United States Antimony Corp S-3, filed Jan 19, 2021
United States Antimony Corp (UAMY)
S-3
2021-01-19
View Original
Added on
October 19, 2026
As filed with the Securities and Exchange Commission on January 19,
2021
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
United States Antimony Corporation
(Exact
Name of Registrant as Specified in Its Charter)
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Montana
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81-0305822
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(State
or Other Jurisdiction of Incorporation or
Organization)
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(I.R.S.
Employer Identification Number)
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47 Cox Gulch
P.O. Box 643
Thompson Falls, Montana 59873
(406) 827-3523
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of
Registrant’s Principal Executive Offices)
John Gustavsen
Interim Chief Executive Officer
49 Steamboat Way
Thompson Falls, Montana 59873
(406) 827-3523
(Name,
Address, Including Zip Code, and Telephone Number, Including Area
Code, of Agent for Service)
Copies to:
M. Ali Panjwani
Michael T. Campoli
Pryor Cashman LLP
7 Times Square
New York, New York 10036
(212) 326-0820
Approximate date of commencement of proposed
sale to the public: From time to time after the effective
date of this registration statement.
If the
only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If any
of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☒
If this
form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ☐
If this
form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this
form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box. ☐
If this
form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to rule 413(b) under the Securities Act, check the following box.
☐
Indicate by check
mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
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:
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Large
accelerated filer ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☐
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Smaller
reporting company ☒
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(Do not
check if a smaller
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Emerging
growth company ☐
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reporting
company)
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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 Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title
of Each Class of Securities To Be Registered(1)
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Amount
To Be Registered(1)
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Proposed
Maximum Offering Price Per Share(2)
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Proposed
Maximum Aggregate OfferingPrice(2)
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Amount
Of Registration Fee(3)
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Common Stock, par
value $0.01 per share
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Preferred Stock,
par value $0.01 per share
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Debt
Securities
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Warrants
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Rights
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Units
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TOTAL
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$25,000,000
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N/A
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$25,000,000
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$2,727.50
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(1)
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There
are being registered under this Registration Statement such
indeterminate number of shares of common stock and preferred stock,
such indeterminate principal amount of debt securities, such
indeterminate number of warrants to purchase common stock,
preferred stock and/or debt securities, such indeterminate number
of rights to purchase common stock or preferred stock and such
indeterminate number of units as may be sold by the Registrant from
time to time, which together shall have an aggregate initial
offering price not to exceed $25,000,000. If the Registrant issues
any debt securities at an original issue discount, then the
offering price of such debt securities shall be in such greater
principal amount at maturity as shall result in an aggregate
offering price not to exceed $25,000,000, less the aggregate dollar
amount of all securities previously issued hereunder. The
Registrant may sell any securities it is registering under this
Registration Statement separately or as units with the other
securities it is registering under this Registration Statement. The
Registrant will determine, from time to time, the proposed maximum
offering price per unit in connection with its issuance of the
securities it is registering under this Registration Statement. The
securities it is registering under this Registration Statement also
include such indeterminate number of shares of common stock and
preferred stock and such indeterminate principal amount of debt
securities as the Registrant may issue upon conversion of or
exchange for preferred stock or debt securities that provide for
conversion or exchange, upon exercise of warrants or rights or
pursuant to the anti-dilution provisions of any of such securities.
In addition, pursuant to Rule 416 under the Securities Act of 1933,
as amended (the “Securities Act”), the shares the
Registrant is registering under this Registration Statement include
such indeterminate number of shares of common stock and preferred
stock as may be issuable with respect to the shares the Registrant
is registering as a result of stock splits, stock dividends or
similar transactions.
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(2)
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The
Registrant will determine the proposed maximum aggregate offering
price per class of security from time to time in connection with
its issuance of the securities the Registrant is registering under
this Registration Statement and the Registrant is not specifying
such price as to each class of security pursuant to General
Instruction II.D. of Form S-3 under the Securities
Act.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities Act, which permits the
registration fee to be calculated on the basis of the maximum
aggregate offering price of all securities listed.
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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 or
until the Registration Statement shall become effective on such
date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
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 it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED JANUARY 19, 2021
PRELIMINARY PROSPECTUS
UNITED STATES ANTIMONY CORPORATION
$25,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
We may
offer from time to time shares of our common stock, preferred
stock, senior debt securities (which may be convertible into or
exchangeable for common stock), subordinated debt securities (which
may be convertible into or exchangeable for common stock),
warrants, rights and units that include any of these securities.
The aggregate initial offering price of the securities sold under
this prospectus will not exceed $25,000,000. We will offer the
securities in amounts, at prices and on terms to be determined at
the time of the offering.
Each
time we sell securities hereunder, we will attach a supplement to
this prospectus that contains specific information about the terms
of the offering, including the price at which we are offering the
securities to the public. The prospectus supplement may also add,
update or change information contained or incorporated in this
prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with these
offerings. You should read this prospectus, the information
incorporated by reference in this prospectus, the applicable
prospectus supplement and any applicable free writing prospectus
carefully before you invest in our securities.
The
securities hereunder may be offered directly by us, through agents
designated from time to time by us or to or through underwriters or
dealers. If any agents, dealers or underwriters are involved in the
sale of any 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 section
entitled “About This Prospectus” for more
information.
Our
common stock is listed on the NYSE American under the symbol
“UAMY”. The last reported sales price of our common
stock on the NYSE American on January 15, 2021 was $0.71 per
share.
Investing
in our securities involves certain risks. See “Risk
Factors” beginning on page 2 of this prospectus and in the
applicable prospectus supplement, as updated in our future filings
made with the Securities and Exchange Commission that are
incorporated by reference into this prospectus. You should
carefully read and consider these risk factors before you invest in
our securities.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of this prospectus is
January
, 2021
TABLE OF CONTENTS
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ABOUT
THIS PROSPECTUS
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ii
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FORWARD-LOOKING
STATEMENTS
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iii
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ABOUT
THE COMPANY
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1
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RISK
FACTORS
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2
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RATIO
OF EARNINGS TO FIXED CHARGES
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3
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USE OF
PROCEEDS
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3
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DESCRIPTION
OF CAPITAL STOCK
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4
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DESCRIPTION
OF COMMON STOCK
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4
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DESCRIPTION
OF PREFERRED STOCK
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5
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DESCRIPTION
OF DEBT SECURITIES
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7
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DESCRIPTION
OF WARRANTS
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9
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DESCRIPTION
OF RIGHTS
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10
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DESCRIPTION
OF UNITS
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11
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PLAN
OF DISTRIBUTION
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12
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LEGAL
MATTERS
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13
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EXPERTS
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13
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
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13
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WHERE
YOU CAN FIND MORE INFORMATION
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14
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The
distribution of this prospectus may be restricted by law in certain
jurisdictions. You should inform yourself about and observe any of
these restrictions. If you are in a jurisdiction where offers to
sell, or solicitations of offers to purchase, the securities
offered by this document are unlawful, or if you are a person to
whom it is unlawful to direct these types of activities, then the
offer presented in this prospectus does not extend to
you.
We have
not authorized anyone to give any information or make any
representation about us that is different from, or in addition to,
that contained in this prospectus, including in any of the
materials that we have incorporated by reference into this
prospectus, any accompanying prospectus supplement, and any free
writing prospectus prepared or authorized by us. Therefore, if
anyone does give you information of this sort, you should not rely
on it as authorized by us. You should rely only on the information
contained or incorporated by reference in this prospectus and any
accompanying prospectus supplement.
You
should not assume that the information contained in this prospectus
and any accompanying supplement to this prospectus is accurate on
any date subsequent to the date set forth on the front of the
document or that any information we have incorporated by reference
is correct on any date subsequent to the date of the document
incorporated by reference, even though this prospectus and any
accompanying supplement to this prospectus is delivered or
securities are sold on a later date. Neither the delivery of this
prospectus, nor any sale made hereunder, shall under any
circumstances create any implication that there has been no change
in our affairs since the date hereof or that the information
incorporated by reference herein is correct as of any time
subsequent to the date of such information.
i
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we
filed with the Securities and Exchange Commission, or the SEC,
using a “shelf” registration process. Under this shelf
registration process, we may, from time to time, offer and sell any
combination of the securities described in this prospectus in one
or more offerings. The aggregate initial offering price of all
securities sold under this prospectus will not exceed
$25,000,000.
This
prospectus provides certain general information about the
securities that we may offer hereunder. Each time we sell
securities, we will provide a prospectus supplement that will
contain specific information about the terms of the offering and
the offered securities. We may also authorize one or more free
writing prospectuses to be provided to you that may contain
material information relating to these offerings. In each
prospectus supplement, we will include the following
information:
●
the
number and type of securities that we propose to sell;
●
the
public offering price;
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the
names of any underwriters, agents or dealers through or to which
the securities will be sold;
●
any
compensation of those underwriters, agents or dealers;
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any
additional risk factors applicable to the securities or our
business and operations; and
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any
other material information about the offering and sale of the
securities.
In
addition, the prospectus supplement or free writing prospectus may
also add, update or change the information contained in this
prospectus or in documents incorporated by reference in this
prospectus. The prospectus supplement or free writing prospectus
will supersede this prospectus to the extent it contains
information that is different from, or that conflicts with, the
information contained in this prospectus or incorporated by
reference in this prospectus. You should read and consider all
information contained in this prospectus, any accompanying
prospectus supplement and any free writing prospectus that we have
authorized for use in connection with a specific offering, in
making your investment decision. You should also read and consider
the information contained in the documents identified under the
heading “Incorporation of Certain Documents by
Reference” and “Where You Can Find More
Information” in this prospectus.
We
further note that the representations, warranties and covenants
made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference in this prospectus were
made solely for the benefit of the parties to such agreement,
including, in some cases, for the purpose of allocating risk among
the parties to such agreements, and should not be deemed to be a
representation, warranty or covenant to you. Moreover, such
representations, warranties or covenants were accurate only as of
the date when made. Accordingly, such representations, warranties
and covenants should not be relied on as accurately representing
the current state of our affairs.
Unless
the context otherwise required, “United States Antimony
Corporation,” “UAMY,” “USAC,”
“the Company,” “we,” “us,”
“our” and similar terms refer to United States Antimony
Corporation and its subsidiaries.
ii
Some of
the statements contained or incorporated by reference in this
prospectus may be “forward-looking statements” within
the meaning of Section 27A of the Securities Act of 1933, as
amended (the “Securities Act”), and Section 21E of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and may involve material risks, assumptions and
uncertainties. Forward-looking statements typically are identified
by the use of terms such as “may,” “will,”
“should,” “believe,” “might,”
“expect,” “anticipate,”
“intend,” “plan,” “estimate”
and similar words, although some forward-looking statements are
expressed differently.
Although we believe
that the expectations reflected in such forward-looking statements
are reasonable, these statements are not guarantees of future
performance and involve certain risks and uncertainties that are
difficult to predict and which may cause actual outcomes and
results to differ materially from what is expressed or forecasted
in such forward-looking statements. These forward-looking
statements speak only as of the date on which they are made and
except as required by law, we undertake no obligation to publicly
release the results of any revision or update of these
forward-looking statements, whether as a result of new information,
future events or otherwise. If we do update or correct one or more
forward-looking statements, you should not conclude that we will
make additional updates or corrections with respect thereto or with
respect to other forward-looking statements. A detailed discussion
of risks and uncertainties that could cause actual results and
events to differ materially from our forward-looking statements is
included in our periodic reports filed with the SEC and in the
“Risk Factors” section of this prospectus.
iii
ABOUT THE COMPANY
This summary highlights information contained elsewhere in this
prospectus. This summary does not contain all of the information
that you should consider before deciding to invest in our company.
You should read this entire prospectus carefully, including
the information in our filings with the Securities and Exchange
Commission, or SEC, incorporated by reference in this
prospectus.
Overview
United
States Antimony Corporation, or USAC, was incorporated in Montana
in January 1970 to mine and produce antimony products. In December
1983, we suspended antimony mining operations but continued to
produce antimony products from domestic and foreign sources. In
April 1998, we formed United States Antimony SA de CV or USAMSA, to
mine and smelt antimony in Mexico. Bear River Zeolite Company, or
BRZ, was incorporated in 2000, and it is mining and producing
zeolite in southeastern Idaho. On August 19, 2005, USAC formed
Antimonio de Mexico, S. A. de C. V. to explore and develop antimony
and silver deposits in Mexico. Our principal business is the
production and sale of antimony, silver, gold and zeolite products.
On May 16, 2012, we started trading on the NYSE MKT (now NYSE
AMERICAN) under the symbol UAMY.
Corporate Information
Our corporate offices are located at 47 Cox Gulch,
P.O. Box 643, Thompson Falls, Montana 59873. Our telephone number
is (406) 827-3523. Our Internet address is www.usantimony.com.
On this web site, we post the following filings as soon as
reasonably practicable after they are electronically filed with or
furnished to the U.S. Securities and Exchange Commission
(“SEC”): our Annual Reports on Form 10-K; our
Quarterly Reports on Form 10-Q; our Current Reports on Form 8-K;
our proxy statements related to our annual stockholders’
meetings; and any amendments to those reports or statements. All
such filings are available on our web site free of charge. We do
not incorporate the information on or accessible through our
website into this prospectus, and you should not consider any
information on, or that can be accessed through, our website as a
part of this prospectus. Our company is a “smaller reporting
company” as defined in Rule 12b-2 of the Exchange Act, and we
have elected to take advantage of certain of the scaled disclosure
available to smaller reporting companies under the Exchange
Act.
1
RISK FACTORS
An
investment in our securities involves a high degree of risk. Before
making any investment decision, you should carefully consider the
risk factors set forth below, the information under the caption
“Risk Factors” in any applicable prospectus supplement,
any related free writing prospectus that we may authorize to be
provided to you and the information under the caption “Risk
Factors” in our annual report on Form 10-K and quarterly
reports on Form 10-Q that are incorporated by reference in this
prospectus, as updated by our subsequent filings under the Exchange
Act.
These
risks could materially affect our business, results of operation or
financial condition and affect the value of our securities.
Additional risks and uncertainties that are not yet identified may
also materially harm our business, operating results and financial
condition and could result in a complete loss of your investment.
You could lose all or part of your investment. For more
information, see “Where You Can Find More
Information.”
Risks Related to Our Securities and the Offering
Future sales or other dilution of our equity could depress the
market price of our common stock.
Sales
of our common stock, preferred stock, warrants, rights or
convertible debt securities, or any combination of the foregoing,
in the public market, or the perception that such sales could
occur, could negatively impact the price of our common
stock.
In
addition, the issuance of additional shares of our common stock,
securities convertible into or exercisable for our common stock,
other equity-linked securities, including preferred stock, warrants
or rights or any combination of these securities pursuant to this
prospectus will dilute the ownership interest of our common
shareholders and could depress the market price of our common stock
and impair our ability to raise capital through the sale of
additional equity securities.
We may
need to seek additional capital. If this additional financing is
obtained through the issuance of equity securities, debt securities
convertible into equity securities or options, warrants or rights
to acquire equity securities, our existing shareholders could
experience significant dilution upon the issuance, conversion or
exercise of such securities.
Our management will have broad discretion over the use of the
proceeds we receive from the sale our securities pursuant to this
prospectus and might not apply the proceeds in ways that increase
the value of your investment.
Our
management will have broad discretion to use the net proceeds from
any offerings under this prospectus, and you will be relying on the
judgment of our management regarding the application of these
proceeds. Except as described in any prospectus supplement or in
any related free writing prospectus that we may authorize to be
provided to you, the net proceeds received by us from our sale of
the securities described in this prospectus will be added to our
general funds and will be used for general corporate purposes. Our
management might not apply the net proceeds from offerings of our
securities in ways that increase the value of your investment and
might not be able to yield a significant return, if any, on any
investment of such net proceeds. You may not have the opportunity
to influence our decisions on how to use such
proceeds.
2
RATIO OF EARNINGS TO FIXED CHARGES
If we offer
debt securities and/or preference equity securities under this
prospectus, we will, if required at that time, provide
a ratio of earnings to fixed charges and/or
ratio of earnings to combined fixed charges and preference
dividends to earnings, respectively, in the applicable prospectus
supplement for such offering.
USE OF PROCEEDS
Except
as may be stated in the applicable prospectus supplement and any
related free writing prospectus that we may authorize to be
provided to you, we intend to use the net proceeds we receive from
the sale of the securities offered by this prospectus for general
corporate purposes, which may include, among other things,
repayment of debt, repurchases of common stock, capital
expenditures, the financing of possible acquisitions or business
expansions, increasing our working capital and the financing of
ongoing operating expenses and overhead.
3
DESCRIPTION OF CAPITAL STOCK
The
following is a summary of the material terms of our capital stock
and certain provisions of our articles of incorporation and bylaws
as amended and restated to date. This summary does not purport to
be complete and is qualified in its entirety by the provisions of
our articles of incorporation and our bylaws, each as amended and
restated to date, and the applicable provisions of the Montana
Business Corporation Act, or the Montana Act. See “Where You
Can Find More Information” elsewhere in this prospectus for
information on where you can obtain copies of our articles of
incorporation and our bylaws, which have been filed with, and are
publicly available from, the SEC.
Our
articles of incorporation, as amended and restated to date,
authorize us to issue up to 150,000,000 shares of common stock, par
value $0.01 per share. As of December 31, 2020, we had 75,795,814
shares of common stock outstanding, 750,000 shares of Series B
preferred stock outstanding (non-convertible), 177,904 shares of
Series C preferred stock outstanding (non-convertible), 1,751,005
shares of Series D preferred stock outstanding (convertible to
common stock on a 1:1 basis), and outstanding warrants to purchase
up to 6,194,899 shares of common stock.
DESCRIPTION OF COMMON STOCK
We are
authorized to issue up to 150,000,000 shares of common stock. As of
December 31, 2020, we had 75,795,814 shares of common stock
outstanding. Our common stock is listed for trading on NYSE
American under the symbol “UAMY.” The
transfer agent and registrar for our common stock is Direct
Transfer, LLC, Issuer Direct Corporation, One Glenwood Avenue,
Suite 1001, Raleigh, North Carolina 27603.
Shares
of our common stock have the following rights, preferences and
privileges:
Voting
Each
holder of common stock is entitled to one vote for each share of
common stock held on all matters submitted to a vote of
stockholders. Any action at a meeting at which a quorum is present
will be decided by a majority of the voting power present in person
or represented by proxy, except in the case of any election of
directors, which will be decided by a plurality of votes cast.
Cumulative voting is allowed.
Dividends
Holders
of our common stock are entitled to receive dividends when, as and
if declared by our board of directors out of funds legally
available for payment, subject to the rights of holders, if any, of
any class of stock having preference over the common stock. Any
decision to pay dividends on our common stock will be at the
discretion of our board of directors. Our board of directors may or
may not determine to declare dividends in the future. The
board’s determination to issue dividends will depend upon our
profitability and financial condition, any contractual
restrictions, restrictions imposed by applicable law and the SEC,
and other factors that our board of directors deems
relevant.
Liquidation Rights
In the
event of a voluntary or involuntary liquidation, dissolution or
winding up of the company, the holders of our common stock will be
entitled to share ratably on the basis of the number of shares held
in any of the assets available for distribution after we have paid
in full, or provided for payment of, all of our debts and after the
holders of all outstanding series of any class of stock that have
preference over the common stock, if any, have received their
liquidation preferences in full.
Other
Our
issued and outstanding shares of common stock are fully paid and
non-assessable, and the shares of our common stock that may be
offered, from time to time, under this prospectus will be fully
paid and non-assessable. Holders of shares of our common stock are
not entitled to preemptive rights. Shares of our common stock are
not convertible into shares of any other class of capital stock,
nor are they subject to any redemption or sinking fund
provisions.
4
DESCRIPTION OF PREFERRED STOCK
Our
board of directors has the authority to issue up to 10,000,000
shares of preferred stock in one or more series and to determine
the rights and preferences of the shares of any such series without
stockholder approval. Our board of directors may issue preferred
stock in one or more series and has the authority to fix the
designation and powers, rights and preferences and the
qualifications, limitations or restrictions with respect to each
class or series of such class without further vote or action by the
stockholders, unless action is required by applicable law or the
rules of any stock exchange on which our securities may be listed.
The ability of our board of directors to issue preferred stock
without stockholder approval could have the effect of delaying,
deferring or preventing a change of control of us or the removal of
existing management. Further, our board of directors may authorize
the issuance of preferred stock with voting or conversion rights
that could adversely affect the voting power or other rights of the
holders of our common stock. Additionally, the issuance of
preferred stock may have the effect of decreasing the market price
of our common stock.
As of
December 31, 2020, we had 750,000 shares of Series B preferred
stock outstanding (non-convertible), 177,904 shares of Series C
preferred stock outstanding (non-convertible), and 1,751,005 shares
of Series D preferred stock outstanding (convertible to common
stock on a 1:1 basis).
Shares
of our Series B, Series C and Series D preferred stock have the
following rights, preferences and privileges:
Voting
Our
Series B preferred stock is non-voting, except if and when
dividends payable on any of the Series B preferred stock is in
default. Holders of our Series C preferred stock have the right to
that number of votes equal to the number of shares of common stock
issuable upon conversion of such Series C shares, and holders of
our Series D preferred stock may vote equally with the shares of
our common stock and not as a separate class, and each holder of
shares of Series D preferred stock is entitled to such number of
votes as shall be equal to the whole number of shares of common
stock into which such holder’s aggregate number of shares of
Series D preferred stock are convertible immediately after the
close of business on the record date fixed for such meeting or the
effective date of such written consent.
Dividends and Liquidation Rights
Holders of our Series B preferred stock are
entitled to receive out of the net profits of our company, when and
if declared by our Board of Directors, cumulative dividends at the
annual rate of one cent ($0.01) per share, payable on the
31st
day of December. In the event of the
liquidation of our company, holders of our Series B preferred stock
shall be entitled to receive, subject to the preference of the
holders of our Series A preferred stock, $1.00 per share plus all
accumulated dividends before any amounts shall be distributed among
the holders of our common stock.
Holders
of our C preferred stock have no dividend rights. In the event of
any liquidation or winding up of our company, the holders of Series
C shares shall be entitled to receive in preference to the holders
of common stock an amount per share equal to $0.55, subject to the
preferences of the holders of our outstanding Series B preferred
stock.
Holders
of our Series D preferred stock have no dividend rights. In the
event of (i) any merger, sale, liquidation, or winding up of our
company, or (ii) any sale of all or substantially all of our assets
(including subsidiaries, joint ventures, or partnerships), or (iii)
any other corporate change as defined in our articles of
incorporation, the holders of Series D preferred stock are entitled
to be paid out of the assets of our company in preferences to the
holders of common stock but after payment and satisfaction of the
liquidation preferences of the holders of our outstanding Series B
and Series C preferred stock, an amount per share equal to the
greater of $2.50 or the equivalent market value of the number of
shares of common stock into which each share of Series D preferred
is convertible. Additional rights for holders of Series D preferred
stock are outlined in tour articles of incorporation.
5
We will
file as an exhibit to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the form of any certificate of
designation (or amendment of our articles of incorporation) that
describes the terms of the series of preferred stock we are
offering before the issuance of that series of preferred stock.
This description will include, but not be limited to, the
following:
●
the
title and stated value;
●
the
number of shares we are offering;
●
the
liquidation preference per share;
●
the
purchase price;
●
the
dividend rate, period and payment date and method of calculation
for dividends;
●
whether
dividends will be cumulative or non-cumulative and, if cumulative,
the date from which dividends will accumulate;
●
the
provisions for a sinking fund, if any;
●
the
provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and
repurchase rights;
●
whether
the preferred stock will be convertible into our common stock, and,
if applicable, the conversion price, or how it will be calculated,
and the conversion period;
●
whether
the preferred stock will be exchangeable into debt securities, and,
if applicable, the exchange price, or how it will be calculated,
and the exchange period;
●
voting
rights, if any, of the preferred stock;
●
preemptive
rights, if any;
●
restrictions
on transfer, sale or other assignment, if any;
●
a
discussion of any material United States federal income tax
considerations applicable to the preferred stock;
●
the
relative ranking and preferences of the preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up our
affairs;
●
any
limitations on the issuance of any class or series of preferred
stock ranking senior to or on a parity with the series of preferred
stock as to dividend rights and rights if we liquidate, dissolve or
wind up our affairs; and
●
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the preferred stock.
6
DESCRIPTION OF DEBT SECURITIES
We may
issue debt securities, in one or more series, as either senior or
subordinated debt or as senior or subordinated convertible debt.
When we offer to sell debt securities, we will describe the
specific terms of any debt securities offered from time to time in
a supplement to this prospectus, which may supplement or change the
terms outlined below. Senior debt securities will be issued under
one or more senior indentures, dated as of a date prior to such
issuance, between us and a trustee to be named in a prospectus
supplement, as amended or supplemented from time to time. Any
subordinated debt securities will be issued under one or more
subordinated indentures, dated as of a date prior to such issuance,
between us and a trustee to be named in a prospectus supplement, as
amended or supplemented from time to time. The indentures will be
subject to and governed by the Trust Indenture Act of 1939, as
amended.
Before
we issue any debt securities, the form of indentures will be filed
with the SEC and incorporated by reference as an exhibit to the
registration statement of which this prospectus is a part or as an
exhibit to a current report on Form 8-K. For the complete terms of
the debt securities, you should refer to the applicable prospectus
supplement and the form of indentures for those particular debt
securities. We encourage you to read the applicable prospectus
supplement and the form of indenture for those particular debt
securities before you purchase any of our debt
securities.
We will
describe in the applicable prospectus supplement the terms of the
series of debt securities being offered, including:
●
the
title;
●
whether
or not such debt securities are guaranteed;
●
the
principal amount being offered, and if a series, the total amount
authorized and the total amount outstanding;
●
any
limit on the amount that may be issued;
●
whether
or not we will issue the series of debt securities in global form,
the terms and who the depositary will be;
●
the
maturity date;
●
the
annual interest rate, which may be fixed or variable, or the method
for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record
dates for interest payment dates or the method for determining such
dates;
●
whether
or not the debt securities will be secured or unsecured, and the
terms of any secured debt;
●
the
terms of the subordination of any series of subordinated
debt;
●
the
place where payments will be payable;
●
restrictions
on transfer, sale or other assignment, if any;
●
our
right, if any, to defer payment of interest and the maximum length
of any such deferral period;
●
the
date, if any, after which, and the price at which, we may, at our
option, redeem the series of debt securities pursuant to any
optional or provisional redemption provisions and the terms of
those redemption provisions;
7
●
the
date, if any, on which, and the price at which we are obligated,
pursuant to any mandatory sinking fund or analogous fund provisions
or otherwise, to redeem, or at the holder’s option to
purchase, the series of debt securities and the currency or
currency unit in which the debt securities are
payable;
●
any
restrictions on our ability and/or the ability of our subsidiaries
to:
●
incur
additional indebtedness;
●
issue
additional securities;
●
create
liens;
●
pay
dividends and make distributions in respect of our capital stock
and the capital stock of our subsidiaries;
●
redeem
capital stock;
●
place
restrictions on our subsidiaries’ ability to pay dividends,
make distributions or transfer assets;
●
make
investments or other restricted payments;
●
sell or
otherwise dispose of assets;
●
enter
into sale-leaseback transactions;
●
engage
in transactions with stockholders and affiliates;
●
issue
or sell stock of our subsidiaries; or
●
effect
a consolidation or merger;
●
whether
the indenture will require us to maintain any interest coverage,
fixed charge, cash flow-based, asset-based or other financial
ratios;
●
a
discussion of any material United States federal income tax
considerations applicable to the debt securities;
●
information
describing any book-entry features;
●
provisions
for a sinking fund purchase or other analogous fund, if
any;
●
the
denominations in which we will issue the series of debt
securities;
●
the
currency of payment of debt securities if other than U.S. dollars
and the manner of determining the equivalent amount in U.S.
dollars; and
●
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities, including any additional
events of default or covenants provided with respect to the debt
securities, and any terms that may be required by us or advisable
under applicable laws or regulations.
8
Conversion or Exchange Rights
We will
set forth in the prospectus supplement the terms on which a series
of debt securities may be convertible into or exchangeable for our
common stock or our other securities. We will include provisions as
to whether conversion or exchange is mandatory, at the option of
the holder or at our option. We may include provisions pursuant to
which the number of shares of our common stock or our other
securities that the holders of the series of debt securities
receive would be subject to adjustment.
DESCRIPTION OF WARRANTS
We may
issue warrants for the purchase of common stock, preferred stock
and/or debt securities in one or more series. We may issue warrants
independently or together with common stock, preferred stock and/or
debt securities, and the warrants may be attached to or separate
from these securities. While the terms summarized below will apply
generally to any warrants that we may offer, we will describe the
particular terms of any series of warrants in more detail in the
applicable prospectus supplement. The terms of any warrants offered
under a prospectus supplement may differ from the terms described
below.
We will
file as exhibits to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the form of warrant agreement, including
a form of warrant certificate, that describes the terms of the
particular series of warrants we are offering before the issuance
of the related series of warrants. The following summaries of
material provisions of the warrants and the warrant agreements are
subject to, and qualified in their entirety by reference to, all of
the provisions of the warrant agreement and warrant certificate
applicable to the particular series of warrants that we may offer
under this prospectus. We urge you to read the applicable
prospectus supplements related to the particular series of warrants
that we may offer under this prospectus, as well as any related
free writing prospectuses, and the complete warrant agreements and
warrant certificates that contain the terms of the
warrants.
General
We will
describe in the applicable prospectus supplement the terms of the
series of warrants being offered, including:
●
the
offering price and aggregate number of warrants
offered;
●
the
currency for which the warrants may be purchased;
●
if
applicable, the designation and terms of the securities with which
the warrants are issued and the number of warrants issued with each
such security or each principal amount of such
security;
●
if
applicable, the date on and after which the warrants and the
related securities will be separately transferable;
●
in the
case of warrants to purchase debt securities, the principal amount
of debt securities purchasable upon exercise of one warrant and the
price at which, and the currency in which, this principal amount of
debt securities may be purchased upon such exercise;
●
in the
case of warrants to purchase common stock or preferred stock, the
number of shares of common stock or preferred stock, as the case
may be, purchasable upon the exercise of one warrant and the price
at which these shares may be purchased upon such
exercise;
●
the
effect of any merger, consolidation, sale or other disposition of
our business on the warrant agreements and the
warrants;
●
the
terms of any rights to redeem or call the warrants;
●
any
provisions for changes to or adjustments in the exercise price or
number of securities issuable upon exercise of the
warrants;
●
the
dates on which the right to exercise the warrants will commence and
expire;
●
the
manner in which the warrant agreements and warrants may be
modified;
●
a
discussion of any material or special United States federal income
tax consequences of holding or exercising the
warrants;
●
the
terms of the securities issuable upon exercise of the warrants;
and
●
any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
Before
exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such
exercise, including:
●
in the
case of warrants to purchase debt securities, the right to receive
payments of principal of, or premium, if any, or interest on, the
debt securities purchasable upon exercise or to enforce covenants
in the applicable indenture; or
●
in the
case of warrants to purchase common stock or preferred stock, the
right to receive dividends, if any, or payments upon our
liquidation, dissolution or winding up or to exercise voting
rights, if any.
Exercise of Warrants
Each
warrant will entitle the holder to purchase the securities that we
specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement.
Holders of the warrants may exercise the warrants at any time up to
the specified time on the expiration date that we set forth in the
applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant
certificate representing the warrants to be exercised together with
specified information, and paying the required amount to the
warrant agent in immediately available funds, as provided in the
applicable prospectus supplement. We will set forth on the reverse
side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be
required to deliver to the warrant agent.
If any
warrants represented by the warrant certificate are not exercised,
we will issue a new warrant certificate for the remaining amount of
warrants. If we so indicate in the applicable prospectus
supplement, holders of the warrants may surrender securities as all
or part of the exercise price for warrants.
Enforceability of Rights By Holders of Warrants
Any warrant agent
will act solely as our agent under the applicable warrant agreement
and will not assume any obligation or relationship of agency or
trust with any holder of any warrant. A single bank or trust
company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in
case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any
proceedings at law or otherwise, or to make any demand upon us. Any
holder of a warrant may, without the consent of the related warrant
agent or the holder of any other warrant, enforce by appropriate
legal action the holder’s right to exercise, and receive the
securities purchasable upon exercise of, its warrants in accordance
with their terms.
9
DESCRIPTION OF RIGHTS
We may
issue rights to purchase our common stock or preferred stock, in
one or more series. Rights may be issued independently or together
with any other offered security and may or may not be transferable
by the person purchasing or receiving the subscription rights. In
connection with any rights offering to our stockholders, we may
enter into a standby underwriting arrangement with one or more
underwriters pursuant to which such underwriters will purchase any
offered securities remaining unsubscribed after such rights
offering. In connection with a rights offering to our stockholders,
we will distribute certificates evidencing the rights and a
prospectus supplement to our stockholders on the record date that
we set for receiving rights in such rights offering. The applicable
prospectus supplement or free writing prospectus will describe the
following terms of rights in respect of which this prospectus is
being delivered:
●
the
title of such rights;
●
the
securities for which such rights are exercisable;
●
the
exercise price for such rights;
●
the
date of determining the security holders entitled to the rights
distribution;
●
the
number of such rights issued to each security holder;
●
the
extent to which such rights are transferable;
●
if
applicable, a discussion of the material United States federal
income tax considerations applicable to the issuance or exercise of
such rights;
●
the
date on which the right to exercise such rights shall commence, and
the date on which such rights shall expire (subject to any
extension);
●
the
conditions to completion of the rights offering;
●
any
provisions for changes to or adjustments in the exercise price or
number of securities issuable upon exercise of the
rights;
●
the
extent to which such rights include an over-subscription privilege
with respect to unsubscribed securities;
●
if
applicable, the material terms of any standby underwriting or other
purchase arrangement that we may enter into in connection with the
rights offering; and
●
any
other terms of such rights, including terms, procedures and
limitations relating to the exchange and exercise of such
rights.
Each
right will entitle the holder thereof the right to purchase for
cash such amount of shares of common stock or preferred stock, or
any combination thereof, at such exercise price as shall in each
case be set forth in, or be determinable as set forth in, the
prospectus supplement relating to the rights offered thereby.
Rights may be exercised at any time up to the close of business on
the expiration date for such rights set forth in the prospectus
supplement. After the close of business on the expiration date, all
unexercised rights will become void. Rights may be exercised as set
forth in the prospectus supplement relating to the rights offered
thereby. Upon receipt of payment and the proper completion and due
execution of the rights certificate at the office of the rights
agent, if any, or any other office indicated in the prospectus
supplement, we will forward, as soon as practicable, the shares of
common stock and/or preferred stock purchasable upon such exercise.
We may determine to offer any unsubscribed offered securities
directly to persons other than stockholders, to or through agents,
underwriters or dealers or through a combination of such methods,
including pursuant to standby underwriting arrangements, as set
forth in the applicable prospectus supplement.
10
DESCRIPTION OF UNITS
As
specified in the applicable prospectus supplement, we may issue, in
one more series, units consisting of common stock, preferred stock,
debt securities and/or warrants or rights for the purchase of
common stock, preferred stock and/or debt securities in any
combination.
The
applicable prospectus supplement will describe:
●
the
securities comprising the units, including whether and under what
circumstances the securities comprising the units may be separately
traded;
●
the
terms and conditions applicable to the units, including a
description of the terms of any applicable unit agreement governing
the units; and
●
a
description of the provisions for the payment, settlement, transfer
or exchange of the units.
11
PLAN OF DISTRIBUTION
The
securities covered by this prospectus may be offered and sold from
time to time pursuant to one or more of the following
methods:
●
through
agents;
●
to or
through underwriters;
●
to or
through broker-dealers (acting as agent or principal);
●
in
“at the market offerings” 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;
●
directly
to purchasers, through a specific bidding or auction process or
otherwise; or
●
through
a combination of any such methods of sale.
Agents,
underwriters or broker-dealers may be paid compensation for
offering and selling the securities. That compensation may be in
the form of discounts, concessions or commissions to be received
from us, from the purchasers of the securities or from both us and
the purchasers. Any underwriters, dealers, agents or other
investors participating in the distribution of the securities may
be deemed to be “underwriters,” as that term is defined
in the Securities Act, and compensation and profits received by
them on sale of the securities may be deemed to be underwriting
commissions, as that term is defined in the rules promulgated under
the Securities Act.
Each
time securities are offered by this prospectus, the prospectus
supplement, if required, will set forth:
●
the
name of any underwriter, dealer or agent involved in the offer and
sale of the securities;
●
the
terms of the offering;
●
any
discounts concessions or commissions and other items constituting
compensation received by the underwriters, broker-dealers or
agents;
●
any
over-allotment option under which any underwriters may purchase
additional securities from us; and
●
any
initial public offering price.
The
securities may be sold at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices
relating to the prevailing market prices or at negotiated prices.
The distribution of securities may be effected from time to time in
one or more transactions, by means of one or more of the following
transactions, which may include cross or block trades:
●
transactions
on the NYSE American or any other organized market where the
securities may be traded;
●
in the
over-the-counter market;
●
in
negotiated transactions;
●
under
delayed delivery contracts or other contractual commitments;
or
●
a
combination of such methods of sale.
12
If
underwriters are used in a sale, securities will be acquired by the
underwriters for their own account and may be resold from time to
time in one or more transactions. Our securities may be offered to
the public either through underwriting syndicates represented by
one or more managing underwriters or directly by one or more firms
acting as underwriters. If an underwriter or underwriters are used
in the sale of securities, an underwriting agreement will be
executed with the underwriter or underwriters at the time an
agreement for the sale is reached. This prospectus and the
prospectus supplement will be used by the underwriters to resell
the shares of our securities.
If 5%
or more of the net proceeds of any offering of our securities made
under this prospectus will be received by a FINRA member
participating in the offering or affiliates or associated persons
of such FINRA member, the offering will be conducted in accordance
with FINRA Rule 5121.
To
comply with the securities laws of certain states, if applicable,
the securities offered by this prospectus will be offered and sold
in those states only through registered or licensed brokers or
dealers.
Agents,
underwriters and dealers may be entitled to indemnification by us
against specified liabilities, including liabilities incurred under
the Securities Act, or to contribution by us to payments they may
be required to make in respect of such liabilities. The prospectus
supplement will describe the terms and conditions of such
indemnification or contribution. Some of the agents, underwriters
or dealers, or their respective affiliates, may be customers of,
engage in transactions with or perform services for us in the
ordinary course of business. We will describe in the prospectus
supplement naming the underwriter the nature of any such
relationship.
Certain
persons participating in the offering may engage in over-allotment,
stabilizing transactions, short-covering transactions and penalty
bids in accordance with Regulation M under the Exchange Act. We
make no representation or prediction as to the direction or
magnitude of any effect that such transactions may have on the
price of the securities. For a description of these activities, see
the information under the heading “Underwriting” in the
applicable prospectus supplement.
LEGAL MATTERS
The
validity of the securities offered in this prospectus will be
passed upon for us by Stoel Rives LLP, Boise, Idaho.
EXPERTS
The
consolidated financial statements as of December 31, 2019 and 2018,
and for each of the two years in the period ended December 31,
2019, incorporated by reference in this prospectus and the
registration statement of which this prospectus forms a part have
been so incorporated in reliance on the report of DeCoria, Maichel
& Teague, P.S, an independent registered public accounting
firm, incorporated by reference, given on the authority of said
firm as experts in auditing and accounting. The audit report
covering the December 31, 2019 consolidated financial statements
contains an emphasis of matter paragraph regarding our ability to
continue as a going concern.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC
allows us to “incorporate by reference” the information
we file with them into this prospectus. This means that we can
disclose important information about us and our financial condition
to you by referring you to another document filed separately with
the SEC instead of having to repeat the information in this
prospectus. The information incorporated by reference is considered
to be part of this prospectus and later information that we file
with the SEC will automatically update and supersede this
information. This prospectus incorporates by reference any future
filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act, between the date of the filing of the initial
registration statement and prior to effectiveness of the
registration statement and the documents listed below that we have
previously filed with the SEC:
●
our Annual Report on
Form 10-K
for the fiscal year ended December
31, 2019, filed with the SEC on April 14, 2020;
13
●
our Quarterly Report on
Form 10-Q
for the fiscal quarter ended March
31, 2020, filed with the SEC on May 15, 2020;
●
our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2020, filed
with the SEC on August 19, 2020;
●
our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2020,
filed with the SEC on November 16, 2020;
●
our
Current Reports on Form 8-K, filed with the SEC on June 19, 2020,
July 27, 2020, January 6, 2021 and January 15, 2021;
and
●
the description of our common stock contained in the registration
statement on
Form
8-A, filed on May 16,
2012, File No. 001-08675, and any other amendment or report filed
for the purpose of updating such description.
We also
incorporate by reference all documents that we file with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
on or after the effective time of the registration statement of
which this prospectus forms a part and prior to the sale of all of
the securities registered hereunder or the termination of the
registration statement. Nothing in this prospectus shall be deemed
to incorporate information furnished but not filed with the
SEC.
Any
statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference in this
prospectus shall be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement
contained herein or in the applicable prospectus supplement or in
any other subsequently filed document that also is or is deemed to
be incorporated by reference modifies or supersedes the statement.
Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
prospectus.
We will
furnish without charge to you, on written or oral request, a copy
of any or all of the documents incorporated by reference in this
prospectus, including exhibits to these documents. You should
direct any requests for documents to United States Antimony
Corporation, Attn: Corporate Secretary, 47 Cox Gulch, P.O. Box 643,
Thompson Falls, Montana 59873.
Statements
contained in this prospectus as to the contents of any contract or
other documents are not necessarily complete, and in each instance
you are referred to the copy of the contract or other document
filed as an exhibit to the registration statement or incorporated
herein, each such statement being qualified in all respects by such
reference and the exhibits and schedules thereto.
WHERE YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement on Form S-3 that we
filed with the SEC registering the securities that may be offered
and sold hereunder. The registration statement, including the
exhibits thereto, contains additional relevant information about us
and these securities, as permitted by the rules and regulations of
the SEC, that we have not included in this prospectus. A copy of
the registration statement can be obtained at the address set forth
below or at the SEC’s website as noted below. You should read
the registration statement, including any applicable prospectus
supplement, for further information about us and these
securities.
We are
a public company and file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC
filings are available to the public over the Internet at the
SEC’s website at http:/www.sec.gov. You may also read and
copy any document we file at the SEC’s public reference room,
100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the
public reference room.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The
following table sets forth all expenses payable by us in connection
with the offering of our securities being registered hereby. All
amounts shown are estimates except the SEC registration
fee.
|
SEC registration
fee
|
$2,727.50
|
|
Legal fees and
expenses
|
*
|
|
Accounting fees and
expenses
|
*
|
|
Printing and
miscellaneous expenses
|
*
|
|
|
|
|
Total
expenses
|
$2,727.50
|
*
Estimated expenses
are presently not known and cannot be estimated.
Item 15. Indemnification of Directors and Officers.
Montana Business Corporation Act. As a
Montana corporation, the Company is subject to the Montana Business
Corporation Act (MCA 35-14-101 et seq., the “MBCA”), which provides
mandatory indemnification by the Company for a director who was
wholly successful in the defense of any proceeding to which the
director was a party because the director was a director of the
corporation. The MBCA also provides for (i) permissible
indemnification in certain circumstances as provided under Section
35-14-851, (ii) an advance for expenses under Section 35-14-853,
and (ii) court-ordered indemnification in certain circumstances as
provided under Section 35-14-854. All other provisions of the MBCA
governing indemnification apply to the Company except when the MBCA
allows the Company’s Restated Articles of Incorporation as
amended and/or Bylaws to govern.
Amended and Restated Bylaws. Our Bylaws
provide for the indemnification of our directors and officers and
provides a right of reimbursement or advancement of expenses as
detailed further in our Bylaws.
Insurance Policies. The Company
maintains directors’ and officers’ liability insurance
in an amount of $5,000,000. We intend to maintain insurance on
behalf of any person who is or was a director or officer against
any loss arising from any claim asserted against him or her and
incurred by him or her in any such capacity, subject to certain
exclusions.
The
foregoing discussion of our Bylaws, insurance policies, and the
MBCA is not intended to be exhaustive and is qualified in its
entirety by such Bylaws, insurance policies, the MBCA or any other
applicable law.
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.
The
registrant expects to enter into customary indemnification
agreements with its executive officers and directors that provide
them, in general, with customary indemnification in connection with
their service to the registrant or on the registrant’s
behalf.
At
present, there is no pending litigation or proceeding involving any
of our directors, officers or employees in which indemnification is
sought, nor are we aware of any threatened litigation that may
result in claims for indemnification.
Item 16. Exhibits and Financial Schedule
See the
Exhibit Index attached to this registration statement and
incorporated herein by reference.
15
Item 17. Undertakings.
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;
(ii) to
reflect in the prospectus any facts or events arising after the
effective date of this 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 this registration statement. Notwithstanding the
foregoing, any increase or decrease in the volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
and
(iii)
to include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and
(1)(iii) do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act, that are incorporated by reference in this registration
statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of this registration
statement.
(2)
That, for the purposes of determining any liability under the
Securities Act, each 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 the 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 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
16
(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 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.
(5)
That, for the purpose of determining liability of a registrant
under the Securities Act 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.
(6) The
undersigned registrant hereby undertakes that:
(i) For
purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of
this registration statement in reliance upon rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time
it was declared effective.
(ii)
For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of
prospectus 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.
The
registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the
registrant’s annual report pursuant to Section 13(a) or 15(d)
of the Exchange Act (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in
this 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.
17
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the registrant pursuant to the indemnification provisions described
herein, or otherwise, the registrant has 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.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such
issue. 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
(“Act”) in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the
Act.
18
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
Thompson Falls, State of Montana, on the 19th day of January,
2021.
|
|
UNITED
STATES ANTIMONY CORPORATION
|
|
|
|
|
|
|
|
By:
|
/s/
John C. Gustavsen
|
|
|
|
John C.
Gustavsen
|
|
|
|
Interim
Chief Executive Officer (Principal Executive Officer)
|
Each
person whose signature appears below constitutes and appoints John
C. Gustavsen and Russell C. Lawrence as his true and lawful
attorneys-in-fact and agents, each acting alone, with full power of
substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including pre-effective and post-effective amendments) to this
registration statement on Form S-3 and any subsequent registration
statement that the registrant may hereafter file with the
Securities and Exchange Commission pursuant to Rule 462 under the
Securities Act to register additional securities in connection with
this registration statement, and to file this registration
statement, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in order to effectuate the
same as fully, to all intents and purposes, as he might or could do
in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the
requirements of the Securities Act, this registration statement has
been signed by the following persons in the capacities and on the
dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/
John C. Gustavsen
|
|
Interim
Chief Executive Officer
|
|
|
|
John C.
Gustavsen
|
|
(Principal
Executive Officer)
|
|
January
19, 2021
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Daniel Parks
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|
Chief
Financial Officer
|
|
|
|
Daniel
Parks
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|
(Principal
Financial Officer and
|
|
January
19, 2021
|
|
|
|
Principal
Accounting Officer)
|
|
|
|
|
|
|
|
|
|
/s/
Blaise Aguirre, MD
|
|
Director
|
|
January
19, 2021
|
|
Blaise
Aguirre, MD
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Hartmut W. Baitis
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Director
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|
January
19, 2021
|
|
Hartmut
W. Baitis
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|
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/s/
Russell C. Lawrence
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Director
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January
19, 2021
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Russell
C. Lawrence
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19
EXHIBIT INDEX
|
Exhibit Number
|
|
Description
|
|
1.1
|
|
Form of
Underwriting Agreement*
|
|
|
Second Restated Articles of Incorporation (filed as Exhibit 3.1 to
the Company’s current Report on Form 8-K filed with the SEC
on January 15, 2021, and incorporated herein by
reference)
|
|
|
|
Amended and Restated Bylaws (filed as Exhibit 3.02 to the
Company’s Current Report on Form 8-K filed with the SEC on
December 20, 2012, and incorporated herein by
reference)
|
|
|
4.1
|
|
Form of
Certificate of Designations of Preferred Stock*
|
|
4.2
|
|
Form of
Preferred Stock Certificate*
|
|
|
Form of Indenture**
|
|
|
4.4
|
|
Form of
Debt Security*
|
|
4.5
|
|
Form of
Warrant Agreement, including form of Warrant, if any*
|
|
4.6
|
|
Form of
Unit Agreement, including form of Unit Certificate, if
any*
|
|
4.7
|
|
Form of
Pledge Agreement*
|
|
4.8
|
|
Form of
Rights Agreement, including form of Rights Certificate, if
any*
|
|
|
Opinion of Stoel Rives LLP**
|
|
|
12.1
|
|
Statement Regarding Computation of Ratio of Earnings to Fixed
Charges*
|
|
|
Consent of Independent Registered Public Accounting Firm, Assure
CPA (f/k/a DeCoria, Maichel & Teague, P.S.) **
|
|
|
23.2
|
|
Consent of Stoel Rives LLP (included in legal opinion filed as
Exhibit 5.1)**
|
|
24.1
|
|
Powers of Attorney (included on signature page)
|
|
25.1
|
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939,
as amended***
|
*
To be
filed, if applicable, by amendment or as an exhibit to a report
filed pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended, and incorporated herein by
reference.
**
Filed
herewith
***
To be
filed, if necessary, separately under electronic form type
“305B2* in accordance with Section 305(b)(2) of the Trust
Indenture Act of 1939, as amended.
20
Exhibit 4.3
INDENTURE
Dated
as of ____________, 20__
Between
United
States Antimony Corporation
as
Issuer
And
[__________________________],
as
Trustee
___________________
Debt
Securities
____________________
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE
I
|
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
1
|
|
SECTION
1.01.
|
Definitions
|
1
|
|
SECTION
1.02.
|
Other
Definitions
|
3
|
|
SECTION
1.03.
|
Incorporation by
Reference of Trust Indenture Act
|
3
|
|
SECTION
1.04.
|
Rules
of Construction
|
4
|
|
ARTICLE
II
|
THE
SECURITIES
|
4
|
|
SECTION
2.01.
|
Unlimited in
Amount, Issuable in Series, Form and Dating
|
4
|
|
SECTION
2.02.
|
Execution and
Authentication
|
6
|
|
SECTION
2.03.
|
Registrar and
Paying Agent
|
7
|
|
SECTION
2.04.
|
Paying
Agent to Hold Assets in Trust
|
7
|
|
SECTION
2.05.
|
Holder
Lists
|
7
|
|
SECTION
2.06.
|
Registration of
Transfer and Exchange
|
7
|
|
SECTION
2.07.
|
Replacement
Securities
|
8
|
|
SECTION
2.08.
|
Outstanding
Securities
|
8
|
|
SECTION
2.09.
|
Treasury
Securities
|
8
|
|
SECTION
2.10.
|
Temporary
Securities
|
8
|
|
SECTION
2.11.
|
Cancellation
|
9
|
|
SECTION
2.12.
|
CUSIP
Numbers
|
9
|
|
SECTION
2.13.
|
Defaulted
Interest
|
9
|
|
SECTION
2.14.
|
Special Record
Dates
|
9
|
|
ARTICLE
III
|
REDEMPTION
|
9
|
|
SECTION
3.01.
|
Notices to
Trustee
|
9
|
|
SECTION
3.02.
|
Selection of
Securities to Be Redeemed
|
9
|
|
SECTION
3.03.
|
Notice
of Redemption
|
10
|
|
SECTION
3.04.
|
Effect
of Notice of Redemption
|
10
|
|
SECTION
3.05.
|
Deposit of
Redemption Price
|
10
|
|
SECTION
3.06.
|
Securities
Redeemed in Part
|
10
|
|
ARTICLE
IV
|
COVENANTS
|
10
|
|
SECTION
4.01.
|
Payment of
Securities
|
10
|
|
SECTION
4.02.
|
Maintenance of
Office or Agency
|
11
|
|
SECTION
4.03.
|
SEC
Reports
|
11
|
|
SECTION
4.04.
|
Compliance
Certificate
|
11
|
|
SECTION
4.05.
|
Taxes
|
11
|
|
SECTION
4.06.
|
Corporate
Existence
|
11
|
|
ARTICLE
V
|
MERGER,
ETC.
|
11
|
|
SECTION
5.01.
|
When
Company May Merge, etc.
|
11
|
|
SECTION
5.02.
|
Successor
Corporation Substituted
|
12
|
i
|
ARTICLE
VI
|
DEFAULTS
AND REMEDIES
|
12
|
|
SECTION
6.01.
|
Events
of Default
|
12
|
|
SECTION
6.02.
|
Acceleration
|
13
|
|
SECTION
6.03.
|
Other
Remedies
|
13
|
|
SECTION
6.04.
|
Wavier
of Past Defaults
|
13
|
|
SECTION
6.05.
|
Control by
Majority
|
13
|
|
SECTION
6.06.
|
Limitation on
Suits
|
13
|
|
SECTION
6.07.
|
Rights
of Holders to Receive Payment
|
13
|
|
SECTION
6.08.
|
Collection Suit by
Trustee
|
14
|
|
SECTION
6.09.
|
Trustee May File
Proofs of Claim
|
14
|
|
SECTION
6.10.
|
Priorities
|
14
|
|
SECTION
6.11.
|
Undertaking for
Costs
|
14
|
|
ARTICLE
VII
|
TRUSTEE
|
14
|
|
SECTION
7.01.
|
Duties
of Trustee
|
14
|
|
SECTION
7.03.
|
Individual Rights
of Trustee
|
16
|
|
SECTION
7.04.
|
Trustee’s
Disclaimer
|
16
|
|
SECTION
7.05.
|
Notice
of Defaults
|
16
|
|
SECTION
7.06.
|
Reports by Trustee
to Holders
|
16
|
|
SECTION
7.07.
|
Compensation and
Indemnity
|
16
|
|
SECTION
7.08.
|
Replacement of
Trustee
|
17
|
|
SECTION
7.09.
|
Successor Trustee
by Merger, Etc.
|
18
|
|
SECTION
7.10.
|
Eligibility;
Disqualification
|
18
|
|
SECTION
7.11.
|
Preferential
Collection of Claims Against the Company
|
18
|
|
ARTICLE
VIII
|
DISCHARGE
OF INDENTURE
|
18
|
|
SECTION
8.01.
|
Satisfaction and
Discharge of Indenture
|
18
|
|
SECTION
8.02.
|
Application of
Trust Funds; Indemnification
|
19
|
|
SECTION
8.03.
|
Legal
Defeasance of Securities of any Series
|
19
|
|
SECTION
8.04.
|
Covenant
Defeasance
|
20
|
|
SECTION
8.05.
|
Repayment to
Company
|
21
|
|
ARTICLE
IX
|
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
|
21
|
|
SECTION
9.01.
|
Without Consent of
Holders
|
21
|
|
SECTION
9.02.
|
With
Consent of Holders
|
21
|
|
SECTION
9.03.
|
Compliance with
Trust Indenture Act
|
21
|
|
SECTION
9.04.
|
Revocation and
Effect of Consents
|
22
|
|
SECTION
9.05.
|
Notation on or
Exchange of Securities
|
22
|
|
SECTION
9.06.
|
Trustee to Sign
Amendment, etc.
|
22
|
ii
|
ARTICLE
X
|
MISCELLANEOUS
|
22
|
|
SECTION
10.01.
|
Trust
Indenture Act Controls
|
22
|
|
SECTION
10.02.
|
Notices
|
22
|
|
SECTION
10.03.
|
Communication by
Holders with Other Holders
|
23
|
|
SECTION
10.04.
|
Certificate and
Opinion as to Conditions Precedent
|
23
|
|
SECTION
10.05.
|
Statements
Required in Certificate or Opinion
|
23
|
|
SECTION
10.06.
|
Rules
by Trustee and Agents
|
23
|
|
SECTION
10.07.
|
Legal
Holidays
|
24
|
|
SECTION
10.08.
|
Duplicate
Originals
|
24
|
|
SECTION
10.09.
|
Governing
Law
|
24
|
|
SECTION
10.10.
|
No
Adverse Interpretation of Other Agreements
|
24
|
|
SECTION
10.11.
|
Successors
|
24
|
|
SECTION
10.12.
|
Severability
|
24
|
|
SECTION
10.13.
|
Counterpart
Originals
|
24
|
iii
CROSS-REFERENCE TABLE
|
|
|
Indenture
|
|
TIA Section
|
|
Section
|
|
|
|
|
|
Section
310 (a)(1)
|
7.1
|
|
|
|
(a)(2)
|
7.1
|
|
|
(a)(3)
|
N.A.
|
|
|
(a)(4)
|
N.A.
|
|
|
(a)(5)
|
7.1
|
|
|
(b)
|
7.08; 7.10
|
|
|
(c)
|
N.A.
|
|
Section
311 (a)
|
7.11
|
|
|
|
(b)
|
7.11
|
|
|
(c)
|
N.A.
|
|
Section
312(a)
|
2.05
|
|
|
|
(b)(1)
|
N.A.
|
|
|
(b)(2)
|
7.06
|
|
|
(c)
|
7.06; 12.02
|
|
|
(d)
|
7.06
|
|
Section
314 (a)(1), (2), (3)
|
4.03
|
|
|
|
(a)(4)
|
4.04
|
|
|
(b)
|
N.A.
|
|
|
(c)(1)
|
10.04
|
|
|
(c)(2)
|
10.04
|
|
|
(c)(3)
|
N.A.
|
|
|
(d)
|
N.A.
|
|
|
(e)
|
10.05
|
|
|
(f)
|
N.A.
|
|
Section 315 (a)
|
|
7.01(b)
|
|
|
(b)
|
7.05; 10.02
|
|
|
(c)
|
7.01(a)
|
|
|
(d)
|
7.01(c)
|
|
|
(e)
|
6.11
|
|
Section
316(a) (last sentence)
|
2.09
|
|
|
|
(a)(1)(A)
|
6.05
|
|
|
(a)(1)(B)
|
6.04
|
|
|
(a)(2)
|
N.A.
|
|
|
(b)
|
6.07
|
|
|
(c)
|
9.04
|
|
Section
317 (a)(1)
|
6.08
|
|
|
|
(a)(2)
|
6.09
|
|
|
(b)
|
2.04
|
|
Section
318 (a)
|
10.01
|
|
N.A.
means Not Applicable
NOTE:
This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of the indenture.
iv
INDENTURE dated as
of __________, 20___, between United States Antimony Corporation, a
Montana corporation (the “Company”), as issuer, and
[_______________], a [__________] banking corporation, as Trustee
(the “Trustee”).
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.
Each
party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of each series of the
Securities:
ARTICLE I
.A DEFINITIONS
AND INCORPORATION BY REFERENCE
“Affiliate” means, when
used with reference to the Company or another person, any person
directly or indirectly controlling, controlled by, or under direct
or indirect common control with, the Company or such other person,
as the case may be. For the purposes of this definition,
“control” when used with respect to any specified
person means the power to direct or cause the direction of
management or policies of such person, directly or indirectly,
whether through the ownership of voting Securities, by contract or
otherwise; and the terms “Controlling” and
“controlled” have meanings correlative of the
foregoing.
“Agent” means any
registrar, Paying Agent, authenticating agent or
co-registrar.
“Board of Directors”
means, with respect to any person, the Board of Directors of a
person or any duly authorized committee of such Board of
Directors.
“Board Resolution” means,
with respect to any person, a copy of a resolution certified by the
secretary or an assistant secretary of such person to have been
duly adopted by the Board of Directors of such person or any duly
authorized committee thereof and to be in full force and effect on
the date of such certification, and delivered to the
Trustee.
“Business Day” means a day
that is not a Legal Holiday as defined in Section 10.07.
“Company” means the party
named as such in this Indenture, or any other obligor under this
Indenture, until a successor replaces it pursuant to this Indenture
and thereafter means the successor.
“Consolidated” or
“consolidated” means, when
used with reference to any amount, such amount determined on a
consolidated basis in accordance with GAAP, after the elimination
of intercompany items.
“Consolidated Assets”
means, at a particular date, all amounts which would be included
under total assets on a consolidated balance sheet of the Company
and its Subsidiaries as at such date, determined in accordance with
GAAP.
“Corporate Trust
Office” means the office
of the Trustee at which at any particular time its corporate
services business shall be principally administered, which office
at the date of execution of this Indenture is located at
[__________________].
“Default” means any event
which is, or after notice or lapse of time or both would be, an
Event of Default.
“Event of Default” has the
meaning provided in Section 6.01.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended any successor
Statute.
1
“GAAP” means generally
accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by
a significant segment of the accounting profession, which are
applicable from time to time.
“Global Security” means a
Security issued to evidence all or a part of any series of
Securities that is executed by the Company and authenticated and
delivered by the Trustee to a depositary or pursuant to such
depositary’s instructions, all in accordance with this
Indenture and pursuant to Section 2.01, which shall be
registered as to principal and interest in the name of such
depositary or its nominee.
“Holder” means the person
in whose name a Security is registered on the registrar’s
books.
“Indebtedness” of a Person
means all obligations which would be treated as liabilities upon a
balance sheet of such Person prepared on a consolidated basis in
accordance with GAAP.
“Indenture” means this
Indenture, as amended, supplemented or modified from time to time,
and shall include the terms of a particular series of Securities
established as contemplated by Section 2.01.
“Lien” means any lien,
security interest, charge or encumbrance of any kind.
“Obligations” means all
obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any
Indebtedness.
“Officer” of any person
means the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer, the Secretary or the
Controller of such person.
“Officers’
Certificate” means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer, Assistant
Secretary or Assistant Controller of any person.
“Opinion of Counsel” means
a written opinion from legal counsel who is reasonably acceptable
to the Trustee. The counsel may be an employee of or counsel to the
Company.
“Original Issue Discount
Security” means any Security which provides that an
amount less than its principal amount is due and payable upon
acceleration after an Event of Default.
“Person” or
“person” means any
individual, corporation, partnership, joint venture, trust,
association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
“Redemption Date” means,
with respect to any Security to be redeemed, the date fixed for
such redemption pursuant to this Indenture.
“Redemption Price” has the
meaning provided in Section 3.03.
“SEC” means the Securities
and Exchange Commission and any government agency succeeding to its
functions.
“Securities” means the
means the securities authenticated and delivered under this
Indenture.
“Securities Act” means the
Securities Act of 1933, as amended.
“Series” means a series of
Securities established pursuant to this Indenture.
2
“Subsidiary” of any Person
means (i) a corporation a majority of whose capital stock with
voting power, under ordinary circumstances, to elect directors is
at the time, directly or indirectly, owned by such Person or by
such Person and a subsidiary or subsidiaries of such Person or by a
subsidiary or subsidiaries of such Person or (ii) any other Person
(other than a corporation) in which such Person or such Person and
a subsidiary or subsidiaries of such Person or a subsidiary or
subsidiaries of such Persons, at the time, directly or indirectly,
own at least a majority voting interest under ordinary
circumstances.
“TIA” means the Trust
Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb), as in
effect on the date of this Indenture; provided, however, that in the event the
TIA is amended after such date, “TIA” means, to the extent
required by such amendment, the Trust Indenture Act of 1939, as so
amended.
“Trustee” means the party
named as such above until a successor becomes such pursuant to this
Indenture and thereafter means or includes each party who is then a
trustee hereunder, and if at any time there is more than one such
party, “Trustee” as used with
respect to the Securities of any series means the Trustee with
respect to Securities of that series. If Trustees with respect to
different series of Securities are Trustees under this Indenture,
nothing herein shall constitute the Trustees co-Trustees of the
same trust, and each Trustee shall be the Trustee of a trust
separate and apart from any trust administered by any other Trustee
with respect to a different series of Securities.
“Trust Officer” means any
officer in the corporate trust department of the Trustee or any
other officer of the Trustee assigned by the Trustee to administer
this Indenture.
“U.S. Government
Obligations” means (i) direct obligations of the
United States of America for the payment of which the full faith
and credit of the United States of America is pledged or (ii)
obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America and which in
either case, are non-callable at the option of the issuer
thereof.
SECTION
1.02. Other
Definitions.
|
|
|
Defined in
|
|
Term
|
|
Section
|
|
|
|
|
|
“Bankruptcy
Law”
|
|
6.01
|
|
“Custodian”
|
|
6.01
|
|
“Legal
Holiday”
|
|
10.07
|
|
“Paying
Agent”
|
|
2.03
|
|
“Registrar”
|
|
2.03
|
SECTION 1.03. Incorporation by
Reference of Trust Indenture Act. Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture.
The
following TIA terms used in this Indenture have the following
meanings:
“indenture Securities”
means the Securities;
“indenture Security
holder” means a Holder;
“indenture to be
qualified” means this Indenture;
“indenture Trustee” or
“institutional
Trustee” means the Trustee; and
“obligor” on the
Securities means the Company and any other obligor on the indenture
Securities.
3
All
other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such
definitions.
SECTION 1.04. Rules of
Construction. Unless
the context otherwise requires: (i) a term has the meaning assigned
to it; (ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP; (iii)
“or” is not exclusive; (iv) words in the singular
include the plural, and in the plural include the singular; (v)
provisions apply to successive events and transactions; and (vi)
statements relating to the payment of principal and interest shall
include the payment, premium (if any) and interest.
ARTICLE II
THE SECURITIES
SECTION
2.01. Unlimited in Amount,
Issuable in Series, Form and Dating.
The
aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may
be issued in one or more series. There shall be established
pursuant to a Board Resolution or an Officers’ Certificate
pursuant to authority granted under a Board Resolution or
established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:
(a) The
title, ranking and authorized denominations of such
Securities;
(b) The
aggregate principal amount of such Securities and any limit on such
aggregate principal amount;
(c) The
price (expressed as a percentage of the principal amount thereof)
at which such Securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount
thereof payable upon declaration of acceleration of the maturity
thereof;
(d) The
date or dates, or the method for determining such date or dates, on
which the principal of such Securities will be
payable;
(e) The
rate or rates (which may be fixed or variable), or the method by
which such rate or rates shall be determined, at which such
Securities will bear interest, if any;
(f) The
date or dates, or the method for determining such date or dates,
from which any such interest will accrue, the dates on which any
such interest will be payable, the record dates for such interest
payment dates, or the method by which such dates shall be
determined, the persons to whom such interest shall be payable, and
the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(g) The
place or places where the principal of and interest, if any, on
such Securities will be payable, where such Securities may be
surrendered for registration of transfer or exchange and where
notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served;
(h) The
period or periods, if any, within which, the price or prices at
which and the other terms and conditions upon which such Securities
may, pursuant to any optional or mandatory redemption provisions,
be redeemed, as a whole or in part, at the option of the
Company;
(i) The
obligation, if any, of the Company to redeem, repay or purchase
such Securities pursuant to any sinking fund or analogous provision
or at the option of a holder thereof, and the period or periods
within which, the price or prices at which and the other terms and
conditions upon which such Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such
obligation;
4
(j) If
other than U.S. dollars, the currency or currencies in which such
Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating
thereto;
(k) Whether
the amount of payments of principal of (and premium, if any) or
interest, if any, on such Securities may be determined with
reference to an index, formula or other method (which index,
formula or method may, but need not be, based on the yield on or
trading price of other Securities, including United States Treasury
Securities, or on a currency, currencies, currency unit or units,
or composite currency or currencies) and the manner in which such
amounts shall be determined;
(l) Whether
the principal of or interest on the Securities of the series is to
be payable, at the election of the Company or a holder thereof, in
a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may
be made, and the time and manner of, and identity of the exchange
rate agent with responsibility for, determining the exchange rate
between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are to be so payable;
(m) Provisions,
if any, granting special rights to the holders of Securities of the
series upon the occurrence of such events as may be
specified;
(n) Any
deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Securities of
the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants described
herein;
(o) Whether
and under what circumstances the Company will pay any additional
amounts on such Securities in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Securities in lieu of making such
payment;
(p) Whether
Securities of the series are to be issuable as registered
Securities, bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of
bearer Securities and the terms upon which bearer Securities of the
series may be exchanged for registered Securities of the series and
vice versa (if permitted by applicable laws and regulations),
whether any Securities of the series are to be issuable initially
in temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such
permanent Global Security may exchange such interests for
Securities of such series and of like tenor or any authorized form
and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in this
Indenture, and, if registered Securities of the series are to be
issuable as a Global Security, the identity of the depositary for
such series;
(q) The
date as of which any bearer Securities of the series and any
temporary Global Security representing outstanding Securities of
the series shall be dated if other than the date of original
issuance of the first Security of the series to be
issued;
(r) The
person to whom any interest on any registered Security of the
series shall be payable, if other than the person in whose name
that Security (or one or more predecessor Securities) is registered
at the close of business on the regular record date for such
interest, the manner in which, or the person to whom, any interest
on any bearer Security of the series shall be payable, if otherwise
than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary Global
Security on an interest payment date will be paid if other than in
the manner provided in this Indenture;
(s) Whether
such Securities will be issued in certificated or book entry
form;
(t) The
applicability, if any, of the legal defeasance and covenant
defeasance provisions of this Indenture to the Securities of the
series;
5
(u) If
the Securities of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the
form and/or terms of such certificates, documents or
conditions;
(v) Whether
the Securities will be listed for trading on an exchange and the
identity of such exchange;
(w) Whether
any underwriters will act as market makers for the
Securities;
(x) Any
guarantees of such Securities by the Company’s Subsidiaries
or others;
(y) The
date or dates, if any, after which the Securities may be converted
or exchanged into or for shares of the Company’s common stock
or another company’s securities or properties or cash and the
terms for any such conversion or exchange;
(z) Any
other terms of the series.
The
Securities of any series shall be substantially of the tenor and
purport as set forth in one or more indentures supplemental hereto
or as provided in a written order of the Company, in each case with
such insertions, omission, substitutions and other variations as
are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification or designation
and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which Securities of that series may be listed or of the
depository, or to conform to usage.
The
Trustee’s Certificate of Authentication shall be in
substantially the following form:
“This is one
of the Securities of the series designated in accordance with, and
referred to in the within-mentioned Indenture.
Dated:
[____________________],
as Trustee
By:
Authorized
Signatory”
SECTION 2.02. Execution and
Authentication. Two
Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an
Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security
shall be valid nevertheless.
A
Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive
evidence that the Security has been authenticated under this
Indenture.
The
Trustee shall authenticate Securities for original issue upon a
written order of the Company signed by one Officer of the
Company.
The
Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. 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.
6
If the
Company shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in the form of one or more
Global Securities, then the Company shall execute and the Trustee
shall authenticate and deliver one or more Global Securities that
(i) shall represent and shall be denominated in an amount equal to
the aggregate principal amount of all of the Securities of such
series to be issued in the form of Global Securities and not yet
canceled, (ii) shall be registered in the name of the depositary
for such Global Security or Securities or the nominee of such
depositary, (iii) shall be delivered by the Trustee to such
depositary or pursuant to such depositary’s instructions, and
(iv) shall bear a legend substantially to the following effect:
“Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be
transferred except as a whole by the depositary to the nominee of
the depositary or by a nominee of the depositary to the depositary
or another nominee of the depositary or by the depositary or any
such nominee to a successor depositary or a nominee of such
successor depositary.”
Each depositary designated pursuant to
Section
2.01 must, at the time of its
designation and at all times while it services as depositary, be a
clearing agency registered under the Exchange
Act.
SECTION 2.03. Registrar and
Paying Agent. The
Company shall maintain an office or agency where Securities of a
particular series may be presented for registration of transfer or
for exchange (the “Registrar”) and an office
or agency where Securities may be presented for payment (the
“Paying
Agent”). The registrar for a particular series of
Securities shall keep a register of the Securities of that series
and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional Paying Agents for
each series of Securities. The term “Paying Agent”
includes any additional paying agent and the term
“Registrar” includes any additional registrar. The
Company may change any Paying Agent or registrar without prior
notice to any Holder.
The
Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the
terms of the TIA and implement the terms of this Indenture which
relate to such Agent. The Company shall give prompt written notice
to the Trustee of the name and address of any Agent who is not a
party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any Affiliate of the Company may
act as Paying Agent or Registrar.
The
Company hereby initially appoints the Trustee as Registrar and
Paying Agent for each series of Securities unless another Registrar
or Paying Agent, as the case may be, is appointed prior to the time
the Securities of that series are first issued.
SECTION 2.04. Paying Agent to
Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all assets held by the Paying
Agent for the payment of principal of and interest on the
Securities (whether such money has been paid to it by the Company
or any other obligor on the Securities) and shall notify the
Trustee of any failure by the Company (or any other obligor on the
Securities) in making any such payment. While any such failure
continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed.
The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary of the
Company) shall have no further liability for the money so paid over
to the Trustee. If the Company or a Subsidiary of the Company acts
as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying
Agent.
SECTION 2.05. Holder
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
Holders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the registrar, the Company
shall furnish to the Trustee on or before each interest payment
date for the Securities 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
Holders, separately by series, relating to such interest payment
date or request, as the case may be.
SECTION 2.06. Registration of
Transfer and Exchange. When Securities of a series are
presented to the registrar or a co-registrar with a request to
register their transfer or to exchange them for an equal principal
amount of Securities of other denominations, the registrar or
co-registrar shall register the transfer or make the exchange if
its requirements for such transaction are met. To permit
registrations of transfer and exchanges, the Company shall issue
and the Trustee shall authenticate Securities at the
registrar’s or co-registrar’s request. No service
charge shall be made for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with registration, transfer or exchange of Securities
other than exchanges pursuant to Section 2.10, 3.06 or 9.05 not involving any
transfer.
7
The
registrar or co-registrar shall not be required to register the
transfer or exchange of (i) any Security of a particular series
selected for redemption in whole or in part, except the unredeemed
portion of any Security of that series being redeemed in part, or
(ii) any Security of a particular series during a period beginning
at the opening of business 15 days before the day of any selection
of Securities of that series for redemption under Section 3.02 and ending at the
close of business on the date of selection.
Any
Holder of a beneficial interest in a Global Security shall, by
acceptance of such beneficial interest, agree that transfers of
beneficial interest in such Global Security may be effected only
through a book entry system maintained by the holder of such Global
Security (or its agent), and that ownership of a beneficial
interest in the Security shall be required to be reflected in a
book entry system.
SECTION 2.07. Replacement
Securities. If a
mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims 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 if the
requirements of the Trustee and the Company are met; provided that, if any such
Security has been called for redemption in accordance with the
terms thereof, the Trustee may pay the Redemption Price thereof on
the Redemption Date without authenticating or replacing such
Security. The Trustee or the Company may, in either case, require
the Holder to provide an indemnity bond sufficient in the judgment
of each of the Trustee and the Company to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced or if the Redemption Price therefor is paid
pursuant to this Section. The Company may charge the Holder who has
lost a Security for its expenses in replacing a
Security.
Every
replacement Security is an obligation of the Company and shall be
entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of the same
series.
SECTION 2.08. Outstanding
Securities. The
Securities of any series outstanding at any time are all the
Securities of that series authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation and
those described in this Section as not outstanding.
If a
Security is replaced pursuant to Section 2.07, it ceases to be
outstanding and interest ceases to accrue unless the Trustee
receives proof satisfactory to it that the replaced Security is
held by a bona fide purchaser.
If all
principal of and interest on any of the Securities are considered
paid under Section
4.01, such Securities shall cease to be outstanding and
interest on them shall cease to accrue.
Except
as provided in Section
2.09, a Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds such
Security.
For
each series of Original Issue Discount Securities, the principal
amount of such Securities that shall be deemed to be outstanding
and used to determine whether the necessary Holders have given any
request, demand, authorization, direction, notice, consent or
waiver, shall be the principal amount of such Securities that could
be declared to be due and payable upon acceleration upon an Event
of Default as of the date of such determination. When requested by
the Trustee, the Company will advise the Trustee of such amount,
showing its computations in reasonable detail.
SECTION 2.09. Treasury
Securities. In
determining whether the Holders of the required principal amount of
Securities of any series have concurred in any direction, waiver or
consent, Securities owned by the Company or an Affiliate of the
Company shall be considered as though they are not outstanding,
except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or
consent, only Securities which such Trustee actually knows are so
owned shall be so disregarded.
SECTION 2.10. 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
of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary
Securities. Holders of temporary Securities shall be entitled to
all of the benefits of this Indenture.
8
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of
transfer, exchange, payment or repurchase. The Trustee shall cancel
all Securities surrendered for registration of transfer, exchange,
payment, repurchase, redemption, replacement or cancellation and
shall destroy such Securities (subject to the record retention
requirements of the Exchange Act). Certification of the destruction
of all cancelled Securities shall be promptly delivered to the
Company. The Company may not issue new Securities to replace
Securities that it has paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12. CUSIP
Numbers. The Company
in issuing the Securities may use “CUSIP” numbers (if
then generally in use), and the Trustee shall use CUSIP numbers in
notices of redemption or exchange as a convenience to Holders;
provided that any
such notice shall state that no representation is made as to the
correctness of such numbers either as printed on the Securities or
as contained in any such notice and that reliance may be placed
only on the other identification numbers printed on the Securities,
and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the
Trustee of any change in the CUSIP numbers.
SECTION 2.13. Defaulted
Interest. If the
Company fails to make a payment of interest on any series of
Securities, it shall pay such defaulted interest plus (to the
extent lawful) any interest payable on the defaulted interest, in
any lawful manner. It may elect to pay such defaulted interest,
plus any such interest payable on it, to the Persons who are
Holders of such Securities on which the interest is due on a
subsequent special record date. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to
be paid on each such Security. The Company shall fix any such
record date and payment date for such payment. At least 15 days
before any such record date, the Company shall mail to Holders
affected thereby a notice that states the record date, payment
date, and amount of such interest to be paid.
SECTION 2.14. Special Record
Dates. The Company
may, but shall not be obligated to, set a record date for the
purpose of determining the identity of Holders entitled to consent
to any supplement, amendment or waiver permitted by this Indenture.
If a record date is fixed, the Holders of Securities of that series
outstanding on such record date, and no other Holders, shall be
entitled to consent to such supplement, amendment or waiver or
revoke any consent previously given, whether or not such Holders
remain Holders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless
consents from Holders of the principal amount of Securities of that
series required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such
90-day period.
ARTICLE III
REDEMPTION
SECTION 3.01. Notices to
Trustee. If the
Company elects to redeem Securities of any series pursuant to any
optional redemption provisions thereof, it shall notify the Trustee
of the intended Redemption Date and the principal amount of
Securities of that series to be redeemed.
The
Company shall give each notice provided for in this Section and an
Officers’ Certificate at least 45 days before the Redemption
Date (unless a shorter period shall be satisfactory to the
Trustee).
SECTION 3.02. Selection of
Securities to Be Redeemed. If fewer than all the Securities of
any series are to be redeemed, the Trustee shall select the
Securities of that series to be redeemed from the outstanding
Securities of that series to be redeemed by a method that complies
with the requirements of any exchange on which the Securities of
that series are listed, or, if the Securities of that series are
not listed on an exchange, on a pro rata basis or by lot, which in
any case shall be in accordance with a method the Trustee considers
fair and appropriate.
Except
as otherwise provided as to any particular series of Securities,
Securities and portions thereof that the Trustee selects shall be
in amounts equal to the minimum authorized denomination for
Securities of the series to be redeemed or any integral multiple
thereof. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called
for redemption. The Trustee shall notify the Company promptly in
writing of the Securities or portions of Securities to be called
for redemption.
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SECTION 3.03. Notice of
Redemption. At least
30 days but not more than 60 days before the Redemption Date, the
Company shall mail a notice of redemption by first-class mail to
each Holder whose Securities are to be redeemed at the address of
such Holder appearing in the register.
The
notice shall identify the Securities of the series to be redeemed
and shall state:
(1) the
Redemption Date;
(2) the
redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if
any, to the date fixed for redemption (the “Redemption
Price”);
(3) if
any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after
the Redemption Date, upon surrender of such Security, 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;
(5) that
Securities called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(6) that,
unless the Company defaults in payment of the Redemption Price,
interest on Securities called for redemption ceases to accrue on
and after the Redemption Date; and
(7) the
CUSIP number, if any, of the Securities to be
redeemed.
At the
Company’s written request, the Trustee shall give the notice
of redemption in the Company’s name and at its expense. The
notice mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or
any defect in the notice to the Holder of any Security shall not
affect the validity of the proceeding for the redemption of any
other Security.
SECTION 3.04. Effect of Notice of
Redemption. Once
notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date at the Redemption
Price. Upon surrender to the Paying Agent, such Securities shall be
paid at the Redemption Price.
SECTION 3.05. Deposit of
Redemption Price. On
or before the Redemption Date, the Company shall deposit with the
Trustee or with the Paying Agent (or if the Company or any
Subsidiary of the Company is acting as its own Paying Agent, the
Company or such Subsidiary shall segregate and hold in trust) money
sufficient to pay the Redemption Price 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. The Paying Agent shall
promptly return to the Company any money not required for that
purpose.
SECTION 3.06. Securities Redeemed
in Part. Upon
surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the
expense of the Company, a new Security of the same series equal in
principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of
Securities. The
Company shall pay or cause to be paid the principal of and interest
on the Securities on the dates and in the manner provided in this
Indenture and the Securities. Principal and interest shall be
considered paid on the date due if the Paying Agent, if other than
the Company or an Affiliate, holds as of 11:00 a.m. New York time
on that date immediately available funds designated for and
sufficient to pay all principal and interest then due. To the
extent lawful, the Company shall pay interest on overdue principal
and overdue installments of interest at the rate per annum borne by
the applicable series of Securities.
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SECTION 4.02. Maintenance of
Office or Agency. The
Company shall maintain in the Borough of Manhattan, the City of New
York, or in [_______________], an office or agency (which may be an
office of the Trustee or an affiliate of the Trustee or registrar)
where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The
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 agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee.
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 the Borough of
[___________], the City of [___________], or [___________], for
such purposes. The Company shall give prompt written notice to the
Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The
Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with
Section
2.03.
SECTION 4.03. SEC
Reports. The Company
shall deliver to the Trustee within 15 days after it files them
with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act; provided, however, the
Company shall not be required to deliver to the Trustee any
materials for which the Company has sought and received
confidential treatment by the SEC. The Company also shall comply
with the other provisions of TIA Section 314 (a).
SECTION 4.04. Compliance
Certificate. The
Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, an Officers’ Certificate
stating that in the course of the performance by the signers of
their duties as officers of the Company, they would normally have
knowledge of any failure by the Company to comply with all
conditions, or default by the Company with respect to any
covenants, under this Indenture, and further stating whether or not
they have knowledge of any such failure or default and, if so,
specifying each such failure or default and the nature thereof. For
purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice
provided for in this Indenture. The certificate need not comply
with Section
10.04.
SECTION 4.05. Taxes.
The Company shall pay prior to delinquency, all material taxes,
assessments, and governmental levies except as contested in good
faith by appropriate proceedings.
SECTION 4.06. Corporate
Existence. Subject to
Article V hereof,
the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate
existence and (ii) the material rights (charter and statutory),
licenses and franchises of the Company and its Subsidiaries taken
as a whole; provided, however, that the Company shall
not be required to preserve any such right, license or franchise if
the Board of Directors or management of the Company shall determine
that the preservation thereof is no longer in the best interests of
the Company, and that the loss thereof is not adverse in any
material respect to the Holders.
ARTICLE V
MERGER, ETC.
SECTION 5.01. When Company May
Merge, etc. (a) The
Company shall not consolidate or merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets to, any Person unless: (i) the
Person formed by or surviving any such consolidation or merger (if
other than the Company), or to which such sale, assignment,
transfer, lease, conveyance or disposition has been made, is a
corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or disposition has been
made, assumes by supplemental indenture satisfactory in form to the
Trustee all the obligations of the Company under the Securities and
this Indenture; and (iii) immediately after such transaction, and
giving effect thereto, no Default or Event of Default shall have
occurred and be continuing. Notwithstanding the foregoing, the
Company may merge with another Person or acquire by purchase or
otherwise all or any part of the property or assets of any other
corporation or Person in a transaction in which the surviving
entity is the Company.
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(b) In
connection with any consolidation, merger, sale, assignment,
transfer or lease contemplated by this Section 5.01, 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, sale, assignment, transfer or
lease and the supplemental indenture in respect thereof comply with
Article V and the
TIA and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 5.02. Successor
Corporation Substituted. Upon any consolidation or merger, or
any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all the assets of the Company
in accordance with Section
5.01, the successor corporation formed by such consolidation
or into which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition 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. In the event of any such sale or conveyance, but
not any such lease, the Company or any successor corporation which
thereafter shall have become such in the manner described in this
Article V shall be
discharged from all obligations and covenants under this Indenture
and the Securities and may be dissolved, wound up or
liquidated.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of
Default. An
“Event of Default” occurs with respect to Securities of
any particular series, unless in the establishing Board
Resolutions, Officers’ Certificate or supplemental indenture
hereto, it is provided that such series shall not have the benefit
of any such Event of Default, when any of the following
occurs:
(i) the
Company defaults in the payment of interest on any Security of that
series when it becomes due and payable and such default continues
for a period of 30 days;
(ii) the
Company defaults in the payment of the principal of any Security of
that series when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(iii) the
Company fails to comply with any of its other agreements or
covenants in, or provisions of, the Securities of that series or
this Indenture and the Default continues for the period and after
the notice specified below;
(iv) the
Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding, (B) consents to the
entry of an order for relief against it in an involuntary case or
proceeding, (C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or (D) makes a
general assignment for the benefit of its creditors;
or
(v) a
court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (A) is for relief against the Company in an
involuntary case or proceeding, (B) appoints a Custodian for the
Company or for all or substantially all of the Company’s
property, or (C) orders the liquidation of the
Company;
and in
case of (v) the order or decree remains unstayed and in effect for
60 days.
The
term “Bankruptcy
Law” means Title 11 of the U.S. Code or any similar
Federal or state law for the relief of debtors. The term
“Custodian” means any
receiver, Trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
A
Default under clause (iii) of this Section 6.01 is not an Event of
Default with respect to a particular series of Securities until the
Trustee notifies the Company in writing, or the Holders of at least
25% in principal amount of the outstanding Securities of that
series notify the Company and the Trustee, in writing, of the
Default, and the Company does not cure the Default within 30 days
after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a
“Notice of Default”.
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SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (iv) or (v) of Section 6.01) occurs and is continuing, the
Trustee or the Holders of at least 25% of the principal amount of
the outstanding Securities of that series, by written notice to the
Company may declare due and payable 100% of the principal amount
(or, in the case of Original Issue Discount Securities, such lesser
amount as may be provided for in such Securities) of the Securities
of that series plus any accrued interest to the date of payment.
Upon a declaration of acceleration, such principal (or such lesser
amount) and accrued interest to the date of payment shall be due
and payable. If an Event of Default specified in clause (iv) or (v)
of Section 6.01 occurs, all unpaid principal and accrued interest
on the Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or
any Holder.
The
Holders of a majority of the outstanding principal amount of the
Securities of that series by written notice to the Trustee may
rescind an acceleration and its consequences if (i) all existing
Events of Default other than the nonpayment of principal (or such
lesser amount) of or interest on the Securities of that series
which have become due solely because of the acceleration, have been
cured or waived and (ii) the rescission would not conflict with any
judgment or decree of a court of competent
jurisdiction.
SECTION 6.03. Other
Remedies. If an Event
of Default occurs and is continuing with respect to any series of
Securities, the Trustee may pursue any available remedy by
proceeding at law or in equity to collect the payment of principal
of or interest 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 or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon the 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 remedies are cumulative to the extent permitted
by law.
SECTION 6.04. Waiver of Past
Defaults. Subject to
Sections 6.07 and
9.02, the Holders
of at least a majority in principal amount of the outstanding
Securities of any series by notice to the Trustee may waive an
existing Default or Event of Default and its consequences with
respect to that series, except a Default in the nonpayment of the
principal of or interest on any Security of that series
(provided,
however, that the
Holders of a majority in principal amount of the then outstanding
Securities of any series may rescind an acceleration and its
consequences, including any related payment default that resulted
from such acceleration) . When a Default or Event of Default is
waived, it is cured and ceases.
SECTION 6.05. Control by
Majority. The Holders
of at least a majority in principal amount of the outstanding
Securities of any series 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 it. However, the
Trustee may refuse to follow any direction that conflicts with law
or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders or that may involve the
Trustee in personal liability. The Trustee may take any other
action which it deems proper which is not inconsistent with any
such direction.
SECTION 6.06. Limitation on
Suits. A Holder of
Securities of any series may not pursue a remedy with respect to
this Indenture or the Securities of that series unless: (i) the
Holder gives to the Trustee written notice of a continuing Event of
Default with respect to such series; (ii) the Holders of at least
25% in principal amount of the outstanding Securities of that
series make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability, cost or
expense; (iv) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity;
and (v) during such 60-day period the Holders of at least a
majority in principal amount of the outstanding Securities of that
series do not give the Trustee a direction inconsistent with the
request.
A
Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another
Holder.
SECTION 6.07. Rights of Holders
To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of or
interest, if any, on the Security on or after the respective due
dates expressed or provided for in the Security, or to bring suit
for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the
Holder.
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SECTION 6.08. Collection Suit by
Trustee. If an Event
of Default specified in Section 6.01(i) or (ii) occurs and is continuing
with respect to Securities of any series, the Trustee may recover
judgment in its own name and as Trustee of an express trust against
the Company for the whole amount of principal (or such portion of
the principal as may be specified as due upon acceleration at that
time in the terms of that series of Securities) and accrued
interest, if any, remaining unpaid on the outstanding Securities of
that series, together with (to the extent lawful) interest on
overdue principal and interest, and such further amount as shall be
sufficient to cover the costs and, to the extent lawful, expenses
of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 7.07.
SECTION 6.09. Trustee May File
Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee and the Holders allowed in any judicial proceeding relative
to the Company (or any other obligor upon the Securities), its
creditors or its property and shall be entitled and empowered to
participate as a member, voting or otherwise, of any official
committee of creditors appointed in such matter and to collect and
receive any moneys or other property payable or deliverable on any
such claims and to distribute the same, and any custodian in any
such judicial proceedings is hereby authorized by each Holder 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 Holders, 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
7.07. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall pay out
the money in the following order:
FIRST:
to the Trustee, its agents and attorneys for amounts due under
Section 7.07,
including payment of all compensation, expense and liabilities
incurred, and all advances made by the Trustee and the costs and
expenses of collection;
SECOND:
to Holders of any particular series of
Securities for amounts due and unpaid on the Securities of such
series for principal and interest, if any, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Securities of such series for principal and
interest, respectively; and
THIRD:
to the Company or any other obligors on the Securities of that
series, as their interests may appear, or as a court of competent
jurisdiction may direct.
The
Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this
Section 6.10. The Trustee shall notify the Company in writing
reasonably in advance of any such record date and payment
date.
SECTION 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 a 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 and
expenses, 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 6.07 or a suit by
Holders of more than 10% in principal amount of the outstanding
Securities of that series.
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of
Trustee. (a) 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
circumstances in the conduct of such person’s own
affairs.
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(b) Except
during the continuance of an Event of Default: (1) the Trustee need
perform only those duties that are specifically set forth in this
Indenture or the TIA, and no implied covenants or obligations shall
be read into this Indenture against the Trustee and (2) 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. However, 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 examine the
certificates and opinions to determine whether or not, on their
face, they conform to the requirements of this
Indenture.
(c) 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: (1) this paragraph does not limit the
effect of paragraph (b) of this Section 7.01, (2) the Trustee
shall not be liable for any error of judgment made in good faith by
a Trust Officer or other officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts and (3)
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 Section 6.05.
(d) Whether
or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) No
provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability,
cost or expense (including, without limitation, reasonable fees of
counsel).
(f) The
Trustee shall not be obligated to pay interest on any money or
other assets received by it unless otherwise agreed in writing with
the Company. Assets held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
SECTION 7.02. Rights of
Trustee. Subject to
Section
7.01:
(a) The
Trustee may conclusively rely on any document (whether in its
original or facsimile form) 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. The Trustee shall receive and retain financial reports
and statements of the Company as provided herein, but shall have no
duty to review or analyze such reports or statements to determine
compliance under covenants or other obligations of the
Company.
(b) Before
the Trustee acts or refrains from acting, it may require an
Officers’ Certificate and/or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on an Officers’ Certificate or
Opinion of Counsel.
(c) The
Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The
Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its
rights or powers, unless the Trustee’s conduct constitutes
willful misconduct or negligence.
(e) The
Trustee may consult with counsel of its selection, and the advice
or opinion of counsel with respect to legal matters relating to
this Indenture and the Securities 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 not be deemed to have notice of any Default or Event
of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee and such notice references the
Securities and this Indenture.
(g) The
rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
15
(h) 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.
(i) Whenever
in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may request, and
in the absence of bad faith or willful misconduct on its part, rely
upon an Officers’ Certificate and an Opinion of
Counsel.
(j) The
Trustee may request that the Company deliver an Officers’
Certificate setting for the names of individuals and/or titles of
officers authorized at such times to take specified actions
pursuant to this Indenture, which Officers’ Certificate may
be signed by any person specified as so authorized in any such
certificate previously delivered and not superseded.
SECTION 7.03. Individual Rights
of Trustee.
The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the
Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee’s
Disclaimer. The
Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for
the Company’s use of the proceeds from the Securities and it
shall not be responsible for any statement in the Securities other
than its certificate of authentication.
SECTION 7.05. Notice of
Defaults. If a
Default or Event of Default with respect to the Securities of any
series occurs and is continuing, and if it is known to the Trustee,
the Trustee shall mail to Holders a notice of the Default or Event
of Default within 90 days after the occurrence thereof. Except in
the case of a Default or Event of Default in payment of any such
Security, the Trustee may withhold the notice if and so long as it
in good faith determines that withholding the notice is in the
interests of the Holders.
SECTION 7.06. Reports by Trustee
to Holders. The
Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required by
TIA Section 3.13 at the times and in the manner provided by the
TIA, which shall initially be not less than every twelve months
commencing on and may be dated as of a date up to 75 days prior to
such transmission.
A copy
of each report at the time of its mailing to Holders shall be filed
with the SEC, if required, and each stock exchange, if any, on
which the Securities are listed. The Company shall promptly notify
the Trustee when the Securities of any series are listed on any
stock exchange.
SECTION 7.07. Compensation and
Indemnity. The
Company shall be liable for paying to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and
services hereunder as the Company and the Trustee shall from time
to time agree in writing. The Trustee’s compensation shall
not be limited by any law on compensation of a trustee of an
express trust. The Company shall be liable for reimbursing the
Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, costs of
preparing and reviewing reports, certificates and other documents,
costs of preparation and mailing of notices to Securityholders and
reasonable costs of counsel retained by the Trustee in connection
with the delivery of an Opinion of Counsel or otherwise, in
addition to the compensation for its services. Such expenses shall
include the reasonable compensation and expenses, disbursements and
advances of the Trustee’s agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and
all loss, liability, damages, claims or expense (including
reasonable attorneys’ fees and expenses) incurred by it
without negligence, bad faith or willful misconduct on its part in
connection with the administration of this trust and the
performance of its duties hereunder, including the costs and
expense of enforcing this Indenture (including this Section 7.07) and of defending
itself against any claims (whether asserted by any Securityholder,
the Company or otherwise). Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder.
The Company shall defend the claim, and the Trustee shall provide
reasonable cooperation at the Company’s expense in the
defense. The Trustee may have separate counsel and the Company
shall pay the fees and expenses of such counsel, provided that the Company shall
not be required to pay such fees and expenses if it assumes the
Trustee’s defense, and, in the reasonable judgment of outside
counsel to the Trustee, there is no conflict of interest between
the Company and the Trustee in connection with such defense.
Notwithstanding the foregoing, the Company need not reimburse any
expense or indemnify against any loss, liability or expense which
is finally determined by a court of competent jurisdiction to have
been incurred by the Trustee through the Trustee’s own
willful misconduct, negligence or bad faith.
16
To
secure the Company’s payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee other than money or
property held in trust to pay principal of and interest on
particular Securities. Such lien shall survive the satisfaction and
discharge of this Indenture. The Trustee’s right to receive
payment of any amounts due under this Section 7.07 shall not be
subordinate to any other liability or Indebtedness of the
Company.
The
Company’s and the Subsidiary Guarantors’ payment
obligations pursuant to this Section shall survive the discharge of
this Indenture. When the Trustee incurs expenses after the
occurrence of an Event of Default specified in clause (iv) or
clause (v) of Section
6.01 with respect to the Company, the expenses are intended
to constitute expenses of administration under any Bankruptcy
Law.
SECTION 7.08. Replacement of
Trustee. A
resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this
Section
7.08.
The
Trustee may resign and be discharged from the trust hereby created
with respect to one or more or all series of Securities by so
notifying the Company in writing. The Holders of a majority in
principal amount of the then outstanding Securities of any series
may remove the Trustee with respect to that series by so notifying
the Trustee and the Company in writing. The Company may remove the
Trustee with respect to one or more or all series of Securities if:
(i) the Trustee fails to comply with Section 7.10 or TIA Section
310; (ii) 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; (iii) a Custodian or public officer takes charge of
the Trustee or its property; or (iv) the Trustee becomes incapable
of acting.
If, as
to any series of Securities, the Trustee resigns or is removed or
if a vacancy exists in the office of the Trustee for any reason,
the Company shall promptly appoint a successor Trustee for that
series of Securities. The Trustee shall be entitled to payment of
its fees and reimbursement of its expenses while acting as Trustee.
Within one year after the successor Trustee takes office, the
Holders of at least a majority in principal amount of then
outstanding Securities of that series may appoint a successor
Trustee to replace the successor Trustee appointed by the
Company.
Any
Holder of Securities of that series may petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee if the Trustee fails to comply
with Section
7.10.
A
successor Trustee as to any series of Securities shall deliver a
written acceptance of its appointment to the retiring Trustee and
to the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee under
this Indenture. The Company shall mail a notice of the successor
Trustee’s succession to the Holders. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the
Company’s obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee with respect to
expenses, losses and liabilities incurred by it prior to such
replacement.
In case
of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates, (2) shall contain such provisions as shall be
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary or desirable to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee; provided, however, that nothing herein or
in such supplemental indenture shall constitute such Trustees to be
co-Trustees of the same trust and that each such Trustee shall be
Trustee of a trust hereunder separate and apart from any trust
hereunder administered by any other such Trustee.
Upon
the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates.
17
SECTION 7.09. Successor Trustee
by Merger, Etc.
Subject to Section
7.10, if the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business
to, another corporation or national banking association, the
successor entity without any further act shall be the successor
Trustee as to that series of Securities.
SECTION 7.10. Eligibility;
Disqualification.
Each series of Securities shall always have a Trustee who satisfies
the requirements of TIA Section 310(a) (1), (2) and (5). The
Trustee as to any series of Securities shall always have a combined
capital and surplus of at least $100 million as set forth in its
most recent published annual report of condition. The Trustee is
subject to TIA Section 310(b).
SECTION 7.11. Preferential
Collection of Claims Against the Company. The Trustee is subject to 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.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Satisfaction and
Discharge of Indenture. This Indenture shall cease to be of
further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i)
all Securities
theretofore authenticated and delivered (other than Securities that
have been destroyed, lost or stolen and that have been replaced or
paid) have been delivered to the Trustee for cancellation;
or
(ii)
all such Securities
not theretofore delivered to the Trustee for
cancellation
(1)
have become due and
payable, or
(2)
will become due and
payable at their stated maturity within one year, or
(3)
are to be called
for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company, or
(4)
are deemed paid and
discharged pursuant to Section 8.03, as applicable;
and the
Company, in the case of (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust an
amount sufficient for the purpose of paying and discharging the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and interest to the
date of such deposit (in the case of Securities which have become
due and payable on or prior to the date of such deposit) or to the
stated maturity or redemption date, as the case may
be;
(b) the
Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of
the Company to the Trustee under Section 7.07, and, if money
shall have been deposited with the Trustee pursuant to clause (a)
of this Section or if money or obligations shall have been
deposited with or received by the Trustee pursuant to Section 8.03, the obligations
of the Trustee under Section 8.02 and Section 8.05 shall
survive.
18
SECTION
8.02. Application of Trust
Funds; Indemnification.
(a) Subject
to the provisions of Section 8.05, all money
deposited with the Trustee pursuant to Section 8.01, all money and
U.S. Government Obligations deposited with the Trustee pursuant to
Section 8.03 or
8.04 and all money
received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Section 8.03 or 8.04, shall be held in trust
and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the persons entitled
thereto, of the principal and interest for whose payment such money
has been deposited with or received by the Trustee or to make
mandatory sinking fund payments or analogous payments as
contemplated by Sections
8.03 and 8.04.
(b) The
Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and
principal received in respect of such obligations other than any
payable by or on behalf of Holders.
(c) The
Trustee shall deliver or pay to the Company from time to time upon
the request of the Company any U.S. Government Obligations or money
held by it as provided in Sections 8.03 or 8.04 which, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered
to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which
such U.S. Government Obligations or money were deposited or
received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations held under this
Indenture.
SECTION 8.03. Legal Defeasance of
Securities of any Series. Unless this Section 8.03 is otherwise
specified to be inapplicable to Securities of any series, the
Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Securities of any such series
on the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, and the provisions of this Indenture, as
it relates to such outstanding Securities of such series, shall no
longer be in effect (and the Trustee, at the expense of the
Company, shall, upon the request of the Company, execute proper
instruments acknowledging the same), except as to:
(i) the
rights of Holders of Securities of such series to receive, from the
trust funds described in subparagraph (d) hereof, (x) payment of
the principal of an each installment of principal of or interest on
the outstanding Securities of such series on the stated maturity of
such principal of or interest and (y) the benefit of any mandatory
sinking fund payments applicable to the Securities of such series
on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such
series;
(ii) the
Company’s obligations with respect to such Securities of such
series under Sections
2.03, 2.06
and 2.07;
and
(iii) the
rights, powers, trust and immunities of the Trustee hereunder and
the duties of the Trustee under Section 8.02 and the duty of
the Trustee to authenticate Securities of such series issued on
registration of transfer of exchange;
provided that, the
following conditions shall have been satisfied:
(a) the
Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust 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 such Securities,
cash in U.S. Dollars and/or U.S. Government Obligations which
through the payment of interest and principal in respect thereof,
in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment
of money, an amount in cash, 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 each installment of principal
(including mandatory sinking fund or analogous payments) of and
interest, if any, on all the Securities of such series on the dates
such installments of interest or principal are due;
(b) such
deposit will not result in a breach or violation of, or constitute
a default under, this Indenture;
19
(c) no
Default or Event of Default with respect to the Securities of such
series shall have occurred on the date of such deposit and 91 days
shall have passed after the deposit has been made, and, during such
91 day period, no Default specified in Section 6.0l(iv) or (v) with
respect to the Company occurs which is continuing at the end of
such period;
(d) the
Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit,
defeasance and discharge had not occurred;
(e) the
Company shall have delivered to the Trustee an Officers’
Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of the Securities of such
series over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other creditors
of the Company;
(f) such
deposit shall not result in the trust arising from such deposit
constituting an investment company (as defined in the Investment
Company Act of 1940, as amended), or such trust shall be qualified
under such Act or exempt from regulation thereunder;
and
(g) the
Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the defeasance contemplated by
this Section have been complied with.
SECTION 8.04. Covenant
Defeasance. Unless
this Section 8.04
is otherwise inapplicable to Securities of any series, on and after
the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with any
term, provision or condition set forth under Sections 4.03, 4.04 and 4.05 as well as any additional
covenants contained in a supplemental indenture hereto for a
particular series of Securities or a Board Resolution or an
Officers’ Certificate delivered pursuant to Section 2.01 (and the failure
to comply with any such provisions shall not constitute a Default
or Event of Default under Section 6.01) and the
occurrence of any event described in clause (e) of Section 6.01 shall not
constitute a Default or Event of Default hereunder, with respect to
the Securities of such series, provided that the following
conditions shall have been satisfied:
(a) With
reference to this Section
8.04, the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 8.03) with the Trustee
as trust funds in trust, specifically pledged as Security for, and
dedicated solely to, the benefit of the Holders of such Securities,
cash in U.S. Dollars and/or U.S. Government Obligations which
through the payment of interest and principal in respect thereof,
in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment
of money, an amount in cash, sufficient, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay principal and interest, if any, on and any
mandatory sinking fund in respect of the Securities of such series
on the dates such installments of interest or principal are
due;
(b) Such
deposit will not result in a breach or violation of, or constitute
a default under, this Indenture;
(c) No
Default or Event of Default with respect to the Securities of such
series shall have occurred on the date of such deposit and 91 days
shall have passed after the deposit has been made, and, during such
91 day period, no Default specified in Section 6.01(iv) or (v) with
respect to the Company occurs which is continuing at the end of
such period;
(d) The
Company shall have delivered to the Trustee an Opinion of Counsel
confirming that Holders of the Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a
result of such deposit and 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 deposit and
defeasance had not Occurred;
(e) The
Company shall have delivered to the Trustee an Officers’
Certificate stating the deposit was not made by the Company with
the intent of preferring the Holders of the Securities of such
series over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other creditors
of the Company; and
20
(f) The
Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
SECTION 8.05. Repayment to
Company. The Trustee
and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company,
Holders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law
designates another Person.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of
Holders. The Company
and the Trustee may amend this Indenture or the Securities without
the consent of any Holder: (i) to cure any ambiguity, defect or
inconsistency or make any change required to qualify the indenture
under the TIA, provided that such change does not adversely affect
the rights hereunder of any Holder in any material respect; (ii) to
comply with Section
5.01; (iii) to provide for uncertificated Securities in
addition to certificated Securities; (iv) to make any change that
does not adversely affect in any material respect the rights
hereunder of any Holder; (v) to add to, change or eliminate any of
the provisions of this Indenture in respect of one or more series
of Securities, provided, however, that any such
addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the holder of any such
Security with respect to such provision or (B) shall become
effective only when there is no outstanding Security of any series
created prior to the execution of such supplemental indenture and
entitled to the benefit of such provisions; or (vi) to establish
additional series of Securities as permitted by Section 2.01.
SECTION 9.02. With Consent of
Holders. The Company
and the Trustee as to any series of Securities may amend this
Indenture or the Securities of that series or waive compliance in
any particular instance with any provision of this Indenture or the
Securities of that series, in each case with the written consent of
the Holders of at least a majority in principal amount of the then
outstanding Securities of that series.
Without
the consent of each Holder affected, an amendment or waiver under
this Section may not: (i) reduce the principal amount of
Securities, whose Holders must consent to an amendment or waiver;
(ii) reduce the rate of or change the time for payment of interest
on any Security; (iii) change the date on which any Security may be
subject to redemption or repurchase, or reduce the redemption or
repurchase price therefor; (iv) make any Security payable in
currency other than that stated in the Security; or (v) make any
change in Section
6.04, 6.07
or this sentence.
It
shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the
substance thereof.
An
amendment or waiver under this Section which waives, changes or
eliminates any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of
the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any
other series.
The
Company will mail supplemental indentures to Holders upon request.
Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.
SECTION 9.03. Compliance with
Trust Indenture Act.
Every amendment to this Indenture or the Securities shall be set
forth in a supplemental indenture that complies with the TIA as
then in effect.
21
SECTION 9.04. Revocation and
Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by
a Holder of a Security is a continuing consent by the Holder and
every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security,
even if notation of the consent is not made on any Security;
provided,
however, that
unless a record date shall have been established pursuant to
Section 2.14, any
such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives written
notice of revocation before the date the amendment or waiver
becomes effective. An amendment or waiver becomes effective on
receipt by the Trustee of consents from the Holders of the
requisite percentage principal amount of the outstanding Securities
of any series, and thereafter shall bind every Holder of Securities
of that series.
SECTION 9.05. Notation on or
Exchange of Securities. If an amendment or waiver changes the
terms of a Security: (a) the Trustee may require the Holder of the
Security to deliver such Security to the Trustee, the Trustee may
place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may place an
appropriate notation on any Security thereafter authenticated; or
(b) if the Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed
terms.
SECTION 9.06. Trustee to Sign
Amendment, etc. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment
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, the
Trustee shall be entitled to receive and shall be fully protected
in relying upon an Officers’ Certificate and an Opinion of
Counsel as conclusive evidence that such amendment is authorized or
permitted by this Indenture and that such amendment, supplement or
waiver is the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof
(including Section
9.03).
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act
Controls. This
Indenture is subject to the provisions of the TIA which are
required to be part of this Indenture, and shall, to the extent
applicable, be governed by such provisions.
SECTION 10.02. Notices.
Any notice or communication to the Company or the Trustee is duly
given if in writing and delivered in person or mailed by
first-class mail to the address set forth below:
If to
the Company:
|
United
States Antimony Corporation
|
|
47
Cox Gulch
|
|
P.O.
Box 643
|
|
Thompson Falls,
Montana 59873
|
|
Attn:
Chief Executive Officer
406-827-3523
|
with a
copy to:
Pryor
Cashman LLP
7 Times
Square
New
York, New York 10036
Attention: Ali
Panjwani, Esq.
22
If to
the Trustee:
[____________________]
_____________________
_____________________
_____________________
Attention:
____________
With a
copy to:
_____________________
_____________________
_____________________
Attention:
____________
The
Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or
communications.
Any
notice or communication to a Holder shall be mailed by first-class
mail to his address shown on the register kept by the registrar.
Failure to mail a notice or communication to a Holder or any defect
in such notice or communication shall not affect its sufficiency
with respect to other Holders.
If a
notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is duly given, whether or not
the addressee receives it, except that notice to the Trustee shall
only be effective upon receipt thereof by the Trustee.
If the
Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 10.03. Communication by
Holders with Other Holders. Holders may communicate pursuant to
TIA Section 312(b) with other Holders with respect to their rights
under this Indenture or the Securities. The Company, the Trustee,
the registrar and anyone else shall have the protection of TIA
Section 312 (c)
SECTION 10.04. 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 10.05) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and (ii) an Opinion of Counsel (which shall include the statements
set forth in Section 10.05) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
complied with.
SECTION 10.05. Statements Required
in Certificate or Opinion. Each certificate (other than
certificates provided pursuant to Section 4.04) or opinion with
respect to compliance with a condition or covenant provided for in
this Indenture shall include: (i) a statement that the person
making such certificate or opinion has read such covenant or
condition; (ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a
statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and (iv) a statement as to
whether or not, in the opinion of such person, such condition or
covenant has been complied with; provided, however, that with respect to
matters of fact, an Opinion of Counsel may rely on an
Officers’ Certificate or certificate of public
officials.
SECTION 10.06. Rules by Trustee
and Agents. The
Trustee may make reasonable rules for action by or for a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
23
SECTION 10.07. Legal
Holidays. A
“Legal
Holiday” is a Saturday, a Sunday or a day on which
banking institutions in the City of New York are not required or
authorized to be open. 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.
SECTION 10.08. Duplicate
Originals. The
parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
SECTION 10.09. Governing
Law. The internal
laws of the State of [___________] shall govern this Indenture and
the Securities, without regard to the conflicts of Law rules
thereof.
SECTION 10.10. No Adverse
Interpretation of Other Agreements. This Indenture may not be used to
interpret another indenture, loan or debt agreement of the Company
or any subsidiary. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
SECTION 10.11. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 10.12. Severability.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 10.13. Counterpart
Originals. This
Indenture may be signed in one or more counterparts. Each signed
copy shall be an original, but all of them together represent the
same agreement.
|
|
United
States Antimony Corporation
By:
Name:
Title:
Dated:
[
]
By:
Name:
Title:
Dated:
|
24
| Exhibit 5.1 |
January
19, 2021
United
States Antimony Corporation
47 Cox
Gulch, P.O. Box 643
Thompson
Falls, MT 59873
Ladies
and Gentlemen:
We are
acting as special counsel to United States Antimony Corporation, a
Montana corporation (the “Company”), in
connection with the Company’s Registration Statement on Form
S-3, File No. 333-___________ (the “Registration
Statement”), as amended, filed with the U.S.
Securities and Exchange Commission (the “Commission”)
on January 19, 2021 under the Securities Act of 1933, as amended
(the “Securities
Act”), including the prospectus (the
“Prospectus”)
that is a part of the Registration Statement. The Prospectus
provides that it will be supplemented in the future by one or more
supplements to the Prospectus (each a “Prospectus
Supplement”) and any free writing prospectus(es). The
Prospectus, as supplemented by various Prospectus Supplements and
any free writing prospectus(es), will provide for the issuance and
sale by the Company of up to $25,000,000 in maximum aggregate
offering price of shares of the Company’s common stock, par
value $0.01 per share (the “Common
Stock”), preferred stock, par value $0.01 per share
(“Preferred
Stock”), debt securities (“Debt
Securities”), warrants to purchase any of such
securities (“Warrants”)
and/or rights to purchase shares of Common Stock or Preferred Stock
(“Rights”),
either individually or in units comprised of any of such securities
(“Units” and
collectively, with the Common Stock, Preferred Stock, Debt
Securities, Warrants and Rights, the “Securities”).
The Registration Statement provides that Debt Securities may be
convertible into shares of Common Stock or shares of Preferred
Stock, and that shares of Preferred Stock may be convertible into
shares of Common Stock.
The
Debt Securities will be issued pursuant to one or more indentures
(each, an “Indenture”),
between the Company, as obligor, and a trustee chosen by the
Company and qualified to act as such under the Trust Indenture Act
of 1939, as amended (each, a “Trustee”). The
Warrants will be issued under one or more warrant agreements (each,
a “Warrant
Agreement”) by and among the Company and a financial
institution identified therein as warrant agent (each, a
“Warrant
Agent”). The Units will be issued under one or more
unit agreements (each, a “Unit
Agreement”) between the Company and a unit agent
selected by the Company (the “Unit
Agent”).
United
States Antimony Corporation
January
19, 2021
Page
2
The
Prospectus as supplemented by one or more Prospectus Supplements
will provide for the issuance and sale by the Company of the
Securities, which are to be offered on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act.
In our
capacity as special counsel to the Company in connection with the
Registration Statement, we are familiar with the proceedings taken
and proposed to be taken by the Company in connection with the
authorization and issuance of the Securities and, for the purposes
of this opinion, have assumed such proceedings will be timely
completed in the manner presently proposed. We have made such legal
and factual examinations and inquiries as we have deemed advisable
or necessary for the purpose of rendering this opinion. We have
examined originals, certified copies, or copies otherwise
identified to us as being true copies of originals, of the
following:
(a)
The Registration
Statement, including the Prospectus;
(b)
A copy of the
Second Restated Articles of Incorporation of the Company, as filed
with the Secretary of State of the State of Montana on January 13,
2021 and currently in effect (the “Charter”);
(c)
A copy of the
Amended and Restated Bylaws of the Company, as amended and
currently in effect (the “Bylaws”);
(d)
A Certificate of
Existence for the Company, as issued by the Secretary of State of
the State of Montana on January 12, 2021;
(e)
The resolutions of
the board of directors of the Company adopted by a unanimous
written consent thereof authorizing and approving the filing of the
Registration Statement with the Commission and the issuance and
sale of the Securities pursuant thereto;
(f)
A certificate
executed by the Interim Chief Executive Officer of the Company with
respect to certain matters and delivered to us for purposes of
rendering this opinion;
(g)
The certificates of
certain state authorities and filing officers; and
(h)
Any other
documents, company records, or other writings we have deemed
necessary for the purpose of rendering this opinion.
In such
examination we have assumed the genuineness of all signatures on
original documents, the authenticity and completeness of all
documents submitted to us as originals, the conformity to original
documents of all copies submitted to us, and the due execution and
delivery of all documents (except as to due execution and delivery
by the Company) where due execution and delivery are a prerequisite
to the effectiveness thereof.
As used
in this opinion, the expression “to our knowledge,”
“known to us” or similar language with reference to
matters of fact means that, after an examination of documents
referred to in subparagraphs (a) through (g) above and after
inquiries of officers of the Company, but without any further
independent factual investigation, we find no reason to believe
that the opinions expressed herein are factually incorrect.
Further, the expression “to our knowledge,”
“known to us” or similar language with reference to
matters of fact refers to the current actual knowledge of the
attorneys of this firm who provided material legal representation
to the Company in connection with the Registration Statement.
Except to the extent expressly set forth herein or as we otherwise
believe to be necessary to our opinion, we have not undertaken any
independent investigation to determine the existence or absence of
any fact, and no inference as to our knowledge of the existence or
absence of any fact should be drawn from our representation of the
Company or the rendering of this opinion.
For
purposes of this opinion, we are assuming that each purchaser of
Securities has all requisite power and authority, and has taken any
and all necessary corporate or company action, to execute and
deliver the documents to which it is a party in connection with the
purchase of such Securities and to effect any and all transactions
related or contemplated thereby. In addition, we are assuming that
the representations and warranties as to factual matters made by
the Company in the Registration Statement and made by each
purchaser of Securities in any documents to which it is a party in
connection with the purchase of such Securities are true and
correct. We are also assuming that each of purchaser of Securities
will purchase such Securities for value, in good faith and without
notice of any adverse claims within the meaning of the Uniform
Commercial Code.
Based
upon our examinations mentioned above, subject to the assumptions
stated and relying on statements of fact contained in the documents
we have examined, we are of the opinion that:
1.
When (i) the
Company and the Trustee duly execute and deliver an Indenture and
the specific terms of a particular Debt Security have been duly
established in accordance with the terms of such Indenture, and
such Debt Securities have been duly authenticated by the Trustee
and duly executed and delivered on behalf of the Company against
payment therefor in accordance with the terms and provisions of the
Indenture and as contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and (ii) the
Registration Statement and any required post-effective amendments
thereto have all become effective under the Securities Act, and
assuming that (a) the Indenture and all amendments thereto and the
particular Debt Securities are duly approved by the Board of
Directors of the Company as required by applicable law, (b) the
terms of the Debt Securities as executed and delivered are as
described in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), (c) the Debt Securities as
executed and delivered do not violate any law applicable to the
Company or result in a default under or breach of any agreement or
instrument binding upon the Company, (d) the Debt Securities as
executed and delivered comply with all requirements and
restrictions, if any, applicable to the Company, whether imposed by
any court or governmental or regulatory body having jurisdiction
over the Company, and (e) the Debt Securities are then issued and
sold as contemplated in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), the Debt Securities will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with the terms of the
Debt Securities.
United
States Antimony Corporation
January
19, 2021
Page
4
2.
The Company has the
authority pursuant to the Charter to issue up to 10,000,000 shares
of Preferred Stock. When a series of Preferred Stock has been duly
established in accordance with the terms of the Charter and
applicable law, and upon adoption by the Board of Directors of the
Company of a resolution authorizing the issuance of shares of such
series in form and content as required by applicable law and upon
issuance and delivery of and payment for such shares in the manner
contemplated by the Registration Statement, the Prospectus and the
related Prospectus Supplement(s) and by such resolution, such
shares of such series of Preferred Stock will be validly issued,
fully paid and nonassessable.
3.
The Company has the
authority pursuant to the Charter to issue up to 150,000,000 shares
of Common Stock. Upon adoption by the Board of Directors of the
Company of a resolution authorizing the issuance of shares of
Common Stock in form and content as required by applicable law and
upon issuance and delivery of and payment for such shares in the
manner contemplated by the Registration Statement, the Prospectus
and the related Prospectus Supplement(s) and by such resolution,
such shares of Common Stock will be validly issued, fully paid and
nonassessable.
4.
When (i) the
Company and the Warrant Agent duly execute and deliver a Warrant
Agreement and the specific terms of a particular Warrant have been
duly established in accordance with the terms of such Warrant
Agreement, and such Warrants have been duly authenticated by the
Warrant Agent and duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms and
provisions of the Warrant Agreement and as contemplated by the
Registration Statement, the Prospectus and the related Prospectus
Supplement(s) and (ii) the Registration Statement and any required
post-effective amendments thereto have all become effective under
the Securities Act, and assuming that (a) the Warrant Agreement and
all amendments thereto and the particular Warrants (and the
reservation and issuance of the underlying securities) are duly
approved by the Board of Directors of the Company as required by
applicable law, (b) the terms of the Warrants as executed and
delivered are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), (c) the
Warrants as executed and delivered do not violate any law
applicable to the Company or result in a default under or breach of
any agreement or instrument binding upon the Company, (d) the
Warrants as executed and delivered comply with all requirements and
restrictions, if any, applicable to the Company, whether imposed by
any court or governmental or regulatory body having jurisdiction
over the Company, and (e) the Warrants are then issued and sold as
contemplated in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), the Warrants will constitute
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms.
United
States Antimony Corporation
January
19, 2021
Page
5
5.
With respect to any
series or class of Rights, when (i) the Board of Directors of the
Company has taken all necessary corporate action to authorize the
issuance and the specific terms of such Rights, the terms of the
offering thereof, and related matters and (ii) such Rights and
agreements, if any, relating to the Rights have been duly executed
and delivered in accordance with the terms thereof (assuming the
securities underlying the Rights have been duly authorized, and
validly issued by all necessary corporate action and in accordance
with applicable law), and such Rights are issued and sold as
contemplated in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), then such Rights will be valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms.
6.
When (i) the
Company and the Unit Agent duly execute and deliver a Unit
Agreement and the specific terms of a particular Unit have been
duly established in accordance with the terms of such Unit
Agreement, and such Units have been duly authenticated by the Unit
Agent and duly executed and delivered on behalf of the Company
against payment therefor in accordance with the terms and
provisions of the Unit Agreement and as contemplated by the
Registration Statement, the Prospectus and the related Prospectus
Supplement(s) and (ii) the Registration Statement and any required
post-effective amendments thereto have all become effective under
the Securities Act, and assuming that (a) the Unit Agreement and
all amendments thereto and the particular Units are duly approved
by the Board of Directors of the Company as required by applicable
law, (b) the terms of the Units as executed and delivered are as
described in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), (c) the Units as executed and
delivered do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument
binding upon the Company, (d) the Units as executed and delivered
comply with all requirements and restrictions, if any, applicable
to the Company, whether imposed by any court or governmental or
regulatory body having jurisdiction over the Company, and (e) the
Units are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s),
the Units will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms.
The
foregoing opinions are subject to the following exceptions,
qualifications, limitations and assumptions:
(a) We
express no opinion as to the effect of applicable bankruptcy,
insolvency, reorganization, liquidation, conservatorship,
readjustment of debt, moratorium or other similar federal or state
laws affecting the rights of creditors;
(b) We
express no opinion as to the effect or availability of rules of law
governing specific performance, injunctive relief and other
equitable remedies (regardless of whether any such remedy is
considered in a proceeding at law or in equity);
(c) We
express no opinion as to the effect of general principles of equity
and similar principles, including without limitation concepts of
materiality, reasonableness, unconscionability, good faith and fair
dealing, and the effect of public policy;
United
States Antimony Corporation
January
19, 2021
Page
6
(d) We
have further assumed (i) compliance by the Company and the
Company’s officers and directors with all applicable
fiduciary duties and obligations, whether imposed at law or through
the equitable powers of courts, in connection with the issuance and
sale of the Securities; (ii) the intrinsic fairness to the
stockholders of the Company and to the Company (both as to
procedural and substantive effect) of all terms of the issuance and
sale of the Securities; and (iii) that all terms of the
issuance and sale of the Securities are fair, just and reasonable
to the Company and its stockholders;
(e) We
express no opinion as to the enforceability concerning the voting
of the Company’s voting Securities to the extent the
provisions thereof may be subject to limitations of public policy
and the effect of applicable statutes and judicial
decisions;
(f) We
express no opinion as to the enforceability of provisions of any
Indenture, Warrant Agreement, or Unit Agreement that expressly or
by implication waive broadly or vaguely stated rights or unknown
future rights, or that waive rights granted by law where such
waivers are against public policy;
(g) Our
opinion in paragraphs 2 and 3 above that the Preferred Stock and
Common Stock issued and sold pursuant to the Registration Statement
will be fully paid for assumes that the Company receives full
payment therefor in the form of a check, wire transfer payable to
the Company, or cancellation of indebtedness;
(h) We
express no opinion as to compliance with any applicable anti-fraud
provisions of Federal or state securities laws. We also express no
opinion as to the accuracy and completeness of the information
provided by the Company to purchasers in connection with the offer
and sale of any Securities;
(i) We
have made no inquiry into, and express no opinion with respect to,
any federal or state statute, rule or regulation relating to any
tax, antitrust, land use, safety, environmental, hazardous
material, patent, copyright, trademark or trade name matter, as to
the statutes, regulations, treaties or common laws of any other
nation, state or jurisdiction, or the effect on the transactions
contemplated in the Registration Statement of noncompliance under
any such statues, regulations, treaties or common laws; and we
further disclaim any opinion as to any statute, rule, regulation,
ordinance, order or other promulgation of any regional or local
governmental body or as to any related judicial or administrative
opinion;
(j) The
foregoing opinions are subject to the unenforceability under
certain circumstances under law or court decisions of provisions
providing for the indemnification of, or contribution to, a party
with respect to a liability where such indemnification or
contribution is contrary to public policy; and
United
States Antimony Corporation
January
19, 2021
Page
7
(k) Any
provisions of any Indenture, Warrant Agreement, or Unit Agreement
requiring that waivers must be in writing may not be binding or
enforceable if a non-executory oral agreement has been created
modifying any such provision or an implied agreement by trade
practice or course of conduct has given rise to a waiver;
and
(l) We
express no opinion concerning the enforceability of any waiver of
rights or defenses with respect to stay, extension or usury laws,
and we express no opinion with respect to whether acceleration of
Debt Securities may affect the collectability of any portion of the
stated principal amount thereof which might be determined to
constitute unearned interest thereon.
We
assume for purposes of this opinion that the Company will remain
duly organized, validly existing and in good standing under Montana
law at the time it issues any Securities.
To the
extent that the obligations of the Company under an Indenture may
be dependent thereon, we assume for purposes of this opinion that
at the time the Company issues any Securities thereunder, the
Company will have the organizational power and authority to issue
and sell such Securities; that the applicable Indenture will have
been duly authorized by all necessary organizational action by the
Company, will have been duly executed and delivered by the Company
and constitutes the valid, binding and enforceable obligation of
the Company enforceable against the Company in accordance with its
terms; that the Trustee for each Indenture will be duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization; that the Trustee will be duly
qualified to engage in the activities contemplated by the
applicable Indenture; that the applicable Indenture will have been
duly authorized, executed and delivered by the Trustee and will
constitute a legally valid, binding and enforceable obligation of
the Trustee, enforceable against the Trustee in accordance with its
terms; that the Trustee will be in compliance, generally and with
respect to acting as Trustee under the applicable Indenture, with
all applicable laws and regulations; and that the Trustee will have
the requisite organizational and legal power and authority to
perform its obligations under the applicable
Indenture.
To the
extent that the obligations of the Company under each Warrant
Agreement or Unit Agreement, as applicable, may be dependent
thereon, we assume for purposes of this opinion that at the time
the Company issues any Securities thereunder, the Company will have
the organizational power and authority to issue and sell such
Securities; that the applicable Warrant Agreement or Unit Agreement
will have been duly authorized by all necessary corporate action by
the Company, will have been duly executed and delivered by the
Company and will constitute the valid, binding and enforceable
obligation of the Company enforceable against the Company in
accordance with its terms; that the applicable Warrant Agent or
Unit Agent will be duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that
the Warrant Agent or Unit Agent will be duly qualified to engage in
the activities contemplated by the Warrant Agreement or Unit
Agreement; that the Warrant Agreement or Unit Agreement will have
been duly authorized, executed and delivered by the Warrant Agent
or Unit Agent and will constitute the legally valid, binding and
enforceable obligation of the Warrant Agent or Unit Agent,
enforceable against the Warrant Agent or Unit Agent in accordance
with its terms; that the Warrant Agent or Unit Agent will be in
compliance, generally and with respect to acting as a Warrant Agent
or Unit Agent under the applicable Warrant Agreement or Unit
Agreement with all applicable laws and regulations; and that the
Warrant Agent or Unit Agent will have the requisite organizational
and legal power and authority to perform its obligations under the
applicable Warrant Agreement or Unit Agreement.
United
States Antimony Corporation
January
19, 2021
Page
8
We
consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the
caption “Legal Matters” in the Prospectus included
therein.
Attorneys of this
firm are members of the Bar of the State of Montana, and we express
no opinion as to matters governed by any laws other than the laws
of the State of Montana and the Federal laws of the United
States.
|
|
Very
truly yours,
/s
Stoel Rives LLP
STOEL
RIVES LLP
|
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We hereby consent to the incorporation by reference in the
Prospectus constituting a part of this Registration Statement on
Form S-3 of our report dated April 14, 2020, relating to the
consolidated financial statements, of United States Antimony
Corporation appearing in the Company’s Annual Report on Form
10-K for the year ended December 31, 2019. The audit report
covering the December 31, 2019 consolidated financial statements
contains an emphasis of matter paragraph regarding the
Company’s ability to continue as a going
concern.
We also consent to the reference to us under the caption
“Experts” in the Prospectus.
/s/ Assure CPA (formerly DeCoria, Maichel & Teague,
P.S).
Spokane Washington
January 15, 2021