As
filed with the Securities and Exchange Commission on September 5,
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 September 4, 2019, the per share closing
price of our common stock as reported on the Nasdaq Capital Market
was $6.17 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 September 5, 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
The consolidated financial statements
incorporated by reference herein and included in the
TG Therapeutics, Inc. and
subsidiaries Annual Report on Form 10-K for the year ended
December 31, 2018 as well as the effectiveness of the TG Therapeutics, Inc. and subsidiaries
internal control over financial reporting have been audited
by CohnReznick LLP, an independent registered public accounting
firm, as stated in their reports, which are incorporated herein by
reference. Such consolidated financial statements have been so
incorporated in reliance upon the reports of such firm given upon
their authority as experts in accounting and
auditing.
15
TG
Therapeutics, Inc.
Common
Stock
Preferred
Stock
Warrants
Debt
Securities
Units
PROSPECTUS
September
5, 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 September 5, 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 September 5, 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.
In the absence of any
specification pursuant to Section 3.01 with respect to
Securities of any series, the Securities of such series shall be
issuable only as Securities in denominations of any integral
multiple of $1,000, and shall be payable only in U.S.
Dollars.
(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
(i) The Company may
elect to make payment of any Defaulted Interest to the Persons in
whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest (a
“Special Record Date”), which shall be fixed in the
following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each
such Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall
be not more than 15 calendar days and not less than 10 calendar
days prior to the date of the proposed payment and not less than 10
calendar days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to the Holders of such
Securities at their addresses as they appear in the Register, not
less than 10 calendar days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause
(ii).
(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.
Unless otherwise specified
pursuant to Section 3.01 for Securities of any series, all
Securities surrendered for payment, redemption, registration of
transfer or exchange or credit against any sinking fund or
otherwise shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee for cancellation and shall be
promptly canceled by it and, if surrendered to the Trustee, shall
be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled
as provided in this Section, except as expressly permitted by this
Indenture. The Trustee shall dispose of all canceled Securities
held by it in accordance with its then customary procedures and
deliver a certificate of such disposal to the Company upon its
request therefor. The acquisition of any Securities by the Company
shall not operate as a redemption or satisfaction of the
Indebtedness represented thereby unless and until such Securities
are surrendered to the Trustee for
cancellation.
Except as otherwise specified
pursuant to Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day
months.
(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
The Company may provide
pursuant to Section 3.01 for Securities of any series that
(a) the obligation, if any, of the Company to pay the
principal of, premium, if any, and interest on the Securities of
any series in a Foreign Currency or U.S. Dollars (the
“Designated Currency”) as may be specified pursuant to
Section 3.01 is of the essence and agrees that, to the fullest
extent possible under applicable law, judgments in respect of such
Securities shall be given in the Designated Currency; (b) the
obligation of the Company to make payments in the Designated
Currency of the principal of and premium, if any, and interest on
such Securities shall, notwithstanding any payment in any other
Currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Designated
Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost of exchange) on the
business day in the country of issue of the Designated Currency or
in the international banking community (in the case of a composite
currency) immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional
amounts as may be necessary to compensate for such shortfall; and
(d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and,
until discharged as provided herein, shall continue in full force
and effect.
The
Company in issuing any Securities may use CUSIP, ISIN or other
similar numbers, if then generally in use, and thereafter with
respect to such series, the Trustee may use such numbers in any
notice of redemption or exchange with respect to such series
provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the
CUSIP, ISIN or other similar numbers.
ARTICLE
IV
Redemption of Securities
(other than pursuant to a sinking fund, amortization or analogous
provision) permitted by the terms of any series of Securities shall
be made (except as otherwise specified pursuant to
Section 3.01 for Securities of any series) in accordance with
this Article; 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.
(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:
(i) such election by
the Company to redeem Securities of such series pursuant to
provisions contained in this Indenture or the terms of the
Securities of such series or a supplemental indenture establishing
such series, if such be the case;
(ii) the Redemption
Date;
(iii) the Redemption
Price;
(iv) if less than all
Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the
principal amounts) of the Securities of such series to be
redeemed;
(v) that on the
Redemption Date the Redemption Price will become due and payable
upon each such Security to be redeemed, and that, if applicable,
interest thereon shall cease to accrue on and after said
date;
(vi) the Place or
Places of Payment where such Securities are to be surrendered for
payment of the Redemption Price; and
(vii) that the
redemption is for a sinking fund, if such is the
case;
On or prior to 11:00 a.m.,
New York City time, on the Redemption Date for any Securities, the
Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 6.03) an amount of money
in the Currency in which such Securities are denominated (except as
provided pursuant to Section 3.01) sufficient to pay the
Redemption Price of such Securities or any portions thereof that
are to be redeemed on that date.
Notice of redemption having
been given as aforesaid, any Securities so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price
and from and after such date (unless the Company shall Default in
the payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price; provided, however, that (unless
otherwise provided pursuant to Section 3.01) installments of
interest that have a Stated Maturity on or prior to the Redemption
Date for such Securities shall be payable according to the terms of
such Securities and the provisions of
Section 3.08.
If any Security called for
redemption shall not be so paid upon surrender thereof for
redemption, the principal thereof and premium, if any, thereon
shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor in the Security.
Any Security that is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or
agency of the Company as is specified pursuant to Section 3.01
with, if the Company, the Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Registrar and the Trustee duly
executed by the Holder thereof or his, her or its attorney duly
authorized in writing, and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of
the same series, of like tenor and form, of any authorized
denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered; except that if a Global
Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary for such
Global Security, without service charge, a new Global Security in a
denomination equal to and in exchange for the unredeemed portion of
the principal of the Global Security so surrendered. In the case of
a Security providing appropriate space for such notation, at the
option of the Holder thereof, the Trustee, in lieu of delivering a
new Security or Securities as aforesaid, may make a notation on
such Security of the payment of the redeemed portion
thereof.
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.
The Company may, at its
option, satisfy any Mandatory Sinking Fund Payment obligation, in
whole or in part, with respect to a particular series of Securities
by (a) delivering to the Trustee Securities of such series in
transferable form theretofore purchased or otherwise acquired by
the Company or redeemed at the election of the Company pursuant to
Section 4.03 or (b) receiving credit for Securities of
such series (not previously so credited) acquired by the Company
and theretofore delivered to the Trustee. The Trustee shall credit
such Mandatory Sinking Fund Payment obligation with an amount equal
to the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
Mandatory Sinking Fund Payment shall be reduced accordingly. If the
Company shall elect to so satisfy any Mandatory Sinking Fund
Payment obligation, it shall deliver to the Trustee not less than
45 days prior to the relevant sinking fund payment date an
Officer’s Certificate, which shall designate the Securities
(and portions thereof, if any) so delivered or credited and which
shall be accompanied by such Securities (to the extent not
theretofore delivered) in transferable form. In case of the failure
of the Company, at or before the time so required, to give such
notice and deliver such Securities the Mandatory Sinking Fund
Payment obligation shall be paid entirely in
moneys.
In addition to the sinking
fund requirements of Section 5.02, to the extent, if any,
provided for by the terms of a particular series of Securities, the
Company may, at its option, make an Optional Sinking Fund Payment
with respect to such Securities. Unless otherwise provided by such
terms, (a) to the extent that the right of the Company to make
such Optional Sinking Fund Payment shall not be exercised in any
year, it shall not be cumulative or carried forward to any
subsequent year, and (b) such optional payment shall operate
to reduce the amount of any Mandatory Sinking Fund Payment
obligation as to Securities of the same series. If the Company
intends to exercise its right to make such optional payment in any
year it shall deliver to the Trustee not less than 45 days prior to
the relevant sinking fund payment date an Officer’s
Certificate stating that the Company will exercise such optional
right, and specifying the amount which the Company will pay on or
before the next succeeding sinking fund payment date. Such
Officer’s Certificate shall also state that no Event of
Default has occurred and is continuing.
(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
The
Company hereby covenants and agrees as follows:
The Company will duly and punctually pay the
principal of and premium, if any, on each series of Securities, and
the interest which shall have accrued thereon, at the dates and
place and in the manner provided in the Securities and in this
Indenture.
(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:
(i) hold all moneys
held by it for the payment of the principal of and premium, if any,
or interest on the Securities of that series in trust for the
benefit of the Holders of such Securities until such sums shall be
paid to such Holders or otherwise disposed of as herein
provided;
(ii) give to the
Trustee notice of any Default by the Company or any other obligor
upon the Securities of that series in the making of any payment of
the principal of and premium, if any, or interest on the Securities
of that series; and
18
(iii) at any time
during the continuance of any such Default, upon the written
request of the Trustee, pay to the Trustee all sums so held in
trust by such Paying Agent.
(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.
Except as otherwise provided
as contemplated by Section 3.01 with respect to any series of
Securities:
(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.
Except as otherwise provided
as contemplated by Section 3.01 with respect to any series of
Securities, the Company shall furnish to the Trustee annually,
within 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal
financial officer, principal accounting officer or vice president
and treasurer as to his or her knowledge of the Company’s
compliance with all conditions and covenants under this Indenture
(which compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture)
and, in the event of any Default, specifying each such Default and
the nature and status thereof of which such person may have
knowledge. Such certificates need not comply with
Section 16.01 of this Indenture. The Company shall comply with
TIA Section 314(a)(4).
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
The
Company shall deliver to the Trustee as soon as possible and in any
event within 30 days after the Company becomes aware of the
occurrence of any Event of Default or an event which, with the
giving of notice or the lapse of time or both, would constitute an
Event of Default, an Officer’s Certificate setting forth the
details of such Event of Default or Default and the action which
the Company proposes to take with respect
thereto.
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:
(i) the Company has
paid or deposited with the Trustee or Paying Agent a sum in the
Currency in which such Securities are denominated (subject to
Section 7.01 and except as otherwise provided pursuant to
Section 3.01) sufficient to pay
(A) all amounts
owing the Trustee and any predecessor trustee hereunder under
Section 11.01(a) (provided, however, that all sums payable
under this clause (A) shall be paid in U.S.
Dollars);
(B) all arrears of
interest, if any, upon all the Securities of such series (with
interest, to the extent that interest thereon shall be legally
enforceable, on any overdue installment of interest at the rate
borne by such Securities at the rate or rates prescribed therefor
in such Securities); and
(C) the
principal of and premium, if any, on any Securities of such series
that have become due otherwise than by such declaration of
acceleration and interest thereon;
(ii)
every other Default and Event of
Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have
been cured or waived as provided in
Section 7.06.
(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.
If the Company shall fail for
a period of 30 days to pay any installment of interest on the
Securities of any series or shall fail to pay the principal of and
premium, if any, on any of the Securities of such series when and
as the same shall become due and payable, whether at Maturity, or
by call for redemption (other than pursuant to the sinking fund),
by declaration as authorized by this Indenture, or otherwise, or
shall fail for a period of 30 days to make any required sinking
fund payment as to a series of Securities, then, upon demand of the
Trustee, the Company will pay to the Paying Agent for the benefit
of the Holders of Securities of such series then Outstanding the
whole amount which then shall have become due and payable on all
the Securities of such series, with interest on the overdue
principal and premium, if any, and (so far as the same may be
legally enforceable) on the overdue installments of interest at the
rate borne by the Securities of such series, and all amounts owing
the Trustee and any predecessor trustee hereunder under
Section 11.01(a).
21
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any
action or proceeding at law or in equity for the collection of the
sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor
upon the Securities of such series, and collect the moneys adjudged
or decreed to be payable out of the property of the Company or any
other obligor upon the Securities of such series, wherever
situated, in the manner provided by law. Every recovery of judgment
in any such action or other proceeding, subject to the payment to
the Trustee of all amounts owing the Trustee and any predecessor
trustee hereunder under Section 11.01(a), shall be for the
ratable benefit of the Holders of such series of Securities which
shall be the subject of such action or proceeding. All rights of
action upon or under any of the Securities or this Indenture may be
enforced by the Trustee without the possession of any of the
Securities and without the production of any thereof at any trial
or any proceeding relative thereto.
The
Trustee is hereby appointed, and each and every Holder of the
Securities, by receiving and holding the same, shall be
conclusively deemed to have appointed the Trustee, the true and
lawful attorney-in-fact of such Holder, with authority to make or
file (whether or not the Company shall be in Default in respect of
the payment of the principal of, or interest on, any of the
Securities, and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or
interest), in its own name and as trustee of an express trust or
otherwise as it shall deem advisable, in any receivership,
insolvency, liquidation, bankruptcy, reorganization or other
judicial proceeding relative to the Company or any other obligor
upon the Securities or to their respective creditors or property,
any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof,
as may be necessary or advisable in order to have the claims of the
Trustee and any predecessor trustee hereunder (including any claims
for reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and its counsel) and of the Holders of
the Securities allowed in any such proceeding and to collect and
receive any moneys or other property payable or deliverable on any
such claim, and to execute and deliver any and all other papers and
documents and to do and perform any and all other acts and things,
as it may deem necessary or advisable in order to enforce in any
such proceeding any of the claims of the Trustee and any
predecessor trustee hereunder and of any of such Holders in respect
of any of the Securities; and any receiver, assignee, trustee,
custodian, liquidator, debtor or a similar official in any such
proceeding is hereby authorized, and each and every taker or Holder
of the Securities, by receiving and holding the same, shall be
conclusively deemed to have authorized any such receiver, assignee,
trustee, custodian, liquidator, debtor or a similar official to
make any such payment or delivery only to or on the order of the
Trustee, and to pay to the Trustee any amount due it and any
predecessor trustee hereunder for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
its counsel and any other amounts due under Section 11.01(a);
provided, however, that nothing herein contained shall be deemed to
authorize or empower the Trustee to consent to or accept or adopt,
on behalf of any Holder of Securities, any plan of reorganization,
composition, adjustment or other similar arrangement affecting the
Securities or the rights of any Holder thereof, or to authorize or
empower the Trustee to vote in respect of the claim of any Holder
of any Securities in any such proceeding.
Any moneys or properties
collected by the Trustee with respect to a series of Securities
under this Article VII shall be applied in the order following, at
the date or dates fixed by the Trustee for the distribution of such
moneys or properties and, in the case of the distribution of such
moneys or properties on account of the Securities of any series,
upon presentation of the Securities of such series, and stamping
thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
First: To the payment of all
amounts due to the Trustee and any predecessor trustee hereunder
under Section 11.01(a).
Second: In case the principal
of the Outstanding Securities of such series shall not have become
due and be unpaid, to the payment of interest on the Securities of
such series, in the chronological order of the Maturity of the
installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate borne by such Securities, such
payments to be made ratably to the Persons entitled
thereto.
Third: In case the principal
of the Outstanding Securities of such series shall have become due,
by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon the Securities of such series for
principal and premium, if any, and interest, with interest on the
overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue
installments of interest at the rate borne by the Securities of
such series, and in case such moneys shall be insufficient to pay
in full the whole amounts so due and unpaid upon the Securities of
such series, then to the payment of such principal and premium, if
any, and interest without preference or priority of principal and
premium, if any, over interest, or of interest over principal and
premium, if any, or of any installment of interest over any other
installment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such
principal and premium, if any, and accrued and unpaid
interest.
Any surplus then remaining
shall be paid to the Company or as directed by a court of competent
jurisdiction.
22
The Holders of a majority in
principal amount of the Securities of any series at the time
Outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee hereunder, or of
exercising any trust or power hereby conferred upon the Trustee
with respect to the Securities of such series, provided, however,
that, subject to the provisions of Sections 11.01 and 11.02, the
Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that
the action so directed may not lawfully be taken or would be unduly
prejudicial to Holders not joining in such direction or would
involve the Trustee in personal liability. Prior to any declaration
accelerating the Maturity of the Securities of any series, the
Holders of a majority in aggregate principal amount of such series
of Securities at the time Outstanding may on behalf of the Holders
of all of the Securities of such series waive any past Default or
Event of Default hereunder and its consequences except a Default in
the payment of interest or any premium on or the principal of the
Securities of such series. Upon any such waiver the Company, the
Trustee and the Holders of the Securities of such series shall be
restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent
thereon. Whenever any Default or Event of Default hereunder shall
have been waived as permitted by this Section 7.06, said
Default or Event of Default shall for all purposes of the
Securities of such series and this Indenture be deemed to have been
cured and to be not continuing.
No Holder of any Security of
any series shall have any right to institute any action, suit or
proceeding at law or in equity for the execution of any trust
hereunder or for the appointment of a receiver or for any other
remedy hereunder, in each case with respect to an Event of Default
with respect to such series of Securities, unless such Holder
previously shall have given to the Trustee written notice of one or
more of the Events of Default herein specified with respect to such
series of Securities, and unless also the Holders of 25% in
principal amount of the Securities of such series then Outstanding
shall have requested the Trustee in writing to take action in
respect of the matter complained of, and unless also there shall
have been offered to the Trustee security and indemnity
satisfactory to it against the costs, expenses and liabilities to
be incurred therein or thereby, and the Trustee, for 60 days after
receipt of such notification, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or
proceeding; and such notification, request and offer of indemnity
are hereby declared in every such case to be conditions precedent
to any such action, suit or proceeding by any Holder of any
Security of such series; it being understood and intended that no
one or more of the Holders of Securities of such series shall have
any right in any manner whatsoever by his, her, its or their action
to enforce any right hereunder, except in the manner herein
provided, and that every action, suit or proceeding at law or in
equity shall be instituted, had and maintained in the manner herein
provided and for the equal benefit of all Holders of the
Outstanding Securities of such series; provided, however, that
nothing in this Indenture or in the Securities of such series shall
affect or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, premium, if any, and
interest on the Securities of such series to the respective Holders
of such Securities at the respective due dates in such Securities
stated, or affect or impair the right, which is also absolute and
unconditional, of such Holders to institute suit to enforce the
payment thereof.
All parties to this Indenture
and each Holder of any Security, by such Holder’s acceptance
thereof, shall be deemed to have agreed that any court may in its
discretion require, in any action, suit or proceeding for the
enforcement of any right or remedy under this Indenture, or in any
action, suit or proceeding against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in
such action, suit or proceeding of an undertaking to pay the costs
of such action, suit or proceeding, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in
such action, suit or proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party
litigant; provided, however, that the provisions of this
Section 7.08 shall not apply to any action, suit or proceeding
instituted by the Trustee, to any action, suit or proceeding
instituted by any one or more Holders of Securities holding in the
aggregate more than 10% in principal amount of the Securities of
any series Outstanding, or to any action, suit or proceeding
instituted by any Holder of Securities of any series for the
enforcement of the payment of the principal of or premium, if any,
or the interest on, any of the Securities of such series, on or
after the respective due dates expressed in such
Securities.
No remedy herein conferred
upon or reserved to the Trustee or to the Holders of Securities of
any series is intended to be exclusive of any other remedy or
remedies, and each and every remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. No delay or
omission of the Trustee or of any Holder of the Securities of any
series to exercise any right or power accruing upon any Default or
Event of Default shall impair any such right or power or shall be
construed to be a waiver of any such Default or Event of Default or
an acquiescence therein; and every power and remedy given by this
Article VII to the Trustee and to the Holders of Securities of any
series, respectively, may be exercised from time to time and as
often as may be deemed expedient by the Trustee or by the Holders
of Securities of such series, as the case may be. In case the
Trustee or any Holder of Securities of any series shall have
proceeded to enforce any right under this Indenture and the
proceedings for the enforcement thereof shall have been
discontinued or abandoned because of waiver or for any other reason
or shall have been adjudicated adversely to the Trustee or to such
Holder of Securities, then and in every such case the Company, the
Trustee and the Holders of the Securities of such series shall
severally and respectively be restored to their former positions
and rights hereunder, and thereafter all rights, remedies and
powers of the Trustee and the Holders of the Securities of such
series shall continue as though no such proceedings had been taken,
except as to any matters so waived or
adjudicated.
23
ARTICLE
VIII
Whenever in this Indenture it
is provided that the Holders of a specified percentage or a
majority in aggregate principal amount of the Securities or of any
series of Securities may take any action (including the making of
any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of
taking any such action the Holders of such specified percentage or
majority have joined therein may be evidenced by (a) any
instrument or any number of instruments of similar tenor executed
by Securityholders in person, by an agent or by a proxy appointed
in writing, including through an electronic system for tabulating
consents operated by the Depositary for such series or otherwise
(such action becoming effective, except as herein otherwise
expressly provided, when such instruments or evidence of electronic
consents are delivered to the Trustee and, where it is hereby
expressly required, to the Company), or (b) by the record of
the Holders of Securities voting in favor thereof at any meeting of
Securityholders duly called and held in accordance with the
provisions of Article IX, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of
Securityholders.
Proof of the execution of any
instrument by a Securityholder or his, her or its agent or proxy
and proof of the holding by any Person of any of the Securities
shall be sufficient if made in the following
manner:
(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.
After an amendment,
supplement, waiver or other action becomes effective as to any
series of Securities, a consent to it by a Holder of such series of
Securities is a continuing consent conclusive and binding upon such
Holder and every subsequent Holder of the same Securities or
portion thereof, and of any Security issued upon the transfer
thereof or in exchange therefor or in place thereof, even if
notation of the consent is not made on any such Security. An
amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every
Holder.
ARTICLE
IX
A meeting of Securityholders
of any or all series may be called at any time and from time to
time pursuant to the provisions of this Article IX for any of the
following purposes:
(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.
The Trustee may at any time
call a meeting of all Securityholders of all series that may be
affected by the action proposed to be taken, to take any action
specified in Section 9.01, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of
the Securityholders of a series, setting forth the time and the
place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to Holders of Securities
of such series at their addresses as they shall appear on the
Register of the Company. Such notice shall be mailed not less than
20 nor more than 90 days prior to the date fixed for the
meeting.
25
In case at any time the
Company or the Holders of at least 10% in aggregate principal
amount of the Securities of a series (or of all series, as the case
may be) then Outstanding that may be affected by the action
proposed to be taken, shall have requested the Trustee to call a
meeting of Securityholders of such series (or of all series), by
written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of
such request, then the Company or such Securityholders may
determine the time and the place for such meeting and may call such
meeting to take any action authorized in Section 9.01, by
mailing notice thereof as provided in
Section 9.02.
To be entitled to vote at any
meeting of Securityholders, a Person shall (a) be a Holder of
one or more Securities affected by the action proposed to be taken
at the meeting or (b) be a Person appointed by an instrument
in writing as proxy by a Holder of one or more such Securities. The
only Persons who shall be entitled to be present or to speak at any
meeting of Securityholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the
Trustee and its counsel and any representatives of the Company and
its counsel.
(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.
The vote upon any resolution
submitted to any meeting of Securityholders of a series shall be by
written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by
proxy and the principal amounts of the Securities of such series
held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more Persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 9.02. The record
shall show the principal amounts of the Securities voting in favor
of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary
of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and
verified shall be conclusive evidence of the matters therein
stated.
Nothing contained in this
Article IX shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Securityholders of any series or
any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Securityholders
of such series under any of the provisions of this Indenture or of
the Securities of such series.
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.
The Company will reimburse
the Trustee for all expenses incurred in the preparation and
transmission of any report pursuant to the provisions of this
Section 10.01 and of Section 10.02.
The Company shall file with
the Trustee and the SEC, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in
the manner provided in the Trust Indenture Act; provided that,
unless available on EDGAR, any such information, documents or
reports required to be filed with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with
the Trustee within 30 days after the same is filed with the SEC;
and provided further, that the filing of the reports specified in
Section 13 or 15(d) of the Exchange Act by an entity that is
the direct or indirect parent of the Company will satisfy the
requirements of this Section 10.02 so long as such entity is
an obligor or guarantor on the Securities; and provided further
that the reports of such entity will not be required to include
condensed consolidating financial information for the Company in a
footnote to the financial statements of such
entity.
Delivery of such reports,
information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein
or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on
Officer’s Certificates).
The Company covenants and
agrees that it will furnish or cause to be furnished to the
Trustee:
(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,
(A) the Trustee
undertakes to perform such duties and only such duties with respect
to the Securities of that series as are specifically set out in
this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee, whose duties and
obligations shall be determined solely by the express provisions of
this Indenture; and
(B) the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, in the absence of
bad faith on the part of the Trustee, upon certificates or opinions
furnished to the Trustee pursuant to the express provisions of this
Indenture; but in the case of any such certificates or opinions
which, by the provisions of this Indenture, are specifically
required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts, statements, opinions or conclusions stated
therein);
(ii) the Trustee
shall not be liable to any Holder of Securities or to any other
Person for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee
shall not be liable to any Holder of Securities or to any other
Person with respect to any action taken or omitted to be taken by
it in good faith, in accordance with the direction of
Securityholders given as provided in Section 7.06, relating to
the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power
conferred upon the Trustee by this Indenture.
(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
Within 90 days after the
occurrence thereof, and if known to the Trustee, the Trustee shall
give to the Holders of the Securities of a series notice of each
Default or Event of Default with respect to the Securities of such
series known to the Trustee, by transmitting such notice to Holders
at their addresses as the same shall then appear on the Register of
the Company, unless such Default shall have been cured or waived
before the giving of such notice (the term “Default”
being hereby defined to be the events specified in
Section 7.01, which are, or after notice or lapse of time or
both would become, Events of Default as defined in said Section).
Except in the case of a Default or Event of Default in payment of
the principal of, premium, if any, or interest on any of the
Securities of such series when and as the same shall become
payable, or to make any sinking fund payment as to Securities of
the same series, the Trustee shall be protected in withholding such
notice, if and so long as a Responsible Officer or Responsible
Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of
the Securities of such series.
(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.
The Trustee, or any successor
to it hereafter appointed, may at any time resign and be discharged
of the trusts hereby created with respect to any one or more or all
series of Securities by giving to the Company notice in writing.
Such resignation shall take effect upon the appointment of a
successor Trustee and the acceptance of such appointment by such
successor Trustee. Any Trustee hereunder may be removed with
respect to any series of Securities at any time by the filing with
such Trustee and the delivery to the Company of an instrument or
instruments in writing signed by the Holders of a majority in
principal amount of the Securities of such series then Outstanding,
specifying such removal and the date when it shall become
effective.
If at any
time:
(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.
Upon its resignation or
removal, any Trustee shall be entitled to the payment of reasonable
compensation for the services rendered hereunder by such Trustee
and to the payment of all reasonable expenses incurred hereunder
and all moneys then due to it hereunder. The Trustee’s rights
to indemnification provided in Section 11.01(a) shall survive
its resignation or removal.
(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
Any Person into which the
Trustee or any successor to it in the trusts created by this
Indenture shall be merged or converted, or any Person with which it
or any successor to it shall be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the
Trustee or any such successor to it shall be a party, or any Person
to which the Trustee or any successor to it shall sell or otherwise
transfer all or substantially all of the corporate trust business
of the Trustee, shall be the successor Trustee under this Indenture
without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided that such Person
shall be otherwise qualified and eligible under this Article. In
case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture with respect to one or more series
of Securities, any of such Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor to
such Trustee may adopt the certificate of authentication of any
predecessor Trustee, and deliver such Securities so authenticated;
and in case at that time any of the Securities shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of
the Trustee shall have; provided, however, that the right to adopt
the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee
shall apply only to its successor or successors by merger,
conversion or consolidation.
Subject to
Section 11.02, and subject to the provisions of
Section 16.01 with respect to the certificates required
thereby, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
gross negligence, bad faith or willful misconduct on the part of
the Trustee, be deemed to be conclusively proved and established by
an Officer’s Certificate with respect thereto delivered to
the Trustee, and such Officer’s Certificate, in the absence
of negligence, bad faith or willful misconduct on the part of the
Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture
upon the faith thereof.
The Trustee may appoint an
agent (the “Authenticating Agent”) reasonably
acceptable to the Company to authenticate the Securities of the
series issued upon exchange, registration of transfer or partial
redemption thereof, and the Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder. The Trustee shall give written notice of such
appointment to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve. Unless limited by
the terms of such appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication and delivery by the
Trustee includes authentication and delivery by the Authenticating
Agent. Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee
hereunder.
Each Authenticating Agent
shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of
the United States, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes
of this Article XI, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Article XI, it
shall resign immediately in the manner and with the effect
specified in this Article XI.
Any corporation into which an
Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Article XI,
without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating
Agent.
33
An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 11.09, the
Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give written notice of such
appointment to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this
Section 11.09.
The Trustee agrees to pay to
each Authenticating Agent from time to time reasonable compensation
for its services under this Section 11.09, and the Trustee
shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 11.01.
Holders of Securities may
communicate pursuant to Section 312(b) of the Trust Indenture
Act with other Holders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the
Registrar and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act with respect to such
communications.
ARTICLE
XII
If, pursuant to
Section 3.01, provision is made for the defeasance of
Securities of a series and if the Securities of such series are
denominated and payable only in U.S. Dollars (except as provided
pursuant to Section 3.01), then the provisions of this Article
shall be applicable except as otherwise specified pursuant to
Section 3.01 for Securities of such series. Defeasance
provisions, if any, for Securities denominated in a Foreign
Currency may be specified pursuant to
Section 3.01.
This Indenture, with respect
to the Securities of any series (if all series issued under this
Indenture are not to be affected), shall, upon Company Order, cease
to be of further effect (except as to any surviving rights of
registration of transfer or exchange of such Securities herein
expressly provided for and rights to receive payments of principal
of and premium, if any, and interest on such Securities) and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when,
(a) either:
(i) all Securities
of such series theretofore authenticated and delivered (other than
(A) Securities that have been destroyed, lost or stolen and
that have been replaced or paid as provided in Section 3.07
and (B) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 6.03) have been delivered
to the Trustee for cancellation; or
(ii)
all Securities of such series not
theretofore delivered to the Trustee for
cancellation,
(A) have become due
and payable, or
(B) will become due
and payable at their Stated Maturity within one year,
or
(C) are to be called
for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice by the Trustee in the name,
and at the expense, of the Company, and the Company, and in the
case of (A), (B) or (C) above, has deposited or caused to
be deposited with the Trustee or Paying Agent as trust funds in
trust for the purpose an amount in the Currency in which such
Securities are denominated (except as otherwise provided pursuant
to Section 3.01) sufficient to pay and discharge the entire
Indebtedness on such Securities for principal and premium, if any,
and interest to the date of such deposit (in the case of Securities
that have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be; provided, however, in the
event a petition for relief under federal bankruptcy laws, as now
or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, is filed with respect
to the Company within 91 days after the deposit and the Trustee is
required to return the moneys then on deposit with the Trustee to
the Company, the obligations of the Company under this Indenture
with respect to such Securities shall not be deemed terminated or
discharged;
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.
At the Company’s
option, either (a) the Company shall be deemed to have been
Discharged (as defined below) from its obligations with respect to
Securities of any series on the first day after the applicable
conditions set forth below have been satisfied or (b) the
Company shall cease to be under any obligation to comply with any
term, provision or condition set forth in Section 6.04 and
Section 10.02 with respect to Securities of any series (and,
if so specified pursuant to Section 3.01, any other
restrictive covenant added for the benefit of such series pursuant
to Section 3.01) at any time after the applicable conditions
set forth below have been satisfied (such action under clauses
(a) or (b) of this paragraph in no circumstance may be
construed as an Event of Default under
Section 7.01):
(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
The Trustee and any Paying
Agent shall promptly pay to the Company (or to its designee) upon
Company Order any excess moneys or U.S. Government Obligations held
by them at any time, including any such moneys or obligations held
by the Trustee under any escrow trust agreement entered into
pursuant to Section 12.06. The provisions of the last
paragraph of Section 6.03 shall apply to any money held by the
Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any series of
Securities for which money or U.S. Government Obligations have been
deposited pursuant to Section 12.03.
The Company shall pay and
shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or deposited U.S.
Government Obligations or the principal or interest received in
respect thereof.
Any deposits with the Trustee
referred to in Section 12.03 above shall be irrevocable
(except to the extent provided in Sections 12.04 and 12.07) and
shall be made under the terms of an escrow trust agreement in form
and substance agreed upon by the Trustee and the Company. If any
Outstanding Securities of a series are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking
fund requirement, the applicable escrow trust agreement shall
provide therefor and the Company shall make such arrangements as
are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company. The agreement shall provide that, upon satisfaction of any
mandatory sinking fund payment requirements, whether by deposit of
moneys, application of proceeds of deposited U.S. Government
Obligations or, if permitted, by delivery of Securities, the
Trustee shall pay or deliver over to the Company as excess moneys
pursuant to Section 12.04 all funds or obligations then held
under the agreement and allocable to the sinking fund payment
requirements so satisfied.
If Securities of a series
with respect to which such deposits are made may be subject to
later redemption at the option of the Company or pursuant to
optional sinking fund payments, the applicable escrow trust
agreement may, at the option of the Company, provide therefor. In
the case of an optional redemption in whole or in part, such
agreement shall require the Company to deposit with the Trustee on
or before the date notice of redemption is given funds sufficient
to pay the Redemption Price of the Securities to be redeemed
together with all unpaid interest thereon to the Redemption Date.
Upon such deposit of funds, the Trustee shall pay or deliver over
to the Company as excess funds pursuant to Section 12.04 all
funds or obligations then held under such agreement and allocable
to the Securities to be redeemed. In the case of exercise of
optional sinking fund payment rights by the Company, such agreement
shall, at the option of the Company, provide that upon deposit by
the Company with the Trustee of funds pursuant to such exercise the
Trustee shall pay or deliver over to the Company as excess funds
pursuant to Section 12.04 all funds or obligations then held
under such agreement for such series and allocable to the
Securities to be redeemed.
(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.
Notwithstanding the foregoing
provisions of this Article, if the Securities of any series are
payable in a Currency other than U.S. Dollars, the Currency or the
nature of the government obligations to be deposited with the
Trustee under the foregoing provisions of this Article shall be as
set forth in the Officer’s Certificate or established in the
supplemental indenture under which the Securities of such series
are issued.
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
(i) extend the
Stated Maturity of the principal of, or any installment of interest
on, any Security, or reduce the principal amount thereof or the
interest thereon or any premium payable upon redemption thereof, or
extend the Stated Maturity of, or change the place of payment
where, or the Currency in which the principal of and premium, if
any, or interest on such Security is denominated or payable, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02,
or impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or materially
adversely affect the economic terms of any right to convert or
exchange any Security as may be provided pursuant to
Section 3.01; or
(ii) reduce the
percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any
supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this
Indenture or certain Defaults hereunder and their consequences
provided for in this Indenture; or
(iii)
modify any of the provisions of
this Section, Section 7.06 or Section 6.06, except to
increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to “the Trustee” and concomitant changes in
this Section and Section 6.06, or the deletion of this
proviso, in accordance with the requirements of Sections 11.06 and
14.01(f); or
(iv) modify, without
the written consent of the Trustee, the rights, duties or
immunities of the Trustee.
(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
|
September 5,
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