BK Technologies Corp S-3, filed Dec 11, 2020
BK Technologies Corp (BKTI)
S-3
2020-12-11
View Original
Added on
October 17, 2026
As filed with the Securities and Exchange Commission on December
11, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BK Technologies Corporation
(Exact name of registrant as specified in its charter)
|
Nevada
|
|
83-4064262
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. employer
identification number)
|
7100 Technology Drive
West Melbourne, FL 32904
(321) 984-1414
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive
offices)
William P. Kelly
Executive Vice President & Chief Financial Officer
7100 Technology Drive
West Melbourne, FL 32904
(321) 984-1414
(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:
Alexander Pearson, Esq.
S. Chase Dowden, Esq.
Kirton McConkie PC
50 E. South Temple, Suite 400
Salt Lake City, UT 84111
(801) 328-3600 (telephone)
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. [X]
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 the definitions 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
|
|
[X]
|
|
Smaller
reporting company
|
|
[X]
|
|
|
|
|
|
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 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION OF REGISTRATION FEE
|
Title of Each Class of Securities to be Registered
|
|
Amount to be Registered
|
|
Proposed Maximum Offering Price Per Unit
|
|
Proposed Maximum Aggregate Offering Price
|
|
Amount of Registration Fee(5)
|
|
||
|
Common
Stock
|
|
(1)(2)
|
|
(1)
|
|
|
(1)(2)
|
|
|
|
|
|
Preferred
Stock
|
|
(1)(2)(3)
|
|
(1)
|
|
|
(1)(2)(3)
|
|
|
|
|
|
Senior
Debt Securities
|
|
(1)(2)(3)
|
|
(1)
|
|
|
(1)(2)(3)
|
|
|
|
|
|
Subordinated Debt
Securities
|
|
(1)(2)(3)
|
|
(1)
|
|
|
(1)(2)(3)
|
|
|
|
|
|
Depositary
Shares
|
|
(1)(2)(3)
|
|
(1)
|
|
|
(1)(2)(3)
|
|
|
|
|
|
Units(4)
|
|
(1)(2)(3)
|
|
(1)
|
|
|
(1)(2)(3)
|
|
|
|
|
|
Warrants
|
|
(1)(2)(3)
|
|
(1)
|
|
|
(1)(2)(3)
|
|
|
|
|
|
Total
|
|
|
|
|
|
$
|
50,000,000
|
|
$
|
$5,455
|
|
(1)
Not
specified as to each class of securities to be registered pursuant
to General Instruction II.D of Form S-3 under the Securities Act of
1933, as amended (the “Securities Act”).
(2)
The
Registrant is hereby registering an indeterminate principal amount
and number of each identified class of its securities up to a
proposed maximum aggregate offering price of $50,000,000, which may
be offered from time to time in unspecified numbers at unspecified
prices. In addition, pursuant to Rule 416 under the Securities Act,
the shares being registered hereunder include such indeterminate
number of shares of common stock and preferred stock as may be
issuable with respect to the shares being registered hereunder as a
result of stock splits, stock dividends or similar transactions.
The Registrant has estimated the proposed maximum aggregate
offering price solely for the purpose of calculating the
registration fee pursuant to Rule 457(o) under the Securities Act.
Securities registered hereunder may be sold separately, together or
as units with other securities registered hereunder.
(3)
The
Registrant is hereby registering such indeterminate amount and
number of each identified class of the identified securities as may
be issued upon conversion, exchange, or exercise of any other
securities that provide for such conversion, exchange or
exercise.
(4)
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.
(5)
Calculated
pursuant to Rule 457(o) under the Securities Act.
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 Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and is not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 11, 2020
PROSPECTUS
$50,000,000
BK Technologies Corporation
Common Stock
Preferred Stock
Senior Debt Securities
Subordinated Debt Securities
Depositary Shares
Warrants
Units
We may
from time to time offer up to $50,000,000 of the securities listed
above in one or more offerings in amounts, at prices and on terms
determined at the time of such offering or offerings. When we use
the term “securities” in this prospectus, we mean any
of the securities we may offer with this prospectus, unless we say
otherwise.
This
prospectus provides you with a general description of the
securities and the general manner in which such securities may be
offered. The specific terms of any securities to be offered, and
the specific manner in which they may be offered, will be described
in a supplement to this prospectus or incorporated into this
prospectus by reference. You should read this prospectus and any
supplement carefully before you invest. Each prospectus supplement
will indicate if the securities offered thereby will be listed or
quoted on a securities exchange or quotation system.
We may
offer and sell the securities described in this prospectus and any
prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a
combination of these methods. If any underwriters, dealers or
agents are involved in the sale of any of the securities, their
names and any applicable purchase price, fee, commission or
discount arrangement between or among them will be set forth, or
will be calculable from the information set forth, in the
applicable prospectus supplement. See the sections of this
prospectus entitled “About this Prospectus” and
“Plan of Distribution” for more information. No
securities may be sold without delivery of this prospectus and the
applicable prospectus supplement describing the method and terms of
the offering of such securities.
INVESTING IN OUR SECURITIES INVOLVES RISKS. WE STRONGLY RECOMMEND
THAT YOU READ CAREFULLY THE RISKS WE DESCRIBE IN THIS PROSPECTUS
AND IN ANY ACCOMPANYING PROSPECTUS SUPPLEMENT, AS WELL AS THE RISK
FACTORS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS
FROM OUR FILINGS MADE WITH THE SECURITIES AND EXCHANGE COMMISSION.
SEE “RISK FACTORS” ON PAGE 4 OF THIS
PROSPECTUS.
Our
common stock is listed on the NYSE American under the symbol
“BKTI”. On December 7, 2020, the last reported sale
price of our common stock on the NYSE American was $3.05 per
share.
As of December 7, 2020, the
aggregate market value of our outstanding common stock held by
non-affiliates was $15,323,853, based on 12,511,966 shares of
outstanding common stock, of which 7,487,752 shares were held by
affiliates, and a per share price of $3.05, based on the closing
sale price of our common stock on December 7, 2020. Pursuant to
General Instruction I.B.6 of Form S-3, in no event will we sell
securities pursuant to this registration statement in a public
primary offering with a value of more than one-third of the
aggregate market value of our common stock held by non-affiliates
in any 12-month period, so long as the aggregate market value of
our common stock held by non-affiliates is less than $75,000,000.
In the event that subsequent to the effective date of this
registration statement, the aggregate market value of our
outstanding common stock held by non-affiliates equals or exceeds
$75,000,000, then the one-third limitation on sales shall not apply
to additional sales made pursuant to this registration statement.
We have not sold any securities pursuant to General Instruction
I.B.6 of Form S-3 during the 12 calendar months prior to, and
including, the date of this registration statement.
You
should carefully read this prospectus, any applicable prospectus
supplement and the information described under the headings
“Where You Can Find More Information” and
“Incorporation by Reference” before you invest in any
of these securities. This prospectus may not be used to sell
securities in a primary offering by us unless it is accompanied by
a prospectus supplement that describes the securities being
offered.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved the securities we
may be offering or determined that this prospectus is accurate or
complete. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is December 11, 2020
TABLE OF CONTENTS
|
|
Page
|
|
|
ABOUT
THIS PROSPECTUS
|
|
1
|
|
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS |
|
2
|
|
BK
TECHNOLOGIES CORPORATION
|
|
3
|
|
RISK
FACTORS
|
|
3
|
|
USE OF
PROCEEDS
|
|
3
|
|
DESCRIPTION
OF CAPITAL STOCK
|
|
4
|
|
DESCRIPTION
OF DEPOSITARY SHARES
|
|
6
|
|
DESCRIPTION
OF DEBT SECURITIES
|
|
8
|
|
DESCRIPTION
OF WARRANTS
|
|
13
|
|
DESCRIPTION
OF UNITS
|
|
13
|
|
PLAN OF
DISTRIBUTION
|
|
14
|
|
LEGAL
MATTERS
|
|
15
|
|
EXPERTS
|
|
15
|
|
WHERE
YOU CAN FIND MORE INFORMATION
|
|
16
|
|
INCORPORATION
BY REFERENCE
|
|
16
|
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with
the U.S. Securities and Exchange Commission, or the SEC, using a
“shelf” registration process. By using a shelf
registration statement, we may sell securities from time to time
and in one or more offerings up to a total dollar amount of
$50,000,000 as described in this prospectus. Each time that we
offer and sell securities, we will provide a prospectus supplement
to this prospectus that contains specific information about the
securities being offered and sold and the specific terms of that
offering. We may also authorize one or more free writing
prospectuses to be provided to you that may contain material
information relating to these offerings. The prospectus supplement
or free writing prospectus may also add, update or change
information contained in this prospectus with respect to that
offering. If there is any inconsistency between the information in
this prospectus and the applicable prospectus supplement or free
writing prospectus, you should rely on the prospectus supplement or
free writing prospectus, as applicable. Before purchasing any
securities, you should carefully read both this prospectus and the
applicable prospectus supplement (and any applicable free writing
prospectuses), together with the additional information described
under the headings “Where You Can Find More
Information” and “Incorporation by
Reference.”
We have
not authorized any other person to provide you with any information
or to make any representations other than those contained in this
prospectus, any applicable prospectus supplement or any free
writing prospectuses prepared by or on behalf of us or to which we
have referred you. We take no responsibility for, and can provide
no assurance as to the reliability of, any other information that
others may give you. We will not make an offer to sell these
securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this
prospectus and the applicable prospectus supplement to this
prospectus is accurate only as of the date on its respective cover,
that the information appearing in any applicable free writing
prospectus is accurate only as of the date of that free writing
prospectus, and that any information incorporated by reference is
accurate only as of the date of the document incorporated by
reference, unless we indicate otherwise. Our business, financial
condition, results of operations and prospects may have changed
since those dates. This prospectus incorporates by reference, and
any prospectus supplement or free writing prospectus may contain
and incorporate by reference, market data and industry statistics
and forecasts that are based on independent industry publications
and other publicly available information. Although we believe these
sources are reliable, we do not guarantee the accuracy or
completeness of this information and we have not independently
verified this information. In addition, the market and industry
data and forecasts that may be included or incorporated by
reference in this prospectus, any prospectus supplement or any
applicable free writing prospectus may involve estimates,
assumptions and other risks and uncertainties and are subject to
change based on various factors, including those discussed under
the heading “Risk Factors” contained in this
prospectus, the applicable prospectus supplement and any applicable
free writing prospectus, and under similar headings in other
documents that are incorporated by reference into this prospectus.
Accordingly, investors should not place undue reliance on this
information.
Unless
we state otherwise or the context otherwise requires, references in
this prospectus to “we,” “our,”
“us,” or “the Company” are to BK
Technologies Corporation, a Nevada corporation, together with our
consolidated subsidiaries.
1
This
prospectus and the documents incorporated by reference into it
contain forward-looking statements regarding the Company and
represent our expectations and beliefs concerning future events
that are, or may be considered to be, “forward-looking
statements” within the meaning of Section 27A of the
Securities Act of 1933, as amended, or the Securities Act, and
Section 21E of the Securities Exchange Act of 1934, as amended, or
the Exchange Act. These forward-looking statements are intended to
be covered by the safe harbor for forward-looking statements
provided by the Private Securities Litigation Reform Act of 1995.
The forward-looking statements included herein or incorporated
herein by reference include or may include, but are not limited to,
statements that are predictive in nature, depend upon or refer to
future events or conditions, or use or contain words, terms,
phrases, or expressions such as “achieve,”
“forecast,” “plan,” “propose,”
“strategy,” “envision,” “hope,”
“will,” “continue,”
“potential,” “expect,”
“believe,” “anticipate,”
“project,” “estimate,”
“predict,” “intend,” “should,”
“could,” “would,” “may,”
“might,” “seek,” “are
encouraged,” or other similar words, terms, phrases, or
expressions or the negative of any of these terms. Any statements
in this prospectus or incorporated herein by reference that are not
based upon historical fact are forward-looking statements and
represent our best judgment as to what may occur in the future.
Forward-looking statements involve a number of known and unknown
risks and uncertainties, including but not limited to those
discussed in the “Risk Factors” section contained in
Item 1A in our Annual Report on Form 10-K for the fiscal year ended
December 31, 2019 and Item 1A in our Quarterly Report on Form 10-Q
for the quarters ended March 31, 2020, June 30, 2020 and September
30, 2020 and the following risks and uncertainties: changes or advances in technology; the success of
our land mobile radio (“LMR”) product line; successful
introduction of new products and technologies, including our
ability to successfully develop and sell our anticipated new
multiband product and other related products in the planned new BKR
Series product line; competition in the land mobile radio industry;
general economic and business conditions, including federal, state
and local government budget deficits and spending limitations, any
impact from a prolonged shutdown of the U.S. Government, and the
ongoing effects of the COVID-19 pandemic; the availability, terms
and deployment of capital; reliance on contract manufacturers and
suppliers; risks associated with fixed-price contracts; heavy
reliance on sales to agencies of the U.S. Government and our
ability to comply with the requirements of contracts, laws and
regulations related to such sales; allocations by government
agencies among multiple approved suppliers under existing
agreements; our ability to comply with U.S. tax laws and utilize
deferred tax assets; our ability to attract and retain executive
officers, skilled workers and key personnel; our ability to manage
our growth; our ability to identify potential candidates for, and
consummate, acquisition, disposition or investment transactions,
and risks incumbent to being a noncontrolling interest stockholder
in a corporation; the impact of the COVID-19 pandemic on the
companies in which we hold investments; impact of our capital
allocation strategy; risks related to maintaining our brand and
reputation; impact of government regulation; rising health care
costs; our business with manufacturers located in other countries,
including changes in the U.S. Government and foreign
governments’ trade and tariff policies, as well as any
further impact resulting from the COVID-19 pandemic; our inventory
and debt levels; protection of our intellectual property rights;
fluctuation in our operating results and stock price; acts of war
or terrorism, natural disasters and other catastrophic events, such
as the COVID-19 pandemic; any infringement claims; data security
breaches, cyber-attacks and other factors impacting our technology
systems; availability of adequate insurance coverage; maintenance
of our NYSE American listing; risks related to being a holding
company; and the effect on our stock price and ability to raise
equity capital of future sales of shares of our Common Stock (as
defined below). Some of these factors and risks have been, and may
further be, exacerbated by the COVID-19 pandemic. We assume no
obligation to publicly update or revise any forward-looking
statements made in this prospectus, whether as a result of new
information, future events, changes in assumptions or otherwise,
after the date of this prospectus. Readers are cautioned not to
place undue reliance on these forward-looking
statements.
Although
we believe the expectations reflected in our forward-looking
statements are reasonable, in reading this prospectus and the
documents incorporated into this prospectus by reference, you
should consider the factors discussed under the heading “Risk
Factors” contained in this prospectus in evaluating any
forward-looking statements and you are cautioned not to place undue
reliance on any forward-looking statements. Each forward-looking
statement is made and applies only as of the date of the particular
statement, and we are not obligated to update, withdraw, or revise
any forward-looking statements, whether as a result of new
information, future events or otherwise. You should consider these
risks when reading any forward-looking statements. All
forward-looking statements attributed or attributable to us or to
persons acting on our behalf are expressly qualified in their
entirety by this section entitled “Cautionary Statement
Regarding Forward-Looking Statements.”
2
We are
a holding company that, through BK Technologies, Inc., our
operating subsidiary, provides two-way radio communications
equipment of high quality and reliability. In business for over 70
years, we design, manufacture and market wireless communications
products consisting of two-way LMRs, repeaters, base stations and
related components and subsystems. Two-way LMRs can be units that
are hand-held (portable) or installed in vehicles (mobile).
Repeaters expand the range of two-way LMRs, enabling them to
operate over a wider area. Base station components and subsystems
are installed at radio transmitter sites to improve performance by
enhancing the signal and reducing or eliminating signal
interference and enabling the use of one antenna for both
transmission and reception. We employ both analog and digital
technologies in our products.
Our
digital technology is compliant with the Project 25 standard
(“P-25”) for digital LMR equipment. The P-25 has been
adopted by representatives from the Association of Public-Safety
Communications Officials-International, the National Association of
State Technology Directors, the United States Federal Government
and other public safety user organizations. Our P-25 digital
products and our analog products function in the very high
frequency (136MHz – 174MHz), ultra-high frequency (380MHz
– 470MHz, 450MHz – 520MHz), and 700-800 MHz bands. Our
P-25 KNG and KNG2 Series mobile and portable digital radios have
been validated under the P-25 Compliance Assessment Program
(“CAP”) as being P-25 compliant and interoperable with
the communications network infrastructure of six of our
competitors. Since we do not provide our own communications network
infrastructure, we believe CAP validation provides confidence for
federal, state and local emergency response agencies that our
products are a viable and attractive alternative for use on the
infrastructure of our competitors.
We
offer products under the brand names BK Radio and RELM. Generally,
BK Technologies and BK Radio-branded products serve the government
and public safety market, while RELM-branded products serve the
business and industrial market. We believe that we provide superior
value to a wide array of customers with demanding requirements,
including, for example, emergency response, public safety, homeland
security and military customers of federal and state government
agencies, as well as various commercial enterprises. Our two-way
radio products excel in applications with harsh and hazardous
conditions. They provide high-specification performance, durability
and reliability at a lower cost relative to comparable
offerings.
We were
incorporated under the laws of the State of Nevada on October 24,
1997. We are the resulting corporation from the reincorporation
merger of our predecessor, Adage, Inc., a Pennsylvania corporation,
which reincorporated from Pennsylvania to Nevada effective as of
January 30, 1998. Effective on June 4, 2018, we changed our
corporate name from “RELM Wireless Corporation” to
“BK Technologies, Inc.” On March 28, 2019, we
implemented a holding company reorganization. The reorganization
created a new holding company, BK Technologies Corporation, which
became the new parent company of BK Technologies, Inc. BK
Technologies Corporation’s only significant assets are the
outstanding equity interests in BK Technologies, Inc. and any other
future subsidiaries of BK Technologies Corporation. The holding
company reorganization was intended to create a more efficient
corporate structure and increase operational
flexibility.
Our
principal executive offices are located at 7100 Technology Drive,
West Melbourne, Florida 32904 and our telephone number is (321)
984-1414. Our website is www.bktechnologies.com. Information
contained on, or that may be accessible through, our website is not
a part of, and is not incorporated into, this
prospectus.
An
investment in our securities involves various risks. Before making
an investment in our securities, you should carefully consider the
risks discussed under the heading “Risk Factors” in our
most recent Annual Report on Form 10-K, our most recent Quarterly
Report on Form 10-Q and any subsequently filed Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K (other than, in each
case, information furnished rather than filed), which are
incorporated herein by reference, as well as the information
contained in this prospectus and in any prospectus supplements
relating to particular offers of securities. Any of those risk
factors could significantly and adversely affect our business,
prospects, financial condition and results of operations, and the
trading price of our securities. Although we describe, and will
describe, what we believe to be the principal risks related to our
Company and the securities we offer, we can also be affected by
risks we do not anticipate or do not think will have a material
effect upon us.
We will
retain broad discretion over the use of the net proceeds from the
sale of our securities offered by this prospectus. Unless otherwise
indicated in a prospectus supplement relating to a specific
offering, we intend to use the net proceeds from the sale of
securities by us under this prospectus for general corporate
purposes, which may include working capital, capital expenditures,
operational purposes and potential acquisitions. We have not
allocated any portion of the net proceeds for any particular use at
this time. The net proceeds may be invested temporarily until they
are used for their stated purpose.
The
intended application of proceeds from the sale of any particular
offering of securities using this prospectus will be described in
the accompanying prospectus supplement or free writing prospectus
relating to such offering. The precise amount and timing of the
application of these proceeds will depend on our funding
requirements and the availability and costs of other
funds.
3
The following summarizes the terms and provisions of our authorized
capital stock. The following summary does not purport to be
complete and is qualified in its entirety by reference to the
Company’s articles of incorporation (“Articles of
Incorporation”) and bylaws (“Bylaws”), which the
Company has previously filed with the SEC, and applicable Nevada
law.
Authorized Capital Stock
The Company’s authorized capital stock consists of 20,000,000
common shares, par value $0.60 per share (the “Common
Stock”), and 1,000,000 shares of preferred stock, par value
$1.00 per share (the “Preferred Stock”).
Under Nevada law, stockholders generally are not personally liable
for a corporation’s debts or liabilities.
Common Stock
Exchange and Trading Symbol
The Common Stock is listed for trading on the NYSE American under
the trading symbol “BKTI.”
Rights, Preferences and Privileges
All outstanding shares of Common Stock are duly authorized, fully
paid and nonassessable. Holders of Common Stock have no
preemptive, conversion, redemption, subscription or similar rights,
and there are no sinking fund provisions applicable to the Common
Stock. The rights, preferences and privileges of the holders of
Common Stock are subject to, and may be adversely affected by, the
rights of the holders of shares of any series of Preferred Stock
that the Company may designate and issue in the
future.
Voting Rights
Holders of Common Stock are entitled to one vote for each share
held of record on all matters properly submitted to a vote of the
Company’s stockholders, including the election of directors,
and do not have any cumulative voting rights. Directors are elected
by a plurality of the votes cast by the holders of Common Stock.
Except as otherwise required by law, all other matters brought to a
vote of the holders of Common Stock are determined by a majority of
the votes cast and, except as may be provided with respect to any
other outstanding class or series of the Company’s stock, the
holders of shares of Common Stock possess the exclusive voting
power.
Dividends
Subject to preferences that may be applicable to any then
outstanding Preferred Stock, holders of Common Stock are entitled
to receive dividends, if any, as may be declared from time to time
by the Company’s Board of Directors out of legally available
funds.
Liquidation
In the event of the Company’s liquidation, dissolution or
winding up, holders of Common Stock are entitled to share ratably
in the net assets legally available for distribution to the
Company’s stockholders, if any, remaining after the payment
or provision for the payment of all debts and other liabilities of
the Company, subject to the satisfaction of any liquidation
preference granted to the holders of any then outstanding shares of
Preferred Stock.
Preferred Stock
The Company’s Articles of Incorporation authorize the
Company’s Board of Directors, subject to certain limitations
prescribed by law and without further stockholder approval, to
issue from time to time up to an aggregate of 1,000,000 shares of
Preferred Stock, par value $1.00 per share. The Preferred Stock may
be issued in one or more series. Each series of Preferred Stock may
have different designations, rights and preferences and
qualifications, limitations and restrictions that may be
established by the Board of Directors without approval from the
Company’s stockholders, including, without limitation, the
number of shares to be issued in a series, dividend rights and
rates, conversion rights, voting rights, liquidation preferences
and redemption terms.
Anti-Takeover Provisions
Nevada Law
Nevada Business Combination Statute. The “business combination”
provisions of Sections 78.411 to 78.444, inclusive, of the Nevada
Revised Statutes generally prohibit a Nevada corporation with at
least 200 stockholders of record from engaging in various
“business combination” transactions with any interested
stockholder for a period of two years after the date that the
person first become an interested stockholder, unless the business
combination or the transaction by which the person first became an
interested stockholder is approved by the corporation’s board
of directors before the person first became an interested
stockholder, or the business combination is approved by the board
of directors and thereafter is approved at a meeting of the
corporation’s stockholders by the affirmative vote of at
least 60% of the outstanding voting power of the corporation held
by disinterested stockholders.
4
Following the expiration of the two-year period, the corporation is
prohibited from engaging in a “business combination”
transaction with the interested stockholder, unless:
●
the
business combination or the transaction by which the person first
became an interested stockholder is approved by the
corporation’s board of directors before the person first
became an interested stockholder;
●
the
business combination is approved by a majority of the outstanding
voting power of the corporation held by disinterested stockholders;
or
●
the
aggregate amount of the consideration to be received in the
business combination by all of the holders of outstanding common
shares of the corporation not beneficially owned by the interested
stockholder is at least equal to the higher of: (a) the highest
price per share paid by the interested stockholder for any common
shares acquired by the interested stockholder within two years
immediately before the date of the announcement of the business
combination or within two years immediately before, or in, the
transaction in which the person became an interested stockholder,
whichever is higher, and (b) the market value per common share on
the date of the announcement of the business combination or on the
date that the person first became an interested stockholder,
whichever is higher.
In general, an “interested stockholder” is any person
who is (i) the direct or indirect beneficial owner of 10% or more
of the voting power of the outstanding voting shares of the
corporation, or (ii) an affiliate or associate of the corporation
and at any time within two years immediately before the date in
question was the direct or indirect beneficial owner of 10% or more
of the voting power of the then outstanding shares of the
corporation.
A “combination” is generally defined to include mergers
or consolidations; any sale, lease exchange, mortgage, pledge,
transfer, or other disposition, in one transaction or a series of
transactions: (a) having an aggregate market value equal to more
than five percent of the aggregate market value of the consolidated
assets of the corporation, (b) having an aggregate market value
equal to more than five percent of the aggregate market value of
all outstanding shares of the corporation, (c) representing more
than ten percent of the consolidated earning power or net income of
the corporation; and certain other transactions, with an interested
stockholder or an affiliate or associate of an interested
stockholder.
The business combination statute could prohibit or delay mergers or
other takeover or change in control attempts and, accordingly, may
discourage attempts to acquire the Company even though such a
transaction may offer the Company’s stockholders the
opportunity to sell their stock at a price above the prevailing
market price.
Nevada Control Share Acquisition Statute. Sections 78.378 to 78.3793, inclusive, of the
Nevada Revised Statutes limit the voting rights of certain acquired
shares in a corporation. This “control share” statute
applies to any acquisition of outstanding voting securities of a
Nevada corporation that has 200 or more stockholders of record (at
least 100 of which are Nevada residents) and conducts business in
Nevada resulting in ownership of the corporation’s then
outstanding voting securities in excess of one of the following
thresholds: (i) one-fifth or more but less than one-third, (ii)
one-third or more but less than a majority, and (iii) a majority or
more. Once an acquirer crosses one of these thresholds by acquiring
a controlling interest in the corporation, the shares which the
acquirer acquired in the transaction taking it over the threshold
and within the 90 days immediately preceding the date when the
acquiring person acquired or offered to acquire a controlling
interest in the corporation become “control shares.”
The acquirer is denied voting rights with respect to the control
shares, unless stockholders representing a majority of the voting
power of the corporation approve the granting of full voting rights
to the control shares.
As permitted under Nevada law, the Company has elected to
“opt out” of the control share statute pursuant to a
provision in its Bylaws.
Articles of Incorporation and Bylaws
The Company’s Articles of Incorporation and Bylaws include
anti-takeover provisions that:
●
authorize
the Board of Directors, without further action by stockholders, to
issue shares of Preferred Stock in one or more series, and with
respect to each series, to fix the number of shares constituting
that series and establish the rights and terms of that
series;
●
require
at least one-fifth of the outstanding shares of the Company’s
stock to call special meetings;
●
establish
advance notice procedures for stockholders to submit nominations of
candidates for election to the Board of Directors to be brought
before a stockholder meeting;
●
allow
the Company’s directors to establish the size of the Board of
Directors and fill vacancies on the Board created by an increase in
the number of directors; and
●
provide
that the Bylaws may be amended by the Board of Directors without
stockholder approval.
5
Provisions of the Articles of Incorporation and Bylaws may delay or
discourage transactions involving an actual or potential change in
control of the Company or change in the Company’s Board of
Directors or management, including transactions in which
stockholders might otherwise receive a premium for their shares or
transactions that stockholders might otherwise deem to be in their
best interests.
Authorized and Unissued Shares
The Company’s authorized and unissued shares of Common Stock
will be available for future issuance without stockholder approval.
The Company may use additional shares for a variety of purposes,
including future offerings to raise capital, to fund acquisitions
and as employee, director and consultant compensation. The
existence of authorized but unissued Common Stock could render more
difficult, or discourage, an attempt to obtain control of the
Company by means of a proxy contest, tender offer, merger or
otherwise.
The Company’s Articles of Incorporation authorize the
issuance of 1,000,000 shares of “blank check” Preferred
Stock with such designations, rights and preferences as may be
determined from time to time by the Company’s Board of
Directors. Accordingly, the Board of Directors is empowered,
without stockholder approval, to issue shares of Preferred Stock
with dividend, liquidation, conversion, voting or other rights that
could adversely affect the value, voting power or other rights of
holders of Common Stock. In addition, the Board of Directors may,
under certain circumstances, issue Preferred Stock in order to
delay, defer, prevent or make more difficult a change of control
transaction such as a merger, tender offer, business combination or
proxy contest, assumption of control by a holder of a large block
of the Company’s securities or the removal of incumbent
management of the Company, even if those events were favorable to
the interests of the Company’s stockholders. The Company
currently has no outstanding shares of Preferred
Stock.
Transfer Agent and Registrar
The
transfer agent for the shares of the Company’s Common Stock
is American Stock Transfer & Trust Company,
LLC.
We may
issue depositary receipts representing interests, which are called
depositary shares, in shares of our Common Stock or of particular
series of Preferred Stock. If we did that, we would deposit the
Common Stock or Preferred Stock which is the subject of depositary
shares with a depositary, which would hold that Common Stock or
Preferred Stock for the benefit of the holders of the depositary
shares, in accordance with a deposit agreement between the
depositary and us. The holders of depositary shares would be
entitled to all the rights and preferences of the Common Stock or
Preferred Stock to which the depositary shares relate, including
dividend, voting, conversion, redemption and liquidation rights, to
the extent of their interests in that Common Stock or Preferred
Stock.
While
the deposit agreement relating to Common Stock or a particular
series of Preferred Stock may have provisions applicable solely to
Common Stock or that series of Preferred Stock, all deposit
agreements relating to Common Stock or Preferred Stock we issue
would include the following provisions:
Dividends and Other Distributions. Each time we pay a cash
dividend or make any other type of cash distribution with regard to
the Common Stock or to the Preferred Stock of a series, the
depositary will receive, and will distribute to the holder of
record of each depositary share relating to that Common Stock or to
that series of Preferred Stock, an amount equal to the dividend or
other distribution per depositary share. If there is a distribution
of property other than cash, the depositary either will distribute
the property to the holders of depositary shares in proportion to
the depositary shares held by each of them, or the depositary will,
if we approve, sell the property and distribute the net proceeds to
the holders of the depositary shares in proportion to the
depositary shares held by them.
Withdrawal of Common Stock or Preferred Stock. A holder of
depositary shares will be entitled to receive, upon surrender of
depositary receipts representing depositary shares, the number of
shares of the applicable Common Stock or series of Preferred Stock,
and any money or other property, to which the depositary shares
relate.
Redemption of Depositary Shares. Whenever we redeem shares
of a series of Preferred Stock held by a depositary, the depositary
will be required to redeem, on the same redemption date, depositary
shares relating, in total, to the number of shares of that series
held by the depositary which we redeem, subject to the
depositary’s receiving the redemption price of those shares.
If fewer than all the depositary shares relating to a series are to
be redeemed, the depositary shares to be redeemed will be selected
by lot or by another method we determine to be
equitable.
Voting. Any time we send a notice of meeting or other
materials relating to a meeting to the holders of Common Stock or a
series of Preferred Stock to which depositary shares relate, we
will provide the depositary with sufficient copies of those
materials so they can be sent to all holders of record of the
applicable depositary shares, and the depositary will send those
materials to the holders of record of the depositary shares on the
record date for the meeting. The depositary will solicit voting
instructions from holders of depositary shares and will vote or not
vote the Common Stock or Preferred Stock to which the depositary
shares relate in accordance with those instructions.
6
Liquidating Distributions. Upon our liquidation, dissolution
or winding up, the holder of each depositary share will be entitled
to what the holder of the depositary share would have received if
the holder had owned the number of shares of Common Stock or of the
series of Preferred Stock which is represented by the depositary
share.
Conversion. If shares of a series of Preferred Stock are
convertible into Common Stock or other of our securities or
property, holders of depositary shares relating to that series of
Preferred Stock will, if they surrender depositary receipts
representing depositary shares with appropriate instructions to
convert them, receive the shares of Common Stock or other
securities or property into which the number of shares of the
series of Preferred Stock to which the depositary shares relate
could at the time be converted.
Amendment and Termination of a Deposit Agreement. We and the
depositary may amend a deposit agreement, except that an amendment
which materially and adversely affects the rights of holders of
depositary shares, or would be materially and adversely
inconsistent with the rights granted to the holders of Common Stock
or the series of Preferred Stock to which they relate, will have to
be approved by holders of a designated percentage of the depositary
shares then outstanding. No amendment will impair the right of a
holder of depositary shares to surrender the depositary receipts
evidencing those depositary shares and receive the Common Stock or
Preferred Stock to which they relate, except as required to comply
with law. We may terminate a deposit agreement with the consent of
holders of a majority of the depositary shares to which it relates.
Upon termination of a deposit agreement, the depositary will make
the shares of Common Stock or Preferred Stock to which the
depositary shares issued under the deposit agreement relate
available to the holders of those depositary shares. A deposit
agreement will automatically terminate if:
●
all
outstanding depositary shares to which it relates have been
withdrawn, redeemed or converted, or
●
the
depositary has made a final distribution to the holders of the
depositary shares issued under the deposit agreement upon our
liquidation, dissolution or winding up.
Miscellaneous. There will be provisions (i) requiring the
depositary to forward to holders of record of depositary shares any
reports or communications from us which the depositary receives
with respect to the Common Stock or Preferred Stock to which the
depositary shares relate, (ii) regarding compensation of the
depositary, (iii) regarding resignation of the depositary, (iv)
limiting our liability and the liability of the depositary under
the deposit agreement (usually to failure to act in good faith,
gross negligence or willful misconduct) and (v) indemnifying the
depositary against certain possible liabilities.
7
General
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.
We may
offer under this prospectus up to an aggregate principal amount of
$50,000,000 in debt securities, or if debt securities are issued at
a discount, or in a foreign currency, foreign currency units or
composite currency, the principal amount as may be sold for an
aggregate public offering price of up to $50,000,000. Unless
otherwise specified in the applicable prospectus supplement, the
debt securities will represent our direct, unsecured obligations
and will rank equally with all of our other unsecured
indebtedness.
The
debt securities, if and when issued, will be direct, unsecured
obligations of our Company and may be either senior debt securities
or subordinated debt securities. We may issue debt securities in
one or more issuances or series. An indenture, or a supplemental
indenture, will set forth specific terms of each issue or series of
debt securities. There will be prospectus supplements relating to
particular issues or series of debt securities. Each prospectus
supplement will describe:
●
the
title of the debt securities and whether the debt securities are
senior or subordinated debt securities;
●
the
total principal amount of the debt securities we are offering by
that prospectus supplement;
●
the
date or dates on which principal of the debt securities will be
payable and the amount of principal which will be
payable;
●
the
rate or rates (which may be fixed or variable) at which the debt
securities will bear interest, if any, or contingent interest, if
any, as well as the dates from which interest will accrue, the
dates on which interest will be payable, the persons to whom
interest will be payable, if other than the registered holders on
the record date, and the record date for the interest payable on
any payment date;
●
the
currency in which principal and interest, and any premium, will be
payable;
●
the
place or places where principal, premium, if any, and interest, if
any, on the debt securities will be payable and where debt
securities which are in registered form can be presented for
registration of transfer or exchange;
●
any
provisions regarding our right to prepay debt securities or the
right of holders to require us to prepay debt
securities;
●
the
right, if any, of holders of the debt securities to convert them
into Common Stock or other securities, including any contingent
conversion provisions;
●
any
provisions requiring or permitting us to make payments to a sinking
fund which will be used to redeem debt securities or a purchase
fund which will be used to purchase debt securities;
●
the
percentage of the principal amount of the debt securities which is
payable if maturity of the debt securities is accelerated because
of a default;
●
any
special or modified events of default or covenants with respect to
the debt securities; and
●
any
other material terms of the debt securities.
We may
issue discount debt securities that provide for an amount less than
the stated principal amount to be due and payable upon acceleration
of the maturity of such debt securities in accordance with the
terms of the indenture. We may also issue debt securities in bearer
form, with or without coupons. If we issue discount debt securities
or debt securities in bearer form, we will describe material U.S.
federal income tax considerations and other material special
considerations which apply to these debt securities in the
applicable prospectus supplement.
We may
issue debt securities denominated in or payable in a foreign
currency or currencies or a foreign currency unit or units. If we
do, we will describe the restrictions, elections, and general tax
considerations relating to the debt securities and the foreign
currency or currencies or foreign currency unit or units in the
applicable prospectus supplement.
Registrar and Paying Agent
The
debt securities may be presented for registration of transfer or
for exchange at the corporate trust office of the security
registrar or at any other office or agency that we maintain for
those purposes. In addition, the debt securities may be presented
for payment of principal, interest and any premium at the office of
the paying agent or at any office or agency that we maintain for
those purposes.
8
Conversion or Exchange Rights
Debt
securities may be convertible into or exchangeable for shares of
our Common Stock or other securities. The terms and conditions of
conversion or exchange will be stated in the applicable prospectus
supplement. The terms will include, among others, the
following:
●
the
conversion or exchange price;
●
the
conversion or exchange period;
●
provisions
regarding the convertibility or exchangeability of the debt
securities, including who may convert or exchange;
●
events
requiring adjustment to the conversion or exchange
price;
●
provisions
affecting conversion or exchange in the event of our redemption of
the debt securities; and
●
any
anti-dilution provisions, if applicable.
Registered Global Securities
If we
decide to issue debt securities in the form of one or more global
securities, then we will register the global securities in the name
of the depositary for the global securities or the nominee of the
depositary, and the global securities will be delivered by the
trustee to the depositary for credit to the accounts of the holders
of beneficial interests in the debt securities.
The
prospectus supplement will describe the specific terms of the
depositary arrangement for debt securities of a series that are
issued in global form. None of us, the trustee, any payment agent
or the security 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 debt security
or for maintaining, supervising or reviewing any records relating
to these beneficial ownership interests.
No Protection in the Event of a Change of Control
The
indenture does not have any covenants or other provisions providing
for a put or increased interest or otherwise that would afford
holders of our debt securities additional protection in the event
of a recapitalization transaction, a change of control or a highly
leveraged transaction. If we offer any covenants or provisions of
this type with respect to any debt securities covered by this
prospectus, we will describe them in the applicable prospectus
supplement.
Covenants
Unless
otherwise indicated in this prospectus or the applicable prospectus
supplement, our debt securities will not have the benefit of any
covenants that limit or restrict our business or operations, the
pledging of our assets or the incurrence by us of indebtedness. We
will describe in the applicable prospectus supplement any material
covenants in respect of a series of debt securities.
Merger, Consolidation or Sale of Asset
The
form of indenture provides that we will not consolidate with or
merge into any other person or convey, transfer, sell, lease or
otherwise dispose of our properties and assets substantially as an
entirety to any person, unless:
●
we are
the surviving person of such merger or consolidation, or if we are
not the surviving person, the person formed by the consolidation or
into or with which we are merged or the person to which our
properties and assets are conveyed, transferred, sold or leased, is
a corporation organized and existing under the laws of the U.S.,
any state or the District of Columbia or a corporation or
comparable legal entity organized under the laws of a foreign
jurisdiction and has expressly assumed all of our obligations,
including the payment of the principal of, and premium and
interest, if any, on, the debt securities and the performance of
the other covenants under the indenture; and
●
immediately
before and immediately after giving effect to the transaction on a
pro forma basis, no event of default, and no event which, after
notice or lapse of time or both, would become an event of default,
has occurred and is continuing under the indenture.
9
Events of Default and Remedies
Unless
otherwise specified in the applicable prospectus supplement, the
following events will be events of default under the indenture with
respect to debt securities of any series:
●
we fail
to pay any principal or premium, if any, when it becomes
due;
●
we fail
to pay any interest within 30 days after it becomes
due;
●
we fail
to observe or perform any other covenant in the debt securities or
the indenture for 60 days after written notice specifying the
failure from the trustee or the holders of not less than 25% in
aggregate principal amount of the outstanding debt securities of
that series; and
●
certain
events involving bankruptcy, insolvency or reorganization of us or
any of our significant subsidiaries.
The
trustee may withhold notice to the holders of the debt securities
of any series of any default, except in payment of principal of, or
premium or interest, if any, on, the debt securities of a series,
if the trustee considers it to be in the best interest of the
holders of the debt securities of that series to do
so.
If an
event of default (other than an event of default resulting from
certain events of bankruptcy, insolvency or reorganization) occurs,
and is continuing, then the trustee or the holders of not less than
25% in aggregate principal amount of the outstanding debt
securities of any series may accelerate the maturity of the debt
securities. If this happens, the entire principal amount, plus the
premium, if any, of all the outstanding debt securities of the
affected series plus accrued interest to the date of acceleration
will be immediately due and payable. At any time after the
acceleration, but before a judgment or decree based on such
acceleration is obtained by the trustee, the holders of a majority
in aggregate principal amount of outstanding debt securities of
such series may rescind and annul such acceleration
if:
●
all
events of default (other than nonpayment of accelerated principal,
premium or interest) have been cured or waived;
●
all
lawful interest on overdue interest and overdue principal has been
paid; and
●
the
rescission would not conflict with any judgment or
decree.
In
addition, if the acceleration occurs at any time when we have
outstanding indebtedness that is senior to the debt securities, the
payment of the principal amount of outstanding debt securities may
be subordinated in right of payment to the prior payment of any
amounts due under the senior indebtedness, in which case the
holders of debt securities will be entitled to payment under the
terms prescribed in the instruments evidencing the senior
indebtedness and the indenture.
If an
event of default resulting from certain events of bankruptcy,
insolvency or reorganization occurs, the principal, premium and
interest amount with respect to all of the debt securities of any
series will be due and payable immediately without any declaration
or other act on the part of the trustee or the holders of the debt
securities of that series.
The
holders of a majority in principal amount of the outstanding debt
securities of a series will have the right to waive any existing
default or compliance with any provision of the indenture or the
debt securities of that series and to direct the time, method and
place of conducting any proceeding for any remedy available to the
trustee, subject to certain limitations specified in the
indenture.
No
holder of any debt security of a series will have any right to
institute any proceeding with respect to the indenture or for any
remedy under the indenture, unless:
●
the
holder gives to the trustee written notice of a continuing event of
default;
●
the
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the affected series make a written
request and offer reasonable indemnity to the trustee to institute
a proceeding as trustee;
●
the
trustee fails to institute a proceeding within 60 days after such
request; and
●
the
holders of a majority in aggregate principal amount of the
outstanding debt securities of the affected series do not give the
trustee a direction inconsistent with such request during such
60-day period.
These
limitations do not, however, apply to a suit instituted for payment
on debt securities of any series on or after the due dates
expressed in the debt securities.
We will
periodically deliver certificates to the trustee regarding our
compliance with our obligations under the indenture.
10
Modification of an Indenture
From
time to time, we and the trustee may, without the consent of
holders of the debt securities of one or more series, amend the
indenture or the debt securities of one or more series, or
supplement the indenture, for certain specified purposes,
including:
●
to
provide that the surviving entity following a change of control
permitted under the indenture will assume all of our obligations
under the indenture and debt securities;
●
to
provide for certificated debt securities in addition to
uncertificated debt securities;
●
to
comply with any requirements of the SEC under the Trust Indenture
Act of 1939;
●
to
provide for the issuance of and establish the form and terms and
conditions of debt securities of any series as permitted by the
indenture;
●
to cure
any ambiguity, defect or inconsistency, or make any other change
that does not materially and adversely affect the rights of any
holder; and
●
to
appoint a successor trustee under the indenture with respect to one
or more series.
From
time to time we and the trustee may, with the consent of holders of
at least a majority in principal amount of an outstanding series of
debt securities, amend or supplement the indenture or the debt
securities series, or waive compliance in a particular instance by
us with any provision of the indenture or the debt securities. We
may not, however, without the consent of each holder affected by
such action, modify or supplement the indenture or the debt
securities or waive compliance with any provision of the indenture
or the debt securities in order to:
●
reduce
the amount of debt securities whose holders must consent to an
amendment, supplement, or waiver to the indenture or such debt
security;
●
reduce
the rate of or change the time for payment of interest or reduce
the amount of or postpone the date for payment of sinking fund or
analogous obligations;
●
reduce
the principal of or change the stated maturity of the debt
securities;
●
make
any debt security payable in money other than that stated in the
debt security;
●
change
the amount or time of any payment required or reduce the premium
payable upon any redemption, or change the time before which no
such redemption may be made;
●
waive a
default in the payment of the principal of, or premium or interest,
if any, on, the debt securities or a redemption
payment;
●
waive a
redemption payment with respect to any debt securities or change
any provision with respect to redemption of debt securities;
or
●
take
any other action otherwise prohibited by the indenture to be taken
without the consent of each holder affected by the
action.
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
The
indenture permits us, at any time, to elect to discharge our
obligations with respect to one or more series of debt securities
by following certain procedures described in the indenture. These
procedures will allow us either:
●
to
defease and be discharged from any and all of our obligations with
respect to any debt securities except for the following obligations
(which discharge is referred to as “legal
defeasance”):
●
to register the
transfer or exchange of such debt securities;
●
to replace
temporary or mutilated, destroyed, lost or stolen debt
securities;
●
to compensate and
indemnify the trustee;
●
to maintain an
office or agency in respect of the debt securities and to hold
monies for payment in trust; or
●
to be
released from our obligations with respect to the debt securities
under certain covenants contained in the indenture, as well as any
additional covenants which may be contained in the applicable
supplemental indenture (which release is referred to as
“covenant defeasance”).
In
order to exercise either defeasance option, we must irrevocably
deposit with the trustee or other qualifying trustee, in trust for
that purpose:
●
money;
●
U.S.
Government Obligations (as described below) or Foreign Government
Obligations (as described below) that through the scheduled payment
of principal and interest in accordance with their terms will
provide money; or
●
a
combination of money and/or U.S. Government Obligations and/or
Foreign Government Obligations sufficient in the written opinion of
a nationally-recognized firm of independent accountants to provide
money;
that,
in each case specified above, provides a sufficient amount to pay
the principal of, premium, if any, and interest, if any, on the
debt securities of the series, on the scheduled due dates or on a
selected date of redemption in accordance with the terms of the
indenture.
In
addition, defeasance may be effected only if, among other
things:
●
in the
case of either legal or covenant defeasance, we deliver to the
trustee an opinion of counsel, as specified in the indenture,
stating that as a result of the defeasance neither the trust nor
the trustee will be required to register as an investment company
under the Investment Company Act of 1940;
11
●
in the
case of legal defeasance, we deliver to the trustee an opinion of
counsel stating that we have received from, or there has been
published by, the Internal Revenue Service a ruling to the effect
that, or there has been a change in any applicable federal income
tax law with the effect that (and the opinion shall confirm that),
the holders of outstanding debt securities will not recognize
income, gain or loss for U.S. federal income tax purposes solely as
a result of such legal defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner,
including as a result of prepayment, and at the same times as would
have been the case if legal defeasance had not
occurred;
●
in the
case of covenant defeasance, we deliver to the trustee an opinion
of counsel to the effect that the holders of the outstanding debt
securities will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
covenant defeasance had not occurred; and
●
certain
other conditions described in the indenture are
satisfied.
If we
fail to comply with our remaining obligations under the indenture
and applicable supplemental indenture after a covenant defeasance
of the indenture and applicable supplemental indenture, and the
debt securities are declared due and payable because of the
occurrence of any undefeased event of default, the amount of money
or U.S. Government Obligations or Foreign Government Obligations on
deposit with the trustee could be insufficient to pay amounts due
under the debt securities of the affected series at the time of
acceleration. We will, however, remain liable in respect of these
payments.
The
term “U.S. Government Obligations” as used in the above
discussion means securities that are direct non-callable
obligations of, or non-callable obligations guaranteed by, the
United States of America for the payment of which obligation or
guarantee the full faith and credit of the United States of America
is pledged.
The
term “Foreign Government Obligations” as used in the
above discussion means, with respect to debt securities of any
series that are denominated in a currency other than U.S. dollars,
(1) direct obligations of the government that issued or caused to
be issued such currency for the payment of which obligations its
full faith and credit is pledged or (2) obligations of a person
controlled or supervised by or acting as an agent or
instrumentality of such government, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by
that government, which in either case under clauses (1) or (2), are
not callable or redeemable at the option of the
issuer.
Regarding the Trustee
We will
identify the trustee with respect to any series of debt securities
in the prospectus supplement relating to the applicable debt
securities. You should note that if the trustee becomes a creditor
of ours, the indenture and the Trust Indenture Act of 1939 limit
the rights of the trustee to obtain payment of claims in certain
cases, or to realize on certain property received in respect of any
such claim, as security or otherwise. The trustee and its
affiliates may engage in, and will be permitted to continue to
engage in, other transactions with us and our affiliates. If,
however, the trustee acquires any “conflicting
interest” within the meaning of the Trust Indenture Act of
1939, it must eliminate such conflict or resign.
The
holders of a majority in principal amount of the then outstanding
debt securities of any series may direct the time, method and place
of conducting any proceeding for exercising any remedy available to
the trustee. If an event of default occurs and is continuing, the
trustee, in the exercise of its rights and powers, must use the
degree of care and skill of a prudent person in the conduct of his
or her own affairs. Subject to that provision, the trustee will be
under no obligation to exercise any of its rights or powers under
the indenture at the request of any of the holders of the debt
securities, unless they have offered to the trustee reasonable
indemnity or security.
No Individual Liability of Incorporators, Stockholders, Officers or
Directors
Each
indenture provides that no incorporator and no past, present or
future stockholder, officer or director of our Company or any
successor corporation in those capacities will have any individual
liability for any of our obligations, covenants or agreements under
the debt securities or such indenture.
Governing Law
The
indentures and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New
York.
12
DESCRIPTION OF WARRANTS
We may
issue warrants to purchase Common Stock, Preferred Stock,
depositary shares, debt securities or units. Each issue of warrants
will be the subject of a warrant agreement which will contain the
terms of the warrants. In the event that we issue warrants, we will
distribute a prospectus supplement with regard to each issue of
warrants. The following description, and any description of the
warrants included in a prospectus supplement, may not be complete
and is subject to and qualified in its entirety by reference to the
terms and provisions of the applicable warrant agreement, which we
will file with the SEC in connection with any offering of warrants.
Each prospectus supplement will describe, as to the warrants to
which it relates:
●
the
securities which may be purchased by exercising the warrants (which
may be Common Stock, Preferred Stock, depositary shares, debt
securities or units consisting of two or more of those types of
securities);
●
the
exercise price of the warrants (which may be wholly or partly
payable in cash or wholly or partly payable with other types of
consideration);
●
the
period during which the warrants may be exercised;
●
any
provision adjusting the securities which may be purchased on
exercise of the warrants and the exercise price of the warrants in
order to prevent dilution or otherwise;
●
the
place or places where warrants can be presented for exercise or for
registration of transfer or exchange; and
●
any
other material terms of the warrants.
Exercise of Warrants
Each
warrant will entitle the holder of the warrant to purchase for cash
the amount of Common Stock, Preferred Stock, depositary shares,
debt securities or units at the exercise price stated or
determinable in the applicable prospectus supplement for the
warrants. Warrants may be exercised at any time up to the close of
business on the expiration date shown in the applicable prospectus
supplement, unless otherwise specified in such prospectus
supplement. After the close of business on the expiration date,
unexercised warrants will become void. Warrants may be exercised as
described in the applicable prospectus supplement.
Until a
holder exercises the warrants to purchase any securities underlying
the warrants, the holder will not have any rights as a holder of
the underlying securities by virtue of ownership of
warrants.
We may
issue securities in units, each consisting of two or more types of
securities. For example, we might issue units consisting of a
combination of debt securities and warrants to purchase Common
Stock. If we issue units, the prospectus supplement relating to the
units will contain the information described above with regard to
each of the securities that is a component of the units. In
addition, each prospectus supplement relating to units
will:
●
state
how long, if at all, the securities that are components of the
units must be traded in units, and when they can be traded
separately;
●
state
whether we will apply to have the units traded on a securities
exchange or securities quotation system; and
●
describe
how, for U.S. federal income tax purposes, the purchase price paid
for the units is to be allocated among the component
securities.
13
We may
sell the securities offered through this prospectus and applicable
prospectus supplements in one or more of the following ways from
time to time: (i) to or through underwriters or dealers, (ii)
directly to one or more purchasers, including our affiliates, (iii)
through agents, (iv) through a combination of any these methods, or
(v) through any other method permitted by applicable
law.
In
addition, the manner in which we may sell some or all of the
securities covered by this prospectus, includes, without
limitation, through:
●
an
“at the market” offering, within the meaning of Rule
415(a)(4) of the Securities Act, to or through a market maker or
into an existing trading market on an exchange or
otherwise;
●
a block
trade in which a broker-dealer will attempt to sell as agent, but
may position or resell a portion of the block, as principal, in
order to facilitate the transaction;
●
purchases
by a broker-dealer, as principal, and resale by the broker-dealer
for its account;
●
ordinary
brokerage transactions and transactions in which a broker solicits
purchasers; or
●
privately
negotiated transactions.
The
securities may be distributed at a fixed price or prices, which may
be changed, based on market prices prevailing at the time of sale,
prices related to the prevailing market prices, or negotiated
prices. The prospectus supplement relating to an offering of
securities will set forth the terms of such offering,
including:
●
the
name or names of any underwriters or agents;
●
the
name or names of any managing underwriter or
underwriters;
●
the
name or names of any broker-dealers or placement
agents;
●
the
purchase price of the securities;
●
any
over-allotment options under which underwriters may purchase
additional securities;
●
the net
proceeds from the sale of the securities;
●
any
delayed delivery arrangements;
●
any
underwriting discounts, commissions and other items constituting
underwriters’ compensation;
●
any
initial public offering price;
●
any
discounts or concessions allowed or reallowed or paid to
dealers;
●
any
commissions paid to agents; and
●
any
securities exchange or market on which the securities may be
listed.
Sale Through Underwriters or Dealers
Only
underwriters named in a prospectus supplement are underwriters of
the securities offered by such prospectus supplement.
If
underwriters are used in the sale, the underwriters will acquire
the securities for their own account, including through
underwriting, purchase, security lending or repurchase agreements
with us. The underwriters may resell the securities from time to
time in one or more transactions, including negotiated
transactions. Underwriters may sell the securities in order to
facilitate transactions in any of our other securities (described
in this prospectus or otherwise), including other public or private
transactions and short sales. Underwriters may offer securities to
the public either through underwriting syndicates represented by
one or more managing underwriters or directly by one or more firms
acting as underwriters without a syndicate. Unless otherwise
indicated in a prospectus supplement, the obligations of the
underwriters to purchase the securities will be subject to certain
conditions, and the underwriters will be obligated to purchase all
the offered securities if they purchase any of them. The
underwriters may change from time to time any public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers.
If
dealers are used in the sale of securities offered through this
prospectus, we will sell the securities to them as principals. The
dealers may then resell those securities to the public at varying
prices determined by the dealers at the time of resale. The
prospectus supplement will include the names of the dealers and the
terms of the transaction.
In
compliance with guidelines of the Financial Industry Regulatory
Authority, or FINRA, and unless otherwise modified by FINRA,
the maximum consideration or discount to be received by any FINRA
member or independent broker-dealer may not exceed 8% of the
aggregate amount of the securities offered pursuant to this
prospectus and any applicable prospectus supplement.
14
Direct Sales and Sales Through Agents
We may
sell the securities offered through this prospectus directly. In
this case, no underwriters or agents would be involved. Such
securities may also be sold through agents designated from time to
time. Any applicable prospectus supplement will name any agent
involved in the offer or sale of the offered securities and will
describe any commissions payable to the agent. Unless otherwise
indicated in the prospectus supplement, any agent will agree to use
its reasonable best efforts to solicit purchases for the period of
its appointment.
We may
sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of those securities. The
terms of any such sales will be described in a prospectus
supplement.
Delayed Delivery Contracts
If an
applicable prospectus supplement indicates, we may authorize
agents, underwriters or dealers to solicit offers from certain
types of institutions to purchase securities at the public offering
price under delayed delivery contracts. These contracts would
provide for payment and delivery on a specified date in the future.
The contracts would be subject only to those conditions described
in the prospectus supplement. The applicable prospectus supplement
will describe the commission payable for solicitation of those
contracts.
Market Making, Stabilization and Other Transactions
We may
elect to list offered securities on an exchange or in the
over-the-counter market. Any underwriters that we use in the sale
of offered securities may make a market in such securities, but may
discontinue such market making at any time without notice.
Therefore, we cannot assure you that the securities will have a
liquid trading market.
Certain
persons participating in an offering may engage in overallotment,
stabilizing transactions, syndicate covering transactions and
penalty bids in accordance with rules and regulations under the
Exchange Act. Overallotment involves sales in excess of the
offering size, which create a short position. Stabilizing
transactions involve bids to purchase the underlying security in
the open market for the purpose of pegging, fixing or maintaining
the price of the securities. Syndicate covering transactions
involve purchases of the securities in the open market after the
distribution has been completed in order to cover syndicate short
positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a
syndicate member when the securities originally sold by the
syndicate member are purchased in a syndicate covering transaction
to cover syndicate short positions. Stabilizing transactions,
syndicate covering transactions and penalty bids may cause the
price of the securities to be higher than it would be in the
absence of the transactions. The underwriters may, if they commence
these transactions, discontinue them at any time.
General Information
Agents,
underwriters, and dealers may be entitled, under agreements entered
into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act. Our agents,
underwriters, and dealers, or their affiliates, may be customers
of, engage in transactions with or perform services for us in the
ordinary course of business.
LEGAL MATTERS
Kirton McConkie PC, Salt Lake City, Utah, will pass upon the
validity of any securities that we offer from time to time pursuant
to this prospectus and any related prospectus supplement. If the
securities are being distributed in an underwritten offering,
certain legal matters will be passed upon for the underwriters by
counsel identified in the applicable prospectus
supplement.
The
consolidated financial statements of the Company as of December 31,
2019 and December 31, 2018 and for the years ended December 31,
2019 and December 31, 2018, incorporated in this prospectus by
reference to the Company’s Annual Report on Form 10-K for the
year ended December 31, 2019, have been so incorporated in reliance
on the report of MSL, P.A., an independent registered public
accounting firm, incorporated herein by reference, given on the
authority of said firm as experts in accounting and
auditing.
15
We are
subject to the information reporting requirements of the Exchange
Act and, in accordance with these requirements, we file annual,
quarterly and current reports, proxy statements, information
statements, and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SEC’s
website at www.sec.gov. In addition, we provide free access to
these materials through our website, www.bktechnologies.com, as
soon as reasonably practicable after they are filed with or
furnished to the SEC. Information contained on, or that may be
accessible through, our website is not a part of, and is not
incorporated into, this prospectus.
We have
filed with the SEC a registration statement on Form S-3 relating to
the securities covered by this prospectus and any prospectus
supplement. This prospectus is a part of the registration statement
and does not contain all the information in the registration
statement. Whenever a reference is made in this prospectus or any
prospectus supplement to a contract or other document, the
reference is only a summary and you should refer to the exhibits
that are a part of the registration statement for a copy of the
contract or other document. You may review a copy of the
registration statement through the SEC’s
website.
The SEC
allows us to incorporate by reference information in this document.
This means that we can disclose important information to you by
referring you to documents that we have previously filed with the
SEC or documents that we will file with the SEC in the future. The
information incorporated by reference is considered to be an
important part of this prospectus, except for any information that
is superseded by information that is included directly in this
document.
We are
incorporating by reference in this prospectus the following
documents which we have previously filed with the SEC (other than
any portions of the Current Reports on Form 8-K that were furnished
pursuant to Item 2.02 or 7.01 of Form 8-K or other applicable SEC
rules):
(1)
Annual Report on Form 10-K for the year ended December 31, 2019,
filed on March 4, 2020 (File No. 001-32644);
(2)
Quarterly
Reports on Form 10-Q for the quarters ended
March 31, 2020, filed on May 13, 2020 , and
June 30, 2020, filed on August 5, 2020 and
September 30, 2020, filed on November 12, 2020;
(3)
Definitive Proxy Statement on Schedule 14A, filed on April 28,
2020 (File No. 001-32644);
(4)
Current
Reports on Form 8-K filed on
January 30, 2020,
March 2, 2020,
March 4, 2020 (other than the portions of such document not
deemed to be filed),
March 5, 2020 (other than the portions of such document not
deemed to be filed),
March 16, 2020,
March 25, 2020,
April 16, 2020,
April 24, 2020,
May 5, 2020,
May 13, 2020 (other than the portions of such document not
deemed to be filed),
May 15, 2020 (other than the portions of such document not
deemed to be filed),
June 10, 2020,
June 24, 2020,
July 23, 2020,
August 5, 2020 (other than the portions of such document not
deemed to be filed),
August 7, 2020 (other than the portions of such document not
deemed to be filed),
September 3, 2020 (other than the portions of such document not
deemed to be filed),
September 17, 2020,
November 12, 2020 (other than the portions of such document not
deemed to be filed); and
November 13, 2020 (other than the portions of such document not
deemed to be filed).
(5)
The
description of our shares of Common Stock contained in our
Registration Statement on Form 8-A, filed on October 13, 2005,
as amended by the
Current Report on Form 8-K12B, filed on March 28, 2019, and
Exhibit 4.1 filed with the Form 10-K for the year ended December
31, 2019, filed on March 4, 2020 (File No. 001-32644), and any
further amendment or report filed for the purpose of updating such
description.
Whenever
after the date of filing the registration statement of which this
prospectus is a part, and until all of the securities to which this
prospectus relates have been sold or the offering is otherwise
terminated, we file reports or documents under Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, those reports and documents
will be deemed to be part of, and incorporated by reference into,
this prospectus from the time they are filed. Any statements made
in this prospectus or in a document incorporated or deemed to be
incorporated by reference in this prospectus will be deemed to be
modified or superseded for purposes of this prospectus to the
extent that a statement contained in this prospectus or in any
subsequently filed document that is also incorporated or deemed to
be incorporated by reference in this prospectus modifies or
supersedes the statement. Nothing in this prospectus will be deemed
to incorporate information furnished by us on Form 8-K that under
the rules of the SEC, is not deemed “filed” for
purposes of the Exchange Act.
You may
request, without charge, a copy of any incorporated document
(excluding exhibits, unless we have specifically incorporated an
exhibit in an incorporated document) by writing or telephoning us
at our principal executive offices at the following
address:
BK
Technologies Corporation
Attention:
Investor Relations
7100
Technology Drive
West
Melbourne, FL 32904
(321)
984-1414
16
$50,000,000
BK Technologies Corporation
Common Stock
Preferred Stock
Senior Debt Securities
Subordinated Debt Securities
Depositary Shares
Warrants
Units
PROSPECTUS
,
2020
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the various costs and expenses to be
paid by us in connection with the sale and distribution of the
securities being registered, other than underwriting discounts and
commissions. All amounts shown are estimates except for the
registration fee required by the Securities and Exchange Commission
(“SEC”).
|
SEC registration
fee
|
$5,455
|
|
Accounting fees and
expenses
|
(1)
|
|
FINRA filing
fees
|
(1)
|
|
Legal fees and
expenses
|
(1)
|
|
Fees and expenses
of the trustee
|
(1)
|
|
Transfer agent fees
and expenses
|
(1)
|
|
Depositary fees and
expenses
|
(1)
|
|
Warrant agent fees
and expenses
|
(1)
|
|
Printing
expenses
|
(1)
|
|
Miscellaneous
|
(1)
|
|
Total
|
(1)
|
(1)
These
fees are calculated based on the securities offered and the number
of issuances and accordingly cannot be estimated at this
time.
Item 15. Indemnification of
Directors and Officers
The
Company is incorporated under the laws of the State of Nevada.
Section 78.138 of the Nevada Revised Statutes (“NRS”)
provides that, subject to certain exceptions under Nevada law, or
unless the Articles of Incorporation or an amendment thereto
provide for greater individual liability, a director or officer is
not individually liable to the Company or its stockholders or
creditors for any damages as a result of any act or failure to act
in his or her capacity as a director or officer unless it is proven
that (i) the director’s or officer’s act or failure to
act constituted a breach of his or her fiduciary duties as a
director or officer and (ii) the breach of those duties involved
intentional misconduct, fraud or a knowing violation of law. The
Company’s Bylaws further provide that a director shall not be
personally liable for monetary damages for any action taken, or
failure to take any action, unless (i) the director breached or
failed to perform the duties of his or her office as provided in
the NRS; and (ii) the breach or failure to perform constituted
self-dealing, willful misconduct or recklessness. In addition, the
Company’s Articles of Incorporation provide that the personal
liability of the directors of the Company is eliminated to the
fullest extent permitted by the NRS.
Under
Section 78.7502 of the NRS, the Company may indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except an
action by or in the right of the Company, by reason of the fact
that the person is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses, including attorneys’ fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by the
person in connection with the action, suit or proceeding, if such
person: (i) is not liable pursuant to Section 78.138 of the NRS; or
(ii) acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe the conduct was unlawful.
Further, the Company may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Company to
procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
expenses, including amounts paid in settlement and attorneys’
fees actually and reasonably incurred by the person in connection
with the defense or settlement of the action or suit, if such
person: (i) is not liable pursuant to NRS Section 78.138; or (ii)
acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
Company. However, indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction to be liable to the Company or for
amounts paid in settlement to the Company, unless and only to the
extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as
the court deems proper. Under Section 78.751 of the NRS, to the
extent that a director, officer, employee or agent of the Company
has been successful on the merits or otherwise in defense of any
action, suit or proceeding subject to the Nevada indemnification
laws, or otherwise in defense of any such claim, issue or matter,
the Company is required to indemnify him or her against expenses,
including attorneys’ fees, actually and reasonably incurred
by him or her in connection with the defense. The Company’s
Articles of Incorporation and Bylaws comply with the Nevada law as
set forth above.
As
permitted by Nevada law, the Company’s Bylaws authorize the
Company to advance expenses (including attorneys’ fees)
incurred by a director or officer in defending any civil or
criminal action or proceeding in advance of the final disposition
of the action or proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay the amount if it is
ultimately determined that the director or officer is not entitled
to be indemnified by the Company.
II-1
Indemnification,
unless ordered by a court pursuant to Section 78.7502 of the NRS or
for the advancement of expenses as described above, may not be made
to or on behalf of any director or officer if a final adjudication
establishes that the director’s or officer’s acts or
omissions involved intentional misconduct, fraud or a knowing
violation of the law and was material to the cause of
action.
The
Company is authorized under Nevada law to purchase and maintain
insurance or make other financial arrangements on behalf of any
person who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, for any
liability asserted against him or her and liability and expenses
incurred by him or her in his or her capacity as a director,
officer, employee or agent, or arising out of his or her status as
such, whether or not the Company has the authority to indemnify him
or her against such liability and expenses.
Under
the terms of the Company’s directors’ and
officers’ liability and company reimbursement insurance
policies, directors and officers of the Company are insured against
certain liabilities, including liabilities arising under the
Securities Act. We may in the future enter into agreements with our
directors and officers to provide contractual indemnification in
addition to the indemnification provided in our
Bylaws.
Fundamental
Global Investors, LLC (“Fundamental Global”), together
with its affiliates, is the largest stockholder of the Company. D.
Kyle Cerminara, a member of our Board of Directors, is Chief
Executive Officer, Co-Founder and Partner of Fundamental Global,
and Lewis M. Johnson, a member of our Board of Directors, is
President, Co-Founder and Partner of Fundamental Global. In
addition, John W. Struble, Chairman of the Board of Directors,
serves as a consultant to Fundamental Global Management, LLC, an
affiliate of Fundamental Global. The funds managed by Fundamental
Global, including the funds that directly own shares of our Common
Stock, have agreed to indemnify Fundamental Global and its
principals, including Messrs. Cerminara and Johnson, or any other
person designated by Fundamental Global, for claims arising from
Messrs. Cerminara’s and Johnson’s service on our Board
of Directors, provided that a fund’s indemnity obligations
are secondary to any obligations we may have with respect to
Messrs. Cerminara’s and Johnson’s service on our board
of directors.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been
advised that in the opinion of the SEC, such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable.
Item 16. Exhibits
|
Exhibit Number
|
|
Description
|
|
1.1*
|
|
Form of
Underwriting Agreement.
|
|
|
|
|
|
|
Articles
of Merger, filed with the Nevada Secretary of State on March 28,
2019 (incorporated by reference from Exhibit 2.1 to the
Company’s Current Report on Form 8-K12B filed March 28,
2019).
|
|
|
|
|
|
|
|
Articles
of Incorporation (incorporated by reference from Exhibit 3.1 to the
Company’s Current Report on Form 8-K12B filed March 28,
2019).
|
|
|
|
|
|
|
|
Bylaws
(incorporated by reference from Exhibit 3.2 to the Company’s
Current Report on Form 8-K12B filed March 28, 2019).
|
|
|
|
|
|
|
|
Description
of the Company’s Registered Securities (incorporated by
reference from Exhibit 4.1 to the Company’s Annual Report on
Form 10-K for the year ended December 31, 2019 filed March 4,
2020).
|
|
|
|
|
|
|
4.2*
|
|
Form of
Certificate of Designations of Preferred Stock.
|
|
|
|
|
|
|
Form
of Indenture.
|
|
|
|
|
|
|
4.4*
|
|
Form of
Debt Security.
|
|
|
|
|
|
4.5*
|
|
Form
of Warrant Agreement (including form of warrant
certificate).
|
|
|
|
|
|
4.6*
|
|
Form
of Deposit Agreement (including form of depositary share
certificate).
|
|
|
|
|
|
4.7*
|
|
Form
of Unit Purchase Contract Agreement (including form of unit
certificate).
|
|
|
|
|
|
|
Opinion
of Kirton McConkie PC.
|
|
|
|
|
|
|
|
Consent
of MSL, P.A. (independent registered public accounting
firm).
|
|
|
|
|
|
|
|
Consent
of Kirton McConkie PC (included in Exhibit 5.1 to the Registration
Statement).
|
|
|
|
|
|
|
|
Power
of Attorney (included on the signature page to the Registration
Statement).
|
|
|
|
|
|
|
25.1**
|
|
Statement of
Eligibility and Qualification on Form T-1 of the Trustee under the
Indenture pursuant to the Trust Indenture Act of 1939, as
amended.
|
*
To be
filed by amendment or as an exhibit to a document incorporated by
reference into this registration statement at a later date in
connection with a specific offering.
**
To be
filed separately pursuant to Section 305(b)(2) of the Trust
Indenture Act of 1939, as amended, if applicable.
II-2
Item 17. Undertakings
a.
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 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 SEC 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;
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;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section do not apply if the registration
statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of 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 the 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.
That,
for the purpose of determining liability under the Securities Act
of 1933 to any purchaser:
i.
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
ii.
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 a 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.
II-3
5.
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 prospectus 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.
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 Section 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.
c.
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 SEC 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 Act and will be governed by the final
adjudication of such issue.
d.
If and
when applicable, the undersigned registrant hereby undertakes to
file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations
prescribed by the SEC under Section 305(b)(2) of the Trust
Indenture Act.
II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, 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 West
Melbourne, State of Florida, on December 11, 2020.
|
|
BK Technologies Corporation
|
|
|
|
|
|
|
|
By:
|
/s/ William P. Kelly
|
|
|
|
William
P. Kelly
|
|
|
|
Executive
Vice President & Chief Financial Officer
|
POWER OF ATTORNEY
Each of
the undersigned, whose signature appears below, hereby constitutes
and appoints Timothy A. Vitou and William P. Kelly and each of
them, as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, to do any and all acts
and things and execute, in the name of the undersigned, any and all
instruments which said attorney-in-fact and agent may deem
necessary or advisable in order to enable the Company to comply
with the Securities Act and any requirements of the SEC in respect
thereof, in connection with the filing with the SEC of this
Registration Statement on Form S-3 under the Securities Act,
including specifically but without limitation, power and authority
to sign the name of the undersigned to such Registration Statement,
and any amendments to such Registration Statement (including
post-effective amendments), and to file the same with all exhibits
thereto and other documents in connection therewith, with the SEC,
to sign any and all applications, registration statements, notices
or other documents necessary or advisable to comply with applicable
state securities laws, and to file the same, together with other
documents in connection therewith, with the appropriate state
securities authorities, granting unto said attorney-in-fact and
agent, full power and authority to do and to perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his
substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Timothy A. Vitou
|
|
President
|
|
December
11, 2020
|
|
Timothy
A. Vitou
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/ William P. Kelly
|
|
Executive
Vice President & Chief Financial Officer
|
|
December
11, 2020
|
|
William
P. Kelly
|
|
(Principal
Financial Officer and Principal Accounting Officer)
|
|
|
|
|
|
|
|
|
|
/s/ John W. Struble
|
|
Director,
Chairman of the Board of Directors
|
|
December
11, 2020
|
|
John W.
Struble
|
|
|
|
|
|
|
|
|
|
|
|
/s/ D. Kyle Cerminara
|
|
Director
|
|
December
11, 2020
|
|
D. Kyle
Cerminara
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Michal R. Dill
|
|
Director
|
|
December
11, 2020
|
|
Michael
R. Dill
|
|
|
|
|
|
|
|
|
|
|
|
Lewis M. Johnson
|
|
Director
|
|
December
11, 2020
|
|
Lewis
M. Johnson
|
|
|
|
|
|
Charles T. Lanktree
|
|
Director
|
|
December
11, 2020
|
|
Charles
T. Lanktree
|
|
|
|
|
|
|
|
|
|
|
|
E. Gray Payne
|
|
Director
|
|
|
|
E. Gray
Payne
|
|
|
|
December
11, 2020
|
|
|
|
|
|
|
II-5
Exhibit 4.3
BK TECHNOLOGIES CORPORATION
And
,
as Trustee
INDENTURE
Dated
as
of
,
TABLE OF CONTENTS
|
|
|
Page
|
|
|
|
|
|
ARTICLE 1
|
|
[_]
|
|
|
|
|
|
1.1
|
DEFINITIONS
|
2
|
|
1.2
|
OTHER DEFINITIONS
|
5
|
|
1.3
|
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
|
6
|
|
1.4
|
RULES OF CONSTRUCTION
|
6
|
|
|
|
|
|
ARTICLE 2
|
|
|
|
|
|
|
|
2.1
|
ISSUABLE IN SERIES
|
6
|
|
2.2
|
ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES
|
7
|
|
2.3
|
EXECUTION AND AUTHENTICATION
|
8
|
|
2.4
|
REGISTRAR AND PAYING AGENT
|
9
|
|
2.5
|
PAYING AGENT TO HOLD ASSETS IN TRUST
|
9
|
|
2.6
|
SECURITYHOLDER LISTS
|
10
|
|
2.7
|
TRANSFER AND EXCHANGE
|
10
|
|
2.8
|
REPLACEMENT SECURITIES
|
10
|
|
2.9
|
OUTSTANDING SECURITIES
|
10
|
|
2.10
|
WHEN TREASURY SECURITIES DISREGARDED; DETERMINATION OF
HOLDERS’ ACTION
|
11
|
|
2.11
|
TEMPORARY SECURITIES
|
11
|
|
2.12
|
CANCELLATION
|
11
|
|
2.13
|
PAYMENT OF INTEREST; DEFAULTED INTEREST; COMPUTATION OF
INTEREST
|
11
|
|
2.14
|
CUSIP NUMBER
|
12
|
|
2.15
|
PROVISIONS FOR GLOBAL SECURITIES
|
12
|
|
2.16
|
PERSONS DEEMED OWNERS
|
12
|
|
|
|
|
|
ARTICLE 3
|
|
|
|
|
|
|
|
3.1
|
NOTICES TO TRUSTEE
|
13
|
|
3.2
|
SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED
|
13
|
|
3.3
|
NOTICE OF REDEMPTION
|
13
|
|
3.4
|
EFFECT OF NOTICE OF REDEMPTION
|
14
|
|
3.5
|
DEPOSIT OF REDEMPTION PRICE
|
14
|
|
3.6
|
SECURITIES REDEEMED IN PART
|
14
|
|
|
|
|
|
ARTICLE 4
|
|
|
|
|
|
|
|
4.1
|
PAYMENT OF SECURITIES
|
15
|
|
4.2
|
SEC REPORTS
|
15
|
|
4.3
|
WAIVER OF STAY, EXTENSION OR USURY LAWS
|
15
|
|
4.4
|
COMPLIANCE CERTIFICATE
|
15
|
|
4.5
|
CORPORATE EXISTENCE
|
15
|
|
|
|
|
|
ARTICLE 5
|
|
|
|
|
|
|
|
5.1
|
LIMITATION ON CONSOLIDATION, MERGER AND SALE OF ASSETS
|
16
|
|
5.2
|
SUCCESSOR PERSON SUBSTITUTED
|
16
|
|
ARTICLE 6
|
|
|
|
|
|
|
|
6.1
|
EVENTS OF DEFAULT
|
16
|
|
6.2
|
ACCELERATION
|
17
|
|
6.3
|
REMEDIES
|
17
|
|
6.4
|
WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT
|
17
|
|
6.5
|
CONTROL BY MAJORITY
|
17
|
|
6.6
|
LIMITATION ON SUITS
|
18
|
|
6.7
|
RIGHTS OF HOLDERS TO RECEIVE PAYMENT
|
18
|
|
6.8
|
COLLECTION SUIT BY TRUSTEE
|
18
|
|
6.9
|
TRUSTEE MAY FILE PROOFS OF CLAIM
|
18
|
|
6.10
|
PRIORITIES
|
19
|
|
6.11
|
UNDERTAKING FOR COSTS
|
|
|
|
|
|
|
ARTICLE 7
|
|
|
|
|
|
|
|
7.1
|
DUTIES OF TRUSTEE
|
19
|
|
7.2
|
RIGHTS OF TRUSTEE
|
20
|
|
7.3
|
INDIVIDUAL RIGHTS OF TRUSTEE
|
20
|
|
7.4
|
TRUSTEE’S DISCLAIMER
|
21
|
|
7.5
|
NOTICE OF DEFAULT
|
21
|
|
7.6
|
REPORTS BY TRUSTEE TO HOLDERS
|
21
|
|
7.7
|
COMPENSATION AND INDEMNITY
|
21
|
|
7.8
|
REPLACEMENT OF TRUSTEE
|
22
|
|
7.9
|
SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER OR
CONVERSION
|
22
|
|
7.10
|
ELIGIBILITY; DISQUALIFICATION
|
22
|
|
7.11
|
PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
|
23
|
|
7.12
|
PAYING AGENTS
|
23
|
|
|
|
|
|
ARTICLE 8
|
|
|
|
|
|
|
|
8.1
|
WITHOUT CONSENT OF HOLDERS
|
23
|
|
8.2
|
WITH CONSENT OF HOLDERS
|
24
|
|
8.3
|
COMPLIANCE WITH TRUST INDENTURE ACT
|
24
|
|
8.4
|
REVOCATION AND EFFECT OF CONSENTS
|
24
|
|
8.5
|
NOTATION ON OR EXCHANGE OF SECURITIES
|
25
|
|
8.6
|
TRUSTEE TO SIGN AMENDMENTS, ETC.
|
25
|
|
|
|
|
|
ARTICLE 9
|
|
|
|
|
|
|
|
9.1
|
DISCHARGE OF INDENTURE
|
25
|
|
9.2
|
LEGAL DEFEASANCE
|
25
|
|
9.3
|
COVENANT DEFEASANCE
|
26
|
|
9.4
|
CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE
|
26
|
|
9.5
|
DEPOSITED MONEY AND U.S. AND FOREIGN GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS
|
27
|
|
9.6
|
REINSTATEMENT
|
27
|
|
9.7
|
MONEYS HELD BY PAYING AGENT
|
27
|
|
9.8
|
MONEYS HELD BY TRUSTEE
|
27
|
|
|
|
|
|
ARTICLE 10
|
|
|
|
|
|
|
|
10.1
|
TRUST INDENTURE ACT CONTROLS
|
28
|
|
10.2
|
NOTICES
|
28
|
|
10.3
|
COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS
|
29
|
|
10.4
|
CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
|
29
|
|
10.5
|
STATEMENT REQUIRED IN CERTIFICATE AND OPINION
|
29
|
|
10.6
|
RULES BY TRUSTEE AND AGENTS
|
29
|
|
10.7
|
BUSINESS DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT
|
29
|
|
10.8
|
GOVERNING LAW
|
30
|
|
10.9
|
NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
|
30
|
|
10.10
|
NO RECOURSE AGAINST OTHERS
|
30
|
|
10.11
|
SUCCESSORS
|
30
|
|
10.12
|
MULTIPLE COUNTERPARTS
|
30
|
|
10.13
|
TABLE OF CONTENTS, HEADINGS, ETC.
|
30
|
|
10.14
|
SEVERABILITY
|
30
|
|
10.15
|
SECURITIES IN A FOREIGN CURRENCY OR IN EUROS
|
31
|
|
10.16
|
JUDGMENT CURRENCY
|
31
|
CROSS-REFERENCE TABLE
|
TIA SECTION
|
|
INDENTURE SECTION
|
|
310(a)(1)(2)(5)
|
|
7.10
|
|
310(a)(3)(4)
|
|
Inapplicable
|
|
310(b)
|
|
7.8;
7.10
|
|
311(a)(b)
|
|
7.11
|
|
312(a)
|
|
2.6
|
|
312(b)(c)
|
|
10.3
|
|
313(a)(b)
|
|
7.6
|
|
313(c)
|
|
7.6;
10.2
|
|
313(d)
|
|
7.6
|
|
314(a)
|
|
4.2;
4.4; 10.2
|
|
314(b)
|
|
Inapplicable
|
|
314(c)(1)(2)
|
|
10.4;
10.5
|
|
314(c)(3)
|
|
Inapplicable
|
|
314(d)
|
|
Inapplicable
|
|
314(e)
|
|
10.5
|
|
314(f)
|
|
Inapplicable
|
|
315(a)
|
|
7.1,
7.2
|
|
315(b)
|
|
7.5;
10.2
|
|
315(c)
|
|
7.1
|
|
315(d)
|
|
6.5;
7.1; 7.2
|
|
315(e)
|
|
6.11
|
|
316(a)(last
sentence)
|
|
2.10
|
|
316(a)(1)(A)
|
|
6.5
|
|
316(a)(1)(B)
|
|
6.4
|
|
316(a)(2)
|
|
8.2
|
|
316(b)
|
|
6.7
|
|
316(c)
|
|
8.4
|
|
317(a)(1)
|
|
6.8
|
|
317(a)(2)
|
|
6.9
|
|
317(b)
|
|
2.5;
7.12
|
|
318(a)
|
|
10.1
|
Note:
This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of the Indenture.
1
INDENTURE, dated as
of
,
,
by and between BK Technologies Corporation, a Nevada corporation,
as Issuer (the “Company”)
and
,
a
organized under the laws of
,
as Trustee (the “Trustee”).
RECITALS OF THE COMPANY
The
Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its
debentures, notes or other evidences of indebtedness to be issued
in one or more series (the “Securities”), as herein
provided, up to such principal amount as may from time to time be
authorized in or pursuant to one or more resolutions of the Board
of Directors or by supplemental indenture.
All
things necessary to make this Indenture a valid agreement of the
Company in accordance with its terms have been done, and the
execution and delivery thereof have been in all respects duly
authorized by the parties hereto.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and
in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities of a Series
thereof, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
“Affiliate” of any
specified Person means any other Person which, directly or
indirectly through one or more intermediaries, controls, or is
controlled by or is under common control with, such specified
Person. For the purposes of this definition, “control”
(including, with correlative meanings, the terms
“controlling,” “controlled by” and
“under common control with”), as used with respect to
any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.
“Agent” means any
Registrar, Paying Agent, co-registrar or agent for service of
notices and demands.
“Board of Directors” means
the Board of Directors of the Company or any committee duly
authorized to act therefor.
“Board Resolution” means a
copy of a resolution certified pursuant to an Officers’
Certificate to have been duly adopted by the Board of Directors of
the Company and to be in full force and effect on the date of such
certification which has been delivered to the Trustee.
“Capital Stock” means,
with respect to any Person, any and all shares or other equivalents
(however designated) of capital stock, partnership interests or any
other participation, right or other interest in the nature of an
equity interest in such Person or any option, warrant or other
security convertible into any of the foregoing.
“Company” means the party
named as such in the first paragraph of this Indenture until a
successor replaces such party pursuant to Article 5 of this
Indenture, and thereafter means the successor and any other primary
obligor on the Securities.
2
“Company Order” means a
written order signed in the name of the Company by two Officers,
one of whom must be its Chief Executive Officer or its Chief
Financial Officer.
“Company Request” means
any written request signed in the name of the Company by its Chief
Executive Officer, its President, any Vice President, its Chief
Financial Officer or its Treasurer and attested to by its Secretary
or any Assistant Secretary.
“Corporate Trust Office”
means the office of the Trustee at which at any particular time its
corporate trust business shall be principally
administered.
“Default” means any event
that is, or that with the passing of time or giving of notice or
both would be, an Event of Default.
“Depository” means, with
respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the Person
designated as Depository for such Series by the Company, which
Depository shall be a clearing agency registered under the Exchange
Act, until a successor Depository shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter
“Depository” shall mean
each Person who is then a Depository hereunder, and if at any time
there is more than one such Person, such Persons.
“Dollars” means the
currency of the United States of America.
“Euro” means the single
currency of participating member states of the economic and
monetary union as contemplated in the Treaty on European
Union.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Foreign Currency” means
any currency or currency unit issued by a government other than the
government of the United States of America.
“Foreign Government
Obligations” means, with respect to Securities that
are denominated in a Foreign Currency, (i) direct obligations of
the government that issued or caused to be issued such currency for
the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised
by, or acting as an agency or instrumentality of, such government,
the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by such government, which, in either
case under clauses (i) and (ii), are not callable or redeemable at
the option of the issuer thereof.
“GAAP” means generally
accepted accounting principles consistently applied as in effect in
the United States of America from time to time.
“Global Security” or
“Global
Securities” means a Security or Securities, as the
case may be, in the form established pursuant to Section 2.2,
evidencing all or part of a Series of Securities issued to the
Depository for such Series or its nominee, and registered in the
name of such Depository or nominee, and bearing the legend set
forth in Section 2.15(c) (or such other legend(s) as may be applied
to such Securities in accordance with Section
2.2(24)).
“Holder” or
“Securityholder” means the
Person in whose name a Security is registered on the
Registrar’s books.
“Indebtedness” means
(without duplication), with respect to any Person, any indebtedness
at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only
to a portion thereof), or evidenced by bonds, notes, debentures or
similar instruments, or representing the balance deferred and
unpaid of the purchase price of any property (excluding any
balances that constitute accounts payable or trade payables, and
other accrued liabilities arising in the ordinary course of
business), if and to the extent any of the foregoing indebtedness
would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP.
“Indenture” means this
Indenture as amended, restated or supplemented from time to
time.
“Interest Payment Date,”
when used with respect to any Security, means the Stated Maturity
of an installment of interest on such Security.
3
“Lien” means, with respect
to any property or assets of any Person, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, lien, charge, easement, encumbrance, preference,
priority or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property
or assets (including, without limitation, any capitalized lease
obligation, conditional sales or other title retention agreement
having substantially the same economic effect as any of the
foregoing).
“Maturity,” when used with
respect to any Security, means the date on which the principal of
such Security, or an installment of principal, becomes due and
payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption,
notice of option to elect payment or otherwise.
“Officer” means the Chief
Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer or the Secretary of the Company,
or any other officer designated by the Board of Directors, as the
case may be.
“Officers’
Certificate” means, with respect to any Person, a
certificate signed by the Chairman, Chief Executive Officer,
President or any Senior or Executive Vice President and the Chief
Financial Officer or any Treasurer of such Person, that shall
comply with applicable provisions of this Indenture.
“Opinion of Counsel” means
a written opinion from legal counsel, which counsel is reasonably
acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company.
“Person” means any
individual, corporation, limited liability company, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or government (including any agency or
political subdivision thereof).
“Redemption Date,” when
used with respect to any Security to be redeemed, means the date
fixed for such redemption pursuant to this Indenture.
“Responsible Officer,”
when used with respect to the Trustee, means any officer within the
corporate trust department or division of the Trustee (or any
successor group of the Trustee) or any other officer 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 to whom such
matter is referred because of his knowledge of and familiarity with
the particular subject.
“SEC” means the United
States Securities and Exchange Commission as constituted from time
to time, or any successor performing substantially the same
functions.
“Securities” means the
securities that are issued under this Indenture, as amended or
supplemented from time to time pursuant to this
Indenture.
“Securities Act” means the
Securities Act of 1933, as amended.
“Series” or
“Series of
Securities” means each series of debentures, notes or
other debt instruments of the Company created pursuant to Sections
2.1 and 2.2.
“Significant Subsidiary”
means (i) any direct or indirect Subsidiary of the Company that
would be a “significant subsidiary” as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such regulation is in effect on the date hereof,
or (ii) any group of direct or indirect Subsidiaries of the Company
that, taken together as a group, would be a “significant
subsidiary” as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Securities Act, as such regulation
is in effect on the date hereof.
“Stated Maturity,” when
used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security,
or such installment of principal or interest, is due and payable,
and when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the
fixed date on which the principal of such Indebtedness, or any
installment of interest thereon, is due and payable.
4
“Subsidiary” of any
specified Person means any corporation, limited liability company,
partnership, joint venture, association or other business entity,
whether now existing or hereafter organized or acquired, (i) in the
case of a corporation, of which more than 50% of the total voting
power of the Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors
thereof is held, directly or indirectly, by such Person or any of
its Subsidiaries; or (ii) in the case of a partnership, joint
venture, association or other business entity, with respect to
which such Person or any of its Subsidiaries has the power to
direct or cause the direction of the management and policies of
such entity by contract or otherwise, or if in accordance with GAAP
such entity is consolidated with such Person for financial
statement purposes.
“TIA” means the Trust
Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb) as in
effect on the date of this Indenture (except as provided in Section
8.3).
“Trustee” means the party
named as such in this Indenture until a successor replaces it
pursuant to this Indenture, and thereafter means the successor, 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.
“U.S. Government
Obligations” means direct non-callable obligations of,
or non-callable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full
faith and credit of the United States of America is
pledged.
1.2
OTHER DEFINITIONS.
The
definitions of the following terms may be found in the sections
indicated as follows:
|
TERM
|
|
DEFINED IN SECTION
|
|
“Bankruptcy
Law”
|
|
6.1
|
|
“Business
Day”
|
|
10.7
|
|
“Covenant
Defeasance”
|
|
9.3
|
|
“Custodian”
|
|
6.1
|
|
“Event
of Default”
|
|
6.1
|
|
“Journal”
|
|
10.15
|
|
“Judgment
Currency”
|
|
10.16
|
|
“Legal
Defeasance”
|
|
9.2
|
|
“Legal
Holiday”
|
|
10.7
|
|
“Market
Exchange Rate”
|
|
10.15
|
|
“New
York Paying Agent”
|
|
2.4
|
|
“Paying
Agent”
|
|
2.4
|
|
“Place
of Payment”
|
|
10.7
|
|
“Registrar”
|
|
2.4
|
|
“Required
Currency”
|
|
10.16
|
|
“Service
Agent”
|
|
2.4
|
5
1.3
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this
Indenture refers to a provision of the TIA, the portion of such
provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by
reference in and made a part of this Indenture. The following TIA
terms used in this Indenture have the following
meanings:
“Commission” means the
SEC.
“Indenture securities”
means the Securities.
“Indenture securityholder”
means a Holder or Securityholder.
“Indenture to be
qualified” means this Indenture.
“Indenture trustee” or
“institutional
trustee” means the Trustee.
“Obligor on the indenture
securities” means the Company.
All
other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by
SEC rule have the meanings therein assigned to them.
1.4
RULES OF CONSTRUCTION.
Unless
the context otherwise requires:
1)
a term
has the meaning assigned to it herein, whether defined expressly or
by reference;
2)
an
accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
3)
“or”
is not exclusive;
4)
words
in the singular include the plural, and in the plural include the
singular;
5)
words
used herein implying any gender shall apply to each gender;
and
6)
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.
ARTICLE 2
THE SECURITIES
2.1
ISSUABLE IN SERIES.
The
aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is
$ ,
,
.. The Securities may be issued in one or more Series. All
Securities of a Series shall be identical except as may be set
forth in a Board Resolution, a supplemental indenture or an
Officers’ Certificate detailing the adoption of the terms
thereof pursuant to the authority granted under a Board Resolution.
In the case of Securities of a Series to be issued from time to
time, the Board Resolution, Officers’ Certificate or
supplemental indenture may provide for the method by which
specified terms (such as interest rate, Stated Maturity, record
date or date from which interest shall accrue) are to be
determined. Securities may differ between Series in respect of any
matters, PROVIDED, that all Series of Securities shall be equally
and ratably entitled to the benefits of the Indenture.
6
2.2
ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES.
At or
prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the
case of Subsection 2.2(1) and either as to such Securities within
the Series or as to the Series generally in the case of Subsections
2.2(2) through 2.2(24)) by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, in each case, pursuant
to authority granted under a Board Resolution:
(1) the
title of the Series (which shall distinguish the Securities of that
particular Series from the Securities of any other
Series);
(2) any
limit upon the aggregate principal amount of the Securities of the
Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the Series pursuant to Section 2.7, 2.8, 2.11,
3.6 or 8.5);
(3) the
price or prices (expressed as a percentage of the principal amount
thereof) at which the Securities of the Series will be
issued;
(4) the
date or dates on which the principal of the Securities of the
Series is payable;
(5) the
rate or rates (which may be fixed or variable) per annum or, if
applicable, the method used to determine such rate or rates
(including, but not limited to, any commodity, commodity index,
stock exchange index or financial index) at which the Securities of
the Series shall bear interest, if any, the date or dates from
which such interest, if any, shall accrue, the date or dates on
which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any Interest
Payment Date;
(6) the
place or places where the principal of, and interest and premium,
if any, on, the Securities of the Series shall be payable, or the
method of such payment, if by wire transfer, mail or other
means;
(7) if
applicable, the period or periods within which, the price or prices
at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of
the Company;
(8) the
obligation, if any, of the Company to redeem or purchase the
Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the period or
periods within which, the price or prices at which and the terms
and conditions upon which Securities of the Series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the
dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the
option of the Holders thereof, and other detailed terms and
provisions of such repurchase obligations;
(10) if
other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series
shall be issuable;
(11)
the forms of the Securities of the Series in bearer (if to be
issued outside of the United States of America) or fully registered
form (and, if in fully registered form, whether the Securities will
be issuable as Global Securities);
(12) if
other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.2;
(13)
the currency of denomination of the Securities of the Series, which
may be Dollars or any Foreign Currency, including, but not limited
to, the Euro, and, if such currency of denomination is a composite
currency other than the Euro, the agency or organization, if any,
responsible for overseeing such composite currency;
(14)
the designation of the currency, currencies or currency units in
which payment of the principal of, and interest and premium, if
any, on, the Securities of the Series will be made;
7
(15) if
payments of principal of, or interest or premium, if any, on, the
Securities of the Series are to be made in one or more currencies
or currency units other than that or those in which such Securities
are denominated, the manner in which the exchange rate with respect
to such payments will be determined;
(16)
the manner in which the amounts of payment of principal of, or
interest and premium, if any, on, the Securities of the Series will
be determined, if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a
commodity, commodity index, stock exchange index or financial
index;
(17)
the provisions, if any, relating to any collateral provided for the
Securities of the Series;
(18)
any addition to or change in the covenants set forth in Articles 4
or 5 that applies to Securities of the Series;
(19)
any addition to or change in the Events of Default which applies to
any Securities of the Series, any provision for the payment of
additional interest or liquidated damages in connection with any
Event of Default, 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
6.2;
(20)
the terms and conditions, if any, for conversion of the Securities
into or exchange of the Securities for shares of common stock,
preferred stock, other debt securities or warrants for common
stock, preferred stock or other securities of any kind of the
Company that apply to Securities of the Series;
(21)
any Trustees, depositories, interest rate calculation agents,
exchange rate calculation agents or other agents with respect to
Securities of such Series if other than those appointed
herein;
(22)
the terms and conditions, if any, upon which the Securities shall
be subordinated in right of payment to other Indebtedness of the
Company;
(23) if
applicable, that the Securities of the Series, in whole or any
specified part, shall be defeasible pursuant to Article 9;
and
(24)
any other terms of the Securities of the Series (which terms shall
not be inconsistent with the provisions of this Indenture, except
as permitted by Section 8.1, but which may modify or delete any
provision of this Indenture insofar as it applies to such
Series).
All
Securities of any one Series need not be issued at the same time,
and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to the Board
Resolution, supplemental indenture or Officers’ Certificate
referred to above, however, the authorized principal amount of any
Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture or Officers’
Certificate.
2.3
EXECUTION AND AUTHENTICATION.
The
Securities shall be executed on behalf of the Company by two
Officers of the Company or an Officer and an Assistant Secretary of
the Company. Each such signature may be either manual or facsimile.
The Company’s seal may be impressed, affixed, imprinted or
reproduced on the Securities and may be in facsimile
form.
If an
Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security
shall nevertheless be valid.
A
Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature
shall be conclusive evidence that the Security has been
authenticated under this Indenture. The Trustee shall at any time,
and from time to time, authenticate Securities for original issue
in the principal amount provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate, upon
receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized
agent or agents, which oral instructions shall be promptly
confirmed in writing. Each Security shall be dated the date of its
authentication.
8
The
aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate
delivered pursuant to Section 2.2, except as provided in Section
2.8.
Prior
to the issuance of Securities of any Series, the Trustee shall have
received and (subject to Section 7.1) shall be fully protected in
relying on: (a) the Board Resolution, supplemental indenture hereto
or Officers’ Certificate establishing the form of the
Securities of that Series or of Securities within that Series and
the terms of the Securities of that Series or of Securities within
that Series, (b) an Officers’ Certificate complying with
Section 10.4, and (c) an Opinion of Counsel complying with Section
10.4.
The
Trustee shall have the right to decline to authenticate and deliver
any Securities of any Series: (a) if the Trustee, being advised in
writing by outside counsel, determines that such action may not
lawfully be taken; or (b) if the Trustee in good faith by its board
of directors or trustees, executive committee or a trust committee
of directors and/or vice-presidents shall reasonably determine that
such action would expose the Trustee to personal liability, or
cause it to have a conflict of interest with respect to Holders of
any then outstanding Series of Securities.
The
Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Any
appointment shall be evidenced by an instrument signed by an
authorized officer of the Trustee, a copy of which shall be
furnished to the Company. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to
deal with the Company or an Affiliate of the Company.
2.4
REGISTRAR AND PAYING AGENT.
The
Company shall maintain in each Place of Payment for any Series of
Securities (i) an office or agency where such Securities may be
presented for registration of transfer or for exchange
(“Registrar”), (ii) an
office or agency where such Securities may be presented for payment
(“Paying
Agent”) (PROVIDED that the Company shall at all times
maintain a Paying Agent in the Borough of Manhattan, City of New
York, State of New York (the “New York Paying Agent”),
and PROVIDED, FURTHER, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the register for
the Securities maintained by the Registrar), and (iii) an office or
agency where notices and demands to or upon the Company in respect
of the Securities and this Indenture may be served
(“Service
Agent”). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying agents.
The Company shall 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 to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the address of the Trustee as set forth in Section 10.2.
If the Company acts as Paying Agent, it shall segregate the money
held by it for the payment of principal of, and interest and
premium, if any, on, the Securities and hold it as a separate trust
fund. The Company may change any Paying Agent, Registrar,
co-registrar or any other Agent without notice to any
Securityholder.
The
Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or
surrendered for any or all such purposes, and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of
Payment for Securities of any Series for such purposes. The Company
hereby initially designates the Corporate Trust Office of the
Trustee as such office of the Company. The Company shall give
prompt written notice to the Trustee of such designation or
rescission, and of any change in the location of any such other
office or agency.
The
Company shall enter into an appropriate agency agreement with any
Registrar or 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 any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or agent for service of
notices and demands, or fails to give the foregoing notice, the
Trustee shall act as such. The Company hereby appoints the Trustee
as the initial Registrar, Paying Agent and Service Agent for each
Series unless another Registrar, Paying Agent or Service Agent, as
the case may be, is appointed prior to the time Securities of that
Series are first issued. The Company designates
,
as the New York Paying Agent, with offices at
.
2.5
PAYING AGENT TO HOLD ASSETS IN TRUST.
The
Trustee as Paying Agent shall, and the Company shall require each
Paying Agent other than the Trustee to agree in writing that each
Paying Agent shall, hold in trust for the benefit of the Holders of
any Series of Securities or the Trustee all assets held by the
Paying Agent for the payment of principal of, or interest or
premium, if any, on, such Series of Securities (whether such assets
have been distributed to it by the Company or any other obligor on
such Series of Securities), and the Company and the Paying Agent
shall notify the Trustee in writing of any Default by the Company
(or any other obligor on such Series of Securities) in making any
such payment. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any
assets disbursed, and the Trustee may, at any time during the
continuance of any payment default with respect to any Series of
Securities, upon written request to a Paying Agent, require such
Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company
to the Paying Agent, the Paying Agent shall have no further
liability for such assets.
9
2.6
SECURITYHOLDER LISTS.
The
Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and
addresses of Securityholders of each Series of Securities. If the
Trustee is not the Registrar, the Company shall furnish to the
Trustee as of each regular record date for the payment of interest
on the Securities of a Series and before each related Interest
Payment Date, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of
each Series of Securities.
2.7
TRANSFER AND EXCHANGE.
When
Securities of a Series are presented to the Registrar with a
request to register the transfer thereof, the Registrar shall
register the transfer as requested if the requirements of
applicable law are met, and when such Securities of a Series are
presented to the Registrar with a request to exchange them for an
equal principal amount of other authorized denominations of
Securities of the same Series, the Registrar shall make the
exchange as requested. To permit transfers and exchanges, upon
surrender of any Security for registration of transfer at the
office or agency maintained pursuant to Section 2.4, the Company
shall execute and the Trustee shall authenticate Securities at the
Registrar’s request.
If
Securities are issued as Global Securities, the provisions of
Section 2.15 shall apply.
All
Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every
Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Registrar
or a co-registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Registrar or a co-registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Any
exchange or transfer shall be without charge, except that the
Company may require payment by the Holder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation to a transfer or exchange, but this provision shall not
apply to any exchange pursuant to Section 2.11, 3.6 or 8.5. The
Trustee shall not be required to register transfers of Securities
of any Series, or to exchange Securities of any Series, for a
period of 15 days before the record date for selection for
redemption of such Securities. The Trustee shall not be required to
exchange or register transfers of Securities of any Series called
or being called for redemption in whole or in part, except the
unredeemed portion of such Security being redeemed in
part.
2.8
REPLACEMENT SECURITIES.
If a
mutilated Security is surrendered to the Trustee, or if the Holder
of a Security presents evidence to the satisfaction of the Company
and the Trustee that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security of the same Series and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding. An indemnity bond may be required by
the Company or the Trustee that is sufficient in the reasonable
judgment of the Company or the Trustee, as the case may be, to
protect the Company, the Trustee or any Agent from any loss which
any of them may suffer if a Security is replaced. The Company may
charge such Holder for the Company’s out-of-pocket expenses
in replacing a Security, including the fees and expenses of the
Trustee. Every replacement Security shall constitute an original
additional 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.
2.9
OUTSTANDING SECURITIES.
Securities
outstanding at any time are all Securities authenticated by the
Trustee, except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.9 as not
outstanding.
If a
Security is replaced pursuant to Section 2.8 (other than a
mutilated Security surrendered for replacement), it ceases to be
outstanding until the Company and the Trustee receive proof
satisfactory to each of them that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.8.
10
If a
Paying Agent holds on a Redemption Date or the Stated Maturity
money sufficient to pay the principal of, premium, if any, and
accrued interest on, Securities payable on that date, and is not
prohibited from paying such money to the Holders thereof pursuant
to the terms of this Indenture (PROVIDED, that if such Securities
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), then on and after that date such
Securities cease to be outstanding and interest on them ceases to
accrue.
A
Security does not cease to be outstanding solely because the
Company or an Affiliate holds the Security.
2.10
WHEN TREASURY SECURITIES DISREGARDED; DETERMINATION OF
HOLDERS’ ACTION.
In
determining whether the Holders of the required aggregate principal
amount of the Securities of any Series have concurred in any
direction, waiver or consent, the Securities of any Series owned by
the Company or any other obligor on such Securities, or by any
Affiliate of any of them, shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities
of such Series which the Trustee actually knows are so owned shall
be so disregarded. Securities of such Series so owned which have
been pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to the Securities of such Series and
that the pledgee is not the Company or any other obligor on the
Securities of such Series, or an Affiliate of any of
them.
2.11
TEMPORARY SECURITIES.
Until
definitive Securities are ready for delivery, the Company may
prepare and execute, and the Trustee shall authenticate, temporary
Securities. Temporary Securities shall be substantially in the
form, and shall carry all rights, of definitive Securities, but may
have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall
prepare and execute, and the Trustee shall authenticate, definitive
Securities in exchange for temporary Securities without charge to
the Holder.
2.12
CANCELLATION.
All
Securities surrendered for payment, redemption or registration of
transfer or exchange, or for credit against any sinking fund
payment, shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee for cancellation. The Company
may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Registrar
and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The Trustee
or, at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel, and at the written request of
the Company shall dispose of, all Securities surrendered for
transfer, exchange, payment or cancellation. If the Company shall
acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the Indebtedness represented by
such Securities unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.12. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 2.12, except as
expressly permitted by this Indenture.
2.13
PAYMENT OF INTEREST; DEFAULTED INTEREST; COMPUTATION OF
INTEREST.
Except
as otherwise provided as contemplated by Section 2.2 with respect
to any Series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security is registered at the close of business on the regular
record date for such interest, as provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate
establishing the terms of such Series.
If the
Company defaults in a payment of interest on the Securities, it
shall pay the defaulted amounts, plus any interest payable on
defaulted amounts pursuant to Section 4.1, to the Persons who are
Securityholders on a subsequent special record date, which date
shall be the 15th day next preceding the date fixed by the Company
for the payment of defaulted interest, or the next succeeding
Business Day if such date is not a Business Day. At least 15 days
before the special record date, the Company shall mail or cause to
be mailed to each Securityholder, with a copy to the Trustee, a
notice that states the special record date, the payment date and
the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
Except
as otherwise specified as contemplated by Section 2.2 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.
11
2.14
CUSIP NUMBER.
The
Company in issuing the Securities may use one or more
“CUSIP” numbers, and, if the Company does so, the
Trustee shall use the CUSIP number(s) in notices of redemption or
exchange as a convenience to Holders, PROVIDED, that any such
notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number(s) printed in the
notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities, and
that any such redemption or exchange shall not be affected by any
defect in or omission of any such numbers.
2.15
PROVISIONS FOR GLOBAL SECURITIES.
(1) A
Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate shall establish whether the Securities
of a Series shall be issued in whole or in part in the form of one
or more Global Securities, and the Depository for such Global
Securities or Securities.
(2)
Notwithstanding any provisions to the contrary contained in Section
2.7 and in addition thereto, if, and only if the Depository (i) at
any time is unwilling or unable to continue as Depository for such
Global Security or ceases to be a clearing agency registered under
the Exchange Act and (ii) a successor Depository is not appointed
by the Company within 90 days after the date the Company is so
informed in writing or becomes aware of the same, the Company
promptly will execute and deliver to the Trustee definitive
Securities, and the Trustee, upon receipt of a Company Request for
the authentication and delivery of such definitive Securities
(which the Company will promptly execute and deliver to the
Trustee) and an Officers’ Certificate to the effect that such
Global Security shall be so exchangeable, will authenticate and
deliver definitive Securities, without charge, registered in such
names and in such authorized denominations as the Depository shall
direct in writing (pursuant to instructions from its direct and
indirect participants or otherwise) in an aggregate principal
amount equal to the principal amount of the Global Security with
like tenor and terms. Upon the exchange of a Global Security for
definitive Securities, such Global Security shall be canceled by
the Trustee. Unless and until it is exchanged in whole or in part
for definitive Securities, as provided in this Section 2.15(b), a
Global Security may not be transferred except as a whole by the
Depository with respect to such Global Security to a nominee of
such Depository, by a nominee of such Depository to such Depository
or another nominee of such Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such a
successor Depository.
(3) Any
Global Security issued hereunder shall bear a legend in
substantially the following form:
“This
Security is a Global Security within the meaning of the Indenture
hereinafter referred to, and is registered in the name of the
Depository or a nominee of the Depository. This Security is
exchangeable for Securities registered in the name of a Person
other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not be
transferred except as a whole by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor
Depository.”
(4) The
Depository, as a Holder, may appoint agents and otherwise authorize
participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.
(5)
Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the
principal of, and interest and premium, if any, on, any Global
Security shall be made to the Depository or its nominee in its
capacity as the Holder thereof.
(6)
Except as provided in Section 2.15(5) above, the Company, the
Trustee and any Agent shall treat a Person as the Holder of such
principal amount of outstanding Securities of any Series
represented by a Global Security as shall be specified in a written
statement of the Depository (which may be in the form of a
participants’ list for such Series) with respect to such
Global Security, for purposes of obtaining any consents,
declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture, PROVIDED, that until the
Trustee is so provided with a written statement, it may treat the
Depository or any other Person in whose name a Global Security is
registered as the owner of such Global Security for the purpose of
receiving payment of the principal of, and any premium and (subject
to Section 2.13) any interest on, such Global Security and for all
other purposes whatsoever, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice
to the contrary.
2.16
PERSONS DEEMED OWNERS.
Prior
to due presentment of a Security for registration of transfer, the
Company, the Trustee, the Registrar and any agent of the Company,
the Registrar or the Trustee may treat the Person in whose name
such Security is registered as the owner of such Security for the
purpose of receiving payment of the principal of, and any premium
and (subject to Section 2.13) any interest on, such Security and
for all other purposes whatsoever, and none of the Company, the
Trustee, the Registrar or any agent of the Company, the Trustee or
the Registrar shall be affected by notice to the
contrary.
12
ARTICLE 3
REDEMPTION
3.1
NOTICES TO TRUSTEE.
The
Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities, or may covenant
to redeem and pay the Series of Securities or any part thereof,
prior to the Stated Maturity thereof at such time and on such terms
as provided for in such Securities or the related Board Resolution,
supplemental indenture or Officers’ Certificate. If a Series
of Securities is redeemable and the Company elects to redeem all or
part of such Series of Securities, it shall notify the Trustee of
the Redemption Date and the principal amount of Securities to be
redeemed at least 45 days (unless a shorter notice shall be
satisfactory to the Trustee) before the Redemption Date. Any such
notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder, and shall thereby be void
and of no effect.
3.2
SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
Unless
otherwise indicated for a particular Series of Securities by a
Board Resolution, a supplemental indenture or an Officers’
Certificate, if fewer than all of the Securities of a Series are to
be redeemed, the Trustee shall select the Securities of a Series to
be redeemed pro rata, by lot or by any other method that the
Trustee considers fair and appropriate (unless the Company
specifically directs the Trustee otherwise) and, if such Securities
are listed on any securities exchange, by a method that complies
with the requirements of such exchange.
The
Trustee shall make the selection from Securities of a Series
outstanding and not previously called for redemption, and shall
promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed at
least 35 but not more than 60 days before the Redemption Date.
Securities of a Series in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions of
the principal of Securities of a Series that have denominations
larger than $1,000. Securities of a Series and portions of them it
selects shall be in amounts of $1,000 or, with respect to
Securities of any Series issuable in other denominations pursuant
to Section 2.2(10), the minimum principal denomination for each
Series and integral multiples thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
3.3
NOTICE OF REDEMPTION.
Unless
otherwise indicated for a particular Series by Board Resolution, a
supplemental indenture hereto or an Officers’ Certificate, at
least 30 days, and no more than 60 days, before a Redemption Date,
the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Securities to be
redeemed at his or her last address as the same appears on the
registry books maintained by the Registrar. The notice shall
identify the Securities to be redeemed and shall
state:
(1) the
Redemption Date;
(2) the
redemption price, and that such redemption price shall become due
and payable on the Redemption Date;
(3) if
any Security of a Series is being redeemed in part, the portion of
the principal amount of such Security of a Series to be redeemed
and that, after the Redemption Date and upon surrender of such
Security of a Series, a new Security or Securities in principal
amount equal to the unredeemed portion will be issued;
(4) the
name and address of the Paying Agent;
13
(5)
that Securities of a Series called for redemption must be
surrendered to the Paying Agent to collect the redemption price,
and the place or places where each such Security is to be
surrendered for such payment;
(6)
that, unless the Company defaults in making the redemption payment,
interest on the Securities of a Series called for redemption ceases
to accrue on the Redemption Date, and the only remaining right of
the Holders of such Securities is to receive payment of the
redemption price upon surrender to the Paying Agent of the
Securities redeemed;
(7) if
fewer than all of the Securities of a Series are to be redeemed,
the identification of the particular Securities of a Series (or
portion thereof) to be redeemed, as well as the aggregate principal
amount of Securities of a Series to be redeemed and the aggregate
principal amount of Securities of a Series to be outstanding after
such partial redemption.
(8) the
CUSIP number, if any, printed on the Securities being redeemed;
and
(9)
that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the
Company’s request, the Trustee shall give the notice of
redemption in the Company’s name and at the Company’s
sole expense.
3.4
EFFECT OF NOTICE OF REDEMPTION.
Once
the notice of redemption described in Section 3.3 is mailed,
Securities of a Series called for redemption become due and payable
on the Redemption Date and at the redemption price, plus interest,
if any, accrued to the Redemption Date. Upon surrender to the
Trustee or Paying Agent, such Securities of a Series shall be paid
at the redemption price, plus accrued interest, if any, to the
Redemption Date; PROVIDED, that if the Redemption Date is after a
regular interest payment record date and on or prior to the next
Interest Payment Date, the accrued interest shall be payable to the
Holder of the redeemed Securities registered on the relevant record
date, as specified by the Company in the notice to the Trustee
pursuant to Section 3.1.
3.5
DEPOSIT OF REDEMPTION PRICE.
On or
prior to the Redemption Date (but no later than 11:00 A.M. Eastern
Time on such date), the Company shall deposit with the Paying Agent
money sufficient to pay the redemption price of and accrued
interest, if any, on all Securities to be redeemed on that date
other than Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee
for cancellation.
On and
after any Redemption Date, if money sufficient to pay the
redemption price of, and accrued interest on, Securities called for
redemption shall have been made available in accordance with the
preceding paragraph and the Company and the Paying Agent are not
prohibited from paying such moneys to Holders, the Securities
called for redemption will cease to accrue interest and the only
right of the Holders of such Securities will be to receive payment
of the redemption price of and, subject to the proviso in Section
3.4, accrued and unpaid interest on such Securities to the
Redemption Date. If any Security called for redemption shall not be
so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Security
and any interest or premium, if any, not paid on such unpaid
principal, in each case, at the rate and in the manner provided in
the Securities.
3.6
SECURITIES REDEEMED IN PART.
Upon
surrender of a Security of a Series that is redeemed in part, the
Company shall execute, and the Trustee shall authenticate, for a
Holder a new Security of the same Series equal in principal amount
to the unredeemed portion of the Security surrendered.
14
ARTICLE 4
COVENANTS
4.1
PAYMENT OF SECURITIES.
The
Company shall pay the principal of, and interest and premium, if
any, on, each Series of Securities on the dates and in the manner
provided in such Securities and this Indenture.
An
installment of principal or interest shall be considered paid on
the date it is due if the Trustee or Paying Agent holds on that
date money designated for and sufficient to pay such installment
and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture or otherwise.
The
Company shall pay interest on overdue principal, and overdue
interest, to the extent lawful, at the rate specified in the Series
of Securities.
4.2
SEC REPORTS.
The
Company will deliver to the Trustee within 15 days after the filing
of the same with the SEC, copies of the quarterly and annual
reports and of the information, documents and other reports, if
any, which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act; PROVIDED, HOWEVER, that
each such report or document will be deemed to be so delivered to
the Trustee if the Company files such report or document with the
SEC through the SEC’s EDGAR database no later than the time
such report or document is required to be filed with the SEC
pursuant to the Exchange Act. Notwithstanding that the Company may
not be subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Company will file with the SEC, to the
extent permitted, and provide the Trustee with, such quarterly and
annual reports and such information, documents and other reports
specified in Sections 13 and 15(d) of the Exchange Act. The Company
will also comply with the other provisions of TIA Section
314(a).
4.3
WAIVER OF STAY, EXTENSION OR USURY LAWS.
The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension, usury or other law which would
prohibit or forgive the Company from paying all or any portion of
the principal of, and/or interest and premium, if any, on, the
Securities as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and the Company hereby expressly
waives (to the extent that they may lawfully do so) all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
4.4
COMPLIANCE CERTIFICATE.
(1) The
Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, an Officers’ Certificate
which complies with TIA Section 314(a)(4) stating that a review of
the activities of the Company and its Subsidiaries during such
fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge the
Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and that there is no default
in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the
best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal
of, or interest or premium, if any, on, the Securities is
prohibited, or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take
with respect thereto.
(2) (i)
If any Default or Event of Default has occurred and is continuing
or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the
Securities, within five Business Days after the Company becoming
aware of such occurrence the Company shall deliver to the Trustee
an Officers’ Certificate specifying such event, notice or
other action and what action the Company is taking or proposes to
take with respect thereto.
4.5
CORPORATE EXISTENCE.
Subject
to Article 5, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence, in accordance with the organizational
documents (as the same may be amended from time to time) of the
Company and the rights (charter and statutory), licenses and
franchises of the Company; PROVIDED, HOWEVER, that the Company
shall not be required to preserve any such right, license or
franchise, or its corporate existence, if the Board of Directors
shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that
the loss thereof is not adverse in any material respect to the
Holders.
15
ARTICLE 5
SUCCESSOR CORPORATION
5.1
LIMITATION ON CONSOLIDATION, MERGER AND SALE OF
ASSETS.
(1) The
Company will not, in any transaction or series of transactions,
merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of
its properties and assets (as an entirety or substantially as an
entirety in one transaction or a series of related transactions),
to any Person or Persons, unless at the time of and after giving
effect thereto (i) either (A) if the transaction or series of
transactions is a merger or consolidation, the Company shall be the
surviving Person of such merger or consolidation, or (B) the Person
formed by such consolidation or into which the Company is merged or
to which the properties and assets of the Company are transferred
(any such surviving Person or transferee Person being the
“Surviving
Entity”) shall be a corporation organized and existing
under the laws of the United States of America, any state thereof
or the District of Columbia, or a corporation or comparable legal
entity organized under the laws of a foreign jurisdiction and shall
expressly assume by a supplemental indenture executed and delivered
to the Trustee, in form reasonably satisfactory to the Trustee, all
of the obligations of the Company (including, without limitation,
the obligation to pay the principal of, and premium and interest,
if any, on, the Securities and the performance of the other
covenants) under the Securities of each Series and this Indenture,
and in each case, this Indenture shall remain in full force and
effect; and (ii) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro forma
basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), no Default or Event of
Default shall have occurred and be continuing.
(2) In
connection with any consolidation, merger or transfer of assets
contemplated by this Section 5.1, the Company shall deliver, or
cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers’
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer, and the supplemental indenture
in respect thereto, comply with this Section 5.1, and that all
conditions precedent herein provided for relating to such
transaction or transactions have been complied with.
5.2
SUCCESSOR PERSON SUBSTITUTED.
Upon
any consolidation, merger or transfer of all or substantially all
of the assets of the Company in accordance with Section 5.1 above,
the successor corporation formed by such consolidation, or into
which the Company is merged or to which such transfer 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 corporation had been named as the
Company herein, and thereafter (except with respect to any such
transfer which is a lease) the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and
the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
6.1
EVENTS OF DEFAULT.
“Events of Default,”
wherever used herein with respect to Securities of any Series,
means any one of the following events, unless in the establishing
Board Resolution, supplemental indenture or Officers’
Certificate, it is provided that such Series shall not have the
benefit of said Event of Default:
(1)
there is a default in the payment of any principal of, or premium,
if any, on, the Securities when the same becomes due and payable at
Maturity, upon acceleration, redemption or otherwise;
(2)
there is a default in the payment of any interest on any Security
of a Series when the same becomes due and payable, and the Default
continues for a period of 30 days;
(3) the
Company defaults in the observance or performance of any other
covenant in the Securities of a Series or in this Indenture for 60
days after written notice from the Trustee or the Holders of not
less than 25% in the aggregate principal amount of the Securities
of such Series then outstanding, which notice must specify the
Default, demand that it be remedied and state that the notice is a
“Notice of
Default”;
(4) the
Company or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A)
commences
a voluntary case,
(B)
consents
to the entry of an order for relief against it in an involuntary
case,
(C)
consents
to the appointment of a Custodian of it or for all or substantially
all of its property,
(D)
makes a
general assignment for the benefit of its creditors,
or
(E)
generally
is not paying its debts as they become due;
16
(5) a
court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A)
is for
relief against the Company or any Significant Subsidiary in an
involuntary case;
(B)
appoints
a Custodian of the Company or any Significant Subsidiary, or for
all or substantially all of the property of the Company or any
Significant Subsidiary; or
(C)
orders
the liquidation of the Company or any Significant Subsidiary, and
the order or decree remains unstayed and in effect for 90
consecutive days; or
(6) any
other Event of Default provided with respect to Securities of that
Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, in accordance
with Section 2.2(19).
The
term “Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors. The term
“Custodian”
means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
The
Trustee may withhold notice of any Default (except in the payment
of the principal of, or interest or premium, if any, on, the
Securities) to the Holders of the Securities of any Series in
accordance with Section 7.5. When a Default is cured, it ceases to
exist.
6.2
ACCELERATION.
If an
Event of Default with respect to Securities of any Series at the
time outstanding (other than an Event of Default arising under
Section 6.1(4) or (5)) occurs and is continuing, the Trustee by
written notice to the Company, or the Holders of not less than 25%
in aggregate principal amount of the Securities of that Series then
outstanding by written notice to the Company and the Trustee, may
declare that the entire principal amount of all the Securities of
that Series then outstanding plus accrued and unpaid interest to
the date of acceleration are immediately due and payable, in which
case such amounts shall become immediately due and payable;
PROVIDED, HOWEVER, that after such acceleration but before a
judgment or decree based on such acceleration is obtained by the
Trustee, the Holders of a majority in aggregate principal amount of
the outstanding Securities of that Series may rescind and annul
such acceleration and its consequences if (i) all existing Events
of Default, other than the nonpayment of accelerated principal,
interest or premium, if any, that has become due solely because of
the acceleration, have been cured or waived, (ii) to the extent the
payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been
paid and (iii) the rescission would not conflict with any judgment
or decree. No such rescission shall affect any subsequent Default
or impair any right consequent thereto. In case an Event of Default
specified in Section 6.1(4) or (5) with respect to the Company
occurs, such principal, premium, if any, and interest amount with
respect to all of the Securities of that Series shall be due and
payable immediately without any declaration or other act on the
part of the Trustee or the Holders of the Securities of that
Series.
6.3
REMEDIES.
If an
Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect
the payment of the principal of, or interest and premium, if any,
on, the Securities of that Series, or to enforce the performance of
any provision of the Securities of that Series or this
Indenture.
The
Trustee may maintain a proceeding even if it does not possess any
of the Securities of that Series or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute
a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.
6.4
WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT.
Subject
to Sections 6.2, 6.7 and 8.2, the Holders of a majority in
principal amount of the Securities of any Series then outstanding
have the right to waive any existing Default or Event of Default
with respect to such Series or compliance with any provision of
this Indenture (with respect to such Series) or the Securities of
such Series. Upon any such waiver, such Default with respect to
such Series shall cease to exist, and any Event of Default with
respect to such Series arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto. This Section 6.4 shall be
in lieu of TIA Section 316(a)(1)(B), and TIA Section 316(a)(1)(B)
is hereby expressly excluded from this Indenture and Section as
permitted by the TIA.
6.5
CONTROL BY MAJORITY.
Subject
to Sections 6.2, 6.7 and 8.2, the Holders of a majority in
principal amount of the Securities of any Series then outstanding
may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture with respect to
such Series. The Trustee, however, may refuse to follow any
direction that conflicts with law or this Indenture, or that the
Trustee determines may be unduly prejudicial to the rights of
another Securityholder, or that may involve the Trustee in personal
liability; PROVIDED, that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such
direction. This Section 6.5 shall be in lieu of TIA Section
316(a)(1)(A), and TIA Section 316(a)(1)(A) is hereby expressly
excluded from this Indenture and Section as permitted by the
TIA.
17
6.6
LIMITATION ON SUITS.
Subject
to Section 6.7, a Securityholder may not institute any proceeding
or pursue any remedy with respect to this Indenture or the
Securities of a Series unless:
(1) the
Holder gives to the Trustee written notice of a continuing Event of
Default with respect to the Securities of that Series;
(2) the
Holders of at least 25% in aggregate principal amount of the
Securities of such Series then outstanding make a written request
to the Trustee to pursue the remedy;
(3)
such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense
to be incurred in compliance with such request;
(4) the
Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) no
direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Securities of such Series then
outstanding.
A
Securityholder may not use this Indenture to prejudice the rights
of another Securityholder, or to obtain a preference or priority
over another Securityholder.
6.7
RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any
other provision of this Indenture, the right of any Holder of a
Security of a Series to receive payment of the principal of, and
interest and premium, if any, on, the Security of such Series on or
after the respective due dates expressed in the Security of such
Series, or to bring suit for the enforcement of any such payment on
or after such respective dates, is absolute and unconditional, and
shall not be impaired or affected without the consent of the
Holder.
6.8
COLLECTION SUIT BY TRUSTEE.
If an
Event of Default in payment of principal, interest or premium, if
any, specified in Section 6.1(1) or (2) with respect to Securities
of any Series at the time outstanding occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an
express trust against the Company (or any other obligor on the
Securities of that Series) for the whole amount of unpaid principal
and premium, if any, and accrued interest remaining unpaid,
together with interest on overdue principal and premium, if any,
and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the
rate then borne by the Securities of that Series, and such further
amounts as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
as set forth in Section 7.7.
6.9
TRUSTEE MAY FILE PROOFS OF CLAIM.
The
Trustee may file such proofs of claim and other papers or
documents, and take other actions (including sitting on a committee
of creditors), as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Securityholders allowed in any
judicial proceedings relative to the Company (or any other obligor
on the Securities), any of their respective creditors or any of
their respective property, and the Trustee shall be entitled and
empowered to collect and receive any monies or other property
payable or deliverable on any such claims, and to distribute the
same after deduction of its charges and expenses to the extent that
any such charges and expenses are not paid out of the estate in any
such proceedings, and any custodian in any such judicial proceeding
is hereby authorized by each Securityholder to make such payments
to the Trustee, and in the event that the Trustee shall consent to
the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under
Section 7.7.
Nothing
herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or accept or adopt on behalf of any
Securityholder, any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of a Series or the rights
of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such
proceedings.
18
6.10
PRIORITIES.
If the
Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
FIRST:
to the Trustee for amounts due under Section 7.7;
SECOND:
to Securityholders for amounts then due and unpaid for the
principal of, and interest and premium, if any, on, the Securities
in respect of which, or for the benefit of which, such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities;
for principal and any premium and interest, respectively;
and
THIRD:
to the Company.
The
Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days
before such record date, the Trustee shall mail to each
Securityholder a notice that states the record date, the payment
date and amount to be paid.
6.11
UNDERTAKING FOR COSTS.
In any
suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by
Holders of more than 10% in principal amount of the Securities of a
Series then outstanding.
ARTICLE 7
TRUSTEE
7.1
DUTIES OF TRUSTEE.
(1) If
an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the same
circumstances in the conduct of his own affairs.
(2)
Except during the continuance of an Event of Default:
(A) The
Trustee need perform only those duties that are specifically set
forth in this Indenture, and no covenants or obligations shall be
implied in this Indenture against the Trustee.
(B) In
the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture, but, in the case of any such certificates or opinions
which by any provision hereof 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.
(3) The
Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful
misconduct, except that:
(A)
This paragraph does not limit the effect of paragraph (2) of this
Section 7.1.
(B) The
Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent
facts.
(C) The
Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received
by it pursuant to Sections 6.2 and 6.5.
19
(4) No
provision of this Indenture shall require the Trustee to expend or
risk its own funds, or otherwise incur any financial liability, in
the performance of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(5)
Whether or not therein expressly so provided, paragraphs (1), (2),
(3) and (4) of this Section 7.1 shall govern every provision of
this Indenture that in any way relates to the Trustee.
(6) The
Trustee and Paying Agent shall not be liable for interest on any
money received by either of them, except as the Trustee and Paying
Agent may agree in writing with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the
extent required by the law.
(7) The
Paying Agent, the Registrar and any authenticating agent shall be
entitled to the protections, immunities and standard of care set
forth in paragraphs (1), (2), (3), (4) and (6) of this Section 7.1
and in Section 7.2 with respect to the Trustee.
7.2
RIGHTS OF TRUSTEE.
(1)
Subject to Section 7.1:
(A) The
Trustee may rely on, and shall be protected in acting or refraining
from acting upon, any document reasonably believed by it to be
genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the
document.
(B)
Before the Trustee acts or refrains from acting, it may require an
Officers’ Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 10.5. The Trustee
shall be protected and shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or
opinion.
(C) The
Trustee may act through agents and attorneys, and shall not be
responsible for the misconduct or negligence of any agent appointed
by it with due care.
(D) The
Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(E) The
Trustee may consult with counsel reasonably acceptable to the
Trustee, which may be counsel to the Company, and the advice or
opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of
any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such
counsel.
(F) The
Trustee shall be under no 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 pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
(G) The
Trustee shall not be deemed to have knowledge of any fact or matter
(including, without limitation, a Default or Event of Default)
unless such fact or matter is known to a Responsible Officer of the
Trustee.
(H)
Unless otherwise expressly provided herein or in the Securities of
a Series or the related Board Resolution, supplemental indenture or
Officers’ Certificate, the Trustee shall not have any
responsibility with respect to reports, notices, certificates or
other documents filed with it hereunder, except to make them
available for inspection, at reasonable times, by Securityholders,
it being understood that 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 (except as set forth
in Section 4.4).
7.3
INDIVIDUAL RIGHTS OF TRUSTEE.
The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities, and may make loans to, accept
deposits from, perform services for or otherwise deal with the
Company, or any Affiliate thereof, with the same rights it would
have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11.
20
7.4
TRUSTEE’S DISCLAIMER.
The
Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities (except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture and authenticate the Securities and perform its
obligations hereunder), and the Trustee shall not be accountable
for the Company’s use of the proceeds from the sale of
Securities or any money paid to the Company pursuant to the terms
of this Indenture, and the Trustee shall not be responsible for any
statement in the Securities other than its certificates of
authentication.
7.5
NOTICE OF DEFAULT.
If a
Default or an Event of Default occurs and is continuing with
respect to the Securities of any Series, and if it is known to the
Trustee, the Trustee shall mail to each Securityholder of the
Securities of that Series notice of the Default or the Event of
Default, as the case may be, within 90 days after it occurs or, if
later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default (except if such Default or Event
of Default has been validly cured or waived before the giving of
such notice). Except in the case of a Default or an Event of
Default in payment of the principal of, or interest or premium, if
any, on, any Security of any Series, the Trustee may withhold the
notice if and so long as the Board of Directors of the Trustee, the
executive committee or any trust committee of such board and/or its
Responsible Officers in good faith determine(s) that withholding
the notice is in the interests of the Securityholders of that
Series.
7.6
REPORTS BY TRUSTEE TO HOLDERS.
If and
to the extent required by the TIA, within 60 days after April 1 of
each year, commencing the April 1 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such April 1 that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b) and
313(c).
A copy
of each report at the time of its mailing to Securityholders shall
be filed with the SEC and any stock exchange on which the
Securities of that Series are listed. The Company shall promptly
notify the Trustee when the Securities of any Series are listed on
any stock exchange or any delisting thereof, and the Trustee shall
comply with TIA Section 313(d).
7.7
COMPENSATION AND INDEMNITY.
The
Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee’s compensation
shall not be limited by any provision of law on compensation of a
trustee of an express trust. The Company shall reimburse the
Trustee within 45 days after receipt of request for all reasonable
out-of-pocket disbursements and expenses incurred or made by it in
connection with its duties under this Indenture, including the
reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel.
The
Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss or liability incurred by it in connection
with the acceptance or performance of its duties under this
Indenture including the reasonable 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.
The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity.
The
failure by the Trustee to so notify the Company shall not however
relieve the Company of its obligations. Notwithstanding the
foregoing, the Company need not reimburse the Trustee for any
expense or indemnify it against any loss or liability incurred by
the Trustee through its negligence or bad faith. To secure the
payment obligations of the Company in this Section 7.7, the Trustee
shall have a lien prior to the Securities of any Series on all
money or property held or collected by the Trustee except such
money or property held in trust to pay the principal of, interest
and premium, if any, on particular Securities of that
Series.
When
the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(4) or (5) occurs, the expenses and
the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
For
purposes of this Section 7.7, the term “Trustee” shall include
any trustee appointed pursuant to this Article 7.
21
7.8
REPLACEMENT OF TRUSTEE.
The
Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company in writing at least 90 days in
advance of such resignation.
The
Holders of a majority in principal amount of the outstanding
Securities of any Series may remove the Trustee with respect to
that Series by notifying the removed Trustee in writing and may
appoint a successor Trustee with respect to that Series with the
consent of the Company, which consent shall not be unreasonably
withheld. The Company may remove the Trustee with respect to that
Series at its election if:
(1) the
Trustee fails to comply with, or ceases to be eligible under,
Section 7.10;
(2) the
Trustee is adjudged a bankrupt or an insolvent, or an order for
relief is entered with respect to the Trustee, under any Bankruptcy
Law;
(3) a
Custodian or other public officer takes charge of the Trustee or
its property; or
(4) the
Trustee otherwise becomes incapable of acting.
If the
Trustee resigns or is removed, or if a vacancy exists in the office
of Trustee, with respect to any Series of Securities for any
reason, the Company shall promptly appoint, by Board Resolution, a
successor Trustee.
If a
successor Trustee with respect to the Securities of one or more
Series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding
Securities of the applicable Series may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
If the
Trustee with respect to the Securities of one or more Series fails
to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
Trustee.
A
successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately
following such delivery, (i) the retiring Trustee with respect to
one or more Series shall, subject to its rights under Section 7.7,
transfer all property held by it as Trustee with respect to such
Series to the successor Trustee, (ii) the resignation or removal of
the retiring Trustee shall become effective and (iii) the successor
Trustee with respect to such Series shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor
Trustee with respect to the Securities of one or more Series shall
mail notice of its succession to each Securityholder of such
Series.
7.9
SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER OR
CONVERSION.
If the
Trustee, or any Agent, consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust assets
to, another corporation, subject to Section 7.10, the successor
corporation without any further act shall be the successor Trustee
or Agent, as the case may be.
7.10
ELIGIBILITY; DISQUALIFICATION.
This
Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5) in every
respect. The Trustee (or in the case of a Trustee that is a Person
included in a bank holding company system, the related bank holding
company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA Section
310(b), including the provision in Section 310(b)(1). In addition,
if the Trustee is a Person included in a bank holding company
system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA Section 310(a)(2). If at
any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 7.10, it shall resign immediately in
the manner and with the effect specified in this Article
7.
22
7.11
PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The
Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who
has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated therein.
7.12
PAYING AGENTS.
The
Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions
of this Section 7.12:
(1)
that it will hold all sums held by it as agent for the payment of
the principal of, or interest or premium, if any, on, the
Securities (whether such sums have been paid to it by the Company
or by any obligor on the Securities) in trust for the benefit of
Holders of the Securities or the Trustee;
(2)
that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full
accounting thereof; and
(3)
that it will give the Trustee written notice within three Business
Days after any failure of the Company (or by any obligor on the
Securities) in the payment of any installment of the principal of,
or interest or premium, if any, on, the Securities when the same
shall be due and payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
8.1
WITHOUT CONSENT OF HOLDERS.
The
Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Securities of one or more
Series without notice to or consent of any
Securityholder:
(1) to
comply with Section 5.1;
(2) to
provide for certificated Securities in addition to uncertificated
Securities;
(3) to
comply with any requirements of the SEC under the TIA;
(4) to
cure any ambiguity, defect or inconsistency, or to make any other
change herein or in the Securities that does not materially and
adversely affect the rights of any Securityholder;
(5) to
provide for the issuance of, and establish the form and terms and
conditions of, Securities of any Series as permitted by this
Indenture; or
(6) to
evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more
Series, and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee.
The
Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture authorized or permitted by
the terms of this Indenture, and to make any further appropriate
agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental
indenture which adversely affects its own rights, duties or
immunities under this Indenture.
23
8.2
WITH CONSENT OF HOLDERS.
(1) The
Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Securities of one or more
Series with the written consent of the Holders of not less than a
majority in aggregate principal amount of the outstanding
Securities of such Series affected by such amendment or supplement
without notice to any Securityholder. The Holders of not less than
a majority in aggregate principal amount of the outstanding
Securities of each such Series affected by such amendment or
supplement may waive compliance by the Company in a particular
instance with any provision of this Indenture or the Securities of
such Series without notice to any Securityholder. Subject to
Section 8.4, without the consent of each Securityholder affected,
however, an amendment, supplement or waiver may not:
(A)
reduce
the amount of Securities whose Holders must consent to an
amendment, supplement or waiver to this Indenture or the
Securities;
(B)
reduce
the rate of, or change the time for payment of, interest on any
Security;
(C)
reduce
the principal, or change the Stated Maturity, of any Security, or
reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation;
(D)
make
any Security payable in money other than that stated in the
Security;
(E)
change
the amount or time of any payment required by the Securities, or
reduce the premium payable upon any redemption of the Securities,
or change the time before which no such redemption may be
made;
(F)
waive a
Default or Event of Default in the payment of the principal of, or
interest or premium, if any, on, any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of
at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that
resulted from such acceleration);
(G)
waive a
redemption payment with respect to any Security, or change any of
the provisions with respect to the redemption of any
Securities;
(H)
make
any changes in Section 6.6 or this Section 8.2, except to increase
any percentage of Securities the Holders of which must consent to
any matter; or
(I)
take
any other action otherwise prohibited by this Indenture to be taken
without the consent of each Holder affected thereby.
(2)
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory
to the Trustee of the consent of the Securityholders as aforesaid
and of the documents described in Section 8.6, the Trustee shall
join with the Company in the execution of such supplemental
indenture, unless such supplemental indenture affects the
Trustee’s own rights, duties or immunities under this
Indenture, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental
indenture.
(3) It
shall not be necessary for the consent of the Holders under this
section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After
an amendment or supplement under this Section becomes effective,
the Company shall mail to Securityholders a notice briefly
describing the amendment or supplement. Any failure of the Company
to mail any such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any supplemental
indenture.
8.3
COMPLIANCE WITH TRUST INDENTURE ACT.
Every
amendment to, or supplement of, this Indenture or the Securities
shall comply with the TIA as then in effect.
8.4
REVOCATION AND EFFECT OF CONSENTS.
Until
an amendment, supplement, waiver or other action becomes effective,
a consent to it by a Holder of a Security is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder
of the same Security 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. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Security or portion of a Security, if the
Trustee receives the notice of revocation before the date the
amendment, supplement, waiver or other action becomes
effective.
24
The
Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be at
least 30 days prior to the first solicitation of such consent. If a
record date is fixed, then, notwithstanding the preceding
paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement or waiver, or to
revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date.
After
an amendment, supplement, waiver or other action becomes effective,
it shall bind every Securityholder, unless it makes a change
described in any of clauses (1) through (9) of Section 8.2. In that
case, the amendment, supplement, waiver or other action shall bind
each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security;
PROVIDED, that any such waiver shall not impair or affect the right
of any Holder to receive payment of the principal of, and interest
and premium, if any, on, a Security, on or after the respective due
dates expressed in such Security, or to bring suit for the
enforcement of any such payment on or after such respective dates
without the consent of such Holder.
8.5
NOTATION ON OR EXCHANGE OF SECURITIES.
If an
amendment, supplement or waiver changes the terms of a Security of
any Series, the Trustee may request the Holder of such Security to
deliver it to the Trustee. In such case, the Trustee shall place an
appropriate notation on such Security about the changed terms and
return it to the Holder. Alternatively, the Company, in exchange
for such Security, may issue, and the Trustee shall authenticate, a
new security that reflects the changed terms. Failure to make the
appropriate notation or issue a new Security shall not affect the
validity and effect of such amendment, supplement or
waiver.
8.6
TRUSTEE TO SIGN AMENDMENTS, ETC.
The
Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need
not, sign it. In signing or refusing to sign such amendment,
supplement or waiver the Trustee shall be entitled to receive and,
subject to Section 7.1, shall be fully protected in relying upon an
Officers’ Certificate and an Opinion of Counsel stating that
such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Company may not sign an amendment or supplement
until the Board of Directors of the Company approves
it.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
9.1
DISCHARGE OF INDENTURE.
The
Company may terminate its obligations under the Securities of any
Series and this Indenture with respect to such Series, except the
obligations referred to in the last paragraph of this Section 9.1,
if there shall have been canceled by the Trustee, or delivered to
the Trustee for cancellation, all Securities of such Series
theretofore authenticated and delivered (other than any Securities
of such Series that are asserted to have been destroyed, lost or
stolen and that shall have been replaced as provided in Section
2.8) and the Company has paid all sums payable by it hereunder or
deposited all required sums with the Trustee.
After
such delivery the Trustee upon request shall acknowledge in a
writing prepared by or on behalf of the Company the discharge of
the Company’s obligations under the Securities of such Series
and this Indenture, except for those surviving obligations
specified below.
Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of
the Company in Sections 7.7, 9.5 and 9.6 shall
survive.
9.2
LEGAL DEFEASANCE.
The
Company may at its option, by Board Resolution, be discharged from
its obligations with respect to the Securities of any Series on the
date upon which the conditions set forth in Section 9.4 below are
satisfied (hereinafter, “Legal Defeasance”). For
this purpose, such Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness
represented by the Securities of such Series and to have satisfied
all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall, subject to Section 9.6, execute
proper instruments acknowledging the same, as are delivered to it
by the Company), except for the following, which shall survive
until otherwise terminated or discharged hereunder: (A) the rights
of Holders of outstanding Securities of such Series to receive
solely from the trust funds described in Section 9.4 and as more
fully set forth in such section, payments in respect of the
principal of, and interest and premium, if any, on, the Securities
of such Series when such payments are due, (B) the Company’s
obligations with respect to the Securities of such Series under
Sections 2.4, 2.5, 2.6, 2.7, 2.8 and 2.9, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder (including
claims of, or payments to, the Trustee under or pursuant to Section
7.7) and (D) this Article 9. Subject to compliance with this
Article 9, the Company may exercise its option under this Section
9.2 with respect to the Securities of any Series notwithstanding
the prior exercise of its option under Section 9.3 below with
respect to the Securities of such Series.
25
9.3
COVENANT DEFEASANCE.
At the
option of the Company, pursuant to a Board Resolution, the Company
shall be released from its obligations with respect to the
outstanding Securities of any Series under Sections 4.2 through
4.5, inclusive, and Section 5.1, with respect to the outstanding
Securities of such Series, on and after the date the conditions set
forth in Section 9.4 are satisfied (hereinafter,
“Covenant
Defeasance”). For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in any such specified section or portion thereof, whether
directly or indirectly by reason of any reference elsewhere herein
to any such specified Section or portion thereof or by reason of
any reference in any such specified section or portion thereof to
any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of any Series shall
be unaffected thereby.
9.4
CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The
following shall be the conditions to application of Section 9.2 or
Section 9.3 to the outstanding Securities of a Series:
(1) the
Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this
Article 9 applicable to it) as funds in trust for the purpose of
making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the
Securities, (A) money in an amount, or (B) U.S. Government
Obligations or Foreign Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due
date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, and
accrued interest and premium, if any, on, the outstanding
Securities of such Series at the Stated Maturity of such principal,
interest or premium, if any, or on dates for payment and redemption
of such principal, interest and premium, if any, selected in
accordance with the terms of this Indenture and of the Securities
of such Series;
(2) no
Event of Default or Default with respect to the Securities of such
Series shall have occurred and be continuing on the date of such
deposit, or shall have occurred and be continuing at any time
during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration
of the longest preference period under any Bankruptcy Law
applicable to the Company in respect of such deposit as specified
in the Opinion of Counsel identified in paragraph (8) below (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period);
(3)
such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the TIA with
respect to any securities of the Company;
(4)
such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute default under, any other
agreement or instrument to which the Company is a party or by which
it is bound;
(5) the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to
register as an investment company under the Investment Company Act
of 1940, as amended;
(6) in
the case of an election under Section 9.2, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the
Internal Revenue Service a ruling to the effect that or (ii) there
has been a change in any applicable Federal income tax law with the
effect that, and such opinion shall confirm that, the Holders of
the outstanding Securities of such Series or Persons in their
positions will not recognize income, gain or loss for Federal
income tax purposes solely as a result of such Legal Defeasance and
will be subject to Federal income tax on the same amounts, in the
same manner, including as a result of prepayment, and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(7) in
the case of an election under Section 9.3, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the outstanding Securities of such Series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such Covenant Defeasance, and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had
not occurred;
(8) the
Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for in this Article 9 relating to
either the Legal Defeasance under Section 9.2 or the Covenant
Defeasance under Section 9.3 (as the case may be) have been
complied with;
26
(9) the
Company shall have delivered to the Trustee an Officers’
Certificate stating that the deposit under clause (1) was not made
by the Company with the intent of defeating, hindering, delaying or
defrauding any creditors of the Company or others; and
(10)
the Company shall have paid, or duly provided for payment under
terms mutually satisfactory to the Company and the Trustee, all
amounts then due to the Trustee pursuant to Section
7.7.
9.5
DEPOSITED MONEY AND U.S. AND FOREIGN GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
All
money, U.S. Government Obligations and Foreign Government
Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 9.4 in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of
principal, accrued interest and premium, if any, but such money
need not be segregated from other funds except to the extent
required by law.
The
Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government
Obligations and Foreign Government Obligations deposited pursuant
to Section 9.4 or the principal, interest and premium, if any,
received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the
outstanding Securities.
Anything in this
Article 9 to the contrary notwithstanding, but subject to payment
of any of its outstanding fees and expenses, the Trustee shall
deliver or pay to the Company from time to time upon Company
Request any money, U.S. Government Obligations or Foreign
Government Obligations held by the Trustee as provided in Section
9.4 which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
9.6
REINSTATEMENT.
If the
Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations or Foreign Government Obligations in
accordance with Section 9.1, 9.2, 9.3 or 9.4 by reason of any legal
proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s obligations under
this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to this Article 9 until
such time as the Trustee or Paying Agent is permitted to apply all
such money, U.S. Government Obligations or Foreign Government
Obligations, as the case may be, in accordance with Section 9.1,
9.2, 9.3 or 9.4; PROVIDED, HOWEVER, that if the Company has made
any payment of principal of, or accrued interest or premium, if
any, on, any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money,
U.S. Government Obligations or Foreign Government Obligations held
by the Trustee or Paying Agent.
9.7
MONEYS HELD BY PAYING AGENT.
In
connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the
Trustee, or, if sufficient moneys have been deposited pursuant to
Section 9.1, to the Company, and thereupon such Paying Agent shall
be released from all further liability with respect to such
moneys.
9.8
MONEYS HELD BY TRUSTEE.
Any
moneys deposited with the Trustee or any Paying Agent or then held
by the Company in trust for the payment of the principal of, or
interest or premium, if any, on, any Security that are not applied
but remain unclaimed by the Holder of such Security for two years
after the date upon which the principal of, or interest or premium,
if any, on, such Security shall have respectively become due and
payable shall be repaid to the Company upon Company Request, or if
such moneys are then held by the Company in trust, such moneys
shall be released from such trust; and the Holder of such Security
entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof,
and all liability of the Trustee or such Paying Agent with respect
to such trust money shall thereupon cease; PROVIDED, HOWEVER, that
the Trustee or any such Paying Agent, before being required to make
any such repayment, may, at the expense of the Company, either mail
to each Securityholder affected, at the address shown in the
register of the Securities maintained by the Registrar, or cause to
be published once a week for two successive weeks, in a newspaper
published in the English language, customarily published each
Business Day and of general circulation in the City of New York,
New York, a 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 mailing or publication, any unclaimed
balance of such moneys then remaining will be repaid to the
Company. After payment to the Company or the release of any money
held in trust by the Company, Securityholders entitled to the money
must look only to the Company for payment as general creditors,
unless applicable abandoned property law designates another
Person.
27
ARTICLE 10
MISCELLANEOUS
10.1
TRUST INDENTURE ACT CONTROLS.
If any
provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this
Indenture by the TIA, the required provision shall control. If any
provision of this Indenture modifies or excludes any provision of
the TIA which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
10.2
NOTICES.
Any
notice or communication shall be given in writing and delivered in
Person, sent by facsimile (and receipt confirmed by telephone or
electronic transmission report), delivered by commercial courier
service or mailed by first-class mail, postage prepaid, addressed
as follows:
If to
the Company:
BK
Technologies Corporation
7100
Technology Drive
West
Melbourne, FL 32904
Attention: Chief
Financial Officer
Telephone: (321)
984-1414
Copy
to:
Kirton
McConkie PC
50 E.
South Temple
Salt
Lake City, UT 84111
Attention:
Alexander N. Pearson
Fax:
(801) 212-2006
Telephone: (801)
328-3600
If to
the Trustee:
The
Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or
communications. Any notice or communication to the Company or the
Trustee shall be deemed to have been given or made as of the date
so delivered if personally delivered; on the next business day if
mailed via an overnight courier, when receipt is confirmed by
telephone or electronic transmission report if sent by facsimile;
and three Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of
address shall not be deemed to have been given until actually
received by the addressee).
Any
notice or communication mailed to a Securityholder shall be mailed
to such Securityholder by first-class mail, postage prepaid, at
such Securityholder’s address shown on the register kept by
the Registrar.
Failure
to mail, or any defect in, a notice or communication to a
Securityholder shall not affect its sufficiency with respect to
other Securityholders. If a notice or communication to a
Securityholder is mailed in the manner provided above, it shall be
deemed duly given, three Business Days after such mailing, whether
or not the addressee receives it.
In case
by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as
shall be made with the approval of the Trustee shall constitute a
sufficient mailing of such notice.
28
In the
case of Global Securities, notices or communications to be given to
Securityholders shall be given to the Depository, in accordance
with its applicable policies as in effect from time to
time.
In
addition to the manner provided for in the foregoing provisions,
notices or communications to Securityholders shall be given by the
Company by release made to Reuters Economic Services and Bloomberg
Business News.
10.3
COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders of
any Series may communicate pursuant to TIA Section 312(b) with
other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of
that Series or any other Series. The Company, the Trustee, the
Registrar and any other Person shall have the protection of TIA
Section 312(c).
10.4
CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon
any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an
Officers’ Certificate (which shall include the statements set
forth in Section 10.5 below) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(2) an
Opinion of Counsel (which shall include the statements set forth in
Section 10.5 below) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
10.5
STATEMENT REQUIRED IN CERTIFICATE AND OPINION.
Each
certificate and opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than pursuant to
Section 4.4) shall include:
(1) a
statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) 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;
(3) a
statement that, in the opinion of such Person, it or he has made
such examination or investigation as is necessary to enable it or
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a
statement as to whether or not, in the opinion of such Person, such
covenant or condition has been complied with.
10.6
RULES BY TRUSTEE AND AGENTS.
The
Trustee may make reasonable rules for action by or at meetings of
Securityholders. The Registrar and Paying Agent may make reasonable
rules for their functions.
10.7
BUSINESS DAYS; LEGAL HOLIDAYS; PLACE OF PAYMENT.
A
“Business
Day” is a day that is not a Legal Holiday. A
“Legal
Holiday” is a Saturday, a Sunday, a
federally-recognized holiday or a day on which banking institutions
are not authorized or required by law, regulation or executive
order to be open in the State of New York.
29
If a
payment date is a Legal Holiday at a Place of Payment, payment may
be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening
period. “Place of
Payment” means the place or places where the principal
of, and interest and premium, if any, on, the Securities of a
Series are payable as specified as contemplated by Section 2.2. If
the regular record date is a Legal Holiday, the record date shall
not be affected.
10.8
GOVERNING LAW.
THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
10.9
NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This
Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary
thereof. No such indenture, loan, security or debt agreement may be
used to interpret this Indenture.
10.10
NO RECOURSE AGAINST OTHERS.
A
director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of
the Company under the Securities or the Indenture. Each
Securityholder by accepting a Security waives and releases all such
liability. Such waiver and release are part of the consideration
for the issuance of the Securities.
10.11
SUCCESSORS.
All
covenants and agreements of the Company in this Indenture and the
Securities shall bind the Company’s successors and assigns,
whether so expressed or not. All agreements of the Trustee, any
additional trustee and any Paying Agents in this Indenture shall
bind their respective successors and assigns.
10.12
MULTIPLE COUNTERPARTS.
The
parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them
together represent one and the same agreement.
10.13
TABLE OF CONTENTS, HEADINGS, ETC.
The
table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.
10.14
SEVERABILITY.
Each
provision of this Indenture shall be considered separable, and if
for any reason any provision which is not essential to the
effectuation of the basic purpose of this Indenture or 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, and a Holder
shall have no claim therefor against any party hereto.
30
10.15
SECURITIES IN A FOREIGN CURRENCY OR IN EUROS.
Unless
otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate delivered pursuant to
Section 2.2 with respect to a particular Series of Securities,
whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount
of Securities of all Series or all Series affected by a particular
action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a
coin or currency other than Dollars (including Euros), then the
principal amount of Securities of such Series which shall be deemed
to be outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such amount at
the Market Exchange Rate at such time. For purposes of this Section
10.15, “Market
Exchange Rate” shall mean the noon Dollar buying rate
in New York City for cable transfers of that currency as published
by the Federal Reserve Bank of New York; PROVIDED, HOWEVER, in the
case of Euros, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Union (or any
successor thereto) as published in the Official Journal of the
European Union (such publication or any successor publication, the
“Journal”). If such Market
Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank
of New York or, in the case of Euros, the rate of exchange as
published in the Journal, as of the most recent available date, or
quotations or, in the case of Euros, rates of exchange from one or
more major banks in New York City or in the country of issue of the
currency in question or, in the case of Euros, in Luxembourg or
such other quotations or, in the case of Euros, rates of exchange
as the Trustee, upon consultation with the Company, shall deem
appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of
Securities of a Series denominated in currency other than Dollars
in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture.
All
decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in the Trustee’s sole
discretion, and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
10.16
JUDGMENT CURRENCY.
The
Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in
respect of the principal of, or interest or premium, if any, or
other amount on, the Securities of any Series (the
“Required
Currency”) into a currency in which a judgment will be
rendered (the “Judgment Currency”), the
rate of exchange used shall be the rate at which, in accordance
with normal banking procedures, the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency
on the day on which final unappealable judgment is entered, unless
such day is not a Business Day, in which instance, the rate of
exchange used shall be the rate at which, in accordance with normal
banking procedures, the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment
is entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or
satisfied by any tender or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)) in any
currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to
be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under
this Indenture.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
31
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first
above written.
|
|
BK TECHNOLOGIES CORPORATION
|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
|
[Name of Trustee]
|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
32
Exhibit 5.1
December 11, 2020
BK Technologies Corporation
7100 Technology Drive
West Melbourne, FL 32904
Re: BK
Technologies Corporation Registration Statement on Form
S-3
Ladies and Gentlemen:
We
have acted as counsel to BK Technologies Corporation, a Nevada
corporation (the “Company”), in connection with the
preparation and filing with the Securities and Exchange Commission
(the “Commission”) of the Company’s Registration
Statement on Form S-3, dated the date hereof (the
“Registration Statement”), under the Securities Act of
1933, as amended (the “Securities Act”).
The
Registration Statement relates to the proposed offer, issuance and
sale from time to time on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act, as set forth in the Registration
Statement, the prospectus contained therein and any supplement to
the prospectus, of the following securities of the
Company:
(i)
shares
of common stock, par value $0.60 per share, of the Company (the
“Common Stock”);
(ii)
shares
of preferred stock, par value $1.00 per share, of the Company (the
“Preferred Stock”);
(iii)
senior
debt securities, in one or more series (the “Senior Debt
Securities”), which will be issued under an indenture, a form
of which is filed as an exhibit to the Registration Statement (as
amended or supplemented, the “Indenture”), to be
entered into by and between the Company and the trustee named
therein;
(iv)
subordinated
debt securities, in one or more series (together with the Senior
Debt Securities, the “Debt Securities”), which will be
issued under the Indenture;
(v)
depositary
shares (the “Depositary Shares”) that are interests in
shares of the Common Stock or the Preferred Stock, which will be
issued pursuant to a deposit agreement, which will be filed at a
later date by amendment or as an exhibit to a document incorporated
by reference into the Registration Statement, to be entered into by
and between the Company and a depositary institution;
(vi)
warrants
to purchase the Common Stock, the Preferred Stock, the Depositary
Shares, the Debt Securities or units consisting of two or more of
these types of securities (the “Warrants”), which will
be issued pursuant to a warrant agreement, which will be filed at a
later date by amendment or as an exhibit to a document incorporated
by reference into the Registration Statement, to be entered into by
and between the Company and a bank or trust company as warrant
agent; and
(vii)
units
comprised of one or more of the Common Stock, the Preferred Stock,
the Depositary Shares, the Debt Securities and the Warrants (the
“Units” and, together with the Common Stock, the
Preferred Stock, the Debt Securities, the Depositary Shares and the
Warrants, the “Securities”), which will be issued
pursuant to a unit purchase contract agreement (the “Unit
Agreement”), which will be filed at a later date by amendment
or as an exhibit to a document incorporated by reference into the
Registration Statement.
It
is understood that the opinions set forth below are to be used only
in connection with the offer, issuance and sale of the Securities
while the Registration Statement is in effect. The Registration
Statement provides that the Securities may be offered in amounts,
at prices and on terms to be set forth in one or more prospectus
supplements or free writing prospectuses.
The
Company has informed us that the Securities will be sold or
delivered on a delayed or continuous basis from time to time in
amounts, at prices, and on terms to be determined in light of
market conditions at the time of sale, and as set forth in the
Registration Statement (and any amendments thereto), the prospectus
contained therein and any prospectus supplement. We understand that
prior to the sale of any Securities under the Registration
Statement, the Company will afford us an opportunity to review the
operative documents pursuant to which such Securities are to be
sold and will file any applicable amendment to the Registration
Statement, Current Report on Form 8-K (which may include as an
exhibit an amendment to this opinion), or prospectus supplement as
we may reasonably consider necessary or appropriate by reason of
the terms of the sale of such Securities.
In
connection with this opinion, we have examined originals or copies
(certified or otherwise identified to our satisfaction) of
(i) the articles of incorporation of the Company, as amended
(“Articles”); (ii) the bylaws of the Company
currently in effect (together with the Articles, the
“Organizational Documents”); (iii) the
Registration Statement and the exhibits thereto; (iv) the
prospectus contained within the Registration Statement;
(v) such corporate records, agreements, documents and other
instruments; and (vi) such certificates or comparable
documents of public officials and other sources believed by us to
be reliable, and of officers and representatives of the Company,
and have made such inquiries of such officers and representatives,
as we have deemed relevant and necessary as a basis for the
opinions set forth below.
In
our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as facsimile,
electronic, certified or photostatic copies, and the authenticity
of the originals of such copies. In making our
examination of executed documents, we have assumed that the parties
thereto, other than the Company, had the power, corporate or
otherwise, to enter into and perform all obligations thereunder and
have also assumed the due authorization of all requisite action,
corporate or other, and the execution and delivery by such parties
of such documents and the validity and binding effect thereof on
such parties. As to any facts material to the opinions
expressed herein that we did not independently establish or verify,
we have relied upon the statements and representations of officers
and other representatives of the Company and of public
officials.
We
have also assumed that (i) the Registration Statement and any
amendments or supplements thereto (including any post-effective
amendments) will have become effective and comply with all
applicable laws and no stop order suspending the Registration
Statement’s effectiveness will have been issued and remain in
effect, in each case, at the time the Securities are offered or
issued as contemplated by the Registration Statement; (ii) a
prospectus supplement will have been prepared and filed with the
Commission describing the Securities offered thereby and will at
all relevant times comply with all applicable laws; (iii) the
Company will have filed in a timely manner all necessary reports
pursuant to the Securities Exchange Act of 1934, as amended, which
are incorporated into the Registration Statement by reference;
(iv) the definitive terms of each class and/or series of
Securities will have been established in accordance with the
authorizing resolutions of the Company’s board of directors
(the “Board”), the Organizational Documents, any
appropriate certificates of designation relating to a class or
series of the Preferred Stock, and applicable law; (v) all
Securities will be issued and sold in compliance with applicable
federal and state securities laws and in the manner stated in the
Registration Statement and the appropriate prospectus supplement;
(vi) a definitive purchase, underwriting or similar agreement
and any other necessary agreement with respect to any Securities
will have been duly authorized and validly executed and delivered
by the Company and the other party or parties thereto;
(vii) any Indenture, deposit agreement, warrant agreement, or
Unit Agreement will be governed by and construed in accordance with
the laws of the State of New York and will constitute a valid and
binding obligation of each party thereto other than the Company;
and (viii) the Company will issue and deliver the Securities
in the manner contemplated by the Registration Statement, and any
Securities, including the Common Stock, Preferred Stock or any
other Securities issuable upon conversion, exchange, or exercise of
any other Security, will have been duly authorized and reserved for
issuance from the applicable class of capital stock of the Company,
in each case within the limits of such class of capital stock then
remaining authorized by the Articles but unreserved and
unissued.
Based
upon and subject to the foregoing, it is our opinion
that:
1.
Common Stock. Assuming that the issuance, sale, and terms of any
Common Stock and the terms of the offering thereof have been duly
authorized by appropriate corporate action of the Company, when
(i) the Company has received the consideration therefor
specified in any applicable underwriting agreement or purchase
agreement approved by the Board or any authorized committee
thereof, (ii) the consideration for such Common Stock is at
least equal to the aggregate par value of such Common Stock,
(iii) in the case of any Common Stock to be issued under any
Warrants, upon due exercise and delivery of any payment of the
exercise price specified in such Warrants, and (iv) in the
case of any Common Stock to be issued upon the exchange or
conversion of Debt Securities and other rights that are
exchangeable for or convertible into Common Stock, due exercise of
such exchange or conversion rights in accordance with the terms of
the applicable instruments, such Common Stock (including any Common
Stock that may be issued as part of Units or upon exercise,
conversion, exchange or otherwise pursuant to the terms of any
other Securities) will be validly issued, fully paid and
non-assessable.
2.
Preferred Stock. With respect to any series of Preferred Stock,
when (i) the Board has taken all corporate action necessary to
approve the final terms of the issuance and sale of such Preferred
Stock, (ii) the terms, rights, and preferences of the series of the
Preferred Stock have been duly established in conformity with the
applicable organizational documents and applicable state laws, and
(iii) the Company has received the consideration therefor and such
consideration per share is not less than the par value per share of
the Preferred Stock, the Preferred Stock will be validly issued,
fully paid and non-assessable.
3.
Debt Securities. Assuming that the issuance, sale, and terms of any
Debt Securities and the terms of the offering thereof have been
duly authorized by appropriate corporate action of the Company,
when (i) an Indenture, as required by the Registration
Statement, has been duly executed, authorized and delivered by all
parties thereto substantially in the form so filed, and any
applicable supplemental indenture relating to such Debt Securities
has been duly executed, authorized and delivered by all parties
thereto, (ii) the terms of the Debt Securities to be issued
under the applicable Indenture and any applicable supplemental
indenture and of their issuance and sale have been duly established
in conformity with such Indenture and any applicable supplemental
indenture so as not to violate any applicable law, affect the
enforceability of such Debt Securities or result in a default under
or breach of any agreement or instrument binding on 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 (iii) the Debt Securities have been duly executed
and authenticated in accordance with such applicable Indenture and
any applicable supplemental indenture and issued and sold as
contemplated in the Registration Statement and any prospectus
supplement relating thereto, and in accordance with any
underwriting agreement or purchase agreement approved by the Board
or any authorized committee thereof, such Debt Securities
(including any Debt Securities that may be issued as part of Units
or otherwise pursuant to the terms of any other Securities) will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms.
4.
Depositary Shares. With respect to the Depositary Shares, when (a)
the Board has taken all corporate action necessary to approve the
final terms of the issuance and sale of the Depositary Shares, (b)
the deposit agreement relating to the Depositary Shares has been
duly authorized, executed and delivered, (c) the Depositary Shares
have been executed, countersigned and delivered in accordance with
the applicable deposit agreement against payment therefor and
as contemplated in the Registration
Statement and any prospectus supplement relating thereto, and in
accordance with any underwriting agreement or purchase agreement
approved by the Board or any authorized committee thereof,
and (d) the Company has received the consideration therefor, the
Depositary Shares will constitute valid and legally binding
obligations of the Company enforceable in accordance with their
terms.
5.
Warrants. Assuming that the issuance, sale, and terms of such
Warrants and the terms of the offering thereof have been duly
authorized by appropriate corporate action of the Company, when
(i) the Warrant agreement or Warrant agreements relating to
such Warrants have been duly authorized, executed and delivered by
the Company, and the warrant agent has been appointed by the
Company, (ii) the terms of such Warrants have been duly
established 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 or regulatory body having
jurisdiction over the Company, and (iii) such Warrants and any
certificates representing such Warrants have been duly executed,
authenticated, issued, paid for and delivered as contemplated in
the Registration Statement and any prospectus supplement relating
thereto, and in accordance with any underwriting agreement or
purchase agreement approved by the Board or any authorized
committee thereof, such Warrants (including any Warrants that may
be issued as part of Units or otherwise pursuant to the terms of
any other Securities) will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms.
6.
Units. Assuming that the issuance, sale, and terms of such Units
and the terms of the offering thereof have been duly authorized by
appropriate corporate action of the Company, when (i) the Unit
agreement or Unit agreements relating to such Units have been duly
authorized, executed and delivered by the Company and the warrant
agent (as applicable) appointed by the Company, (ii) the terms
of such Units have been duly established so as not to violate any
applicable law, affect the enforceability of such Units 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 or regulatory body
having jurisdiction over the Company, and (iii) such Units
have been duly executed and authenticated in accordance with the
applicable Unit agreement and issued, paid for, and delivered as
contemplated in the Registration Statement and any prospectus
supplement relating thereto, and any underwriting agreement or
purchase agreement approved by the Board or any authorized
committee thereof, such Units (including any Units that may be
issued upon exercise, conversion, exchange or otherwise pursuant to
the terms of any other Securities) will constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms.
The
opinions expressed above with respect to validity, binding effect
and enforceability are subject to (i) applicable bankruptcy,
insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, (ii) other commonly
recognized statutory and judicial constraints on enforceability
including statutes of limitations, and (iii) public policy
considerations that may limit the rights of parties to obtain
certain remedies, and are subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and
except that rights to indemnification and contribution thereunder
may be limited by federal or state securities laws or public policy
relating thereto.
We
are members of the bar of the State of Utah and do not express any
opinion in this letter covering any law other than the law of the
State of Utah, Chapter 78 (Private Corporations) of the Nevada
Revised Statutes, the laws of the State of New York, and the
applicable federal law of the United States of America, in each
case as in effect on the date hereof. The opinions expressed herein
that are based on the laws of the State of New York are limited to
the laws generally applicable in transactions of the type covered
by the Registration Statement.
This
opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. We
consent to the use of this opinion as an exhibit to the
Registration Statement. 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 Securities and Exchange Commission
promulgated thereunder.
Very
truly yours,
KIRTON
MCCONKIE PC
/s/
Kirton McConkie PC
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
BK
Technologies Corporation
West
Melbourne, Florida
We hereby consent to the use in this Registration Statement on Form
S-3 of BK Technologies Corporation (the “Company”) of
our report dated March 4, 2020, relating to the consolidated
financial statements of the Company as of December 31, 2019
and 2018 and for each of the years in the two-year period ended
December 31, 2019, which appears in this Registration
Statement.
We also
consent to the reference to us under the caption
“Experts” in the Prospectus.
Orlando,
Florida
December
11, 2020