The
other provisions regarding our common stock, preferred stock,
warrants and debt securities as described in this section will
apply to each unit to the extent such unit consists of shares of
our common stock, preferred stock, warrants and/or debt
securities.
11
PLAN OF DISTRIBUTION
We may
sell the securities covered in this prospectus in any of three ways
(or in any combination):
●
through
underwriters or dealers;
●
directly to a
limited number of purchasers or to a single purchaser;
or
●
through
agents.
Each
time that we use this prospectus to sell securities, we will also
provide a prospectus supplement that contains the specific terms of
the offering. The prospectus supplement will set forth the terms of
the offering of the securities, including:
●
the name or names
of any underwriters, dealers or agents and the amounts of any
securities underwritten or purchased by each of them;
and
●
the public offering
price and the proceeds to us and any discounts, commissions or
concessions allowed or reallowed or paid to dealers.
Any
public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to
time.
If
underwriters are used in the sale of any securities, the securities
will be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. The securities may
be either offered to the public through underwriting syndicates
represented by managing underwriters, or directly by underwriters.
Generally, the underwriters’ obligations to purchase the
securities will be subject to certain conditions precedent. The
underwriters will be obligated to purchase all of the securities if
they purchase any of securities.
We may
sell the securities through agents from time to time. The
prospectus supplement will name any agent involved in the offer or
sale of the securities and any commissions we pay to them.
Generally, any agent will be acting on a best efforts basis for the
period of its appointment.
We may
authorize underwriters, dealers or agents to solicit offers by
certain purchasers to purchase the securities from us at the public
offering price set forth in the prospectus supplement pursuant to
delayed delivery contracts providing for payment and delivery on a
specified date in the future. The contracts will be subject only to
those conditions set forth in the prospectus supplement, and the
prospectus supplement will set forth any commissions we pay for
solicitation of these contracts.
Agents
and underwriters may be entitled to indemnification by us against
certain civil liabilities, including liabilities under the
Securities Act of 1933, as amended, or to contribution with respect
to payments which the agents or underwriters may be required to
make in respect thereof. Agents and underwriters may be customers
of, engage in transactions with, or perform services for us in the
ordinary course of business.
We may
enter into derivative transactions with third parties, or sell
securities not covered by this prospectus to third parties in
privately negotiated transactions. If the applicable prospectus
supplement indicates, in connection with those derivatives, the
third parties may sell securities covered by this prospectus and
the applicable prospectus supplement, including in short sale
transactions. If so, the third party may use securities pledged by
us or borrowed from us or others to settle those sales or to close
out any related open borrowings of securities, and may use
securities received from us in settlement of those derivatives to
close out any related open borrowings of securities. The third
party in such sale transactions will be an underwriter and will be
identified in the applicable prospectus supplement.
In
compliance with the guidelines of the Financial Services Regulatory
Authority, Inc., or FINRA, the maximum compensation to be received
by a FINRA member or independent broker-dealer may not exceed 8% of
the offering proceeds. It is anticipated that the maximum
compensation to be received in any particular offering of
securities will be less than this amount.
12
WHERE YOU CAN FIND MORE INFORMATION
We file
reports with the SEC on an annual basis using Form 10-K, quarterly
reports on Form 10-Q and current reports on Form 8-K. You may read
and copy any such reports and amendments thereto at the SEC’s
Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549
on official business days during the hours of 10:00 a.m. to 3:00
p.m. Please call the SEC at 1-800-SEC-0330 for information on the
Public Reference Room. Additionally, the SEC maintains a website
that contains annual, quarterly, and current reports, proxy
statements, and other information that issuers (including us) file
electronically with the SEC. The SEC’s website address is
http://www.sec.gov. You can also obtain copies of materials we file
with the SEC from our Internet website found at
www.tgtherapeutics.com. Our stock is quoted on the Nasdaq Capital
Market under the symbol “TGTX.”
13
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC
allows us to “incorporate by reference” into this
prospectus the information we file with the SEC. This means that we
can disclose important information to you by referring you to those
documents without restating that information in this document. The
information incorporated by reference into this prospectus is
considered to be part of this prospectus, and information we file
with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, or the Exchange Act,
after the date of this prospectus, will automatically update and
supersede the information contained in this prospectus and
documents listed below. We incorporate by reference into this
prospectus the documents listed below, except to the extent
information in those documents differs from information contained
in this prospectus, and any future filings made by us with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
including exhibits:
(a)
Our Annual Report
on Form 10-K for the year ended December 31, 2018;
(b)
Our Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2019 and June
30, 2019;
(c)
Our Current Reports
on Form 8-K filed with the SEC on March 5, 2019, April 1, 2019, May
8, 2019, and June 13, 2019 (excluding any information pursuant to
Item 2.02 or Item 9.01);
(d)
Our Definitive
Proxy Statement on Schedule 14A, filed with the SEC on April 30,
2019; and
(e)
The description of
our common stock contained in our registration statement on Form
8-A filed with the SEC on May 28, 2013 (File No.
001-32639).
We will
provide to each person, including any beneficial owner, to whom a
copy of this prospectus is delivered, a copy of any or all of the
information that we have incorporated by reference into this
prospectus. We will provide this information upon written or oral
request at no cost to the requester. You may request this
information by contacting our corporate headquarters at the
following address: 2 Gansevoort Street, 9th Floor, New York, New
York 10014, Attn: Chief Financial Officer, or by calling (212)
554-4484.
14
LEGAL MATTERS
The
legality and validity of the securities offered from time to time
under this prospectus will be passed upon by Alston & Bird LLP,
New York, New York.
EXPERTS
15
TG Therapeutics, Inc.
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
PROSPECTUS
August 30, 2019
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM
14.
OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION.
The
following table sets forth the estimated expenses (all of which
will be borne by the registrant) incurred in connection with the
issuance and distribution of the securities being registered, other
than underwriting discounts and commissions (if any). All of the
amounts shown are estimates, except the SEC registration
fee.
|
SEC registration
fee................................................................................................
|
*
|
|
Trustee fees and
expenses ......................................................................................
|
$+
|
|
Printing and
distributing ........................................................................................
|
$+
|
|
Legal fees and
expenses ........................................................................................
|
$+
|
|
Accounting fees and
expenses ...............................................................................
|
$+
|
|
Miscellaneous
........................................................................................................
|
$+
|
|
|
$+
|
|
Total ...............................................................................................................
|
$+
|
_______________
*
Deferred in
reliance on Rule 456(b) and 457(r).
+
To be filed as an
exhibit to a document to be incorporated by reference
herein.
ITEM
15.
INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
Under
the General Corporation Law of the State of Delaware, or DGCL, a
corporation may include provisions in its certificate of
incorporation that will relieve its directors of monetary liability
for breaches of their fiduciary duty to the corporation, except
under certain circumstances, including a breach of the
director’s duty of loyalty, acts or omissions of the director
not in good faith or which involve intentional misconduct or a
knowing violation of law, the approval of an improper payment of a
dividend or an improper purchase by the corporation of stock or any
transaction from which the director derived an improper personal
benefit. The Registrant’s Amended and Restated Certificate of
Incorporation eliminates the personal liability of directors to the
Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director with certain limited exceptions set
forth in the DGCL.
Section
145 of the DGCL grants to corporations the power to indemnify each
officer and director against liabilities and expenses incurred by
reason of the fact that he or she is or was an officer or director
of the corporation if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The Registrant’s Amended and Restated
Certificate of Incorporation and Restated Bylaws provide for
indemnification of each officer and director of the Registrant to
the fullest extent permitted by the DGCL. Section 145 of the DGCL
also empowers corporations to purchase and maintain insurance on
behalf of any person who is or was an officer or director of the
corporation against liability asserted against or incurred by him
in any such capacity, whether or not the corporation would have the
power to indemnify such officer or director against such liability
under the provisions of Section 145 of the DGCL.
ITEM 16. EXHIBITS AND FINANCIAL
STATEMENT SCHEDULES.
(a)
Exhibits
See the
Exhibit Index, which is incorporated into this registration
statement by reference.
(b)
Financial
Statement Schedules
Schedules for which
provision is made in the applicable accounting regulations of the
SEC are either not required under the related instructions, are
inapplicable or not material, or the information called for thereby
is otherwise included in the financial statements incorporated by
reference and therefore has been omitted.
ITEM
17.
UNDERTAKINGS.
A.
RULE 415
OFFERING
The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i) To
include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in
the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post- effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be initial bona fide
offering thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) Not
Applicable.
(5)
That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the Registration Statement as of the
date the filed prospectus was deemed part of and included in the
Registration Statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a Registration Statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the Registration
Statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the Registration Statement
relating to the securities in the Registration Statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
Registration Statement or prospectus that is part of the
Registration Statement or made in a document incorporated or deemed
incorporated by reference into the Registration Statement or
prospectus that is part of the Registration Statement will, as to
the purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in
the Registration Statement or prospectus that was part of the
Registration Statement or made in any such document immediately
prior to such effective date.
(6) That, for the
purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
Registration Statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii)
The portion of any other free writing prospectuses relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
B. Filings
Incorporating Subsequent Exchange Act Documents By
Reference
The undersigned registrant
hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
H. Request
for Acceleration of Effective Date or Filing of Registration
Statement on Form S-8
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized in the City of New
York, State of New York, on August 30, 2019.
|
|
TG Therapeutics, Inc.
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Michael S.
Weiss
|
|
|
|
|
Michael S.
Weiss
|
|
|
|
|
Chief
Executive Officer
|
|
POWER OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Michael S. Weiss and Sean A.
Power, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and his name,
place and stead, in any and all capacities, to sign any or all
amendments (including pre-effective and post-effective amendments)
to this registration statement, and to file the same, with all
exhibits thereto and other documents in connection therewith,
including any Registration Statement filed pursuant to Rule 462(b)
under the Securities Act of 1933, with the SEC, granting unto said
attorney-in-fact and agent, full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or any of his
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the
requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in
the capacities indicated as of August 30, 2019.
|
Signatures
|
Title
|
|
/s/
Michael S. Weiss
Michael
S. Weiss
|
Executive Chairman,
Chief Executive Officer and President
|
|
/s/
Sean A. Power
Sean A.
Power
|
Chief
Financial Officer, Treasurer and Corporate Secretary
|
|
/s/
Laurence N. Charney
Laurence N.
Charney
|
Director
|
|
/s/
Yann Echelard
Yann
Echelard
|
Director
|
|
/s/
Daniel Hume
Daniel
Hume
|
Director
|
|
/s/
Kenneth Hoberman
Kenneth
Hoberman
|
Director
|
|
/s/
William J. Kennedy
William
J. Kennedy
|
Director
|
EXHIBIT INDEX
|
Exhibit Number
|
|
Description
|
|
1.1
|
|
Form of
Underwriting Agreement*
|
|
|
Specimen
common stock certificate (incorporated by reference to Exhibit 4.1
to the Registrant’s Form 10-K for the year ended December 31,
2011.
|
|
|
4.2
|
|
Form of
Preferred Stock Certificate*
|
|
4.3
|
|
Form of
Indenture†
|
|
4.4
|
|
Form of
Warrant Agreement*
|
|
4.5
|
|
Form of
Warrant Certificate*
|
|
4.6
|
|
Form of
Unit Agreement*
|
|
4.7
|
|
Form of
Unit Certificate*
|
|
|
Opinion
of Alston & Bird LLP†
|
|
|
|
Consent
of CohnReznick LLP†
|
|
|
23.2
|
|
Consent
of Alston & Bird LLP (included in Exhibit
5.1)†
|
|
24.1
|
|
Power
of Attorney (included on the signature page to this Registration
Statement)
|
|
25.1
|
|
Statement
of Eligibility of Trust Under Debt Indenture**
|
†
Filed
herewith.
§
Previously
filed.
*
To be filed by
amendment or as an exhibit to a report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, and
incorporated herein by reference, to the extent
applicable.
**
To be filed in
accordance with the requirements of Section 305(b)(2) of the Trust
Indenture Act of 1939, if necessary.
Exhibit
4.1
TG
THERAPEUTICS, INC.
FORM
OF
INDENTURE
Dated
as of
[ ],
20[ ]
DEBT
SECURITIES
[___]
Trustee
CROSS REFERENCE
SHEET
Cross-reference
sheet of provisions of the Trust Indenture Act of 1939 and this
indenture*
|
Trust
Indenture Act Section
|
|
Indenture
Section
|
|
|
§310
|
(a)
|
|
11.04(a),
16.02
|
|
|
(b)
|
|
11.01(f),
11.04(b), 11.05(1), 16.02
|
|
|
(b)(1)
|
|
11.04(b),
16.02
|
|
§311
|
|
|
11.01(f),
16.02
|
|
§312
|
|
|
14.02(d),
16.02
|
|
|
(b)
|
|
11.10,
16.02
|
|
|
(c)
|
|
11.10,
16.02
|
|
§313
|
(a)
|
|
10.01(a),
16.02
|
|
§314
|
|
|
16.02
|
|
§315
|
(e)
|
|
11.05,
16.02
|
|
§316
|
|
|
16.02
|
|
§317
|
|
|
16.02
|
|
§317
|
|
|
16.02
|
*
This
reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture. Attention should also be directed to
Section 318(c) of the Trust Indenture Act of 1939, which provides
that the provisions of Sections 310 to and including 317 of the
Trust Indenture Act of 1939 are a part of and govern every
qualified indenture, whether or not physically contained
therein.
TABLE OF
CONTENTS
|
Article I
DEFINITIONS
|
1
|
|
Section 1.01 Definitions
|
1
|
|
|
|
|
Article II FORMS OF
SECURITIES
|
7
|
|
Section 2.01 Terms of the
Securities
|
7
|
|
Section 2.02 Form of
Trustee’s Certificate of Authentication
|
7
|
|
|
|
|
Article III THE
DEBT SECURITIES
|
7
|
|
Section 3.01 Amount Unlimited;
Issuable in Series
|
7
|
|
Section 3.02 Denominations
|
9
|
|
Section 3.03 Execution,
Authentication, Delivery and Dating
|
9
|
|
Section 3.04 Temporary
Securities
|
10
|
|
Section 3.05 Registrar and
Paying Agent
|
11
|
|
Section 3.06 Transfer and
Exchange
|
11
|
|
Section 3.07 Mutilated,
Destroyed, Lost and Stolen Securities
|
13
|
|
Section 3.08 Payment of
Interest; Interest Rights Preserved
|
13
|
|
Section 3.09 Cancellation
|
14
|
|
Section 3.10 Computation of
Interest
|
14
|
|
Section 3.11 Currency of
Payments in Respect of Securities
|
14
|
|
Section 3.12 Judgments
|
15
|
|
Section 3.13 CUSIP
Numbers
|
15
|
|
|
|
|
Article IV
REDEMPTION OF SECURITIES
|
15
|
|
Section
4.01 Applicability of
Right of Redemption
|
15
|
|
Section
4.02 Selection of
Securities to be Redeemed
|
15
|
|
Section
4.03 Notice of
Redemption
|
15
|
|
Section
4.04 Deposit of
Redemption Price
|
16
|
|
Section
4.05 Securities Payable
on Redemption Date
|
16
|
|
Section
4.06 Securities Redeemed
in Part
|
16
|
|
|
|
|
Article V SINKING
FUNDS
|
17
|
|
Section
5.01 Applicability of
Sinking Fund
|
17
|
|
Section
5.02 Mandatory Sinking
Fund Obligation
|
17
|
|
Section
5.03 Optional Redemption
at Sinking Fund Redemption Price
|
17
|
|
Section
5.04 Application of
Sinking Fund Payment
|
17
|
|
|
|
|
Article VI
PARTICULAR COVENANTS OF THE COMPANY
|
18
|
|
Section
6.01 Payments of
Securities
|
18
|
|
Section
6.02 Paying
Agent
|
18
|
|
Section
6.03 To Hold Payment in
Trust
|
18
|
|
Section
6.04 Merger,
Consolidation and Sale of Assets
|
19
|
|
Section
6.05 Compliance
Certificate
|
19
|
|
Section
6.06 Conditional Waiver
by Holders of Securities
|
19
|
|
Section
6.07 Statement by
Officers as to Default
|
20
|
i
|
Article VII
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
|
20
|
|
Section
7.01 Events of
Default
|
20
|
|
Section
7.02 Acceleration;Rescission
and Annulment
|
21
|
|
Section
7.03 Other
Remedies
|
21
|
|
Section
7.04 Trustee as
Attorney-in-Fact
|
22
|
|
Section
7.05 Priorities
|
22
|
|
Section
7.06 Control by
Securityholders; Waiver of Past Defaults
|
23
|
|
Section
7.07 Limitation on
Suits
|
23
|
|
Section
7.08 Undertaking for
Costs
|
23
|
|
Section
7.09 Remedies
Cumulative
|
23
|
|
|
|
|
Article VIII
CONCERNING THE SECURITYHOLDERS
|
24
|
|
Section
8.01 Evidence of Action
of Securityholders
|
24
|
|
Section
8.02 Proof of Execution
or Holding of Securities
|
24
|
|
Section
8.03 Persons Deemed
Owners
|
25
|
|
Section
8.04 Effect of
Consents
|
25
|
|
|
|
|
Article IX
SECURITYHOLDERS’ MEETINGS
|
25
|
|
Section
9.01 Purposes of
Meetings
|
25
|
|
Section
9.02 Call of Meetings by
Trustee
|
25
|
|
Section
9.03 Call of Meetings by
Company or Securityholders
|
26
|
|
Section
9.04 Qualifications for
Voting
|
26
|
|
Section
9.05 Regulation of
Meetings
|
26
|
|
Section
9.06 Voting
|
26
|
|
Section
9.07 No Delay of Rights
by Meeting
|
26
|
|
|
|
|
Article X REPORTS
BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS’
LISTS
|
27
|
|
Section
10.01 Reports by
Trustee
|
27
|
|
Section
10.02 Reports by the
Company
|
27
|
|
Section
10.03 Securityholders’
Lists
|
27
|
|
|
|
|
Article XI
CONCERNING THE TRUSTEE
|
28
|
|
Section
11.01 Rights of Trustees;
Compensation and Indemnity
|
28
|
|
Section
11.02 Duties of
Trustee
|
30
|
|
Section
11.03 Notice of
Defaults
|
31
|
|
Section
11.04 Eligibility;
Disqualification
|
31
|
|
Section
11.05 Registration and
Notice; Removal
|
31
|
|
Section
11.06 Successor Trustee
by Appointment
|
32
|
|
Section
11.07 Successor Trustee
by Merger, Conversion, Consolidation or Succession to
Business
|
33
|
|
Section
11.08 Right to Rely on
Officer’s Certificate
|
33
|
|
Section
11.09 Appointment of
Authenticating Agent
|
33
|
|
Section
11.10 Communications by
Securityholders with Other Securityholders
|
34
|
|
|
|
|
Article XII
SATISFACTION AND DISCHARGE; DEFEASANCE
|
34
|
|
Section
12.01 Applicability of
Article
|
34
|
|
Section
12.02 Satisfaction and
Discharge of Indenture
|
34
|
|
Section
12.03 Defeasance upon
Deposit of Moneys or U.S. Government Obligations
|
35
|
|
Section
12.04 Repayment to
Company
|
36
|
|
Section
12.05 Indemnity for U.S.
Government Obligations
|
36
|
|
Section
12.06 Deposits to Be Held
in Escrow
|
36
|
|
Section
12.07 Application of
Trust Money
|
36
|
|
Section
12.08 Deposits of
Non-U.S. Currencies
|
36
|
|
|
|
|
Article XIII
IMMUNITY OF CERTAIN PERSONS
|
37
|
|
Section
13.01 No Personal
Liability
|
37
|
ii
|
Article XIV
SUPPLEMENTAL INDENTURES
|
37
|
|
Section
14.01 Without Consent of
Securityholders
|
37
|
|
Section
14.02 With Consent of
Securityholders; Limitations
|
38
|
|
Section
14.03 Trustee
Protected
|
39
|
|
Section
14.04 Effect of Execution
of Supplemental Indenture
|
39
|
|
Section
14.05 Notation on or
Exchange of Securities
|
39
|
|
Section
14.06 Conformity with
TIA
|
40
|
|
|
|
|
Article XV
SUBORDINATION OF SECURITIES
|
40
|
|
Section
15.01 Agreement to
Subordinate
|
40
|
|
Section
15.02 Distribution on
Dissolution, Liquidation and Reorganization; Subrogation of
Securities
|
40
|
|
Section
15.03 No Payment on
Securities in Event of Default on Senior Indebtedness
|
41
|
|
Section
15.04 Payments on
Securities Permitted
|
41
|
|
Section
15.05 Authorization of
Securityholders to Trustee to Effect Subordination
|
41
|
|
Section
15.06 Notices to
Trustee
|
41
|
|
Section
15.07 Trustee as Holder
of Senior Indebtedness
|
42
|
|
Section
15.08 Modifications of
Terms of Senior Indebtedness
|
42
|
|
Section
15.09 Reliance on
Judicial Order or Certificate of Liquidating
Agent
|
42
|
|
Section
15.10 Satisfaction and
Discharge; Defeasance and Covenant Defeasance
|
42
|
|
Section
15.11 Trustee Not
Fiduciary for Holders of Senior Indebtedness
|
42
|
|
|
|
|
Article XVI
MISCELLANEOUS PROVISIONS
|
42
|
|
Section
16.01 Certificates and
Opinions as to Conditions Precedent
|
42
|
|
Section
16.02 Trust Indenture Act
Controls
|
43
|
|
Section
16.03 Notices to the
Company and Trustee
|
43
|
|
Section
16.04 Notices to
Securityholders; Waiver
|
43
|
|
Section
16.05 Legal
Holiday
|
44
|
|
Section
16.06 Effects of Headings
and Table of Contents
|
44
|
|
Section
16.07 Successors and
Assigns
|
44
|
|
Section
16.08 Separability
Clause
|
44
|
|
Section
16.09 Benefits of
Indenture
|
44
|
|
Section
16.10 Counterparts
Originals
|
44
|
|
Section
16.11 Governing Law;
Waiver of Trial by Jury
|
44
|
iii
INDENTURE dated as of _____________,
20__, among TG Therapeutics, Inc., a Delaware corporation (the
“Company”), and _____________, as trustee (the
“Trustee”).
WITNESSETH:
WHEREAS, the Company has duly authorized
the execution and delivery of this Indenture to provide for the
issuance of secured or unsecured debentures, notes, bonds or other
evidences of indebtedness (the “Securities”) in an
unlimited aggregate principal amount to be issued from time to time
in one or more series as provided in this Indenture;
and
WHEREAS, all things necessary to make
this Indenture a valid and legally binding agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE,
THIS INDENTURE WITNESSETH:
That,
in consideration of the premises and the purchase of the Securities
by the Holders thereof for the equal and proportionate benefit of
all of the present and future Holders of the Securities, each party
agrees and covenants as follows:
ARTICLE
I
For all
purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1)
the terms defined
in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular;
(2)
unless otherwise
defined in this Indenture or the context otherwise requires, all
terms used herein without definition which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein; and
(3)
the words
“herein”, “hereof” and
“hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(4)
references to
“Article” or “Section” or other subdivision
herein are references to an Article, Section or other subdivision
of the Indenture, unless the context otherwise
requires.
Unless
the context otherwise requires, the terms defined in this
Section 1.01 shall for all purposes of this Indenture have the
meanings hereinafter set forth:
Affiliate:
The
term “Affiliate” with respect to any specified Person
shall mean any other Person, directly or indirectly, controlling or
controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition,
“control” when used with respect to any Person means
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
“controlling” and “controlled” have
meanings correlative to the foregoing.
Authenticating
Agent:
The
term “Authenticating Agent” shall have the meaning
assigned to it in Section 11.09.
Board of
Directors:
The
term “Board of Directors” shall mean the board of
directors of the Company or any committee thereof duly authorized
to act on behalf of such board.
Board
Resolution:
The
term “Board Resolution” shall mean a copy of a
resolution or resolutions certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the
Board of Directors (or by a committee of the Board of Directors to
the extent that any such other committee has been authorized by the
Board of Directors to establish or approve the matters
contemplated) and to be in full force and effect on the date of
such certification and delivered to the Trustee.
Business
Day:
The
term “Business Day” shall mean each day which is not a
Saturday, a Sunday or a day on which banking institutions are not
required to be open in the State of New York.
1
Capital
Stock:
The
term “Capital Stock” of any Person shall mean any and
all shares, interests (including partnership interests), rights to
purchase, warrants, options, participations or other equivalents of
or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities
convertible into such equity.
Code:
The
term “Code” shall mean the Internal Revenue Code of
1986 as in effect on the date hereof.
Company:
The
term “Company” shall mean the Person named as the
“Company” in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor
Person.
Company
Order:
The
term “Company Order” shall mean a written order signed
in the name of the Company by the Chairman of the Board of
Directors, Chief Executive Officer, Chief Financial Officer,
President, Executive Vice President, Senior Vice President,
Treasurer, Assistant Treasurer, Controller, Assistant Controller,
Secretary or Assistant Secretary of the Company, and delivered to
the Trustee.
Corporate Trust
Office:
The
term “Corporate Trust Office,” or other similar term,
shall mean the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered,
which office at the date hereof is located at , or such other
address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust
officer of any successor Trustee (or such other address as such
successor Trustee may designate from time to time by notice to the
Holders and the Company).
Currency:
The
term “Currency” shall mean U.S. Dollars or Foreign
Currency.
Default:
The
term “Default” shall have the meaning assigned to it in
Section 11.03.
Defaulted
Interest:
The
term “Defaulted Interest” shall have the same meaning
assigned to it in Section 3.08(b).
Depositary:
The
term “Depositary” shall mean, with respect to the
Securities of any series issuable in whole or in part in the form
of one or more Global Securities, the Person designated as
Depositary by the Company pursuant to Section 3.01 until a
successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
“Depositary” shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than
one such Person, “Depositary” as used with respect to
the Securities of any such series shall mean the Depositary with
respect to the Securities of that series.
Designated
Currency:
The
term “Designated Currency” shall have the same meaning
assigned to it in Section 3.12.
Discharged:
The
term “Discharged” shall have the meaning assigned to it
in Section 12.03.
Event of
Default:
The
term “Event of Default” shall have the meaning
specified in Section 7.01.
Exchange
Act:
The
term “Exchange Act” shall mean the United States
Securities Exchange Act of 1934, and the rules and regulations
promulgated by the SEC thereunder and any statute successor
thereto, in each case as amended from time to time.
2
Exchange
Rate:
The
term “Exchange Rate” shall have the meaning assigned to
it in Section 7.01.
Floating Rate
Security:
The
term “Floating Rate Security” shall mean a Security
that provides for the payment of interest at a variable rate
determined periodically by reference to an interest rate index
specified pursuant to Section 3.01.
Foreign
Currency:
The
term “Foreign Currency” shall mean a currency issued by
the government of any country other than the United States or a
composite currency, the value of which is determined by reference
to the values of the currencies of any group of
countries.
GAAP:
The
term “GAAP” shall mean generally accepted accounting
principles in the United States of America as in effect as of the
date of issuance of any series of Securities, including those set
forth in:
(1)
the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants;
(2)
statements and
pronouncements of the Financial Accounting Standards
Board;
(3)
such other
statements by such other entity as approved by a significant
segment of the accounting profession; and
(4)
the rules and
regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in periodic
reports required to be filed pursuant to Section 13 of the
Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the
accounting staff of the SEC.
Global
Security:
The
term “Global Security” shall mean any Security that
evidences all or part of a series of Securities, issued in
fully-registered certificated form to the Depositary for such
series in accordance with Section 3.03 and bearing the legend
prescribed in Section 3.03(g).
Holder; Holder of
Securities:
The
terms “Holder” and “Holder of Securities”
are defined under “Security holder; Holder of Securities;
Holder.”
Indebtedness:
The
term “Indebtedness” shall mean any and all obligations
of a Person for money borrowed which, in accordance with GAAP,
would be reflected on the balance sheet of such Person as a
liability on the date as of which Indebtedness is to be
determined.
Indenture:
The
term “Indenture” or “this Indenture” shall
mean this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument
and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively. The
term “Indenture” shall also include the terms of
particular series of Securities established as contemplated by
Section 3.01; provided, however, that if at any time more than
one Person is acting as Trustee under this Indenture due to the
appointment of one or more separate Trustees for any one or more
separate series of Securities, “Indenture” shall mean,
with respect to such series of Securities for which any such Person
is Trustee, this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee
established as contemplated by Section 3.01, exclusive,
however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after
such person had become such Trustee, but to which such person, as
such Trustee, was not a party; provided, further that in the event
that this Indenture is supplemented or amended by one or more
indentures supplemental hereto which are only applicable to certain
series of Securities, the term “Indenture” for a
particular series of Securities shall only include the supplemental
indentures applicable thereto.
Individual
Securities:
The
term “Individual Securities” shall have the meaning
specified in Section 3.01(p).
Interest:
The
term “interest” shall mean, unless the context
otherwise requires, interest payable on any Securities, and with
respect to an Original Issue Discount Security that by its terms
bears interest only after Maturity, interest payable after
Maturity.
3
Interest Payment
Date:
The
term “Interest Payment Date” shall mean, with respect
to any Security, the Stated Maturity of an installment of interest
on such Security.
Mandatory Sinking
Fund Payment:
The
term “Mandatory Sinking Fund Payment” shall have the
meaning assigned to it in Section 5.01(b).
Maturity:
The
term “Maturity,” with respect to any Security, shall
mean the date on which the principal of such Security shall become
due and payable as therein and herein provided, whether by
declaration, call for redemption or otherwise.
Members:
The
term “Members” shall have the meaning assigned to it in
Section 3.03(i).
Officer’s
Certificate:
The
term “Officer’s Certificate” shall mean a
certificate signed by any of the Chairman of the Board of
Directors, Chief Executive Officer, Chief Financial Officer,
President or a Vice President, Treasurer, an Assistant Treasurer,
Controller, Secretary or an Assistant Secretary of the Company and
delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 16.01 if and to the extent
required by the provisions of such Section.
Opinion of
Counsel:
The
term “Opinion of Counsel” shall mean an opinion in
writing signed by legal counsel, who may be an employee of or of
counsel to the Company, or may be other counsel that meets the
requirements provided for in Section 16.01, each reasonably
acceptable to the Trustee.
Optional Sinking
Fund Payment:
The
term “Optional Sinking Fund Payment” shall have the
meaning assigned to it in Section 5.01(b).
Original Issue
Discount Security:
The
term “Original Issue Discount Security” shall mean any
Security that is issued with “original issue discount”
within the meaning of Section 1273(a) of the Code and the
regulations thereunder and any other Security designated by the
Company as issued with original issue discount for United States
federal income tax purposes.
Outstanding:
The
term “Outstanding,” when used with respect to
Securities means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(1)
Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(2)
Securities or
portions thereof for which payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities or Securities
as to which the Company’s obligations have been Discharged;
provided, however, that if such Securities or portions thereof are
to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(3)
Securities that
have been paid pursuant to Section 3.07(b) or in exchange for
or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to a
Responsible Officer of the Trustee proof satisfactory to it that
such Securities are held by a protected purchaser in whose hands
such Securities are valid obligations of the Company; provided,
however, that in determining whether the Holders of the requisite
principal amount of Securities of a series Outstanding have
performed any action hereunder, Securities owned by the Company or
any other obligor upon the Securities of such series or any
Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon
any such action, only Securities of such series that a Responsible
Officer of the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee’s right to act
with respect to such Securities and that the pledgee is not the
Company or any other obligor upon such Securities or any Affiliate
of the Company or of such other obligor. In determining whether the
Holders of the requisite principal amount of Outstanding Securities
of a series have performed any action hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purpose shall be the amount of the
principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 7.02 and the principal
amount of a Security denominated in a Foreign Currency that shall
be deemed to be Outstanding for such purpose shall be the amount
calculated pursuant to Section 3.11(b).
Paying
Agent:
The
term “Paying Agent” shall have the meaning assigned to
it in Section 6.02(a).
4
Person:
The
term “Person” shall mean an individual, a corporation,
a limited liability company, a partnership, an association, a joint
stock company, a trust, an unincorporated organization or a
government or an agency or political subdivision
thereof.
Place of
Payment:
The
term “Place of Payment” shall mean, when used with
respect to the Securities of any series, the place or places where
the principal of and premium, if any, and interest on the
Securities of that series are payable as specified pursuant to
Section 3.01.
Predecessor
Security:
The
term “Predecessor Security” shall mean, with respect to
any Security, every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular Security,
and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.07 in lieu of a
lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.
Preferred
Stock:
The
term “Preferred Stock”, as applied to the Capital Stock
of any Person, shall mean Capital Stock of any class or classes
(however designated) which is preferred as to the payment of
dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of
such Person, over shares of Capital Stock of any other class of
such Person.
Record
Date:
The
term “Record Date” shall mean, with respect to any
interest payable on any Security on any Interest Payment Date, the
close of business on any date specified in such Security for the
payment of interest pursuant to Section 3.01.
Redemption
Date:
The
term “Redemption Date” shall mean, when used with
respect to any Security to be redeemed, in whole or in part, the
date fixed for such redemption by or pursuant to this Indenture and
the terms of such Security, which, in the case of a Floating Rate
Security, unless otherwise specified pursuant to Section 3.01,
shall be an Interest Payment Date only.
Redemption
Price:
The
term “Redemption Price,” when used with respect to any
Security to be redeemed, in whole or in part, shall mean the price
at which it is to be redeemed pursuant to the terms of the Security
and this Indenture.
Register:
The
term “Register” shall have the meaning assigned to it
in Section 3.05(a).
Registrar:
The
term “Registrar” shall have the meaning assigned to it
in Section 3.05(a).
Responsible
Officers:
The
term “Responsible Officers” of the Trustee hereunder
shall mean any vice president, any assistant vice president, any
trust officer, any assistant trust officer or any other officer
associated with the corporate trust department of the Trustee
customarily performing functions similar to those performed by any
of the above designated officers, and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee
to whom such matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this
Indenture.
SEC:
The
term “SEC” shall mean the United States Securities and
Exchange Commission, as constituted from time to time.
Securities
Act:
The
term “Securities Act” shall mean the United States
Securities Act of 1933 and the rules and regulations promulgated by
the SEC thereunder and any statute successor thereto, in each case
as amended from time to time.
Security:
The
term “Security” or “Securities” shall have
the meaning stated in the recitals and shall more particularly mean
one or more of the Securities duly authenticated by the Trustee and
delivered pursuant to the provisions of this
Indenture.
5
Security
Custodian:
The
term “Security Custodian” shall mean the custodian with
respect to any Global Security appointed by the Depositary, or any
successor Person thereto, and shall initially be the Paying
Agent.
Securityholder;
Holder of Securities; Holder:
The
term “Securityholder” or “Holder of
Securities” or “Holder,” shall mean the Person in
whose name Securities shall be registered in the Register kept for
that purpose hereunder.
Senior
Indebtedness:
The
term “Senior Indebtedness” means the principal of (and
premium, if any) and unpaid interest on (x) Indebtedness of
the Company, whether outstanding on the date hereof or thereafter
created, incurred, assumed or guaranteed, for money borrowed other
than (a) any Indebtedness of the Company which when incurred,
and without respect to any election under Section 1111(b) of
the Federal Bankruptcy Code, was without recourse to the Company,
(b) any Indebtedness of the Company to any of its
Subsidiaries, (c) Indebtedness to any employee of the Company,
(d) any liability for taxes, (e) Trade Payables and
(f) any Indebtedness of the Company which is expressly
subordinate in right of payment to any other Indebtedness of the
Company, and (y) renewals, extensions, modifications and
refundings of any such Indebtedness. For purposes of the foregoing
and the definition of “Senior Indebtedness,” the phrase
“subordinated in right of payment” means debt
subordination only and not lien subordination, and accordingly,
(i) unsecured indebtedness shall not be deemed to be
subordinated in right of payment to secured indebtedness merely by
virtue of the fact that it is unsecured, and (ii) junior
liens, second liens and other contractual arrangements that provide
for priorities among Holders of the same or different issues of
indebtedness with respect to any collateral or the proceeds of
collateral shall not constitute subordination in right of payment.
This definition may be modified or superseded by a supplemental
indenture.
Special Record
Date:
The
term “Special Record Date” shall have the meaning
assigned to it in Section 3.08(b)(i).
Stated
Maturity:
The
term “Stated Maturity” when used with respect to any
Security or any installment of interest thereon, shall mean the
date specified in such Security as the fixed date on which the
principal (or any portion thereof) of or premium, if any, on such
Security or such installment of interest is due and
payable.
Subsidiary:
The
term “Subsidiary” shall mean, with respect to any
Person, any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of all
classes of Capital Stock of such Person then outstanding and
normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees is at the time owned or controlled, directly or
indirectly, by:
(1)
such
Person;
(2)
such Person and one
or more Subsidiaries of such Person; or
(3)
one or more
Subsidiaries of such Person.
Successor
Company:
The
term “Successor Company” shall have the meaning
assigned to it in Section 3.06(i).
Trade
Payables:
The
term “Trade Payables” means accounts payable or any
other Indebtedness or monetary obligations to trade creditors
created or assumed by the Company or any Subsidiary of the Company
in the ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities).
Trust Indenture
Act; TIA:
The
term “Trust Indenture Act” or “TIA” shall
mean the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder as in effect on the date of this Indenture,
except as provided in Section 14.06 and except to the extent
any amendment to the Trust Indenture Act expressly provides for
application of the Trust Indenture Act as in effect on another
date.
Trustee:
The
term “Trustee” shall mean the Person named as the
“Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee”
shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person,
“Trustee” as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that
series.
6
U.S.
Dollars:
The
term “U.S. Dollars” shall mean such currency of the
United States as at the time of payment shall be legal tender for
the payment of public and private debts.
U.S. Government
Obligations:
The
term “U.S. Government Obligations” shall have the
meaning assigned to it in Section 12.03.
United
States:
The
term “United States” shall mean the United States of
America (including the States and the District of Columbia), its
territories and its possessions and other areas subject to its
jurisdiction.
ARTICLE
II
(a) The Securities of
each series shall be substantially in the form set forth in a
Company Order or in one or more indentures supplemental hereto, and
shall have such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements
placed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities
exchange on which any series of the Securities may be listed or of
any automated quotation system on which any such series may be
quoted, or to conform to usage, all as determined by the officers
executing such Securities as conclusively evidenced by their
execution of such Securities.
(b) The terms and
provisions of the Securities shall constitute, and are hereby
expressly made, a part of this Indenture, and, to the extent
applicable, the Company and the Trustee, by their execution and
delivery of this Indenture expressly agree to such terms and
provisions and to be bound thereby.
(a) Only such of the
Securities as shall bear thereon a certificate substantially in the
form of the Trustee’s certificate of authentication
hereinafter recited, executed by the Trustee by manual signature,
shall be valid or become obligatory for any purpose or entitle the
Holder thereof to any right or benefit under this
Indenture.
(b) Each Security shall
be dated the date of its authentication, except that any Global
Security shall be dated as of the date specified as contemplated in
Section 3.01.
ARTICLE
III
The
aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may
be issued in one or more series. There shall be set forth in a
Company Order or in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:
(a) the title of the
Securities of the series (which shall distinguish the Securities of
such series from the Securities of all other series, except to the
extent that additional Securities of an existing series are being
issued);
(b) any limit upon the
aggregate principal amount of the Securities of the series that may
be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon transfer of, or in
exchange for, or in lieu of, other Securities of such series
pursuant to Section 3.04, 3.06, 3.07, 4.06, or
14.05);
(c) the dates on which
or periods during which the Securities of the series may be issued,
and the dates on, or the range of dates within, which the principal
of and premium, if any, on the Securities of such series are or may
be payable or the method by which such date or dates shall be
determined or extended;
7
(d) the rate or rates
at which the Securities of the series shall bear interest, if any,
or the method by which such rate or rates shall be determined,
whether such interest shall be payable in cash or additional
Securities of the same series or shall accrue and increase the
aggregate principal amount outstanding of such series (including if
such Securities were originally issued at a discount), the date or
dates from which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment Dates
on which any such interest shall be payable, and the Record Dates
for the determination of Holders to whom interest is payable on
such Interest Payment Dates or the method by which such date or
dates shall be determined, the right, if any, to extend or defer
interest payments and the duration of such extension or
deferral;
(e) other than U.S.
Dollars, the Foreign Currency in which Securities of the series
shall be denominated or in which payment of the principal of,
premium, if any, or interest on the Securities of the series shall
be payable and any other terms concerning such
payment;
(f) the amount of
payment of principal of, premium, if any, or interest on the
Securities of the series may be determined with reference to an
index, formula or other method including, but not limited to, an
index based on a Currency or Currencies other than that in which
the Securities are stated to be payable, the manner in which such
amounts shall be determined;
(g) the principal of,
premium, if any, or interest on Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a
Currency other than that in which the Securities are denominated or
stated to be payable without such election, the period or periods
within which, and the terms and conditions upon which, such
election may be made and the time and the manner of determining the
exchange rate between the Currency in which the Securities are
denominated or payable without such election and the Currency in
which the Securities are to be paid if such election is
made;
(h) the place or
places, if any, in addition to or instead of the Corporate Trust
Office of the Trustee where the principal of, premium, if any, and
interest on Securities of the series shall be payable, and where
Securities of any series may be presented for registration of
transfer, exchange or conversion, and the place or places where
notices and demands to or upon the Company in respect of the
Securities of such series may be made;
(i) the price or prices
at which, the period or periods within which or the date or dates
on which, and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(j) the obligation or
right, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund, amortization
or analogous provisions or at the option of a Holder thereof and
the price or prices at which, the period or periods within which or
the date or dates on which, the Currency or Currencies in which and
the terms and conditions upon which Securities of the series shall
be redeemed, purchased or repaid, in whole or in part, pursuant to
such obligation;
(k) other than
denominations of $2,000 or any integral multiple thereof, the
denominations in which Securities of the series shall be
issuable;
(l) other than the
principal amount thereof, the portion of the principal amount of
the Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to
Section 7.02;
(m) the guarantors, if
any, of the Securities of the series, and the extent of the
guarantees (including provisions relating to seniority,
subordination, and the release of the guarantors), if any, and any
additions or changes to permit or facilitate guarantees of such
Securities;
(n) Whether the
Securities of the series are to be issued as Original Issue
Discount Securities and the amount of discount with which such
Securities may be issued;
(o) provisions, if any,
for the defeasance of Securities of the series in whole or in part
and any addition or change in the provisions related to
satisfaction and discharge;
(p) whether the
Securities of the series are to be issued in whole or in part in
the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Global Securities, and the
terms and conditions, if any, upon which interests in such Global
Security or Global Securities may be exchanged in whole or in part
for the Individual Securities represented thereby in definitive
form registered in the name or names of Persons other than such
Depositary or a nominee or nominees thereof (“Individual
Securities”);
(q) the date as of
which any Global Security of the series shall be dated if other
than the original issuance of the first Security of the series to
be issued;
(r) the form of the
Securities of the series;
(s) the Securities of
the series are to be convertible into or exchangeable for any
securities or property of any Person (including the Company), the
terms and conditions upon which such Securities will be so
convertible or exchangeable, and any additions or changes, if any,
to permit or facilitate such conversion or exchange;
8
(t) whether the
Securities of such series are subject to subordination and the
terms of such subordination;
(u) any restriction or
condition on the transferability of the Securities of such
series;
(v) any addition or
change in the provisions related to compensation and reimbursement
of the Trustee which applies to Securities of such
series;
(w) any addition or
change in the provisions related to supplemental indentures set
forth in Sections 14.02 and 14.04 which applies to Securities of
such series;
(x) provisions, if any,
granting special rights to Holders upon the occurrence of specified
events;
(y) any addition to or
change in the Events of Default which applies to any Securities of
the series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 7.02 and
any addition or change in the provisions set forth in Article VII
which applies to Securities of the series;
(z) any addition to or
change in the covenants set forth in Article VI which applies to
Securities of the series;
(aa) whether
the Securities of the series are to be secured or unsecured, and,
if secured, the terms upon which the Securities of such series
shall be secured and any other additions or changes relating to
such security; and
(bb) any
other terms of the Securities of such series (which terms shall not
be inconsistent with the provisions of the TIA, but may modify,
amend, supplement or delete any of the terms of this Indenture with
respect to such series).
All
Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided
herein or set forth in a Company Order or in one or more indentures
supplemental hereto.
(a) The Securities
shall be executed in the name and on behalf of the Company by the
manual or facsimile signature of its Chairman of the Board of
Directors, its Chief Executive Officer, President, one of its Vice
Presidents or Treasurer. If the Person whose signature is on a
Security no longer holds that office at the time the Security is
authenticated and delivered, the Security shall nevertheless be
valid.
(b) At any time and
from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities and, if required pursuant to Section 3.01, a
supplemental indenture or Company Order setting forth the terms of
the Securities of a series. The Trustee shall thereupon
authenticate and deliver such Securities without any further action
by the Company. The Company Order shall specify the amount of
Securities to be authenticated and the date on which the original
issue of Securities is to be authenticated.
(c) In authenticating
the first Securities of any series and accepting the additional
responsibilities under this Indenture in relation to such
Securities the Trustee shall receive, and (subject to
Section 11.02) shall be fully protected in relying upon an
Officer’s Certificate and an Opinion of Counsel, each
prepared in accordance with Section 16.01 stating that the
conditions precedent, if any, provided for in the Indenture have
been complied with.
(d) The Trustee shall
have the right to decline to authenticate and deliver the
Securities under this Section 3.03 if the issue of the
Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
(e) Each Security shall
be dated the date of its authentication, except as otherwise
provided pursuant to Section 3.01 with respect to the
Securities of such series.
(f) Notwithstanding the
provisions of Section 3.01 and of this Section 3.03, if
all of the Securities of any series are not to be originally issued
at the same time, then the documents required to be delivered
pursuant to this Section 3.03 must be delivered only once
prior to the authentication and delivery of the first Security of
such series;
9
(g) If the Company
shall establish pursuant to Section 3.01 that the Securities
of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the
Trustee shall authenticate and deliver one or more Global
Securities that (i) shall represent an aggregate amount equal
to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Global Securities,
(ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Global Securities or
the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such
Depositary’s instruction and (iv) shall bear a legend
substantially to the following effect:
“THIS
SECURITY IS A GLOBAL SECURITY 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 SECURITY FOR ALL PURPOSES.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF THE NOMINEE OF THE DEPOSITARY OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO THE NOMINEE OF THE
DEPOSITARY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, THE NOMINEE OF THE DEPOSITARY,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, 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 OF SUCH SUCCESSOR
DEPOSITARY.”
The
aggregate principal amount of each Global Security may from time to
time be increased or decreased by adjustments made on the records
of the Security Custodian, as provided in this
Indenture.
(h) Each Depositary
designated pursuant to Section 3.01 for a Global Security in
registered form must, at the time of its designation and at all
times while it serves as such Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute
or regulation.
(i) Members of, or
participants in, the Depositary (“Members”) shall have
no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary or by the Security Custodian
under such Global Security, and the Depositary may be treated by
the Company, the Trustee, the Paying Agent and the Registrar and
any of their agents as the absolute owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee, the Paying Agent or
the Registrar or any of their agents from giving effect to any
written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its
Members, the operation of customary practices of the Depositary
governing the exercise of the rights of an owner of a beneficial
interest in any Global Security. The Holder of a Global Security
may grant proxies and otherwise authorize any Person, including
Members and Persons that may hold interests through Members, to
take any action that a Holder is entitled to take under this
Indenture or the Securities.
(j) No Security shall
be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an
Authenticating Agent by manual or facsimile signature of an
authorized signatory of the Trustee, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
(a) Pending the
preparation of definitive Securities of any series, the Company may
execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any
authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in
registered form and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their
execution of such Securities. Any such temporary Security may be in
the form of one or more Global Securities, representing all or a
portion of the Outstanding Securities of such series. Every such
temporary Security shall be executed by the Company and shall be
authenticated and delivered by the Trustee upon the same conditions
and in substantially the same manner, and with the same effect, as
the definitive Security or Securities in lieu of which it is
issued.
(b) If temporary
Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon
surrender of such temporary Securities at the office or agency of
the Company in a Place of Payment for such series, without charge
to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series
of authorized denominations and of like tenor. Until so exchanged,
the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of such series.
10
(c) Upon any exchange
of a portion of a temporary Global Security for a definitive Global
Security or for the Individual Securities represented thereby
pursuant to this Section 3.04 or Section 3.06, the
temporary Global Security shall be endorsed by the Trustee to
reflect the reduction of the principal amount evidenced thereby,
whereupon the principal amount of such temporary Global Security
shall be reduced for all purposes by the amount so exchanged and
endorsed.
(a) The Company will
keep, at an office or agency to be maintained by it in a Place of
Payment where Securities may be presented for registration or
presented and surrendered for registration of transfer or of
exchange, and where Securities of any series that are convertible
or exchangeable may be surrendered for conversion or exchange, as
applicable (the “Registrar”), a security register for
the registration and the registration of transfer or of exchange of
the Securities (the registers maintained in such office and in any
other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the
“Register”), as in this Indenture provided, which
Register shall at all reasonable times be open for inspection by
the Trustee. Such Register shall be in written form or in any other
form capable of being converted into written form within a
reasonable time. The Company may have one or more co-Registrars;
the term “Registrar” includes any
co-registrar.
(b) The Company shall
enter into an appropriate agency agreement with any Registrar or
co-Registrar not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address
of each such agent. If the Company fails to maintain a Registrar
for any series, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to
Section 11.01. The Company or any Affiliate thereof may act as
Registrar, co-Registrar or transfer agent.
(c) The Company hereby
appoints the Trustee at its Corporate Trust Office as Registrar in
connection with the Securities and this Indenture, until such time
as another Person is appointed as such.
(a) Transfer.
(i) Upon surrender for
registration of transfer of any Security of any series at the
Registrar the Company shall execute, and the Trustee or any
Authenticating Agent shall authenticate and deliver, in the name of
the designated transferee, one or more new Securities of the same
series for like aggregate principal amount of any authorized
denomination or denominations. The transfer of any Security shall
not be valid as against the Company or the Trustee unless
registered at the Registrar at the request of the Holder, or at the
request of his, her or its attorney duly authorized in
writing.
(ii) Notwithstanding
any other provision of this Section, unless and until it is
exchanged in whole or in part for the Individual Securities
represented thereby, a Global Security representing all or a
portion of the Securities of a series may not be transferred except
as a whole by the Depositary for such series to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee
of such successor Depositary.
(b) Exchange.
(i) At the option of
the Holder, Securities of any series (other than a Global Security,
except as set forth below) may be exchanged for other Securities of
the same series for like aggregate principal amount of any
authorized denomination or denominations, upon surrender of the
Securities to be exchanged at the Registrar.
(ii) Whenever
any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to
receive.
(c) Exchange of Global
Securities for Individual Securities. Except as provided below,
owners of beneficial interests in Global Securities will not be
entitled to receive Individual Securities.
(i) Individual
Securities shall be issued to all owners of beneficial interests in
a Global Security in exchange for such interests if: (A) at
any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary
for the Securities of such series shall no longer be eligible under
Section 3.03(h) and, in each case, a successor Depositary is
not appointed by the Company within 90 days of such notice, or
(B) the Company executes and delivers to the Trustee and the
Registrar an Officer’s Certificate stating that such Global
Security shall be so exchangeable.
In connection with
the exchange of an entire Global Security for Individual Securities
pursuant to this subsection (c), such Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of Individual Securities
of such series, will authenticate and deliver to each beneficial
owner identified by the Depositary in exchange for its beneficial
interest in such Global Security, an equal aggregate principal
amount of Individual Securities of authorized
denominations.
11
(ii) The
owner of a beneficial interest in a Global Security will be
entitled to receive an Individual Security in exchange for such
interest if an Event of Default has occurred and is continuing.
Upon receipt by the Security Custodian and Registrar of
instructions from the Holder of a Global Security directing the
Security Custodian and Registrar to (x) issue one or more
Individual Securities in the amounts specified to the owner of a
beneficial interest in such Global Security and (y) debit or
cause to be debited an equivalent amount of beneficial interest in
such Global Security, subject to the rules and regulations of the
Depositary
(A) the Security
Custodian and Registrar shall notify the Company and the Trustee of
such instructions, identifying the owner and amount of such
beneficial interest in such Global Security;
(B) the Company shall
promptly execute and the Trustee, upon receipt of a Company Order
for the authentication and delivery of Individual Securities of
such series, shall authenticate and deliver to such beneficial
owner Individual Securities in an equivalent amount to such
beneficial interest in such Global Security; and
(C) the Security
Custodian and Registrar shall decrease such Global Security by such
amount in accordance with the foregoing. In the event that the
Individual Securities are not issued to each such beneficial owner
promptly after the Registrar has received a request from the Holder
of a Global Security to issue such Individual Securities, the
Company expressly acknowledges, with respect to the right of any
Holder to pursue a remedy pursuant to Section 7.07 hereof, the
right of any beneficial Holder of Securities to pursue such remedy
with respect to the portion of the Global Security that represents
such beneficial Holder’s Securities as if such Individual
Securities had been issued.
(iii) If
specified by the Company pursuant to Section 3.01 with respect
to a series of Securities, the Depositary for such series of
Securities may surrender a Global Security for such series of
Securities in exchange in whole or in part for Individual
Securities of such series on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall execute,
and the Trustee shall authenticate and deliver, without service
charge,
(d) each Person
specified by such Depositary a new Individual Security or new
Individual Securities of the same series, of any authorized
denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person’s beneficial
interest in the Global Security; and
(e) such Depositary a
new Global Security in a denomination equal to the difference, if
any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Individual
Securities delivered to Holders thereof.
(i) In any exchange
provided for in clauses (i) through (iii), the Company will
execute and the Trustee will authenticate and deliver Individual
Securities in registered form in authorized
denominations.
(ii) Upon
the exchange in full of a Global Security for Individual
Securities, such Global Security shall be canceled by the Trustee.
Individual Securities issued in exchange for a Global Security
pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such
Securities are so registered.
(f) All Securities
issued upon any registration of transfer or exchange of Securities
shall be valid obligations of the Company evidencing the same debt,
and entitled to the same benefits under this Indenture, as the
Securities surrendered for such registration of transfer or
exchange.
(g) Every Security
presented or surrendered for registration of transfer, or for
exchange or payment shall (if so required by the Company, the
Trustee or the Registrar) be duly endorsed, or be accompanied by a
written instrument or instruments of transfer in form satisfactory
to the Company, the Trustee and the Registrar, duly executed by the
Holder thereof or by his, her or its attorney duly authorized in
writing.
(h) No service charge
will be made for any registration of transfer or exchange of
Securities. The Company or the Trustee may require payment of a sum
sufficient to cover any tax, assessment or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than those expressly
provided in this Indenture to be made at the Company’s own
expense or without expense or charge to the Holders.
(i) The Company shall
not be required to (i) register, transfer or exchange
Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice
of redemption of Securities of such series selected for redemption
under Section 4.03 and ending at the close of business on the
day of such transmission, or (ii) register, transfer or
exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed
in part.
(j) Prior to the due
presentation for registration of transfer or exchange of any
Security, the Company, the Trustee, the Paying Agent, the
Registrar, any co-Registrar or any of their agents may deem and
treat the Person in whose name a Security is registered as the
absolute owner of such Security (whether or not such Security shall
be overdue and notwithstanding any notation of ownership or other
writing thereon) for all purposes whatsoever, and none of the
Company, the Trustee, the Paying Agent, the Registrar, any
co-Registrar or any of their agents shall be affected by any notice
to the contrary.
12
(k) In case a successor
Company (“Successor Company”) has executed an indenture
supplemental hereto with the Trustee pursuant to Article XIV, any
of the Securities authenticated or delivered pursuant to such
transaction may, from time to time, at the request of the Successor
Company, be exchanged for other Securities executed in the name of
the Successor Company with such changes in phraseology and form as
may be appropriate, but otherwise identical to the Securities
surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Order of the Successor Company, shall
authenticate and deliver Securities as specified in such order for
the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a Successor Company
pursuant to this Section 3.06 in exchange or substitution for
or upon registration of transfer of any Securities, such Successor
Company, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time
Outstanding for Securities authenticated and delivered in such new
name.
(l) Each Holder of a
Security agrees to indemnify the Company and the Trustee against
any liability that may result from the transfer, exchange or
assignment of such Holder’s Security in violation of any
provision of this Indenture and/or applicable United States federal
or state securities laws.
(m) The Trustee shall
have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of
any interest in any Security (including any transfers between or
among members of, or participants in the Depositary or beneficial
owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence
as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same
to determine substantial compliance as to form with the express
requirements hereof.
(n) Neither the Trustee
nor any agent of the Trustee shall have any responsibility for any
actions taken or not taken by the Depositary.
(a) If (i) any
mutilated Security is surrendered to the Trustee at its Corporate
Trust Office or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of
any Security, and there is delivered to the Company and the Trustee
security or indemnity satisfactory to them to save each of them and
any Paying Agent harmless, and neither the Company nor the Trustee
receives notice that such Security has been acquired by a protected
purchaser, then the Company shall execute and upon Company Order
the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Security, a
new Security of the same series and of like tenor, form, terms and
principal amount, bearing a number not contemporaneously
outstanding, that neither gain nor loss in interest shall result
from such exchange or substitution.
(b) In case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay the amount due on such
Security in accordance with its terms.
(c) Upon the issuance
of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
(d) Every new Security
of any series issued pursuant to this Section shall constitute an
original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
(e) The provisions of
this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities.
(a) Interest on any
Security that is payable and is punctually paid or duly provided
for on any Interest Payment Date shall be paid to the Person in
whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Record Date for such
interest notwithstanding the cancellation of such Security upon any
transfer or exchange subsequent to the Record Date. Payment of
interest on Securities shall be made at the Corporate Trust Office
(except as otherwise specified pursuant to Section 3.01) or,
at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Register or, in accordance with arrangements satisfactory to the
Trustee, by wire transfer to an account designated by the
Holder.
(b) Any interest on any
Security that is payable but is not punctually paid or duly
provided for on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be
payable to the Holder on the relevant Record Date by virtue of his,
her or its having been such a Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as
provided in clause (i) or (ii) below:
13
(ii) The Company may
make payment of any Defaulted Interest on Securities in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(c) Subject to the
provisions set forth herein relating to Record Dates, each Security
delivered pursuant to any provision of this Indenture in exchange
or substitution for, or upon registration of transfer of, any other
Security shall carry all the rights to interest accrued and unpaid,
and to accrue, which were carried by such other
Security.
(a) Except as otherwise
specified pursuant to Section 3.01 for Securities of any
series, payment of the principal of and premium, if any, and
interest on Securities of such series will be made in U.S.
Dollars.
(b) For purposes of any
provision of the Indenture where the Holders of Outstanding
Securities may perform an action that requires that a specified
percentage of the Outstanding Securities of all series perform such
action and for purposes of any decision or determination by the
Trustee of amounts due and unpaid for the principal of and premium,
if any, and interest on the Securities of all series in respect of
which moneys are to be disbursed ratably, the principal of and
premium, if any, and interest on the Outstanding Securities
denominated in a Foreign Currency will be the amount in U.S.
Dollars based upon exchange rates, determined as specified pursuant
to Section 3.01 for Securities of such series, as of the date
for determining whether the Holders entitled to perform such action
have performed it or as of the date of such decision or
determination by the Trustee, as the case may be.
(c) Any decision or
determination to be made regarding exchange rates shall be made by
an agent appointed by the Company; provided, that such agent shall
accept such appointment in writing and the terms of such
appointment shall, in the opinion of the Company at the time of
such appointment, require such agent to make such determination by
a method consistent with the method provided pursuant to
Section 3.01 for the making of such decision or determination.
All decisions and determinations of such agent regarding exchange
rates shall, in the absence of manifest error, be conclusive for
all purposes and irrevocably binding upon the Company, the Trustee
and all Holders of the Securities.
14
ARTICLE
IV
(a) If the Company
shall at any time elect to redeem all or any portion of the
Securities of a series then Outstanding, it shall at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter
period shall be satisfactory to the Trustee) notify the Trustee of
(i) such Redemption Date, (ii) the Section of this
Indenture pursuant to which the redemption shall occur,
(iii) the Redemption Price, and (iv) the principal amount
of Securities to be redeemed, and thereupon the Trustee shall
select, by lot or in such other manner as the Trustee shall deem
appropriate and which may provide for the selection for redemption
of a portion of the principal amount of any Security of such
series; provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination)
for such Security. In any case where more than one Security of such
series is registered in the same name, the Trustee may treat the
aggregate principal amount so registered as if it were represented
by one Security of such series. The Trustee shall, as soon as
practicable, notify the Company in writing of the Securities and
portions of Securities so selected.
(b) For all purposes of
this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security that
has been or is to be redeemed. If the Company shall so direct,
Securities registered in the name of the Company, any Affiliate or
any Subsidiary thereof shall not be included in the Securities
selected for redemption.
(a) Notice of
redemption shall be given by the Company or, at the Company’s
request, by the Trustee in the name and at the expense of the
Company, not less than 30 nor more than 60 days prior to the
Redemption Date, to the Holders of Securities of any series to be
redeemed in whole or in part pursuant to this Article, in the
manner provided in Section 16.04. Any notice so given shall be
conclusively presumed to have been duly given, whether or not the
Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Security of a series
designated for redemption, in whole or in part, shall not affect
the sufficiency of any notice of redemption with respect to the
Holder of any other Security of such series.
15
(b) All notices of
redemption shall identify the Securities to be redeemed (including
CUSIP, ISIN or other similar numbers, if available) and shall
state:
16
ARTICLE
V
(a) Redemption of
Securities permitted or required pursuant to a sinking fund for the
retirement of Securities of a series by the terms of such series of
Securities shall be made in accordance with such terms of such
series of Securities and this Article, except as otherwise
specified pursuant to Section 3.01 for Securities of such
series, provided, however, that if any such terms of a series of
Securities shall conflict with any provision of this Article, the
terms of such series shall govern.
(b) The minimum amount
of any sinking fund payment provided for by the terms of Securities
of any series is herein referred to as a “Mandatory Sinking
Fund Payment,” and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is
herein referred to as an “Optional Sinking Fund
Payment.” If provided for by the terms of Securities of any
series, the cash amount of any Mandatory Sinking Fund Payment may
be subject to reduction as provided in
Section 5.02.
(a) If the sinking fund
payment or payments made in funds pursuant to either
Section 5.02 or 5.03 with respect to a particular series of
Securities plus any unused balance of any preceding sinking fund
payments made in funds with respect to such series shall exceed
$50,000 (or a lesser sum if the Company shall so request, or such
equivalent sum for Securities denominated other than in U.S.
Dollars), it shall be applied by the Trustee on the sinking fund
payment date next following the date of such payment, unless the
date of such payment shall be a sinking fund payment date, in which
case such payment shall be applied on such sinking fund payment
date, to the redemption of Securities of such series at the
redemption price specified pursuant to Section 4.03(b). The
Trustee shall select, in the manner provided in Section 4.02,
for redemption on such sinking fund payment date, a sufficient
principal amount of Securities of such series to absorb said funds,
as nearly as may be, and shall, at the expense and in the name of
the Company, thereupon cause notice of redemption of the Securities
to be given in substantially the manner provided in
Section 4.03(a) for the redemption of Securities in part at
the option of the Company, except that the notice of redemption
shall also state that the Securities are being redeemed for the
sinking fund. Any sinking fund moneys not so applied by the Trustee
to the redemption of Securities of such series shall be added to
the next sinking fund payment received in funds by the Trustee and,
together with such payment, shall be applied in accordance with the
provisions of this Section 5.04. Any and all sinking fund
moneys held by the Trustee on the last sinking fund payment date
with respect to Securities of such series, and not held for the
payment or redemption of particular Securities of such series,
shall be applied by the Trustee to the payment of the principal of
the Securities of such series at Maturity.
(b) On or prior to each
sinking fund payment date, the Company shall pay to the Trustee a
sum equal to all interest accrued to but not including the date
fixed for redemption on Securities to be redeemed on such sinking
fund payment date pursuant to this Section 5.04.
17
(c) The Trustee shall
not redeem any Securities of a series with sinking fund moneys or
mail any notice of redemption of Securities of such series by
operation of the sinking fund during the continuance of a Default
in payment of interest on any Securities of such series or of any
Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) of which a Responsible Officer of
the Trustee has actual knowledge, except that if the notice of
redemption of any Securities of such series shall theretofore have
been mailed in accordance with the provisions hereof, the Trustee
shall redeem such Securities if funds sufficient for that purpose
shall be deposited with the Trustee in accordance with the terms of
this Article. Except as aforesaid, any moneys in the sinking fund
at the time any such Default or Event of Default shall occur and
any moneys thereafter paid into the sinking fund shall, during the
continuance of such Default or Event of Default, be held as
security for the payment of all the Securities of such series;
provided, however, that in case such Default or Event of Default
shall have been cured or waived as provided herein, such moneys
shall thereafter be applied on the next sinking fund payment date
on which such moneys are required to be applied pursuant to the
provisions of this Section 5.04.
ARTICLE
VI
(a) The Company will
maintain in each Place of Payment for any series of Securities, if
any, an office or agency where Securities may be presented or
surrendered for payment, where Securities of such series may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served (the “Paying
Agent”). The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee
as Paying Agent to receive all presentations, surrenders, notices
and demands.
(b) The Company may
also from time to time designate different or additional offices or
agencies where the Securities of any series may be presented or
surrendered for any or all such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its
obligations described in the preceding paragraph. The Company will
give prompt written notice to the Trustee of any such additional
designation or rescission of designation and of any change in the
location of any such different or additional office or agency. The
Company shall enter into an appropriate agency agreement with any
Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address
of each such agent. The Company or any Affiliate thereof may act as
Paying Agent.
(a) If the Company or
an Affiliate thereof shall at any time act as Paying Agent with
respect to any series of Securities, then, on or before the date on
which the principal of and premium, if any, or interest on any of
the Securities of that series by their terms or as a result of the
calling thereof for redemption shall become payable, the Company or
such Affiliate will segregate and hold in trust for the benefit of
the Holders of such Securities or the Trustee a sum sufficient to
pay such principal and premium, if any, or interest which shall
have so become payable until such sums shall be paid to such
Holders or otherwise disposed of as herein provided, and will
notify the Trustee of its action or failure to act in that regard.
Upon any proceeding under any federal bankruptcy laws with respect
to the Company or any Affiliate thereof, if the Company or such
Affiliate is then acting as Paying Agent, the Trustee shall replace
the Company or such Affiliate as Paying Agent.
(b) If the Company
shall appoint, and at the time have, a Paying Agent for the payment
of the principal of and premium, if any, or interest on any series
of Securities, then prior to 11:00 a.m., New York City time, on the
date on which the principal of and premium, if any, or interest on
any of the Securities of that series shall become payable as
aforesaid, whether by their terms or as a result of the calling
thereof for redemption, the Company will deposit with such Paying
Agent a sum sufficient to pay such principal and premium, if any,
or interest, such sum to be held in trust for the benefit of the
Holders of such Securities or the Trustee, and (unless such Paying
Agent is the Trustee), the Company or any other obligor of such
Securities will promptly notify the Trustee of its payment or
failure to make such payment.
(c) If the Paying Agent
shall be other than the Trustee, the Company will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section 6.03, that such Paying Agent
shall:
18
(d) Anything in this
Section 6.03 to the contrary notwithstanding, the Company may
at any time, for the purpose of obtaining a release, satisfaction
or discharge of this Indenture or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by the
Company or by any Paying Agent other than the Trustee as required
by this Section 6.03, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the
Company or such Paying Agent.
(e) Any money deposited
with the Trustee or any Paying Agent, or then held by the Company,
in trust for the payment of the principal of and premium, if any,
or interest on any Security of any series and remaining unclaimed
for two years after such principal and premium, if any, or interest
has become due and payable shall be paid to the Company upon
Company Order along with any interest that has accumulated thereon
as a result of such money being invested at the direction of the
Company, or (if then held by the Company) shall be discharged from
such trust, and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment of
such amounts without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent
before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each
Business Day and of general circulation in The City of New York,
notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
(a) The Company will
not consolidate with any other entity or accept a merger of any
other entity into the Company or permit the Company to be merged
into any other entity, or sell other than for cash or lease all or
substantially all its assets to another entity, or purchase all or
substantially all the assets of another entity, unless
(i) either the Company shall be the continuing entity, or the
successor, transferee or lessee entity (if other than the Company)
shall expressly assume, by indenture supplemental hereto, executed
and delivered by such entity prior to or simultaneously with such
consolidation, merger, sale or lease, the due and punctual payment
of the principal of and interest and premium, if any, on all the
Securities, according to their tenor, and the due and punctual
performance and observance of all other obligations to the Holders
and the Trustee under this Indenture or under the Securities to be
performed or observed by the Company; (ii) immediately after
such consolidation, merger, sale, lease or purchase the Company or
the successor, transferee or lessee entity (if other than the
Company) would not be in Default in the performance of any covenant
or condition of this Indenture; and (iii) either the Company
or the resulting surviving or transferee Person delivers to the
Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that the consolidation, merger or sale and the
supplemental indenture comply with the Indenture. A purchase by a
Subsidiary of all or substantially all of the assets of another
entity shall not be deemed to be a purchase of such assets by the
Company.
(b) Upon any
consolidation with or merger into any other entity, or any sale
other than for cash, or any conveyance or lease of all or
substantially all of the assets of the Company in accordance with
this Section 6.04, the successor entity formed by such
consolidation or into or with which the Company is merged or to
which the Company is sold or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture
with the same effect as if such successor entity had been named as
the Company herein, and thereafter, except in the case of a lease,
the predecessor Company shall be relieved of all obligations and
covenants under this Indenture and the Securities, and from time to
time such entity may exercise each and every right and power of the
Company under this Indenture, in the name of the Company, or in its
own name; and any act or proceeding by any provision of this
Indenture required or permitted to be done by the Board of
Directors or any officer of the Company may be done with like force
and effect by the like board or officer of any entity that shall at
the time be the successor of the Company hereunder. In the event of
any such sale or conveyance, but not any such lease, the Company
(or any successor entity which shall theretofore have become such
in the manner described in this Section 6.04) shall be
discharged from all obligations and covenants under this Indenture
and the Securities and may thereupon be dissolved and
liquidated.
Anything in this Indenture to
the contrary notwithstanding, the Company may fail or omit in any
particular instance to comply with a covenant or condition set
forth herein with respect to any series of Securities if the
Company shall have obtained and filed with the Trustee, prior to
the time of such failure or omission, evidence (as provided in
Article VIII) of the consent of the Holders of a majority in
aggregate principal amount of the Securities of such series at the
time Outstanding, either waiving such compliance in such instance
or generally waiving compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, or impair any
right consequent thereon and, until such waiver shall have become
effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain
in full force and effect.
19
ARTICLE
VII
Except where otherwise
indicated by the context or where the term is otherwise defined for
a specific purpose, the term “Event of Default” as used
in this Indenture with respect to Securities of any series shall
mean one of the following described events unless it is either
inapplicable to a particular series or it is specifically deleted
or modified in the manner contemplated in
Section 3.01:
(a) the failure of the
Company to pay any installment of interest on any Security of such
series when and as the same shall become payable, which failure
shall have continued unremedied for a period of 30
days;
(b) the failure of the
Company to pay the principal of (and premium, if any, on) any
Security of such series, when and as the same shall become payable,
whether at Maturity as therein expressed, by call for redemption
(otherwise than pursuant to a sinking fund), by declaration as
authorized by this Indenture or otherwise;
(c) the failure of the
Company to pay a sinking fund installment, if any, when and as the
same shall become payable by the terms of a Security of such
series, which failure shall have continued unremedied for a period
of 30 days;
(d) the failure of the
Company, subject to the provisions of Section 6.06, to perform
any covenants or agreements contained in this Indenture (including
any indenture supplemental hereto pursuant to which the Securities
of such series were issued as contemplated by Section 3.01)
(other than a covenant or agreement which has been expressly
included in this Indenture solely for the benefit of a series of
Securities other than that series and other than a covenant or
agreement a default in the performance of which is elsewhere in
this Section 7.01 specifically addressed), which failure shall
not have been remedied, or without provision deemed to be adequate
for the remedying thereof having been made, for a period of 90 days
after written notice shall have been given to the Company by the
Trustee or shall have been given to the Company and the Trustee by
Holders of 25% or more in aggregate principal amount of the
Securities of such series then Outstanding, specifying such
failure, requiring the Company to remedy the same and stating that
such notice is a “Notice of Default”
hereunder;
(e) the entry by a
court having jurisdiction in the premises of a decree or order for
relief in respect of the Company in an involuntary case under the
federal bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Company or of substantially all the
property of the Company or ordering the winding-up or liquidation
of its affairs and such decree or order shall remain unstayed and
in effect for a period of 90 consecutive days;
(f) the commencement by
the Company of a voluntary case under the federal bankruptcy laws,
as now or hereafter constituted, or any other applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter
in effect, or the consent by the Company to the entry of an order
for relief in an involuntary case under any such law, or the
consent by the Company to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian or
sequestrator (or similar official) of the Company or of
substantially all the property of the Company or the making by it
of an assignment for the benefit of creditors or the admission by
it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in
furtherance of any action; or
(g) the occurrence of
any other Event of Default with respect to Securities of such
series as provided in Section 3.01;provided, however,
that no event described in clause (d) or (other than with
respect to a payment default) (g) above shall constitute an
Event of Default hereunder until a Responsible Officer of the
Trustee’s has actual knowledge thereof or until a written
notice of any such event is received by the Trustee at the
Corporate Trust Office, and such notice refers to the facts
underlying such event, the Securities generally, the Company and
the Indenture.
Notwithstanding the
foregoing provisions of this Section 7.01, if the principal or
any premium or interest on any Security is payable in a Currency
other than the Currency of the United States and such Currency is
not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in
the Currency of the United States in an amount equal to the
Currency of the United States equivalent of the amount payable in
such other Currency, as determined by the Company’s agent in
accordance with Section 3.11(c) hereof by reference to the
noon buying rate in The City of New York for cable transfers for
such Currency (“Exchange Rate”), as such Exchange Rate
is reported or otherwise made available by the Federal Reserve Bank
of New York on the date of such payment, or, if such rate is not
then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this
Section 7.01, any payment made under such circumstances in the
Currency of the United States where the required payment is in a
Currency other than the Currency of the United States will not
constitute an Event of Default under this Indenture.
20
(a) Except as otherwise
provided as contemplated by Section 3.01 with respect to any
series of Securities, if any one or more of the above-described
Events of Default (other than an Event of Default specified in
Section 7.01(e) or 7.01(f)) shall happen with respect to
Securities of any series at the time Outstanding, then, and in each
and every such case, during the continuance of any such Event of
Default, the Trustee or the Holders of 25% or more in principal
amount of the Securities of such series then Outstanding may
declare the principal (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of and all
accrued but unpaid interest on all the Securities of such series
then Outstanding to be due and payable immediately by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of
Default specified in Section 7.01(e) or 7.01(f) occurs and is
continuing, then in every such case, the principal amount of all of
the Securities of that series then Outstanding shall automatically,
and without any declaration or any other action on the part of the
Trustee or any Holder, become due and payable immediately. Upon
payment of such amounts in the Currency in which such Securities
are denominated (subject to Section 7.01 and except as
otherwise provided pursuant to Section 3.01), all obligations
of the Company in respect of the payment of principal of and
interest on the Securities of such series shall
terminate.
(b) The provisions of
Section 7.02(a), however, are subject to the condition that,
at any time after the principal of all the Securities of such
series, to which any one or more of the above-described Events of
Default is applicable, shall have been so declared to be due and
payable, and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter provided in
this Article, the Event of Default giving rise to such declaration
of acceleration shall, without further act, be deemed to have been
waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled,
if:
(c) No such rescission
shall affect any subsequent default or impair any right consequent
thereon.
(d) For all purposes
under this Indenture, if a portion of the principal of any Original
Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded
and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such
portion of the principal thereof as shall be due and payable as a
result of such acceleration, and payment of such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
21
22
23
ARTICLE
VIII
(a) The fact and date
of the execution by any Person of any such instrument may be proved
(i) by the certificate of any notary public or other officer
in any jurisdiction who, by the laws thereof, has power to take
acknowledgments or proof of deeds to be recorded within such
jurisdiction, that the Person who signed such instrument did
acknowledge before such notary public or other officer the
execution thereof, or (ii) by the affidavit of a witness of
such execution sworn to before any such notary or other officer.
Where such execution is by a Person acting in other than his or her
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his or her authority.
(b) The ownership of
Securities of any series shall be proved by the Register of such
Securities or by a certificate of the Registrar for such
series.
(c) The record of any
Holders’ meeting shall be proved in the manner provided in
Section 9.06.
(d) The Trustee may
require such additional proof of any matter referred to in this
Section 8.02 as it shall deem appropriate or necessary, so
long as the request is a reasonable one.
(e) If the Company
shall solicit from the Holders of Securities of any series any
action, the Company may, at its option fix in advance a record date
for the determination of Holders of Securities entitled to take
such action, but the Company shall have no obligation to do so. Any
such record date shall be fixed at the Company’s discretion.
If such a record date is fixed, such action may be sought or given
before or after the record date, but only the Holders of Securities
of record at the close of business on such record date shall be
deemed to be Holders of Securities for the purpose of determining
whether Holders of the requisite proportion of Outstanding
Securities of such series have authorized or agreed or consented to
such action, and for that purpose the Outstanding Securities of
such series shall be computed as of such record date.
24
(a) The Company, the
Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Security is registered as the owner of
such Security for the purpose of receiving payment of principal of
and premium, if any, and (subject to Section 3.08) interest,
if any, on, such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All payments made to any
Holder, or upon his, her or its order, shall be valid, and, to the
extent of the sum or sums paid, effectual to satisfy and discharge
the liability for moneys payable upon such Security.
(b) None of the
Company, the Trustee, any Paying Agent or the Registrar will have
any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
ARTICLE
IX
(a) to give any notice
to the Company or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to any of the
provisions of Article VIII;
(b) to remove the
Trustee and nominate a successor trustee pursuant to the provisions
of Article XI;
(c) to consent to the
execution of an Indenture or of indentures supplemental hereto
pursuant to the provisions of Section 14.02; or
(d) to take any other
action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Securities of any one
or more or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
25
(a) Notwithstanding any
other provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities
and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it
shall deem fit.
(b) The Trustee shall,
by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company
or by Securityholders as provided in Section 9.03, in which
case the Company or the Securityholders calling the meeting, as the
case may be, shall in like manner appoint a temporary chair. A
permanent chairman and a permanent secretary of the meeting shall
be elected by majority vote of the meeting.
(c) At any meeting of
Securityholders of a series, each Securityholder of such series of
such Securityholder’s proxy shall be entitled to one vote for
each $1,000 principal amount of Securities of such series
Outstanding held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of
the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Securities of
such series held by him or her or instruments in writing as
aforesaid duly designating him or her as the Person to vote on
behalf of other Securityholders. At any meeting of the
Securityholders duly called pursuant to the provisions of
Section 9.02 or 9.03 the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient
to take action upon the business for the transaction of which such
meeting was called shall be necessary to constitute a quorum, and
any such meeting may be adjourned from time to time by a majority
of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further
notice.
26
ARTICLE
X
SECURITYHOLDERS’
LISTS
(a) So long as any
Securities are outstanding, the Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided therein. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall,
within 60 days after each anniversary following the date of this
Indenture deliver to Holders a brief report which complies with the
provisions of such Section 313(a).
(b) The Trustee shall,
at the time of the transmission to the Holders of Securities of any
report pursuant to the provisions of this Section 10.01, file
a copy of such report with each stock exchange upon which the
Securities are listed, if any, and also with the SEC in respect of
a Security listed and registered on a national securities exchange,
if any. The Company agrees to notify the Trustee when, as and if
the Securities become listed on any stock exchange or any delisting
thereof.
(a) semi-annually,
within 15 days after each Record Date, but in any event not less
frequently than semi-annually, a list in such form as the Trustee
may reasonably require of the names and addresses of the Holders of
Securities to which such Record Date applies, as of such Record
Date, and
(b) at such other times
as the Trustee may request in writing, within 30 days after receipt
by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such
list is furnished; provided, however,
that so long as the Trustee shall be the Registrar, such lists
shall not be required to be furnished; and provided, further, that
the Trustee shall not be held accountable by reason of (i) the
disclosure of any information as to the names and addresses of the
Holders in accordance with the TIA Section 312, regardless of
the source from which the information was derived and
(ii) mailing any material pursuant to a request made under TIA
Section 312.
27
ARTICLE
XI
The
Trustee accepts the trusts created by this Indenture upon the terms
and conditions hereof, including the following, to all of which the
parties hereto and the Holders from time to time of the Securities
agree:
(a) The Trustee shall
be entitled to such compensation as the Company and the Trustee
shall from time to time agree in writing for all services rendered
by it hereunder (including in any agent capacity in which it acts).
The compensation of the Trustee shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust. The Company shall reimburse the Trustee promptly
upon its request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its own gross negligence, bad
faith or willful misconduct.
The Company also
agrees to indemnify each of the Trustee and any predecessor Trustee
hereunder for, and to hold it harmless against, any and all loss,
liability, damage, claim, or expense including taxes (other than
taxes based on the income of the Trustee) incurred without its own
negligence, bad faith or willful misconduct, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder and the performance of its duties (including in
any agent capacity in which it acts), as well as the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder, except those attributable to its gross
negligence, willful misconduct or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have one separate counsel
of its selection and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be
unreasonably withheld.
As security for the
performance of the obligations of the Company under this
Section 11.01(a), the Trustee shall have a lien upon all
property and funds held or collected by the Trustee as such, except
funds held in trust by the Trustee to pay principal of and interest
on any Securities. Notwithstanding any provisions of this Indenture
to the contrary, the obligations of the Company to compensate and
indemnify the Trustee under this Section 11.01(a) shall
survive the resignation or removal of the Trustee, the termination
of this Indenture and any satisfaction and discharge under Article
XII. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in clause (e) or
(f) of Section 7.01 occurs, the expenses (including the
reasonable charges of its counsel) and compensation for the
services are intended to constitute expenses of administration
under any applicable federal or state bankruptcy, insolvency or
similar laws.
(b) The Trustee may
execute any of the trusts or powers hereof or perform any duties
hereunder either directly or by or through its agents or attorneys
and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder.
(c) The Trustee shall
not be responsible in any manner whatsoever for the correctness of
the recitals herein or in the Securities (except its certificates
of authentication thereon) contained, all of which are made solely
by the Company; and the Trustee shall not be responsible or
accountable in any manner whatsoever for or with respect to the
validity or execution or sufficiency of this Indenture or of the
Securities (except its certificates of authentication thereon), and
the Trustee makes no representation with respect thereto, except
that the Trustee represents that it is duly authorized to execute
and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by
the Company of any Securities, or the proceeds of any Securities,
authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.
(d) The Trustee may
consult with counsel of its selection, and, to the extent permitted
by Section 11.02, any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by the Trustee hereunder in good faith
and in accordance with such Opinion of Counsel.
28
(e) The Trustee, to the
extent permitted by Section 11.02, may rely upon the
certificate of the Secretary or one of the Assistant Secretaries of
the Company as to the adoption of any Board Resolution or
resolution of the stockholders of the Company, and any request,
direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by, and whenever in the administration of
this Indenture the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee may rely upon, an Officer’s
Certificate of the Company (unless other evidence in respect
thereof be herein specifically prescribed).
(f) Subject to
Section 11.04, the Trustee or any agent of the Trustee, in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company with the same
rights it would have had if it were not the Trustee or such
agent.
(g) Money held by the
Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except
as otherwise agreed in writing with the Company.
(h) Any action taken by
the Trustee pursuant to any provision hereof at the request or with
the consent of any Person who at the time is the Holder of any
Security shall be conclusive and binding in respect of such
Security upon all future Holders thereof or of any Security or
Securities which may be issued for or in lieu thereof in whole or
in part, whether or not such Security shall have noted thereon the
fact that such request or consent had been made or
given.
(i) Subject to the
provisions of Section 11.02, the Trustee may conclusively rely
and shall be fully protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, debenture,
other evidence of indebtedness or other paper or document (whether
in its original or facsimile form) believed by it to be genuine and
to have been signed or presented by the proper party or
parties.
(j) Subject to the
provisions of Section 11.02, the Trustee shall not be under
any obligation to exercise any of the rights or powers vested in it
by this Indenture at the request, order or direction of any of the
Holders of the Securities, pursuant to any provision of this
Indenture, unless one or more of the Holders of the Securities
shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities
which may be incurred by it therein or thereby.
(k) Subject to the
provisions of Section 11.02, the Trustee shall not be liable
for any action taken or omitted by it in good faith and believed by
it to be authorized or within its discretion or within the rights
or powers conferred upon it by this Indenture.
(l) Subject to the
provisions of Section 11.02, the Trustee shall not be deemed
to have knowledge or notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless the Holders of not less than 25% of the
Outstanding Securities notify the Trustee thereof, and such notice
references the Securities and this Indenture.
(m) Subject to the
provisions of the first paragraph of Section 11.02, the
Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Indebtedness or
other paper or document, but the Trustee, may, but shall not be
required to, make further inquiry or investigation into such facts
or matters as it may see fit, and if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled
with the prior consent of the Company, which shall not be
unreasonably withheld, to examine the books, records and premises
of the Company.
(n) The rights,
privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder and each agent,
custodian and other Person employed to act hereunder.
29
(a) If one or more of
the Events of Default specified in Section 7.01 with respect
to the Securities of any series shall have happened, then, during
the continuance thereof, the Trustee shall, with respect to such
Securities, exercise such of the rights and powers vested in it by
this Indenture, and shall use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own
affairs.
(b) None of the
provisions of this Indenture shall be construed as relieving the
Trustee from liability for its own negligent action, negligent
failure to act, or its own willful misconduct, except that,
anything in this Indenture contained to the contrary
notwithstanding,
(i) unless and until an
Event of Default specified in Section 7.01 with respect to the
Securities of any series shall have happened which at the time is
continuing,
(c) None of the
provisions of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise to incur any financial liability in
the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to
it.
(d) Whether or not
therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of
this Section 11.02.
30
(a) The Trustee shall
at all times satisfy the requirements of TIA Section 310(a).
The Trustee, together with its parent company, shall have a
combined capital and surplus of at least $50 million as set forth
in its most recent published annual report of condition, and shall
have a Corporate Trust Office. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section 11.04, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
(b) The Trustee shall
comply with TIA Section 310(b); provided, however, that there
shall be excluded from the operation of TIA Section 310(b)(i)
any indenture or indentures under which other securities or
certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion
set forth in TIA Section 310(b)(i) are met. If the Trustee has
or shall acquire a conflicting interest within the meaning of
Section 310(b) of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. If Section 310(b) of the
Trust Indenture Act is amended any time after the date of this
Indenture to change the circumstances under which a Trustee shall
be deemed to have a conflicting interest with respect to the
Securities of any series or to change any of the definitions in
connection therewith, this Section 11.04 shall be
automatically amended to incorporate such changes.
(1)
the Trustee shall
fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months (or,
if it is a shorter period, the period since the initial issuance of
the Securities of such series), or
(2)
the Trustee shall
cease to be eligible under Section 11.04 and shall fail to
resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least
six months (or, if it is a shorter period, the period since the
initial issuance of the Securities of such series), or
(3)
the Trustee shall
become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
31
then,
in any such case, (i) the Company by written notice to the
Trustee may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to TIA
Section 315(e), any Securityholder who has been a bona fide
Holder of a Security for at least six months (or, if it is a
shorter period, the period since the initial issuance of the
Securities of such series) may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(a) In case at any time
the Trustee shall resign, or shall be removed (unless the Trustee
shall be removed as provided in Section 11.04(b), in which
event the vacancy shall be filled as provided in said subdivision),
or shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or if a receiver of the Trustee or of its property
shall be appointed, or if any public officer shall take charge or
control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation with respect
to the Securities of one or more series, a successor Trustee with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to
the Securities of any series) may be appointed by the Holders of a
majority in principal amount of the Securities of that or those
series then Outstanding, by an instrument or instruments in writing
signed in duplicate by such Holders and filed, one original thereof
with the Company and the other with the successor Trustee; but,
until a successor Trustee shall have been so appointed by the
Holders of Securities of that or those series as herein authorized,
the Company, or, in case all or substantially all the assets of the
Company shall be in the possession of one or more custodians or
receivers lawfully appointed, or of trustees in bankruptcy or
reorganization proceedings (including a trustee or trustees
appointed under the provisions of the federal bankruptcy laws, as
now or hereafter constituted), or of assignees for the benefit of
creditors, such receivers, custodians, trustees or assignees, as
the case may be, by an instrument in writing, shall appoint a
successor Trustee with respect to the Securities of such series.
Subject to the provisions of Sections 11.04 and 11.05, upon the
appointment as aforesaid of a successor Trustee with respect to the
Securities of any series, the Trustee with respect to the
Securities of such series shall cease to be Trustee hereunder.
After any such appointment other than by the Holders of Securities
of that or those series, the Person making such appointment shall
forthwith cause notice thereof to be mailed to the Holders of
Securities of such series at their addresses as the same shall then
appear on the Register of the Company but any successor Trustee
with respect to the Securities of such series so appointed shall,
immediately and without further act, be superseded by a successor
Trustee appointed by the Holders of Securities of such series in
the manner above prescribed, if such appointment be made prior to
the expiration of one year from the date of the mailing of such
notice by the Company, or by such receivers, trustees or assignees.
Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
(b) If any Trustee with
respect to the Securities of one or more series shall resign or be
removed and a successor Trustee shall not have been appointed by
the Company or by the Holders of the Securities of such series or,
if any successor Trustee so appointed shall not have accepted its
appointment by way of notice to the Trustee, then within 30 days
after providing such notice, the resigning Trustee at the expense
of the Company may apply to any court of competent jurisdiction for
the appointment of a successor Trustee. If in any other case a
successor Trustee shall not be appointed pursuant to the foregoing
provisions of this Section 11.06 within three months after
such appointment might have been made hereunder, the Holder of any
Security of the applicable series or any retiring Trustee at the
expense of the Company may apply to any court of competent
jurisdiction to appoint a successor Trustee. Such court may
thereupon, in any such case, after such notice, if any, as such
court may deem proper and prescribe, appoint a successor
Trustee.
(c) Any successor
Trustee appointed hereunder with respect to the Securities of one
or more series shall execute, acknowledge and deliver to its
predecessor Trustee and to the Company, or to the receivers,
trustees, assignees or court appointing it, as the case may be, an
instrument accepting such appointment hereunder, and thereupon such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations with respect to such series of
such predecessor Trustee with like effect as if originally named as
Trustee hereunder, and such predecessor Trustee, upon payment of
its charges and disbursements then unpaid, shall thereupon become
obligated to pay over, and such successor Trustee shall be entitled
to receive, all moneys and properties held by such predecessor
Trustee as Trustee hereunder, subject nevertheless to its lien
provided for in Section 11.01(a). Nevertheless, on the written
request of the Company or of the successor Trustee or of the
Holders of at least 10% in principal amount of the Securities of
such series then Outstanding, such predecessor Trustee, upon
payment of its said charges and disbursements, shall execute and
deliver an instrument transferring to such successor Trustee upon
the trusts herein expressed all the rights, powers and trusts of
such predecessor Trustee and shall assign, transfer and deliver to
the successor Trustee all moneys and properties held by such
predecessor Trustee, subject nevertheless to its lien provided for
in Section 11.01(a); and, upon request of any such successor
Trustee, the Company shall make, execute, acknowledge and deliver
any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Trustee all such
authority, rights, powers, trusts, immunities, duties and
obligations.
32
33
ARTICLE
XII
(a) either:
34
(b) the Company has
paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) the Company has
delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of
this Indenture with respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under
Section 11.01 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (a)(i) of this
Section, the obligations of the Trustee under Section 12.07
and the last paragraph of Section 6.03(e) shall
survive.
(a) The Company shall
have deposited or caused to be deposited irrevocably with the
Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the
Securities of such series (i) cash in U.S. Dollars in an
amount, or (ii) U.S. Government Obligations (as defined below)
that through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, cash in U.S. Dollars in
an amount, or (iii) a combination of (i) and (ii),
sufficient to pay and discharge each installment of principal
(including any mandatory sinking fund payments or any analogous
payments applicable to the Outstanding Securities) of and premium,
if any, and interest on, the Outstanding Securities of such series
on the dates such installments of interest or principal and premium
are due; provided that the Trustee shall have been irrevocably
instructed to apply such cash or the proceeds of such U.S.
Government Obligations to said payments with respect to the
Securities.
(b) No Default with
respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit (other than a Default
resulting from the borrowing of funds and the grant of any related
liens to be applied to such deposit); and
(c) The Company shall
have delivered to the Trustee an Opinion of Counsel to the effect
that Holders of the Securities of such series will not recognize
income, gain or loss for U.S. federal income tax purposes as a
result of the Company’s exercise of its option under this
Section and will be subject to federal income tax on the same
amounts and in the same manner and at the same times as would have
been the case if such action had not been exercised and, in the
case of the Securities of such series being Discharged accompanied
by a ruling to that effect received from or published by the
Internal Revenue Service.
“Discharged”
means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations
under this Indenture relating to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of
Holders of Securities of such series to receive, from the trust
fund described in clause (a) above, payment of the principal
of and premium, if any, and interest on such Securities when such
payments are due, (B) the Company’s obligations with
respect to Securities of such series under Sections 3.04, 3.06,
3.07, 6.02, 12.06 and 12.07 and (C) the rights, powers,
trusts, duties and immunities of the Trustee
hereunder.
“U.S.
Government Obligations” means securities that are
(i) direct obligations of the United States for the payment of
which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely of payment of which
is unconditionally guaranteed as a full faith and credit obligation
by the United States, that, in either case under clauses
(i) or (ii) are not callable or redeemable at the action
of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) or trust company as custodian
with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of
a depositary receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of
the U.S. Government Obligation evidenced by such depositary
receipt.
35
(a) Neither the Trustee
nor any other Paying Agent shall be required to pay interest on any
moneys deposited pursuant to the provisions of this Indenture,
except such as it shall agree with the Company in writing to pay
thereon. Any moneys so deposited for the payment of the principal
of, or premium, if any, or interest on the Securities of any series
and remaining unclaimed for two years after the date of the
maturity of the Securities of such series or the date fixed for the
redemption of all the Securities of such series at the time
outstanding, as the case may be, shall be repaid by the Trustee or
such other Paying Agent to the Company upon its written request and
thereafter, anything in this Indenture to the contrary
notwithstanding, any rights of the Holders of Securities of such
series in respect of which such moneys shall have been deposited
shall be enforceable only against the Company, and all liability of
the Trustee or such other Paying Agent with respect to such moneys
shall thereafter cease.
(b) Subject to the
provisions of the foregoing paragraph, any moneys which at any time
shall be deposited by the Company or on its behalf with the Trustee
or any other Paying Agent for the purpose of paying the principal
of, premium, if any, and interest on any of the Securities shall be
and are hereby assigned, transferred and set over to the Trustee or
such other Paying Agent in trust for the respective Holders of the
Securities for the purpose for which such moneys shall have been
deposited; but such moneys need not be segregated from other funds
except to the extent required by law.
36
ARTICLE
XIII
No
recourse shall be had for the payment of the principal of, or the
premium, if any, or interest on, any Security or for any claim
based thereon or otherwise in respect thereof or of the
Indebtedness represented thereby, or upon any obligation, covenant
or agreement of this Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or future,
of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue
of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and the
Securities are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor
corporation, because of the incurring of the Indebtedness hereby
authorized or under or by reason of any of the obligations,
covenants, promises or agreements contained in this Indenture or in
any of the Securities, or to be implied herefrom or therefrom, and
that all liability, if any, of that character against every such
incorporator, stockholder, officer and director is, by the
acceptance of the Securities and as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issue of the Securities expressly waived and released.
ARTICLE
XIV
Except
as otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, the Company and the Trustee,
at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the
Trustee, for any one or more of or all the following
purposes:
(a) to add to the
covenants and agreements of the Company, to be observed thereafter
and during the period, if any, in such supplemental indenture or
indentures expressed, and to add Events of Default, in each case
for the protection or benefit of the Holders of all or any series
of the Securities (and if such covenants, agreements and Events of
Default are to be for the benefit of fewer than all series of
Securities, stating that such covenants, agreements and Events of
Default are expressly being included for the benefit of such series
as shall be identified therein), or to surrender any right or power
herein conferred upon the Company;
(b) to delete or modify
any Events of Default with respect to all or any series of the
Securities, the form and terms of which are being established
pursuant to such supplemental indenture as permitted in
Section 3.01 (and, if any such Event of Default is applicable
to fewer than all such series of the Securities, specifying the
series to which such Event of Default is applicable), and to
specify the rights and remedies of the Trustee and the Holders of
such Securities in connection therewith;
(c) to add to or change
any of the provisions of this Indenture to provide, change or
eliminate any restrictions on the payment of principal of or
premium, if any, on Securities; provided that any such action shall
not adversely affect the interests of the Holders of Securities of
any series in any material respect;
(d) to change or
eliminate any of the provisions of this Indenture; provided that
any such change or elimination shall become effective only when
there is no Outstanding Security of any series created prior to the
execution of such supplemental indenture that is entitled to the
benefit of such provision and as to which such supplemental
indenture would apply;
(e) to evidence the
succession of another corporation to the Company, or successive
successions, and the assumption by such successor of the covenants
and obligations of the Company contained in the Securities of one
or more series and in this Indenture or any supplemental
indenture;
37
(f) to evidence and
provide for the acceptance of appointment hereunder by a successor
Trustee with respect to one or more series of Securities and to add
to or change any of the provisions of this Indenture as shall be
necessary for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of
Section 11.06(c);
(g) to secure any
series of Securities;
(h) to evidence any
changes to this Indenture pursuant to Sections 11.05, 11.06 or
11.07 hereof as permitted by the terms thereof;
(i) to cure any
ambiguity or to correct or supplement any provision contained
herein or in any indenture supplemental hereto which may be
defective or inconsistent with any other provision contained herein
or in any supplemental indenture or to conform the terms hereof, as
amended and supplemented, that are applicable to the Securities of
any series to the description of the terms of such Securities in
the offering memorandum, prospectus supplement or other offering
document applicable to such Securities at the time of initial sale
thereof, provided that any such action shall not adversely affect
the interests of the Holders of Securities of such series or any
other series of Securities;
(j) to add to or change
or eliminate any provision of this Indenture as shall be necessary
or desirable in accordance with any amendments to the Trust
Indenture Act;
(k) to add guarantors
or co-obligors with respect to any series of Securities or to
release guarantors from their guarantees of Securities in
accordance with the terms of the applicable series of
Securities;
(l) to make any change
in any series of Securities that does not adversely affect in any
material respect the interests of the Holders of such
Securities;
(m) to provide for
uncertificated securities in addition to certificated
securities;
(n) to supplement any
of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of
any series of Securities; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series or any other series of Securities;
(o) to prohibit the
authentication and delivery of additional series of Securities;
or
(p) to establish the
form and terms of Securities of any series as permitted in
Section 3.01, or to authorize the issuance of additional
Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount,
terms or purposes of issue, authentication or delivery of the
Securities of any series, as herein set forth, or other conditions,
limitations or restrictions thereafter to be observed.
Subject
to the provisions of Section 14.03, the Trustee is authorized
to join with the Company in the execution of any such supplemental
indenture, to make the further agreements and stipulations which
may be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property or assets
thereunder.
Any
supplemental indenture authorized by the provisions of this
Section 14.01 may be executed by the Company and the Trustee
without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of
Section 14.02.
(a) With the consent of
the Holders (evidenced as provided in Article VIII) of a majority
in aggregate principal amount of the Outstanding Securities of each
series affected by such supplemental indenture voting separately,
the Company and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or
eliminating any provisions of this Indenture or of modifying in any
manner the rights of the Holders of the Securities of such series
to be affected; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each
Outstanding Security of each such series affected
thereby,
38
(b) A supplemental
indenture that changes or eliminates any provision of this
Indenture which has expressly been included solely for the benefit
of one or more particular series of Securities or which modifies
the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any
other series.
(c) It shall not be
necessary for the consent of the Securityholders under this
Section 14.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
(d) The Company may set
a record date for purposes of determining the identity of the
Holders of each series of Securities entitled to give a written
consent or waive compliance by the Company as authorized or
permitted by this Section. Such record date shall not be more than
30 days prior to the first solicitation of such consent or waiver
or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 312 of
the Trust Indenture Act.
(e) Promptly after the
execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of this Section 14.02,
the Company shall mail a notice, setting forth in general terms the
substance of such supplemental indenture, to the Holders of
Securities at their addresses as the same shall then appear in the
Register of the Company. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental
indenture.
Upon
the request of the Company, accompanied by the Officer’s
Certificate and Opinion of Counsel required by Section 16.01
and evidence reasonably satisfactory to the Trustee of consent of
the Holders if the supplemental indenture is to be executed
pursuant to Section 14.02, the Trustee shall join with the
Company in the execution of said supplemental indenture unless said
supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated
to, enter into said supplemental indenture. The Trustee shall be
fully protected in relying upon such Officer’s Certificate
and an Opinion of Counsel.
Upon
the execution of any supplemental indenture pursuant to the
provisions of this Article XIV, this Indenture shall be deemed to
be modified and amended in accordance therewith and, except as
herein otherwise expressly provided, the respective rights,
limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the Holders of all
of the Securities or of the Securities of any series affected, as
the case may be, shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all
purposes.
Securities of any
series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article
may bear a notation in the form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company
or the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors
of the Company, to any modification of this Indenture contained in
any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange
for the Securities then Outstanding in equal aggregate principal
amounts, and such exchange shall be made without cost to the
Holders of the Securities.
39
Every
supplemental indenture executed pursuant to the provisions of this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
ARTICLE
XV
In the
event a series of Securities is designated as subordinated pursuant
to Section 3.01, and except as otherwise provided in a Company
Order or in one or more indentures supplemental hereto, the
Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities of such series by his, her or
its acceptance thereof, likewise covenants and agrees, that the
payment of the principal of (and premium, if any) and interest, if
any, on each and all of the Securities of such series is hereby
expressly subordinated, to the extent and in the manner hereinafter
set forth, in right of payment to the prior payment in full of all
Senior Indebtedness. In the event a series of Securities is not
designated as subordinated pursuant to Section 3.01(s), this
Article XV shall have no effect upon the Securities.
Section
15.02 Distribution on Dissolution,
Liquidation and Reorganization; Subrogation of
Securities.
Subject
to Section 15.01, upon any distribution of assets of the
Company upon any dissolution, winding up, liquidation or
reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment
for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise (subject to the power
of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon
the Senior Indebtedness and the holders thereof with respect to the
Securities and the holders thereof by a lawful plan of
reorganization under applicable bankruptcy law):
(a) the holders of all
Senior Indebtedness shall be entitled to receive payment in full of
the principal thereof (and premium, if any) and interest due
thereon before the Holders of the Securities are entitled to
receive any payment upon the principal (or premium, if any) or
interest, if any, on Indebtedness evidenced by the Securities;
and
(b) any payment or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of
the Securities or the Trustee would be entitled except for the
provisions of this Article XV shall be paid by the liquidation
trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on
account of the principal of (and premium, if any) and interest on
the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness;
and
(c) in the event that,
notwithstanding the foregoing, any payment or distribution of
assets of the Company of any kind or character, whether in cash,
property or securities prohibited by the foregoing, shall be
received by the Trustee or the Holders of the Securities before all
Senior Indebtedness is paid in full, such payment or distribution
shall be paid over, upon written notice to a Responsible Officer of
the Trustee, to the holder of such Senior Indebtedness or his, her
or its representative or representatives or to the trustee or
trustees under any indenture under which any instrument evidencing
any of such Senior Indebtedness may have been issued, ratably as
aforesaid, as calculated by the Company, for application to payment
of all Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution to the holders of such
Senior Indebtedness.
(d) Subject to the
payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the holders of
Senior Indebtedness (to the extent that distributions otherwise
payable to such holder have been applied to the payment of Senior
Indebtedness) to receive payments or distributions of cash,
property or securities of the Company applicable to Senior
Indebtedness until the principal of (and premium, if any) and
interest, if any, on the Securities shall be paid in full and no
such payments or distributions to the Holders of the Securities of
cash, property or securities otherwise distributable to the holders
of Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of
the Securities be deemed to be a payment by the Company to or on
account of the Securities. It is understood that the provisions of
this Article XV are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on
the one hand, and the holders of the Senior Indebtedness, on the
other hand. Nothing contained in this Article XV or elsewhere in
this Indenture or in the Securities is intended to or shall impair,
as between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Securities, the
obligation of the Company, which is unconditional and absolute, to
pay to the Holders of the Securities the principal of (and premium,
if any) and interest, if any, on the Securities as and when the
same shall become due and payable in accordance with their terms,
or to affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this
Article XV of the holders of Senior Indebtedness in respect of
cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any payment or distribution of
assets of the Company referred to in this Article XV, the Trustee,
subject to the provisions of Section 15.05, shall be entitled
to conclusively rely upon a certificate of the liquidating trustee
or agent or other person making any distribution to the Trustee for
the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereof and all other
facts pertinent thereto or to this Article XV.
40
Subject
to Section 15.01, no payment by the Company on account of
principal (or premium, if any), sinking funds or interest, if any,
on the Securities shall be made at anytime if: (i) a default
on Senior Indebtedness exists that permits the holders of such
Senior Indebtedness to accelerate its maturity and (ii) the
default is the subject of judicial proceedings or the Company has
received notice of such default. The Company may resume payments on
the Securities when full payment of amounts then due for principal
(premium, if any), sinking funds and interest on Senior
Indebtedness has been made or duly provided for in money or
money’s worth.
In the
event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 15.03, such payment shall
be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of such Senior Indebtedness or their
respective representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Indebtedness may
have been issued, as their respective interests may appear, as
calculated by the Company, but only to the extent that the holders
of such Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within
90 days of such payment of the amounts then due and owing on such
Senior Indebtedness and only the amounts specified in such notice
to the Trustee shall be paid to the holders of such Senior
Indebtedness.
Subject
to Section 15.01, nothing contained in this Indenture or in
any of the Securities shall (a) affect the obligation of the
Company to make, or prevent the Company from making, at any time
except as provided in Sections 15.02 and 15.03, payments of
principal of (or premium, if any) or interest, if any, on the
Securities or (b) prevent the application by the Trustee of
any moneys or assets deposited with it hereunder to the payment of
or on account of the principal of (or premium, if any) or interest,
if any, on the Securities, unless a Responsible Officer of the
Trustee shall have received at its Corporate Trust Office written
notice of any fact prohibiting the making of such payment from the
Company or from the holder of any Senior Indebtedness or from the
trustee for any such holder, together with proof satisfactory to
the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee more than two Business Days prior to the
date fixed for such payment.
Subject
to Section 15.01, each Holder of Securities by his acceptance
thereof authorizes and directs the Trustee on his, her or its
behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article XV and
appoints the Trustee his attorney-in-fact for any and all such
purposes.
The
Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies or assets to or by the Trustee
in respect of the Securities of any series pursuant to the
provisions of this Article XV. Subject to Section 15.01,
notwithstanding the provisions of this Article XV or any other
provisions of this Indenture, neither the Trustee nor any Paying
Agent (other than the Company) shall be charged with knowledge of
the existence of any Senior Indebtedness or of any fact which would
prohibit the making of any payment of moneys or assets to or by the
Trustee or such Paying Agent, unless and until a Responsible
Officer of the Trustee or such Paying Agent shall have received (in
the case of a Responsible Officer of the Trustee, at the Corporate
Trust Office of the Trustee) written notice thereof from the
Company or from the holder of any Senior Indebtedness or from the
trustee for any such holder, together with proof satisfactory to
the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects
conclusively to presume that no such facts exist; provided,
however, that if at least two Business Days prior to the date upon
which by the terms hereof any such moneys or assets may become
payable for any purpose (including, without limitation, the payment
of either the principal (or premium, if any) or interest, if any,
on any Security) a Responsible Officer of the Trustee shall not
have received with respect to such moneys or assets the notice
provided for in this Section 15.06, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such moneys or assets and to
apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date. The
Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such a notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article XV, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article XV and, if such
evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such
Person to receive such payment.
41
Subject
to Section 15.01, the Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article XV in
respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness and nothing
in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder. Nothing in this Article XV shall
apply to claims of, or payments to, the Trustee under or pursuant
to Sections 7.05 or 11.01.
Subject
to Section 15.01, any renewal or extension of the time of
payment of any Senior Indebtedness or the exercise by the holders
of Senior Indebtedness of any of their rights under any instrument
creating or evidencing Senior Indebtedness, including, without
limitation, the waiver of default thereunder, may be made or done
all without notice to or assent from the Holders of the Securities
or the Trustee. No compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or other
action in respect of, any liability or obligation under or in
respect of, or of any of the terms, covenants or conditions of any
indenture or other instrument under which any Senior Indebtedness
is outstanding or of such Senior Indebtedness, whether or not such
release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of
this Article XV or of the Securities relating to the subordination
thereof.
Subject
to Section 15.01, upon any payment or distribution of assets
of the Company referred to in this Article XV, the Trustee and the
Holders of the Securities shall be entitled to conclusively rely
upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment
or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article XV.
Subject
to Section 15.01, amounts and U.S. Government Obligations
deposited in trust with the Trustee pursuant to and in accordance
with Article XII and not, at the time of such deposit, prohibited
to be deposited under Sections 15.02 or 15.03 shall not be subject
to this Article XV.
With
respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and
no implied covenants or obligations with respect to the holders of
Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness. The Trustee shall not be
liable to any such holder if it shall pay over or distribute to or
on behalf of Holders of Securities or the Company, or any other
Person, moneys or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article XV or
otherwise.
ARTICLE
XVI
(a) Upon any request or
application by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officer’s Certificate stating that all
conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a
condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as
to which the furnishing of such document is specifically required
by any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.
(b) Each certificate or
opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant provided
for in this Indenture (other than the certificates provided
pursuant to Section 6.05 of this Indenture) shall include
(i) a statement that the Person signing such certificate or
opinion has read such covenant or condition and the definitions
herein related thereto; (ii) a brief statement as to the
nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are
based; (iii) a statement that, in the view or opinion of such
Person, he or she has made such examination or investigation as is
necessary to enable such Person to express an informed view or
opinion as to whether or not such covenant or condition has been
complied with; and (iv) a statement as to whether or not, in
the view or opinion of such Person, such condition or covenant has
been complied with.
42
(c) Any certificate,
statement or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the
matters upon which his or her certificate, statement or opinion is
based are erroneous. Any certificate, statement or opinion of
counsel may be based, insofar as it relates to factual matters,
upon a certificate, statement or opinion of, or representations by,
an officer or officers of the Company stating that the information
with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate, statement or
opinion or representations with respect to such matters are
erroneous.
(d) Any certificate,
statement or opinion of an officer of the Company or of counsel to
the Company may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of, or representations by,
an accountant or firm of accountants, unless such officer or
counsel, as the case may be, knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which
his or her certificate, statement or opinion may be based are
erroneous. Any certificate or opinion of any firm of independent
registered public accountants filed with the Trustee shall contain
a statement that such firm is independent.
(e) In any case where
several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(f) Where any Person is
required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
If and
to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by, or another
provision included in this Indenture which is required to be
included in this Indenture by any of the provisions of Sections 310
to 318, inclusive, of the Trust Indenture Act, such imposed duties
or incorporated provision shall control.
Any
notice or demand authorized by this Indenture to be made upon,
given or furnished to, or filed with, the Company or the Trustee
shall be sufficiently made, given, furnished or filed for all
purposes if it shall be mailed, delivered or telefaxed
to:
(a) the Company, at 2
Gansevoort Street, 9th Floor New York, New
York 10014, Attention: Sean Power, or at such other address or
facsimile number as may have been furnished in writing to the
Trustee by the Company.
(b) the Trustee, at the
Corporate Trust Office of the Trustee, Attention: Trust
Administrator.
(c) Any such notice,
demand or other document shall be in the English
language.
Any
notice required or permitted to be given to Securityholders shall
be sufficiently given (unless otherwise herein expressly
provided),
(a) if to Holders, if
given in writing by first class mail, postage prepaid, to such
Holders at their addresses as the same shall appear on the Register
of the Company.
(b) In the event of
suspension of regular mail service or by reason of any other cause
it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee
shall constitute sufficient notice for every purpose
hereunder.
(c) Where this
Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance on such
waiver. In any case where notice to Holders is given by mail;
neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any
notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given. In any case where
notice to Holders is given by publication, any defect in any notice
so published as to any particular Holder shall not affect the
sufficiency of such notice with respect to other Holders, and any
notice that is published in the manner herein provided shall be
conclusively presumed to have been duly given.
43
Unless
otherwise specified pursuant to Section 3.01, in any case
where any Interest Payment Date, Redemption Date or Maturity of any
Security of any series shall not be a Business Day at any Place of
Payment for the Securities of that series, then payment of
principal and premium, if any, or interest need not be made at such
Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same
force and effect as if made on such Interest Payment Date,
Redemption Date or Maturity and no interest shall accrue on such
payment for the period from and after such Interest Payment Date,
Redemption Date or Maturity, as the case may be, to such Business
Day if such payment is made or duly provided for on such Business
Day.
The
Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction
hereof.
All
covenants and agreements in this Indenture by the parties hereto
shall bind their respective successors and assigns and inure to the
benefit of their permitted successors and assigns, whether so
expressed or not.
In case
any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Nothing
in this Indenture expressed and nothing that may be implied from
any of the provisions hereof is intended, or shall be construed, to
confer upon, or to give to, any Person or corporation other than
the parties hereto and their successors and the Holders of the
Securities any benefit or any right, remedy or claim under or by
reason of this Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all covenants, conditions,
stipulations, promises and agreements in this Indenture contained
shall be for the sole and exclusive benefit of the parties hereto
and their successors and of the Holders of the
Securities.
This
Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
This
Indenture and the Securities shall be deemed to be contracts made
under the law of the State of New York, and for all purposes shall
be governed by and construed in accordance with the law of said
State.
EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF,
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS INDENTURE.
44
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
TG
THERAPEUTICS, INC.
Issuer
By:
Name:
Title:
Trustee
By:
Name:
Title:
[Signature
Page to Indenture]
Exhibit 5.1
|
Mark F.
McElreath
|
Direct Dial:
212-210-9595
|
Email:
mark.mcelreath@alston.com
|
August 30,
2019
|
TG Therapeutics,
Inc.
2 Gansevoort Street, 9th
Floor
New York, New York
10014
|
|
Re: Registration Statement on Form
S-3
Ladies and
Gentlemen:
We
have acted as counsel to TG Therapeutics, Inc., a Delaware
corporation (the “Company”),
in connection with the registration statement (the
“Registration
Statement”) on Form S-3
filed today by the Company with the Securities and Exchange
Commission (the “Commission”)
under the Securities Act of 1933, as amended (the
“Securities
Act”). The Registration
Statement relates to the proposed issuance and sale by the Company
from time to time, pursuant to Rule 415 of the General Rules and
Regulations of the Commission promulgated under the Securities Act,
of securities of the Company consisting of (i) shares of common
stock, $0.001 par value per share (the “Common
Stock”), (ii) shares of
preferred stock, $0.001 par value per share (the
“Preferred
Stock”), (iii) warrants
(the “Warrants”)
to purchase Common Stock or Preferred Stock, (iv) debt securities
(the “Debt
Securities”), the terms
of which will be determined by the Board of Directors of the
Company (the “Board of Directors”)
prior to the issuance thereof and (v)
units (the “Units,”
and together with the Common Stock, Preferred Stock, Warrants and
Debt Securities, the “Securities”).
This opinion letter is being rendered pursuant to Item 16 of Form
S-3 and Item 601(b)(5) of Regulation
S-K.
We have examined the Amended and
Restated Certificate of Incorporation of the Company, the Amended
and Restated Bylaws of the Company, records of proceedings of the
Board of Directors, or committees thereof, and records of
proceedings of the stockholders, deemed by us to be relevant to
this opinion letter and the Registration Statement. We also have
made such further legal and factual examinations and investigations
as we deemed necessary for purposes of expressing the opinion set
forth herein.
We have assumed that the terms of
the Securities will have been established so as not to, and that
the execution and delivery by the Company of the Securities, and
the performance of its obligations under the Securities, will not,
violate, conflict with or constitute a default under (i) any
agreement or instrument to which the Company is subject (except
that we do not make the assumption set forth in this clause (i)
with respect to those agreements and instruments that are filed as
exhibits to the Registration Statement or any periodic report
incorporated by reference in the Registration Statement), (ii) any
law, rule or regulation to which the Company is subject (except
that we do not make the assumption with respect to Opined on Law
(as defined below)), (iii) any judicial or regulatory order or
decree of any governmental authority or (iv) any consent, approval,
license, authorization or validation of, or filing, recording or
registration with any governmental authority.
We have also assumed that any Debt
Securities that may be issued will be issued in a form that
complies with the indenture and any supplemental indenture to be
entered into in connection with the issuance of such Debt
Securities and will be manually signed or countersigned, as the
case may be, by duly authorized officers of the
trustee.
As to certain factual matters
relevant to this opinion letter, we have relied conclusively upon
originals or copies, certified or otherwise identified to our
satisfaction, of such records, agreements, documents and
instruments, including certificates or comparable documents of
officers of the Company and of public officials, as we have deemed
appropriate as a basis for the opinion hereinafter set forth.
Except to the extent expressly set forth herein, we have made no
independent investigations with regard to matters of fact, and,
accordingly, we do not express any opinion as to matters that might
have been disclosed by independent
verification.
Based on the foregoing, we are of
the opinion that:
(1)
With
respect to any shares of Common Stock to be offered by the Company
pursuant to the Registration Statement (the “Offered Common Shares”),
(i) when the Registration Statement, as finally amended (including
all necessary post-effective amendments), has become effective
under the Securities Act, (ii) when an appropriate prospectus
supplement with respect to the Offered Common Shares has been
prepared, delivered and filed in compliance with the Securities Act
and the applicable rules and regulations thereunder, (iii) if the
Offered Common Shares are to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to
the Offered Common Shares has been duly authorized, executed and
delivered by the Company and the other parties thereto, (iv) when
the Board of Directors, including any appropriate committee
appointed thereby, and appropriate officers of the Company have
taken all necessary corporate action to approve the issuance of the
Offered Common Shares, the consideration to be received therefor
and related matters, (v) when the terms of the issuance and sale of
the Offered Common Shares have been duly established in conformity
with the Amended and Restated Certificate of Incorporation and the
Amended and Restated Bylaws so as not to violate any applicable law
or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company and (vi) when
certificates in the form required under the Delaware General
Corporation Law (the “DGCL”) representing the Offered
Common Shares are duly executed, countersigned, registered and
delivered upon payment of the agreed upon consideration therefor,
the Offered Common Shares (including any shares of Common Stock
duly issued upon conversion, exchange or exercise of any Preferred
Stock or Warrants), when issued and sold in accordance with the
applicable underwriting agreement, or any other duly authorized,
executed and delivered valid and binding agreement, will be duly
authorized, validly issued, fully paid and nonassessable, provided
that the consideration therefor is not less than $0.001 per share
of Common Stock.
(2)
With
respect to the shares of any series of Preferred Stock to be
offered by the Company pursuant to the Registration Statement (the
“Offered Preferred
Shares”), (i) when the
Registration Statement, as finally amended (including all necessary
post-effective amendments), has become effective under the
Securities Act, (ii) when an appropriate prospectus supplement with
respect to the Offered Preferred Shares has been prepared,
delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder, (iii) if the Offered
Preferred Shares are to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to
the Offered Preferred Shares has been duly authorized, executed and
delivered by the Company and the other parties thereto, (iv) the
Board of Directors, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all
necessary corporate action to approve the issuance, sale and terms
of the Offered Preferred Shares, the consideration to be received
therefor and related matters, including the adoption of a
Certificate of Designation for the Offered Preferred Shares in
accordance with the applicable provisions of the DGCL (the
“Certificate of
Designation”); (v) the
filing of the Certificate of Designation with the Secretary of
State of the State of Delaware has duly occurred; (vi) the terms of
the Offered Preferred Shares and of their issuance and sale have
been duly established in conformity with the Amended and Restated
Certificate of Incorporation, including the Certificate of
Designation relating to the Offered Preferred Shares, and the
Amended and Restated Bylaws so as not to violate any applicable law
or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company and (vii) certificates in
the form required under DGCL representing the Offered Preferred
Shares are duly executed, countersigned, registered and delivered
upon payment of the agreed upon consideration therefor, the Offered
Preferred Shares (including any shares of Preferred Stock duly
issued upon conversion, exchange or exercise of any Preferred Stock
or Warrants), when issued and sold in accordance with the
applicable underwriting agreement, or any other duly authorized,
executed and delivered valid and binding agreement, will be duly
authorized, validly issued, fully paid and nonassessable, provided
that the consideration therefor is not less than $0.001 per share
of Preferred Stock.
(3)
With
respect to the Warrants to be offered by the Company pursuant to
the Registration Statement (the “Offered
Warrants”), (i) when
the Registration Statement, as finally amended (including all
necessary post-effective amendments), has become effective under
the Securities Act, (ii) when an appropriate prospectus
supplement with respect to the Offered Warrants has been prepared,
delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder, (iii) if the
Offered Warrants are to be sold pursuant to a firm commitment
underwritten offering, the underwriting agreement with respect to
the Offered Warrants has been duly authorized, executed and
delivered by the Company and the other parties thereto,
(iv) the Board of Directors, including any appropriate
committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the
issuance, sale and terms of the Offered Warrants, the consideration
to be received therefor and related matters; (v) the terms of
the Offered Warrants and of their issuance and sale have been duly
established in conformity with the Amended and Restated Certificate
of Incorporation and the Amended and Restated Bylaws so as not to
violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Company and so as
to comply with any requirement or restriction imposed by any court
or governmental body having jurisdiction over the Company and the
applicable Warrant Agent; (vi) the Common Stock or the
Preferred Stock relating to such Offered Warrants have been duly
authorized for issuance, (vii) the applicable Warrant
Agreement has been duly authorized, executed and delivered by each
party thereto, and (viii) the Offered Warrants have been duly
executed, delivered, countersigned, issued and sold in accordance
with the provisions of the applicable Warrant Agreement to be filed
on a Current Report on Form 8-K in the manner contemplated in the
Registration Statement or any prospectus supplement relating
thereto, the Offered Warrants, when issued and sold in accordance
with the applicable Warrant Agreement and the applicable purchase
agreement or any other duly authorized, executed and delivered
valid and binding purchase or agency agreement, will be valid and
binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, except to the extent
that enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to
creditors’ rights generally, (b) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and (c) public policy
considerations which may limit the rights of parties to obtain
remedies.
(4)
With
respect to any series of Debt Securities offered by the Company
pursuant to the Registration Statement (the
“Offered Debt
Securities”), when (i)
the Registration Statement has become effective under the
Securities Act and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the “Trust Indenture
Act”); (ii) an
appropriate prospectus supplement with respect to the Offered Debt
Securities has been prepared, delivered and filed in compliance
with the Securities Act and the applicable rules and regulations
thereunder; (iii) if the Offered Debt Securities are to be sold
pursuant to a firm commitment underwritten offering, an
underwriting agreement with respect to the Offered Debt Securities
has been duly authorized, executed and delivered by the Company and
the other parties thereto; (iv) the Indenture and any supplemental
indenture relating to the Offered Debt Securities has been duly
authorized,executed and delivered by the Company and the other
parties thereto; (v) the Board of Directors of the Company,
including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary
corporate action to approve the issuance, sale and terms of the
Offered Debt Securities, the consideration received therefor and
related matters; (vi) the terms of the Offered Debt Securities and
of their issuance and sale have been duly established in conformity
with the Indenture and any supplemental indenture relating to such
Offered Debt Securities so as not to violate any applicable law,
the Amended and Restated Certificate of Incorporation as then in
effect or the Amended and Restated Bylaws as then in effect, or
result in a default under or breach of any agreement or instrument
binding upon the Company, and so as to comply with any requirement
or restriction imposed by any court or governmental authority
having jurisdiction over the Company; and (vii) the Offered Debt
Securities have been duly executed and authenticated in accordance
with the provisions of the Indenture and any supplemental indenture
relating to such Offered Debt Securities and delivered to the
purchasers thereof upon payment of the agreed upon
considerationtherefor, the Offered Debt Securities, when issued and
sold or otherwise distributed in accordance with the Indenture and
any supplemental indenture relating to such Offered Debt
Securities, and the applicable underwriting agreement, if any, or
any other duly authorized, executed and delivered valid and binding
agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, except to the extent that enforcement thereof may
be limited by (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors’ rights generally,
(b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity),
(c) public policy considerations which may limit the rights of
parties to obtain remedies, the waivers of any usury defense
contained in the Indenture, any supplemental indenture or the
Offered Debt Securities that may be unenforceable, (d) requirements
that a claim with respect to any Offered Debt Securities
denominated in a currency, currency unit or composite currency
other than United States dollars (or a judgment denominated other
than in United States dollars in respect of such claim) be
converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law, and (e)
governmental authority to limit, delay or prohibit the making of
payments outside the United States or in foreign currencies,
currency units or composite currencies.
(5)
With
respect to any offering of Units by the Company pursuant to the
Registration Statement (the “Offered
Units”), when (i) the
Registration Statement, as finally amended (including all necessary
post-effective amendments), has become effective under the
Securities Act, (ii) an appropriate prospectus supplement with
respect to the Offered Units has been prepared, delivered and filed
in compliance with the Securities Act and the applicable rules and
regulations thereunder, (iii) if the Offered Units are to be sold
pursuant to a firm commitment underwritten offering or in a best
efforts placement offering, the underwriting agreement or placement
agency agreement with respect to the Offered Units has been duly
authorized, executed and delivered by the Company and the other
parties thereto, (iv) the Board of Directors, including any
appropriate committee appointed thereby, and appropriate officers
of the Company have taken all necessary corporate action to approve
the form, issuance, execution and terms of the Offered Units, the
related unit agreements between the Company and the unit agent or
purchaser named therein (“Unit
Agreements”), if any, and
any Offered Securities which are components of such Offered Units,
the terms of the offering thereof and related matters, (v) the
terms of the issuance and sale of the Offered Units have been duly
established in conformity with the Amended and Restated Certificate
of Incorporation and the Amended and Restated Bylaws so as not to
violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Company and so as
to comply with any requirement or restriction imposed by any court
or governmental body having jurisdiction over the Company and (vi)
the (1) Offered Units, (2) the Unit Agreements, if any, and (3)
such Offered Securities that are components of such Offered Units
have been duly and properly sold, paid for and delivered as
contemplated in the Registration Statement, any prospectus
supplement relating thereto and, if applicable, in accordance with
the applicable underwriting or other purchase agreement and
otherwise in accordance with the provisions of any applicable (i)
Unit Agreement and (ii) Warrant Agreement, in the case of Warrants,
such Units will be validly issued and will entitle the holder
thereof to the rights specified in the Unit Agreements, if
any.
The opinions set forth herein are
limited to the DGCL, applicable provisions of the Constitution of
the State of Delaware and reported judicial decisions interpreting
the foregoing, and federal laws of the United States of America to
the extent referred to specifically herein (all of the foregoing
being referred to as “Opined on Law”). We do
not express any opinion herein concerning any other laws. We are
not engaged in the practice in the State of Delaware; however, we
are generally familiar with the DGCL as currently in effect and
have made such inquiries as we consider necessary to render the
opinion contained herein. We assume no obligation to revise or
supplement this opinion in the event of future changes in such laws
or the interpretations thereof or such facts.
The opinions set forth above in
numbered paragraphs (1) through (5) are subject to (i) the effect
of any bankruptcy, insolvency, reorganization, moratorium,
arrangement or similar laws affecting the rights and remedies of
creditors generally, including the effect of statutory or other
laws regarding fraudulent transfers or preferential transfers, and
(ii) general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance, injunctive relief
or other equitable remedies regardless of whether enforceability is
considered in a proceeding in equity or at law. We express no
opinion regarding the effectiveness of (i) any waiver of stay,
extension or usury laws or of unknown future rights; or (ii)
provisions may be held unenforceable as contrary to federal or
state securities laws.
No opinion may be implied or
inferred beyond the opinions expressly stated in numbered
paragraphs (1) through (5) above. Our opinions expressed herein are
as of the date hereof, and we undertake no obligation to advise you
of any changes in applicable law or any other matters that may come
to our attention after the date hereof that may affect our opinion
expressed herein.
We consent to the filing of this
opinion letter as an exhibit to the Registration Statement and to
the use of our name under the heading “Legal Matters”
in the prospectus constituting a part thereof. In giving such
consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission
thereunder
Sincerely,
ALSTON & BIRD
LLP
By: /s/ Mark F.
McElreath
Mark F. McElreath,
Partner
Atlanta • Beijing •
Brussels • Charlotte • Dallas • Los Angeles
• New York • Raleigh • San Francisco
•Silicon Valley • Washington,
D.C.
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We
consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 1, 2019 relating to
our audits of the consolidated balance sheets of TG Therapeutics,
Inc. and Subsidiaries as of December 31, 2018 and 2017, and the
related consolidated statements of operations, stockholders’
equity, and cash flows for each of the three years in the period
ended December 31, 2018, and our report dated March 1, 2019 on our
audit of internal control over financial reporting of TG
Therapeutics, Inc. and Subsidiaries as of December 31, 2018 which
reports are included in the TG Therapeutics, Inc. 2018 Annual
Report on Form 10-K. We also consent to the reference to our Firm
under the caption “Experts”.
/s/
CohnReznick LLP
New
York, New York
August
29, 2019