Waters Corp S-3ASR, filed Mar 16, 2026
Waters Corp /De/ (WAT)
As filed with the Securities and Exchange Commission on March 16, 2026
Registration Nos. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WATERS CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 13-3668640 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
34 Maple Street
Milford, Massachusetts 01757
(508) 478-2000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
AUGUSTA SPINCO CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware |
39-4076868 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
34 Maple Street
Milford, Massachusetts 01757
(508) 478-2000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
WATERS TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 13-3668640 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
34 Maple Street
Milford, Massachusetts 01757
(508) 478-2000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
SEE TABLE OF ADDITIONAL REGISTRANTS
Keeley A. Aleman, Esq.
Senior Vice President, General Counsel and Secretary
Waters Corporation
34 Maple Street
Milford, Massachusetts 01757
(508) 478-2000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Jennifer L. Lee, P.C.
Zoey Hitzert
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller Reporting Company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
TABLE OF ADDITIONAL REGISTRANTS
| Exact Name of Registrant as Specified in Its Charter |
State or Other Jurisdiction of Incorporation or |
I.R.S. Employer Identification No. |
Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices | |||
| PharMingen | California | 33-0252008 | 34 Maple Street, Milford, Massachusetts 01757 (508) 478-2000 | |||
| Wyatt Technology, LLC | California | 77-0027705 | 34 Maple Street, Milford, Massachusetts 01757 (508) 478-2000 | |||
| Accuri Cytometers, Inc. | Delaware | 20-1574420 | 34 Maple Street, Milford, Massachusetts 01757 (508) 478-2000 | |||
| Augusta Life Sciences US OpCo I LLC | Delaware | 39-4227177 | 34 Maple Street, Milford, Massachusetts 01757 (508) 478-2000 | |||
| Augusta Life Sciences US OpCo II LLC | Delaware | 39-4251680 | 34 Maple Street, Milford, Massachusetts 01757 (508) 478-2000 | |||
| Augusta Life Sciences US SpinCo LLC | Delaware | 39-4175214 | 34 Maple Street, Milford, Massachusetts 01757 (508) 478-2000 | |||
| Cellular Research, Inc. | Delaware | 45-3756609 | 34 Maple Street, Milford, Massachusetts 01757 (508) 478-2000 | |||
| HandyLab, Inc. | Delaware | 38-3507870 | 34 Maple Street, Milford, Massachusetts 01757 (508) 478-2000 | |||
| TA Instruments – Waters L.L.C. | Delaware | 51-0389767 | 34 Maple Street, Milford, Massachusetts 01757 (508) 478-2000 | |||
| Waters Asia Limited | Delaware | 51-0353752 | 34 Maple Street, Milford, Massachusetts 01757 (508) 478-2000 | |||
PROSPECTUS
WATERS CORPORATION
Common Stock
Preferred Stock
Debt Securities
Guarantees of Debt Securities
Warrants
Stock Purchase Contracts
Stock Purchase Units
AUGUSTA SPINCO CORPORATION
WATERS TECHNOLOGIES CORPORATION
Debt Securities
Guarantees of Debt Securities
You should read this prospectus and the applicable prospectus supplement carefully before you invest in any offered securities.
Waters Corporation, a Delaware corporation (“Waters” or the “Company”), may offer and sell the securities identified above under its name, from time to time, in one or more offerings. Augusta SpinCo Corporation, a Delaware corporation (“Augusta”), and Waters Technologies Corporation, a Delaware corporation (“WTC”), may offer and sell debt securities, which will be fully and unconditionally guaranteed by Waters and may be fully and unconditionally guaranteed by one or more subsidiaries of Waters identified in this prospectus, from time to time, in one or more offerings. This prospectus provides you with a general description of the securities. The applicable prospectus supplement or free writing prospectus will contain the specific terms of the securities being offered thereby.
Waters, Augusta and WTC may offer and sell these securities to or through underwriters, dealers or agents or directly to one or more purchasers, or through a combination of these methods, on a continuous or delayed basis. The names of any underwriters, dealers or agents and the terms of the arrangements with any such entities will be stated in the applicable prospectus supplement or free writing prospectus. Our net proceeds from the sale of these securities also will be set forth in the applicable prospectus supplement or free writing prospectus.
Waters’ common stock, par value $0.01 per share (our “common stock”) is listed on the New York Stock Exchange (the “NYSE”) under the trading symbol “WAT.” Each prospectus supplement or free writing prospectus will indicate if the securities offered thereby will be listed on any securities exchange.
Investing in these securities involves risks. See “Risk Factors” on page 3 of this prospectus, as well as any risk factors contained in any prospectus supplement and the documents incorporated by reference herein and therein, before you make your investment decision.
Neither the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or any prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is March 16, 2026.
Except as otherwise indicated or unless the context otherwise requires, as used in this prospectus, the terms “we,” “us,” “our,” “Company” and “Waters” refer to Waters Corporation and its consolidated subsidiaries, except in the section titled “Description of Securities” where such terms refer only to Waters, Augusta or WTC, as applicable, excluding their respective subsidiaries.
This prospectus is part of an “automatic shelf” registration statement on Form S-3 that we filed with the SEC under the Securities Act of 1933, as amended (the “Securities Act”). Under this shelf registration statement, we may offer and sell, from time to time, an indeterminate amount of any combination of the securities described in this prospectus in one or more offerings. The debt securities sold by (i) Waters may be guaranteed by one or more subsidiaries of Waters identified in this prospectus on terms to be determined at the time of the offering, and (ii) Augusta and/or WTC will be guaranteed by Waters and may be guaranteed by one or more subsidiaries of Waters identified in this prospectus on terms to be determined at the time of the offering.
This prospectus provides you with a general description of the securities we may offer and sell. Each time that securities are offered, a prospectus supplement or free writing prospectus containing specific information about the terms of that offering will be provided, including the specific amounts, prices and terms of the securities offered. The applicable prospectus supplement or free writing prospectus and any other offering material may also add to, update or change information contained in this prospectus or in documents incorporated by reference into this prospectus. Any statement made in this prospectus will be modified or superseded by any inconsistent statement made in a prospectus supplement or free writing prospectus filed after this prospectus. If there is any inconsistency between the information in this prospectus and the information in a prospectus supplement or free writing prospectus, you should rely on the information in the applicable prospectus supplement or free writing prospectus.
We have not authorized anyone else to provide you with different information. We urge you to read both this prospectus and the applicable prospectus supplement or free writing prospectus, together with the additional information described under the heading “Where You Can Find More Information; Incorporation by Reference.”
We are not making an offer to sell, or soliciting an offer to buy, any of these securities in any jurisdiction where an offer or sale is not permitted. You should not assume that the information contained in this prospectus or the applicable prospectus supplement or free writing prospectus is accurate as of any date other than the date on the front cover of this prospectus or the applicable prospectus supplement or free writing prospectus, as the case may be, or that the information incorporated by reference herein and therein is accurate as of any date other than the date of the relevant report or other document in which such information is contained.
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Waters Corporation
Waters Corporation, a global leader in analytical instruments and software, has pioneered innovations in chromatography, mass spectrometry and thermal analysis serving life, materials and food sciences for more than 65 years. Waters primarily designs, manufactures, sells and services high-performance liquid chromatography (“HPLC”), ultra-performance liquid chromatography (“UPLC” and together with HPLC, referred to as “LC”) and mass spectrometry (“MS”) technology systems and support products, including chromatography columns, other consumable products and comprehensive post-warranty service plans. These systems are complementary products that are frequently employed together (“LC-MS”) and sold as integrated instrument systems using common software platforms.
Waters’ products are used by pharmaceutical, clinical, biochemical, industrial, nutritional safety, environmental, academic and governmental customers working in research and development, quality assurance and other laboratory applications. LC is a standard technique and is utilized in a broad range of industries to detect, identify, monitor and measure the chemical, physical and biological composition of materials, and to purify a full range of compounds. MS technology, principally in conjunction with chromatography, is employed in drug discovery and development, including clinical trial testing, the analysis of proteins in disease processes (known as “proteomics”), nutritional safety analysis and environmental testing. LC-MS instruments combine a liquid phase sample introduction and separation system with mass spectrometric compound identification and quantification. In addition, Waters designs, manufactures, sells and services thermal analysis, rheometry and calorimetry instruments through its TA Instruments product line. These instruments are used in predicting the suitability and stability of fine chemicals, pharmaceuticals, water, polymers, metals and viscous liquids for various industrial, consumer goods and healthcare products, as well as for life science research. Waters is also a developer and supplier of advanced software-based products that interface with its instruments, as well as other manufacturers’ instruments.
Our principal executive offices are located at 34 Maple Street, Milford, Massachusetts 01757. The telephone number of our principal executive offices is (508) 478-2000. Our Internet website address is www.waters.com. We have included our website address in this prospectus solely as an inactive textual reference and the information contained in, or that can be accessed through, our website is not a part of, or incorporated by reference in, this prospectus.
Additional information about Waters is included in our reports and other documents incorporated by reference in this prospectus. See “Where You Can Find More Information; Incorporation by Reference.”
Trademarks and Trade Names
Waters’ logo and its other registered or common law trademarks, service marks or trade names appearing in this prospectus are the property of Waters. Solely for convenience, trademarks, service marks and trade names referred to in this prospectus, including logos, artwork and other visual displays, may appear without a trademark symbol, but such references are not intended to indicate in any way that Waters will not assert, to the fullest extent under applicable law, Waters’ rights or the rights of the applicable licensor to these trademarks, service marks and trade names.
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Our business is subject to uncertainties and risks, and investing in our securities involves risks. You should carefully consider and evaluate all of the information included and incorporated by reference in this prospectus, including the risk factors incorporated by reference from our most recent Annual Report on Form 10-K, as updated by our Quarterly Reports on Form 10-Q and other SEC filings, before investing in our securities. For more information, see the additional information described under the heading “Where You Can Find More Information; Incorporation by Reference.” Any prospectus supplement may also include additional risks related to the securities being offered thereby. It is possible that our business, financial condition, liquidity, cash flows, results of operations, reputation and prospects could be materially adversely affected by any of these risks or additional risks and uncertainties not presently known to us or that we currently believe to be immaterial and these risks could result in a partial or complete loss of your investment.
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Waters, Augusta and WTC have filed this prospectus with the SEC registering offers and sales of, among other securities, debt securities of (i) Waters, which may be fully and unconditionally guaranteed by Augusta, WTC, TA Instruments – Waters L.L.C., a Delaware limited liability company (“TA”), Waters Asia Limited, a Delaware corporation (“Waters Asia”), Wyatt Technology, LLC, a California limited liability company (“Wyatt”), Accuri Cytometers, Inc., a Delaware corporation (“Accuri”), Augusta Life Sciences US OpCo I LLC, a Delaware limited liability company (“ALS OpCo I”), Augusta Life Sciences US OpCo II LLC, a Delaware limited liability company (“ALS OpCo II”), Augusta Life Sciences US SpinCo LLC, a Delaware limited liability company (“ALS SpinCo”), Cellular Research, Inc., a Delaware corporation (“Cellular”), HandyLab, Inc., a Delaware corporation (“HandyLab”), and PharMingen, a California corporation (“PharMingen”) (collectively, the “Waters Debt Securities Guarantors”), (ii) Augusta, which will be fully and unconditionally guaranteed by Waters and may be fully and unconditionally guaranteed by WTC, TA, Waters Asia, Wyatt, Accuri, ALS OpCo I, ALS OpCo II, ALS SpinCo, Cellular, HandyLab and PharMingen (collectively, the “Augusta Debt Securities Guarantors”), and (iii) WTC, which will be fully and unconditionally guaranteed by Waters and may be fully and unconditionally guaranteed by Augusta, TA, Waters Asia, Wyatt, Accuri, ALS OpCo I, ALS OpCo II, ALS SpinCo, Cellular, HandyLab and PharMingen (collectively, the “WTC Debt Securities Guarantors”), in each case, unless the applicable prospectus supplement or other offering material states otherwise, as described in “Description of Securities-Description of Debt Securities.” Waters owns substantially all of the assets of Augusta, WTC, TA, Waters Asia, Wyatt, Accuri, ALS OpCo I, ALS OpCo II, ALS SpinCo, Cellular, HandyLab and PharMingen and conducts substantially all of its operations through Augusta, WTC, TA, Waters Asia, Wyatt, Accuri, ALS OpCo I, ALS OpCo II, ALS SpinCo, Cellular, HandyLab and PharMingen and its other subsidiaries. Each of WTC, TA, Waters Asia and Wyatt is consolidated into Waters’ financial statements. Augusta became a wholly-owned subsidiary of Waters on February 9, 2026 and will be consolidated into Waters’ financial statements from February 9, 2026 onwards.
Pursuant to Rule 3-10 of Regulation S-X and Rule 12h-5 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsidiary issuers or guarantors of obligations guaranteed by their parent company and subsidiary guarantors of obligations issued by their parent company are not required to provide separate financial statements, provided that such subsidiary obligors are consolidated into such parent company’s consolidated financial statements, such related parent guarantee is “full and unconditional” and, subject to certain exceptions, the alternative disclosure required by Rule 13-01 of Regulation S-X is provided, which includes narrative disclosure and summarized financial information. Accordingly, separate consolidated financial statements of WTC, TA, Waters Asia and Wyatt have not been presented.
On February 9, 2026, Waters consummated its business combination with the Biosciences and Diagnostic Solutions business (the “BDS Business”) of Becton, Dickinson and Company, which resulted in Augusta, Accuri, ALS OpCo I, ALS OpCo II, ALS SpinCo, Cellular, HandyLab and PharMingen becoming wholly-owned subsidiaries of Waters. Consolidated financial statements of the BDS Business are incorporated by reference into this prospectus from the Current Reports on Form 8-K filed by Waters with the SEC on February 9, 2026 and March 16, 2026. Accordingly, separate consolidated financial statements of Augusta, Accuri, ALS OpCo I, ALS OpCo II, ALS SpinCo, Cellular, HandyLab and PharMingen have not been presented. Furthermore, as permitted under Rule 13-01(a) of Regulation S-X, we have excluded the summarized financial information for Augusta and ALS OpCo II, given that these entities have no material assets, liabilities or operations other than the debt financing activities and their investments in non-guarantor subsidiaries, and our management believes that the inclusion of such information would not provide incremental value to investors.
Summarized Financial Information for Waters Group
The following tables include summarized financial information for Waters, WTC, TA, Waters Asia and Wyatt (the “Waters Group”) after the elimination of intercompany transactions and balances among Waters, WTC, TA, Waters Asia and Wyatt and investments in any subsidiaries of Waters that are not named as
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registrants in this registration statement (such subsidiaries, the “Waters non-guarantor subsidiaries”). The summarized financial information does not eliminate the effects of these intercompany arrangements and separately presents the net effect of all of the Waters Group’s transactions with Waters non-guarantor subsidiaries for the financial measures presented below.
| As of December 31, 2025 |
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| (In thousands) | ||||
| Current assets |
$ | 860,509 | ||
| Intercompany receivables from the Waters non-guarantor subsidiaries |
225,366 | |||
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| Total current assets |
1,085,875 | |||
| Noncurrent assets |
2,018,476 | |||
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| Total assets |
$ | 3,104,351 | ||
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| Current liabilities |
$ | 383,938 | ||
| Intercompany payables to the Waters non-guarantor subsidiaries |
86,888 | |||
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| Total current liabilities |
470,826 | |||
| Noncurrent liabilities |
1,426,795 | |||
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| Total liabilities |
$ | 1,897,621 | ||
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| For the fiscal year ended December 31, 2025 |
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| (In thousands) | ||||
| Revenues, excluding intercompany |
$ | 998,754 | ||
| Revenues from Waters non-guarantor subsidiaries |
564,090 | |||
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| Total revenue |
$ | 1,562,844 | ||
| Operating loss, excluding intercompany |
$ | (371,435 | ) | |
| Operating income from Waters non-guarantor subsidiaries |
446,198 | |||
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|
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| Total operating income |
$ | 74,763 | ||
| Net loss, excluding intercompany |
$ | (437,310 | ) | |
| Net income from Waters non-guarantor subsidiaries(1) |
941,110 | |||
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| Total net income |
$ | 503,800 | ||
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| (1) | Includes $495 million of dividend income from Waters non-guarantor subsidiaries for the year ended December 31, 2025. |
Summarized Financial Information for Augusta Group
The following tables include summarized financial information for Accuri, ALS OpCo I, ALS SpinCo, Cellular, HandyLab and PharMingen (collectively, the “Augusta Group”) after the elimination of intercompany transactions and balances among Accuri, ALS OpCo I, ALS SpinCo, Cellular, HandyLab and PharMingen and investments in any subsidiaries of Augusta that are not named as registrants in this registration statement (such subsidiaries, the “Augusta non-guarantor subsidiaries”). The summarized financial information does not eliminate the effects of these intercompany arrangements and separately presents the net effect of all of the
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Augusta Group’s transactions with Augusta non-guarantor subsidiaries for the financial measures presented below.
| As of December 31, 2025(1) |
As of September 30, 2025(1) |
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| (In thousands) | ||||||||
| Current assets |
$ | 72,702 | $ | 47,474 | ||||
| Noncurrent assets |
400,542 | 550,859 | ||||||
| Intercompany receivables from the Augusta non-guarantor subsidiaries |
2,799,127 | 2,807,216 | ||||||
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| Total noncurrent assets |
3,199,669 | 3,358,075 | ||||||
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| Total assets |
$ | 3,272,371 | $ | 3,405,549 | ||||
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| Current liabilities |
$ | 21,121 | $ | 44,002 | ||||
| Noncurrent liabilities |
185,185 | 188,441 | ||||||
| Intercompany payables to the Augusta non-guarantor subsidiaries |
2,206,264 | 2,218,146 | ||||||
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| Total noncurrent liabilities |
2,391,449 | 2,406,587 | ||||||
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| Total liabilities |
$ | 2,412,570 | $ | 2,450,589 | ||||
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| For the three months ended December 31, 2025(1) |
For the twelve months ended September 30, 2025(1) |
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| (In thousands) | ||||||||
| Revenues, excluding intercompany |
$ | 2,568 | $ | 9,750 | ||||
| Revenues from Augusta non-guarantor subsidiaries |
24,952 | 99,467 | ||||||
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| Total revenue |
$ | 27,520 | $ | 109,217 | ||||
| Operating loss, excluding intercompany |
$ | (23,575 | ) | $ | (97,358 | ) | ||
| Operating income from Augusta non-guarantor subsidiaries |
25,598 | 141,747 | ||||||
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| Total operating income |
$ | 2,023 | $ | 44,389 | ||||
| Net loss, excluding intercompany |
$ | (24,222 | ) | $ | (107,922 | ) | ||
| Net income from Augusta non-guarantor subsidiaries |
25,598 | 141,747 | ||||||
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| Total net income |
$ | 1,376 | $ | 33,825 | ||||
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| (1) | The financial information related to the Augusta Group is disclosed as of December 31, 2025 and September 30, 2025, and for the three months ended December 31, 2025 and the twelve months ended September 30, 2025. The BDS Business’ last fiscal year ended on September 30, 2025 and the BDS Business’ last reportable fiscal period began on October 1, 2025 and ended on December 31, 2025. |
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein contain, and any prospectus supplement and free writing prospectus that we may provide to you in connection with an offering of the securities described in this prospectus may contain, “forward-looking statements” as that term is defined in Section 27A of the Securities Act and Section 21E of the Exchange Act and are subject to the safe harbor created thereby under the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact contained in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein, including statements regarding our future results of operations and financial position, strategy and plans, and our expectations for future operations, are forward-looking statements. You can identify these forward-looking statements by the use of the words “feels”, “believes”, “anticipates”, “plans”, “expects”, “may”, “will”, “would”, “intends”, “suggests”, “appears”, “estimates”, “projects”, “should” and similar expressions, whether in the negative or affirmative. These forward-looking statements are subject to various risks and uncertainties, many of which are outside the control of the Company, including, and without limitation:
| • | certain risks related to the acquisition of the BDS Business, including, without limitation: |
| • | failure to realize the anticipated benefits of the acquisition of the BDS Business, including as a result of delay in integrating the businesses of the Company and SpinCo, on the expected timeframe or at all; |
| • | the ability of the combined company to implement its business strategy and achieve revenue and cost synergies; |
| • | foreign currency exchange rate fluctuations potentially affecting translation of the Company’s future non-U.S. operating results, particularly when a foreign currency weakens against the U.S. dollar; |
| • | current global economic, sovereign and political conditions and uncertainties; the effect of new or proposed tariff or trade regulations, as well as other new or changed domestic and foreign laws, regulations and policies (or new interpretations thereof); inflation and interest rates; the impacts and costs of war, in particular as a result of the ongoing conflicts between Russia and Ukraine and in the Middle East; and the possibility of further escalation resulting in new geopolitical and regulatory instability; |
| • | economic conditions in China, trade tensions and tariffs between the U.S. and China and their impact on our business, increased competition from local and international competitors in China, the Chinese government’s ongoing tightening of restrictions on procurement by government-funded customers and other regulatory and other challenges and uncertainties in the Chinese market; |
| • | the Company’s ability to access capital, maintain liquidity and service the Company’s debt in volatile market conditions; |
| • | changes in timing and demand for the Company’s products among the Company’s customers and various market sectors, particularly as a result of fluctuations in their expenditures or ability to obtain funding; |
| • | the ability to realize the expected benefits related to the Company’s various cost-saving initiatives, including workforce reductions and organizational restructurings; |
| • | the introduction of competing products by other companies and loss of market share, as well as pressures on prices from competitors and/or customers; |
| • | changes in the competitive landscape as a result of changes in ownership, mergers and continued consolidation among the Company’s competitors; |
| • | regulatory, economic and competitive obstacles to new product introductions, lack of acceptance of new products and inability to grow organically through innovation; |
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| • | rapidly changing technology and product obsolescence; |
| • | the risks related to the development, deployment and use of artificial intelligence (“AI”); |
| • | a failure to timely and effectively use AI and embed it into new product offerings and services that negatively impacts our competitiveness; |
| • | risks associated with previous or future acquisitions, strategic investments, joint ventures and divestitures, including risks associated with achieving the anticipated financial results and operational synergies, contingent purchase price payments and expansion of our business into new or developing markets; |
| • | risks associated with unexpected disruptions in operations, including risks associated with our transition to a new ERP system; |
| • | risks related to any public health crisis or pandemic, climate change, severe weather and geological conditions or events or other events beyond our control; |
| • | failure to adequately protect the Company’s intellectual property, infringement of intellectual property rights of third parties and inability to obtain licenses on commercially reasonable terms; |
| • | the Company’s ability to acquire adequate sources of supply and its reliance on outside contractors for certain components and modules, as well as disruptions to its supply chain; |
| • | risks associated with third-party sales intermediaries and resellers; |
| • | the impact and costs of changes in statutory or contractual tax rates in jurisdictions in which the Company operates as well as shifts in taxable income among jurisdictions with different effective tax rates, the outcome of ongoing and future tax examinations and changes in legislation affecting the Company’s effective tax rate; |
| • | the Company’s ability to attract and retain qualified employees and management personnel; |
| • | risks associated with cybersecurity and our information technology infrastructure, including attempts by third parties, both private and state-sponsored, to defeat the information security measures of the Company or its third-party partners and gain unauthorized access to sensitive and proprietary Company products, services, systems, or data; |
| • | risks associated with compliance with data privacy and information security laws and regulations regarding the collection, transmission, storage and use of personally identifying information; |
| • | increased regulatory burdens as the Company’s business evolves, especially with respect to the U.S. Food and Drug Administration and U.S. Environmental Protection Agency, among others, and in connection with government contracts; |
| • | regulatory, environmental and logistical obstacles affecting the distribution of the Company’s products, completion of purchase order documentation and the ability of customers to obtain letters of credit or other financing alternatives; |
| • | risks associated with litigation and other legal and regulatory proceedings; |
| • | the impact and costs incurred from changes in accounting principles and practices; and |
| • | other risk factors detailed from time to time in the Company’s reports filed with the SEC. |
You should also carefully read the factors described under “Risk Factors” and in other cautionary statements in this prospectus, any related prospectus supplement and free writing prospectus, and in our most recent Annual Report on Form 10-K filed with the SEC and our other filings with the SEC that are incorporated by reference into this prospectus and any prospectus supplement that we may provide to you in connection with an offering of the securities described in this prospectus for a description of certain risks that could, among other things, cause our actual results to differ from those expressed in forward-looking statements.
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Any forward-looking statements in this prospectus are based upon information available to the Company as of the date of this prospectus and, while believed to be true when made, may ultimately prove to be incorrect. Similarly, forward-looking statements that are incorporated by reference herein are based on information available to the Company as of the date such statements were made and while also believed to be true when made, may prove to be incorrect in the future. Subject to any obligations under applicable law, the Company does not undertake any obligation to update any forward-looking statement whether as a result of new information, future developments or otherwise, or to conform any forward-looking statement to actual results, future events, or to changes in expectations.
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This prospectus contains summary descriptions of the securities that (i) Waters may offer and sell from time to time, including common stock, preferred stock, debt securities (which may be fully and unconditionally guaranteed by one or more subsidiaries of Waters identified in this prospectus, unless the applicable prospectus supplement or other offering material states otherwise), warrants, stock purchase contracts and stock purchase units, and (ii) Augusta and WTC may offer and sell from time to time, consisting of debt securities, which will be fully and unconditionally guaranteed by Waters and may be fully and unconditionally guaranteed by one or more subsidiaries of Waters identified in this prospectus, unless the applicable prospectus supplement or other offering material states otherwise. These summary descriptions are not meant to be complete descriptions of each security. Certain specific terms of any security to be issued pursuant hereto will be set forth in a related prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is a summary and does not purport to be complete. It is subject to and qualified in its entirety by reference to our Second Amended and Restated Certificate of Incorporation, as amended (our “Certificate”), and our Amended and Restated Bylaws (our “Bylaws”), which are filed as exhibits 3.1 and 3.2 to this prospectus, respectively, and incorporated by reference herein. The summary below is also qualified by provisions of applicable law.
In this description, all references to “we,” “us,” “our” or the “Company” refer only to Waters and not to any of its subsidiaries.
As of the date hereof, our authorized capital stock consists of 400,000,000 shares of common stock, par value $0.01 per share, and 5,000,000 shares of preferred stock. As of February 19, 2026, there were 98,101,871 shares of our common stock and no shares of our preferred stock issued and outstanding. All of our issued and outstanding shares of common stock are fully paid and non-assessable.
Common Stock
Our common stock is registered under Section 12 of the Exchange Act and is listed on the NYSE under the symbol “WAT.”
The rights, preferences and privileges of holders of common stock are subject to the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Voting Rights
Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Our Bylaws provide that a nominee for director will be elected by the affirmative vote of a majority of the votes cast with respect to such nominee; however, if the number of nominees exceeds the number of directors to be elected, the directors will be elected by affirmative vote of a plurality of the votes cast.
Dividend Rights
Subject to the rights of holders of any outstanding shares of preferred stock, holders of our common stock are entitled to receive dividends, if any, as may be declared from time to time by our board of directors (the “Board of Directors”) in its discretion out of funds legally available for the payment of dividends.
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Liquidation Rights
Subject to the rights of holders of any outstanding shares of preferred stock, holders of our common stock will share ratably in all assets legally available for distribution to our stockholders in the event of dissolution.
Preferred Stock
Under our Certificate, our Board of Directors is authorized, without further action by our stockholders, to issue up to 5,000,000 shares of our preferred stock, par value $0.01 per share, in one or more series, to establish the number of shares to be included in each such series and to fix the designations, powers, preferences and rights of the shares of each series and the qualifications, limitations and restrictions thereof. We may amend from time to time the Certificate to increase the number of authorized shares of preferred stock. Any such amendment would be approved by a majority of the votes cast by a quorum of our stockholders represented in person or by proxy at a stockholder meeting.
Certain specific terms of any preferred stock that we offer in the future will be described in the applicable prospectus supplement relating to that preferred stock. Investors are urged to carefully review the terms contained in such prospectus supplement, as well as the amendment to our Certificate establishing such terms that we file with the Secretary of State of the State of Delaware and the SEC. Those terms may include:
| • | the title and liquidation preference per share of the preferred stock and the number of shares offered; |
| • | the initial aggregate offering price of the preferred stock; |
| • | the dividend rate (or method of calculation), the dates on which dividends will be payable, whether dividends shall be cumulative and, if so, the date from which the dividends will begin to accumulate; |
| • | any redemption or sinking fund provisions of the preferred stock; |
| • | any conversion rights applicable to the preferred stock; |
| • | the voting rights, if any, of the preferred stock; |
| • | material federal income tax considerations; and |
| • | any additional dividend, liquidation, conversion and other rights, preferences, privileges, limitations and restrictions of the preferred stock. |
Voting Rights
Except as indicated in the applicable prospectus supplement or as otherwise from time to time required by law, the holders of preferred stock will have no voting rights.
Dividend Rights
The preferred stock will have a preference over the common stock as to the payment of dividends. Before any dividends or distributions (other than dividends or distributions payable in common stock or other stock ranking junior to that series of preferred stock as to dividends and upon liquidation) on the common stock or other stock ranking junior to that series of preferred stock as to dividends and upon liquidation shall be declared and set apart for payment or paid, the holders of shares of each series of preferred stock (unless otherwise set forth in the applicable prospectus supplement) will be entitled to receive dividends when, as and if declared by the Board of Directors or, if dividends are cumulative, full cumulative dividends for the current and all prior dividend periods. We will pay those dividends either in cash, shares of preferred stock, or otherwise, at the rate and on the date or dates set forth in the applicable prospectus supplement. The applicable prospectus supplement will indicate the relative ranking of the particular series of the preferred stock as to the payment of dividends, as compared with then-existing and future series of preferred stock.
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Liquidation Rights
The preferred stock of each series will be preferred over the common stock and other stock ranking junior to that series of preferred stock as to assets, so that the holders of that series of preferred stock (unless otherwise set forth in the applicable prospectus supplement) will be entitled to be paid, upon our voluntary or involuntary liquidation, dissolution or winding up, before any distribution is made to the holders of common stock and other stock ranking junior to that series of preferred stock, the amount set forth in the applicable prospectus supplement. The applicable prospectus supplement will indicate the relative ranking of the particular series of the preferred stock upon liquidation, as compared with then-existing and future series of preferred stock.
Anti-takeover Effects of the Delaware General Corporation Law (the “DGCL”) and Our Certificate and Our Bylaws
Our Certificate and our Bylaws contain certain provisions that may discourage, delay, or prevent a change in our management or control over us. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with the Board of Directors, which we believe may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, they may also discourage acquisitions that some stockholders may favor.
No Stockholder Action by Written Consent
Our Certificate provides that any action required or permitted to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and may not be effected by written consent in lieu of a meeting.
Special Meeting of Stockholders and Advance Notice Requirements for Stockholder Proposals
Our Certificate and Bylaws provide that a special meeting of our stockholders may only be called by the Board of Directors, the Chairman of the Board of Directors or our President and Chief Executive Officer, or by the Chairman of the Board of Directors, our President and Chief Executive Officer or our Secretary at the request in writing of stockholders holding at least fifty percent (50%) of the number of shares of common stock outstanding and entitled to vote at such meeting.
Our Bylaws provide that nominations of persons for election to our Board of Directors and the proposal of any other business to be considered by our stockholders, may be made at any annual meeting of stockholders, or at any special meeting of stockholders called for such purpose, (a) by or at the direction of the Board of Directors (or any duly authorized committee thereof), (b) by any stockholder of the Corporation who (A) is a stockholder of record on the date of the giving of the notice required by our Bylaws, on the record date for the determination of stockholders entitled to vote at such meeting and at the time of the meeting, (B) is entitled to vote at such meeting and (C) who complies with the notice procedures set forth in our Bylaws, or (c) solely with respect to nominations of persons for election to our Board of Directors, by an Eligible Stockholder (as defined in our Bylaws) whose Stockholder Nominee (as defined in our Bylaws) is included in our proxy materials for the annual meeting pursuant to our Bylaws. In addition to any other applicable requirements, for a nomination to be made or other business to be properly brought before an annual or special meeting by a stockholder pursuant to our Bylaws, such stockholder must give timely notice of any such proposal in proper written form to our Secretary. To be timely, a stockholder’s notice must be delivered to the Secretary (i) in the case of an annual meeting, not earlier than the close of business on the 120th calendar day prior to the first anniversary of the date of the preceding year’s annual meeting nor later than the close of business on the 90th calendar day prior to the first anniversary of the date of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is more than 30 calendar days before or more than 70 calendar days after the anniversary date of the preceding year’s annual meeting, or if no annual meeting was held in the preceding year, notice by the
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stockholder to be timely must be so delivered not earlier than the close of business on the 120th calendar day prior to the date of such annual meeting and not later than the close of business on the later of the 90th calendar day prior to the date of such annual meeting or the tenth calendar day following the calendar day on which we first make public announcement of the date of such meeting; and (ii) in the case of a special meeting of stockholders, not later than the close of business on the tenth day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made, whichever first occurs. In no event shall the public announcement of an adjournment or postponement of an annual or a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
These provisions could have the effect of delaying until the next stockholder meeting any stockholder actions that are favored by the holders of a majority of our outstanding voting securities.
Requirements for Removal and Interim Election of Directors
The stockholders may, at any special meeting the notice of which states that it is called for that purpose, remove, with or without cause, any director and fill the vacancy, provided that if any director was elected by the holders of any class of stock voting separately as a class under the provisions of the Certificate, such director may be removed and the vacancy filled only by the holders of that class of stock voting separately as a class. Vacancies caused by any such removal and not filled by the stockholders at the meeting at which such removal was made, or any vacancy caused by the death or resignation of any director or for any other reason, and any newly created directorship resulting from any increase in the authorized number of directors, may be filled by the affirmative vote of a majority of the directors then in office, even if less than a quorum, or by sole remaining director, and any director so elected to fill any such vacancy or newly created directorship will hold office until his successor is elected and qualified or until his earlier death, resignation or removal.
In the case of the resignation of a director, a majority of the directors then in office, including those who have so resigned, will have power to fill such vacancy and the vote will take effect when such resignation becomes effective, and each director so chosen will hold office until his successor is elected and qualified or until his earlier death, resignation or removal.
Amendment to Certificate of Incorporation and Bylaws
Our Bylaws may be amended or repealed, or new bylaws may be adopted, by our Board of Directors at any regular or special meeting by the affirmative vote of a majority of all of the members of the Board of Directors, provided, in the case of any special meeting at which all of the members of the Board of Directors are not present, that the notice of such meeting shall have stated that the amendment of the Bylaws was one of the purposes of the meeting. Our Bylaws may be altered, amended or repealed and other bylaws may be adopted by the holders of a majority of the total outstanding stock of the Corporation entitled to vote at any annual meeting or special meeting, provided, in the case of any special meeting, that notice of such proposed alteration, amendment, repeal or adoption is included in the notice of the meeting.
Any provision of our Certificate may be amended or repealed from time to time and at any time in the manner prescribed by the laws of the state of Delaware. The DGCL provides generally that the affirmative vote of a majority of the outstanding stock entitled to vote on amendments to a corporation’s certificate of incorporation or bylaws is required to approve such amendment.
Exclusive Jurisdiction of Certain Actions
Unless we consent in writing to the selection of an alternative forum, our Bylaws require that the Court of Chancery of the State of Delaware, to the fullest extent permitted by law, be the sole and exclusive forum for (a) any derivative action or proceeding brought on our behalf, (b) any action asserting a claim of breach of
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fiduciary duty owed by, or other wrongdoing by, any of our directors, officers, employees or agents to us or to our stockholders, creditors or other constituents, or a claim of aiding and abetting any such breach of fiduciary duty, (c) any action asserting a claim against us or any of our directors or other employees arising pursuant to any provision of the DGCL or our Certificate or Bylaws, (d) any action to interpret, apply, enforce or determine the validity of our Certificate or Bylaws, (e) any action asserting a claim against us or any of our directors or officers or other employees governed by the internal affairs doctrine, or (f) any action asserting an “internal corporate claim” as that term is defined in Section 115 of the DGCL. Such exclusive forum provision shall not apply to any action or proceeding asserting a claim under the Securities Act, or the Exchange Act. Further, unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act against us or any of our directors or officers. Although we believe this provision benefits the Company by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against our directors, officers, employees or agents.
Authorized but Unissued Shares
The authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject to any limitations imposed by the listing standards of the NYSE. Our Board of Directors may issue shares of preferred stock in one or more series, to establish the number of shares to be included in each such series, and to fix the designations, powers, preferences, and rights of the share of each such series, and any qualifications limitations, or restrictions thereof. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued common stock and preferred stock could make more difficult, or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger, or otherwise.
Limitations on Liability and Indemnification of Directors and Officers
Under the DGCL, a corporation may adopt a provision in its certificate of incorporation eliminating or limiting the personal liability of a director or an officer to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, as applicable, except liability for the following: (i) breaches of the director’s duty of loyalty to the corporation or its stockholders; (ii) acts or omissions not in good faith or involving intentional misconduct or knowing violations of law; (iii) the payment of unlawful dividends or unlawful stock repurchases or redemptions; or (iv) transactions in which the director received an improper personal benefit.
Our Certificate provides that no director or officer of Waters shall be liable to Waters or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL.
Any amendment to, or repeal of, the applicable provisions of the DGCL will not eliminate or reduce the effect of such exculpation provisions in respect of any act, omission or claim that occurred or arose prior to that amendment or repeal. If the DGCL is amended to provide for further limitations on the personal liability of directors and officers of corporations, then the personal liability of our directors and officers will be further limited to the greatest extent permitted by the DGCL.
The DGCL permits a corporation to indemnify a person made or threatened to be made a party to any threatened, pending or completed action, suit or proceeding because such person is or was an officer, director, employee or agent of the corporation, or serves or served, at the request of the corporation, as director or officer of another entity. The DGCL permits a corporation to indemnify an officer, director, employee or agent for fines, judgments or settlements, as well as for expenses, in the context of actions other than derivative actions, if such person acted in good faith and reasonably believed that such person’s actions were in, or not opposed to, the best interests of the corporation and, in a criminal proceeding, if such person had no reasonable cause to believe that such person’s conduct was unlawful.
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Our Certificate provides that Waters may indemnify any current or former director, officer, employee, fiduciary, or agent of Waters (or any person serving in such capacities for another corporation at the request of Waters, including service with respect to employee benefit plans) who is or is threatened to be made a party to any civil, criminal, administrative, or investigative proceeding, to the fullest extent permitted by the DGCL. Such indemnification will include all expenses, liabilities, and losses, including attorneys’ fees, and will extend to the heirs, executors, and administrators of such indemnified person.
Indemnification is permitted only if the related proceeding giving rise to the claim for indemnification was authorized by the Board of Directors. However, if Waters does not respond to a request for indemnification within sixty days after a determination of entitlement to indemnification, the request is deemed approved. The right to indemnification is considered a contractual right and includes the right to advancement of expenses incurred in defending any proceeding, prior to its final resolution. These rights continue to be available to individuals who have ceased to be a director, officer, employee, or agent of Waters, and inure to the benefit of the heirs and personal representatives of such a person.
If Waters denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by our Certificate shall be enforceable by the director or officer in any court of competent jurisdiction.
Any amendment to, or repeal of, the applicable provisions of the DGCL will not eliminate or reduce the effect of such indemnification provisions in respect of any act, omission or claim that occurred or arose prior to that amendment or repeal. If the DGCL is amended to provide for further limitations on indemnification of directors and officers of corporations, then the indemnification of our directors and officers will be further limited to the greatest extent permitted by the DGCL.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
Listing
Our common stock is listed on the NYSE under the symbol “WAT.”
United States Federal Income Tax Consequences
United States federal income tax consequences and special considerations, if any, applicable to any shares of common stock or preferred stock will be described in the applicable prospectus supplement.
DESCRIPTION OF DEBT SECURITIES AND RELATED GUARANTEES
In this description, “debt securities” means the debentures, notes, bonds and other evidences of indebtedness that Waters, Augusta or WTC, as applicable, may issue from time to time, and “we,” “us” and “our” refer to Waters, Augusta or WTC, as applicable, and not to any of their respective subsidiaries, as the issuer of the applicable series of debt securities.
Unless otherwise specified in the applicable prospectus supplement, debt securities of Waters will be issued in one or more series under an indenture, to be entered into between Waters and one or more trustees, a form of which will be filed as an exhibit to the registration statement of which this prospectus is a part, debt securities of WTC will be issued in one or more series under an indenture, to be entered into among WTC, Waters and one or more trustees, a form of which will be filed as an exhibit to the registration statement of which this prospectus is a part, and debt securities of Augusta will be issued in one or more series under an indenture, to be entered into
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among Augusta, Waters and one or more trustees, a form of which is filed as an exhibit to the registration statement of which this prospectus is a part. The following summary of provisions of the indentures do not purport to be complete and are subject to, and qualified in their entirety by reference to, all of the provisions of the applicable indenture, including definitions therein of certain terms and the provisions made part thereof by reference to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The applicable indenture governing the notes issued by Waters, Augusta or WTC, as applicable, is referred to as the “indenture” in this description, and the applicable trustee for the notes issued by Waters, Augusta or WTC, as applicable, is referred to as the “trustee” in this description.
The following description briefly summarizes certain general terms and provisions of the debt securities. The particular terms of the debt securities offered by any prospectus supplement and the extent, if any, to which the general terms and provisions described below may apply to such debt securities will be described in the applicable prospectus supplement. The terms of the debt securities will include those set forth in the indenture and the applicable supplemental indenture, if any, and those made a part of the indenture by the Trust Indenture Act. You should read the description below, the applicable prospectus supplement and the provisions of the indenture and the applicable supplemental indenture, if any, in their entirety before investing in any of the debt securities. The statements and descriptions in this prospectus or in any prospectus supplement regarding terms and provisions of the indenture, any applicable supplemental indenture and any debt securities are summaries thereof, do not purport to be complete and are subject to, and qualified in their entirety by reference to, all of the provisions of the indenture and any such supplements and debt securities, including the definitions therein of certain terms.
Unless otherwise stated in the applicable prospectus supplement, the aggregate principal amount of debt securities that may be issued under the indenture is unlimited. The prospectus supplement relating to any series of debt securities will describe the specific terms of such debt securities.
United States federal income tax consequences and special considerations, if any, applicable to any such series will be described in the applicable prospectus supplement. Unless otherwise stated in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange.
General
The debt securities will be unsecured general obligations of Waters, Augusta or WTC, as applicable. The indebtedness represented by the debt securities will rank equally and pari passu with all other unsecured and unsubordinated indebtedness of Waters, Augusta or WTC, as applicable. The debt securities may be issued in one or more series, and unless otherwise provided, a series may be reopened for the issuance of additional debt securities of such series. Also, a single series may be issued at various times with different maturity dates, different interest rates and different dates from which interest accrues. One or more series of debt securities may be issued with the same or various maturities at par or at a discount. Debt securities bearing no interest or interest at a rate which at the time of issuance is below the market rate (“original issue discount securities”) will be sold at a discount below their stated principal amount. This discount may be substantial.
If we denominate the purchase price of any of the debt securities in a foreign currency or currencies, or if the principal of or premium, if any, or interest on any series of debt securities is payable in a foreign currency or currencies, we will include in the applicable prospectus supplement information on the restrictions, elections, material federal income tax considerations, specific terms and other information with respect to that issue of debt securities and the foreign currency or currencies.
The prospectus supplement relating to a series of debt securities will include certain specific terms, including some or all of the following:
| • | the issuer and the title of the debt securities; |
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| • | the aggregate principal amount of the debt securities and any limit thereon; |
| • | the price or prices at which such debt securities will be sold; |
| • | the date or dates on which the principal and premium, if any, of the debt securities will be payable or the method used to determine those dates; |
| • | any interest rate on the debt securities, any date from which interest will accrue, any interest payment dates and regular record dates for interest payments, or the method used to determine any of the foregoing; |
| • | any foreign currency, currencies or currency units in which payments on the debt securities will be payable and the manner for determining the equivalent amount in U.S. currency; |
| • | any provisions for payments on the debt securities in one or more currencies or currency units other than those in which the debt securities are stated to be payable; |
| • | any provisions that would determine payments on the debt securities by reference to an index, formula or other method; |
| • | the place or places where payments on the debt securities will be payable, the debt securities may be presented for registration of transfer or exchange, and notices and demands to or upon us relating to the debt securities may be made; |
| • | certain provisions related to the redemption, purchase, exchange or repayment of the debt securities; |
| • | any provisions that would allow or obligate us to redeem, purchase or repay the debt securities prior to their maturity pursuant to any sinking fund or analogous provision or at the option of the holder; |
| • | whether the debt securities of the series will be convertible into or exchangeable for other debt securities, capital stock or other securities of any kind of the issuer or another person, and, if so, the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the initial conversion or exchange price or rate or the method of calculation, how and when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory, at the option of the holder or at the issuer’s option, the conversion or exchange period, and any other provision in addition to or in lieu of those described herein; |
| • | if applicable, that any debt securities of the series will be issuable in whole or in part in the form of one or more global securities and, in such case, the respective depositaries for such global securities and the form of any legend or legends which will be borne by any such global securities, and any circumstances in which any such global security may be exchanged in whole or in part for debt securities registered, and any transfer of such global security in whole or in part may be registered, in the name or names of persons other than the depositary for such global security or a nominee thereof and any other provisions governing exchanges or transfers of such global security; |
| • | the date of which any global securities of any series shall be dated if other than the original issuance of the first debt securities of the series to be issued; |
| • | the denominations in which we will issue the debt securities, if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof; |
| • | the portion of the principal amount of the debt securities that will be payable if the maturity of the debt securities is accelerated, if other than the entire principal amount; |
| • | if issued as original issue discount securities, the amount of discount; |
| • | the applicability of the provisions described below under “— Satisfaction and Discharge” or such other means of satisfaction or discharge; |
| • | any variation of the defeasance and covenant defeasance sections of the indenture and the manner in which our election to defease the debt securities will be evidenced, if other than by a board resolution; |
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| • | the appointment of any paying agents or agents, security registrar or authenticating agent for the debt securities; |
| • | any deletion from or addition to or change in the events of default for the debt securities and any change in the rights of the trustee or the holders of the debt securities arising from an event of default including, among others, the right to declare the principal amount of the debt securities due and payable; |
| • | any deletion from or modification of or addition to the covenants applicable to the particular debt securities being issued; |
| • | whether the debt securities of the series will be guaranteed and the terms and conditions upon which those debt securities will be guaranteed; |
| • | any restriction or condition on the transferability of the debt securities; |
| • | any subordination provisions and related definitions in the case of debt securities that are subordinated in right of payment to the prior payment of any other indebtedness; |
| • | any additions or changes to the indenture necessary to issue the debt securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; |
| • | the material U.S. federal income tax considerations applicable to the debt securities, including the material federal income tax consequences and other special considerations applicable to original issue discount securities; |
| • | provisions, if any, granting special rights to holders of the debt securities upon the occurrence of specified events; and |
| • | any other terms of the debt securities and, if applicable, the guarantees thereof. |
Guarantees
Unless otherwise described in the applicable prospectus supplement, (i) the debt securities issued by Waters may be fully and unconditionally guaranteed by the Waters Debt Securities Guarantors, (ii) the debt securities issued by Augusta will be fully and unconditionally guaranteed by Waters and may be fully and unconditionally guaranteed by the other Augusta Debt Securities Guarantors, and (iii) the debt securities issued by WTC will be fully and unconditionally guaranteed by Waters and may be fully and unconditionally guaranteed by the other WTC Debt Securities Guarantors. The obligations of the applicable Guarantors under their respective guarantees will be limited as necessary to prevent such guarantees from constituting a fraudulent conveyance under applicable law.
Events of Default
The indenture defines an “event of default” with respect to any series of debt securities. Unless we state otherwise in the prospectus supplement, each of the following will be an event of default under the indenture for any series of debt securities:
| • | our failure to pay interest on any of the debt securities of that series when due and payable, and continuance of the default for a period of 30 days (unless the entire amount of such payment is deposited by us or, if applicable, a Guarantor with the trustee or with a paying agent prior to 11:00 a.m., New York City time, on the 30th day of such period); |
| • | our failure to pay principal or premium, if any, on any of the debt securities of that series when due; |
| • | our or, if applicable, any applicable Guarantor’s failure to perform, or our or, if applicable, any applicable Guarantor’s breach, of any covenant in the indenture in respect of that series, other than a covenant for which there are other consequences of breach or nonperformance or a covenant included in the indenture solely for the benefit of another series of debt securities, and continuance of that failure or breach, without that failure or breach having been cured or waived, for a period of 90 days after the |
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| trustee gives notice to us or, in the case of notice by the holders, the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series give notice to us and the trustee, specifying the default or breach, requiring it to be remedied and stating that such notice is a “notice of default” under the indenture; |
| • | the guarantee of Waters or any Significant Subsidiary (as defined in the indenture) with respect to any series of debt securities is held in any judicial proceeding to be unenforceable or invalid or, except as permitted by the indenture, ceases for any reason to be in full force and effect, or Waters or any Significant Subsidiary denies or disaffirms its obligations under its guarantee with respect to the debt securities of such series in writing, in each case other than by reason of release pursuant to the terms of the indenture or the terms of any other documents with respect to such series of debt securities; |
| • | specified events involving the issuer’s or, if applicable, Waters or any Significant Subsidiary’s bankruptcy, insolvency or reorganization; or |
| • | any other event of default we may provide for that series of debt securities. |
Additional or different events of default applicable to a series of debt securities may be described in a prospectus supplement. An event of default under one series of debt securities does not necessarily constitute an event of default under any other series of debt securities. The indenture will provide that, within 90 days after the occurrence of any default with respect to a series of debt securities that a responsible officer of the trustee has actual knowledge, the trustee will send to all holders of debt securities of that series notice of the default, unless the default has been cured or waived. However, the indenture will provide that the trustee may withhold notice of a default with respect to a series of debt securities, except a default in payment of principal, premium, if any, or interest, if any, if the trustee in good faith determines that doing so is in the interest of the holders of the debt securities of the applicable series. In the case of a default in the performance, or breach, of any covenant or warranty in the indenture or in respect of a series of debt securities, no notice will be given until at least 30 days after the occurrence of the default or breach.
The indenture will provide that if an event of default, other than an event of default relating to events of bankruptcy, insolvency or reorganization, with respect to a series of debt securities occurs and is continuing, either the trustee or the holders of no fewer than 25% in aggregate principal amount of the outstanding debt securities of that series may declare the principal of, or such lesser amount as may be provided for with respect to debt securities of that series, and accrued and unpaid interest, if any, on the debt securities of that series to be due and payable immediately by a notice in writing to us (or to the trustee if given by the holders), and upon any such declaration, such principal or such lesser amount, as the case may be, and such accrued and unpaid interest will become immediately due and payable. The indenture will also provide that if an event of default relating to events of bankruptcy, insolvency or reorganization with respect to a series of debt securities occurs then the principal of, and accrued and unpaid interest, if any, on, all the debt securities of that series will automatically become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of the debt securities. However, upon specified conditions, the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of a series may rescind and annul an acceleration of the debt securities of that series and its consequences.
Any time period in the indenture to cure any actual or alleged default or event of default may be extended or stayed by a court of competent jurisdiction. A notice of default may not be given with respect to any action taken and reported publicly or to the holders of the debt securities of the applicable series more than two years prior to such notice of default.
Subject to the provisions of the Trust Indenture Act requiring the trustee, during the continuance of an event of default under the indenture, to act with the requisite standard of care, the trustee is under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders of debt securities unless those holders have offered, and if requested, provided to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities that may be incurred by taking such action.
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Subject to this requirement, holders of a majority in aggregate principal amount of the outstanding debt securities of a series have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee under the indenture with respect to the debt securities of that series.
The indenture will require the Company, within 120 days after the end of the Company’s fiscal year, to furnish to the trustee a statement as to compliance with the indenture.
Notwithstanding any other provision of the indenture, the holder of a debt security will have the right, which is absolute and unconditional, to receive payment of the principal of, and premium, if any, and interest, if any, on that debt security on the respective due dates for those payments and to institute suit for the enforcement of those payments, and this right will not be impaired without the consent of the holder.
Modification and Waivers
The indenture will permit us and the trustee, with the consent of the holders of a majority in aggregate principal amount of the outstanding debt securities of a series affected by a modification or amendment, to modify or amend any of the provisions of the indenture or of the debt securities or the rights of the holders of the debt securities under the indenture. However, no modification or amendment may, without the consent of the holder of each outstanding debt security affected by the modification or amendment, among other things:
| • | change the stated maturity of the principal of or any installment of principal of or interest, if any, on the debt securities, or reduce the principal amount thereof or the rate (or modify the calculation of such rate) of interest thereon, or reduce the amount payable upon redemption thereof at our option, or reduce the amount of the principal of any original issue discount security that would be due and payable upon a declaration of acceleration of the maturity pursuant to the indenture; |
| • | adversely affect a holder’s right to receive payment of the principal of and interest on any security on the stated maturity (including any interest payment date) thereof or impair the right to institute suit to enforce such payment on or after the stated maturity (including any interest payment date) of the debt securities, in each case as such stated maturity (including any interest payment date) may, if applicable, be extended in accordance with the terms of such debt securities, or, in the case of redemption at the option of the Company, on or after the redemption date; |
| • | change the currency in which the principal of, any premium or interest on, any debt security is payable; |
| • | reduce the percentage in principal amount of outstanding debt securities whose holders must consent to any modification or amendment or any waiver of compliance with specific provisions of the indenture or certain defaults under the indenture and their consequences; or |
| • | make certain modifications to the provisions for modification of the indenture and for certain waivers, except to increase the principal amount of outstanding debt securities necessary to consent to any such change. |
The indenture also contains provisions permitting us and the trustee, without the consent of the holders of the debt securities, to modify or amend the indenture, among other things:
| • | to convey, transfer, assign, mortgage or pledge to the trustee as security for all or any series of debt securities any property or assets that we may desire; |
| • | to evidence the succession of another corporation to the applicable issuer or any guarantor of the debt securities or its successors, as applicable, and the assumption by the successor corporation of the covenants, agreements and obligations of the applicable issuer or any guarantor of all or any series of debt securities, as applicable; |
| • | to add to or modify our covenants and agreements to those included in the indenture for the protection of holders of debt securities (and if such covenants, agreements, restrictions or conditions are to be for |
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| the benefit of fewer than all series of debt securities, stating that such covenants, agreements, restrictions or conditions are expressly being included solely for the benefit of such series); |
| • | to add or modify the events of default for the benefit of the holders of debt securities (and if such additional or modified events of default are to be for the benefit of fewer than all series of debt securities, stating that such additional or modified events of default are expressly being included solely for the benefit of such series); |
| • | to prohibit the authentication and delivery of additional series of debt securities under the indenture; |
| • | to cure any ambiguity, omission, mistake, defect or inconsistency; |
| • | to make such other provisions in regard to matters or questions arising under the indenture as are not inconsistent with the provisions of the indenture or any supplemental indenture; provided that such action shall not adversely affect the rights of any holders of debt securities of any series in any material respect; |
| • | to establish the form and terms of debt securities of any series issued under the indenture, or to authorize the issuance of additional debt securities of a series previously authorized or to add to the conditions, limitations or restrictions on the authorized amount, terms or purposes of issue, authentication or delivery of the debt securities of any series, as set forth in the indenture, or other conditions, limitations or restrictions thereafter to be observed; |
| • | to evidence and provide for the acceptance of appointment under the indenture by a successor trustee with respect to the debt securities of one or more series or to add to or change any of the provisions of the indenture as will be necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee; |
| • | to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
| • | to delete, amend or supplement any provision contained herein or in any supplemental indenture (which deletion, amendment or supplement may apply to one or more series of debt securities or may apply to the indenture generally, including the amendment and restatement the indenture), provided that such amendment or supplement does not (i) apply to any debt security of any series then outstanding created or issued prior to the date of the supplemental indenture pursuant to which such deletion, amendment or supplement, as the case may be, is made and entitled to the benefit of such provision deleted, amended or supplemented by such supplemental indenture or (ii) adversely modify the rights of the holder of any such debt security; |
| • | to add guarantors or co-obligors for the benefit of the debt securities of all or any series or to release guarantors from their guarantees of the debt securities in accordance with the terms of the applicable series of debt securities; |
| • | to evidence or facilitate the release, termination, defeasance or discharge of a guarantee of the debt securities of all or any series when such release, termination, defeasance or discharge is permitted under the indenture; |
| • | to secure the debt securities or guarantees of all or any series; |
| • | to comply with the applicable procedures of the applicable depositary; |
| • | to comply with the Trust Indenture Act or maintain the qualification of the indenture under the Trust Indenture Act; or |
| • | to conform the provisions of the indenture and the debt securities or any related guarantees to the description thereof contained in this prospectus and any related prospectus supplement. |
The holders of a majority in aggregate principal amount of the outstanding debt securities may waive our compliance with some of the restrictive provisions of the indenture. The holders of a majority in aggregate
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principal amount of the outstanding debt securities may, on behalf of all holders of debt securities, waive any past default under the indenture with respect to the debt securities and its consequences, except a default in the payment of the principal of, or premium, if any, or interest, if any, on the debt securities or a default in respect of a covenant or provision which cannot be modified or amended without the consent of each holder of each outstanding debt security so affected.
Satisfaction and Discharge
Upon our direction, the indenture will cease to be of further effect with respect to any debt security specified, subject to the survival of specified provisions of the indenture, and we will be deemed to have been satisfied and discharged from our obligations with respect to such debt securities and any applicable Guarantor of such debt securities shall be automatically discharged, released from and relieved of all of its obligations under its guarantee of such debt securities, when:
| • | either: (i) all debt securities issued under the indenture, subject to exceptions, have been delivered to the trustee for cancellation; or (ii) all debt securities issued under the indenture have become due and payable, will become due and payable at their stated maturity within one year or are to be called for redemption within one year and we have deposited with the trustee, in trust, funds in the currency in which the debt securities are payable, or, in the case of any debt securities denominated in U.S. dollars, direct or indirect obligations of the U.S. or, in the case of any debt securities denominated in a foreign currency, direct or indirect obligations of a government or governments in the confederation that issued such foreign currency (“government obligations”), or a combination thereof, as applicable, in an amount sufficient to pay and discharge the entire indebtedness on the debt securities which have not been delivered to the trustee for cancellation, including the principal, premium, if any, and interest, if any, to the date of the deposit, if the debt securities have become due and payable, or to the maturity or redemption date of the debt securities, as the case may be; |
| • | we have paid all other sums payable under the indenture with respect to the outstanding debt securities issued under the indenture; and |
| • | the trustee has received each officer’s certificate and opinion of counsel called for by the indenture. |
Defeasance and Covenant Defeasance
We may elect with respect to debt securities of any series issued under the indenture either:
| • | to defease and be discharged from all of our obligations with respect to the outstanding debt securities of such series (“defeasance”), except for, among other things, |
| • | the obligation to register the transfer or exchange of debt securities of such series, |
| • | the obligation to replace temporary or mutilated, destroyed, lost or stolen debt securities of such series, |
| • | the obligation to maintain an office or agency in respect of debt securities of such series, and |
| • | the obligation to hold monies for payment in trust; or |
| • | to be released from our obligations, and any Guarantors to be released from their obligations, with respect to debt securities of any series under specified covenants in the indenture, and any omission to comply with those obligations will not constitute a default or an event of default with respect to debt securities of such series (“covenant defeasance”), |
in either case upon the irrevocable deposit by us with the applicable trustee at the time that we make such election, in trust for that purpose, of an amount in the currency in which the debt securities are specified as payable and/or government obligations (determined on the basis of the currency in which such debt securities are then specified as payable) which, through the payment of principal and interest in accordance
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with their terms, will provide money in an amount sufficient to pay the principal, premium, if any, and interest, if any, on the due dates for those payments.
The defeasance or covenant defeasance described above will only be effective if, among other things:
| • | in the case of defeasance, we will have delivered to the trustee an opinion of counsel, subject to customary assumptions and exclusions, confirming that: |
| • | we have received from or there has been published by the Internal Revenue Service a ruling, or |
| • | since the date of the indenture there has been a change in applicable U.S. federal income tax law, |
| • | in either case to the effect that, and based on this ruling or change in law, the opinion of counsel will confirm that the beneficial owners of debt securities of a series then outstanding will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred; |
| • | in the case of covenant defeasance, we will have delivered to the trustee an opinion of counsel, subject to customary assumptions and exclusions, to the effect that the beneficial owners of the debt securities then outstanding will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the covenant defeasance had not occurred; |
| • | the trustee has received each officer’s certificate and opinion of counsel called for by the indenture; |
| • | if the cash and/or government obligations deposited are sufficient to pay the principal of, and premium, if any, and interest, if any, with respect to the debt securities provided the debt securities are redeemed on a particular redemption date, we will have given the trustee irrevocable instructions to redeem the debt securities on that date and to provide notice of such redemption to holders of such debt securities as provided in or pursuant to the indenture; |
| • | no event of default or default (other than that resulting from borrowing funds to be applied to make the irrevocable deposit described above and the granting of any liens in connection therewith) will have occurred and be continuing on the date of the deposit into trust, and, solely in the case of defeasance, no event of default or default with respect to the applicable debt securities for specified events involving our bankruptcy, insolvency or reorganization will have occurred and be continuing on the date of the irrevocable deposit described above; and |
| • | upon the defeasance or covenant defeasance of the Company’s obligations with respect to the debt securities of any series, each applicable Guarantor of the debt securities of such series shall be automatically released from and relieved of all of its obligations under its guarantee of the debt securities of such series, and the trustee, at the expense of the Company, shall execute proper instruments acknowledging such release and relief with respect to each applicable Guarantor. |
In the event covenant defeasance is effected with respect to the debt securities of any series and the debt securities of such series are declared due and payable because of the occurrence of any event of default other than an event of default with respect to the covenants as to which covenant defeasance has been effected, which would no longer be applicable to the debt securities after covenant defeasance, the amount of monies and/or government obligations deposited with the trustee to effect covenant defeasance may not be sufficient to pay amounts due on the debt securities of that series at the time of any acceleration resulting from that event of default. However, we would remain liable to make payment of those amounts due at the time of acceleration.
Book-Entry Securities
Unless otherwise indicated in the prospectus supplement, the debt securities will be issued in the form of one or more fully registered global notes that will be deposited with, or on behalf of, The Depository Trust
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Company (“DTC”), as the depositary, and registered in the name of Cede & Co., DTC’s nominee, or such other name as may be requested by an authorized representative of DTC.
Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an event of default under an indenture, will undertake to perform only those duties as are specifically set forth in the indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of its own affairs. Subject to this provision, the trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered, and if requested, provided security and indemnity satisfactory to it against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
Governing Law
The indentures, the debt securities and any related guarantees will be governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF GUARANTEES OF DEBT SECURITIES
The applicable Guarantors will guarantee, fully and unconditionally, the due and punctual payment of the principal of, premium, if any, and interest on one or more series of debt securities issued by Waters, Augusta or WTC, as applicable, whether at maturity, by acceleration, redemption, repurchase or otherwise, in accordance with the terms of the applicable guarantee and the applicable indenture. The specific terms of such guarantee will be set forth in the prospectus supplement with respect to the offering of the guaranteed debt securities.
DESCRIPTION OF WARRANTS
In this description, all references to “we,” “us,” “our” or the “Company” refer only to Waters and not to any of its subsidiaries.
General
We may issue debt warrants for the purchase of debt securities or stock warrants for the purchase of preferred stock or common stock.
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The warrants will be issued under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all to be set forth in the applicable prospectus supplement relating to any or all warrants in respect of which this prospectus is being delivered. Copies of the form of agreement for each warrant, including the forms of certificates representing the warrants reflecting the provisions to be included in such agreements that will be entered into with respect to the particular offerings of each type of warrant, will be filed as exhibits to the registration statement of which this prospectus forms a part.
The following description sets forth certain general terms and provisions of the warrants to which any prospectus supplement may relate. The particular terms of the warrants to which any prospectus supplement may relate and the extent, if any, to which such general provisions may apply to the warrants so offered will be described in the applicable prospectus supplement. The following summary of certain provisions of the warrants, warrant agreements and warrant certificates does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the warrant agreements and warrant certificates, including the definitions therein of certain terms.
Debt Warrants
General
Reference is made to the applicable prospectus supplement for the terms of debt warrants in respect of which this prospectus is being delivered, the debt securities warrant agreement relating to such debt warrants and the debt warrant certificates representing such debt warrants, including the following:
| • | the designation, aggregate principal amount and terms of the debt securities purchasable upon exercise of such debt warrants and the procedures and conditions relating to the exercise of such debt warrants; |
| • | the designation and terms of any related debt securities with which such debt warrants are issued and the number of such debt warrants issued with each such debt security; |
| • | the date, if any, on and after which such debt warrants and any related debt securities will be separately transferable; |
| • | the principal amount of debt securities purchasable upon exercise of each debt warrant and the price at which such principal amount of debt securities may be purchased upon such exercise; |
| • | the offering price of such debt warrants, if any; |
| • | the initial price at which such debt securities may be purchased upon exercise of debt warrants and any provision with respect to the adjustment thereof; |
| • | the denominations of such debt warrants; |
| • | the date on which the right to exercise such debt warrants shall commence and the date on which such right shall expire; |
| • | a discussion of the material U.S. federal income tax considerations applicable to the ownership or exercise of debt warrants; |
| • | whether the debt warrants represented by the debt warrant certificates will be issued in registered or bearer form, and, if registered, where they may be transferred and registered; |
| • | redemption provisions of such debt warrants, if any; and |
| • | any other terms of the debt warrants. |
The debt warrant certificates will be exchangeable for new debt warrant certificates of different denominations and debt warrants may be exercised at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Prior to the exercise of their debt warrants, holders of
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debt warrants will not have any of the rights of holders of the debt securities purchasable upon such exercise and will not be entitled to any payments of principal and premium, if any, and interest, if any, on the debt securities purchasable upon such exercise.
Exercise of Debt Warrants
Each debt warrant will entitle the holder to purchase for cash such principal amount of debt securities at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement relating to the debt warrants offered thereby. Unless otherwise specified in the applicable prospectus supplement, debt warrants may be exercised at any time up to 5:00 p.m., New York City time, on the expiration date set forth in the applicable prospectus supplement. After 5:00 p.m., New York City time, on the expiration date, unexercised debt warrants will become void.
Debt warrants may be exercised as set forth in the applicable prospectus supplement relating to the debt warrants. Upon receipt of payment and the debt warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the debt securities purchasable upon such exercise. If less than all of the debt warrants represented by such debt warrant certificate are exercised, a new debt warrant certificate will be issued for the remaining amount of debt warrants.
Stock Warrants
General
Reference is made to the applicable prospectus supplement for the terms of stock warrants in respect of which this prospectus is being delivered, the stock warrant agreement relating to such stock warrants and the stock warrant certificates representing such stock warrants, including the following:
| • | the type and number of shares of preferred stock or common stock purchasable upon exercise of such stock warrants and the procedures and conditions relating to the exercise of such stock warrants; |
| • | the date, if any, on and after which such stock warrants and related preferred stock or common stock will be separately tradeable; |
| • | the offering price of such stock warrants, if any; |
| • | the initial price at which such shares may be purchased upon exercise of stock warrants and any provision with respect to the adjustment thereof; |
| • | the denominations of such stock warrants; |
| • | the date on which the right to exercise such stock warrants shall commence and the date on which such right shall expire; |
| • | a discussion of the material U.S. federal income tax considerations applicable to the ownership or exercise of stock warrants; |
| • | redemption provisions of such stock warrants, if any; |
| • | any other terms of the stock warrants; |
| • | anti-dilution provisions of the stock warrants, if any; and |
| • | other information relating to any capital stock purchasable upon exercise of such stock warrants. |
The stock warrant certificates will be exchangeable for new stock warrant certificates of different denominations and stock warrants may be exercised at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Prior to the exercise of their stock warrants, holders of
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stock warrants will not have any of the rights of holders of shares of capital stock purchasable upon such exercise and will not be entitled to any dividend or other distribution payments on such capital stock purchasable upon such exercise.
Exercise of Stock Warrants
Each stock warrant will entitle the holder to purchase for cash such number of shares of preferred stock or common stock, as the case may be, at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement relating to the stock warrants offered thereby. Unless otherwise specified in the applicable prospectus supplement, stock warrants may be exercised at any time up to 5:00 p.m., New York City time, on the expiration date set forth in the applicable prospectus supplement. After 5:00 p.m., New York City time, on the expiration date, unexercised stock warrants will become void.
Stock warrants may be exercised as set forth in the applicable prospectus supplement relating thereto. Upon receipt of payment and the stock warrant certificates properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward a certificate representing the number of shares of capital stock purchasable upon such exercise. If less than all of the stock warrants represented by such stock warrant certificate are exercised, a new stock warrant certificate will be issued for the remaining amount of stock warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
In this description, all references to “we,” “us,” “our” or the “Company” refer only to Waters and not to any of its subsidiaries.
We may issue stock purchase contracts, representing contracts obligating holders to purchase from us, and requiring us to sell to the holders, a specified number of shares of common stock at a future date or dates. The price per share of common stock may be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock purchase contracts. The stock purchase contracts may be issued separately or as a part of units, or stock purchase units, consisting of a stock purchase contract and either (x) senior debt securities, senior subordinated debt securities, subordinated debt securities or junior subordinated debt securities, or (y) debt obligations of third parties, including U.S. Treasury securities, in each case, securing the holder’s obligations to purchase the common stock under the stock purchase contracts. The stock purchase contracts may require us to make periodic payments to the holders of the stock purchase contracts or vice versa, and such payments may be unsecured or prefunded on some basis. The stock purchase contracts may require holders to secure their obligations thereunder in a specified manner and in certain circumstances we may deliver newly issued prepaid stock purchase contracts, or prepaid securities, upon release to a holder of any collateral securing such holder’s obligations under the original stock purchase contract.
The applicable prospectus supplement will describe the terms of any stock purchase contracts or stock purchase units and, if applicable, prepaid securities. The description in the prospectus supplement will not purport to be complete and will be qualified in its entirety by reference to the stock purchase contracts, the collateral arrangements and depositary arrangements, if applicable, relating to such stock purchase contracts or stock purchase units and, if applicable, the prepaid securities and the document pursuant to which such prepaid securities will be issued.
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Waters, Augusta or WTC, as applicable, may sell the securities being offered hereby in one or more of the following ways from time to time:
| • | to or through underwriters; |
| • | to or through dealers; |
| • | through agents; |
| • | directly to one or more purchasers in negotiated transactions; or |
| • | through a combination of the foregoing methods. |
Waters, Augusta or WTC, as applicable, may distribute the offered securities from time to time in one or more transactions at (1) a fixed price or prices, which may be changed, (2) market prices prevailing at the time of sale, (3) prices related to such market prices, or (4) negotiated prices in block trades, or in underwritten offerings or in other types of trades.
In addition, Waters, Augusta and WTC, as applicable, may enter into derivative or hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. In connection with such a transaction, the third parties may sell securities covered by and pursuant to this prospectus and an applicable prospectus supplement. If so, the third parties may use securities borrowed from Waters, Augusta or WTC, as applicable, or others to settle such sales and may use securities received from Waters, Augusta or WTC, as applicable, to close out any related short positions. Waters, Augusta and WTC, as applicable, may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement.
If underwriters are used in the offering of the offered securities, the names of the managing underwriter or underwriters and any other underwriters and certain terms of the offering, including compensation of the underwriters and dealers, if any, will be set forth in the applicable prospectus supplement. Only underwriters named in the applicable prospectus supplement will be deemed to be underwriters in connection with the offered securities described in that prospectus supplement. Firms not so named will have no direct or indirect participation in the underwriting of such securities, although such a firm may participate in the distribution of those securities under circumstances entitling that firm to a dealer’s commission. It is anticipated that any underwriting agreement pertaining to any offered securities will entitle the underwriters to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution for payments which the underwriters may be required to make in respect thereof and provide that the obligations of the underwriters will be subject to certain conditions precedent.
Waters, Augusta or WTC, as applicable, also may sell the offered securities to a dealer as principal. If Waters, Augusta or WTC, as applicable, sell the offered securities to a dealer as a principal, then the dealer may resell those securities to the public at varying prices to be determined by such dealer at the time of resale. The name of the dealer and the terms of the transactions will be set forth in the applicable prospectus supplement.
The offered securities also may be offered through agents that Waters, Augusta or WTC, as applicable, may designate from time to time. The applicable prospectus supplement will contain the name of any such agent and the terms of its agency. Unless otherwise indicated in the prospectus supplement, any such agent will act on a best efforts basis for the period of its appointment.
Dealers and agents named in a prospectus supplement may be deemed to be underwriters (within the meaning of the Securities Act) of the securities described in the prospectus supplement and, under agreements
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which may be entered into with Waters, Augusta or WTC, as applicable, may be entitled to indemnification by Waters, Augusta or WTC against certain civil liabilities, including liabilities under the Securities Act, or to contribution for payments which they may be required to make in respect of those liabilities.
Underwriters, dealers and agents may engage in transactions with us or perform services for us in the ordinary course of business.
Offers to purchase the offered securities may be solicited directly by Waters, Augusta or WTC, as applicable, or through our respective subsidiaries and sales thereof may be made by Waters, Augusta or WTC directly to institutional investors or others. The terms of any such sales will be described in the applicable prospectus supplement.
The specific plan of distribution, including any underwriters, dealers, agents or direct purchasers and their compensation, for any securities offered hereunder will be identified in a prospectus supplement.
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The legality of the securities will be passed upon for us by Kirkland & Ellis LLP, New York, New York, and for any underwriters, dealers or agents by counsel as may be specified in the applicable prospectus supplement.
The consolidated financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control Over Financial Reporting) of Waters Corporation incorporated in this prospectus by reference to Waters Corporation’s Annual Report on Form 10-K for the year ended December 31, 2025 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The combined financial statements of the BDS Business at September 30, 2025 and 2024, and for each of the three years in the period ended September 30, 2025 incorporated by reference in the Waters Corporation’s Current Report on Form 8-K dated February 9, 2026 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, incorporated by reference therein, and incorporated herein by reference. Such combined financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Waters files annual, quarterly and periodic reports, proxy statements and other information with the SEC. The SEC maintains an internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The address of that site is www.sec.gov. Unless specifically listed below, the information contained on the SEC’s website is not intended to be incorporated by reference in this prospectus and you should not consider that information a part of this prospectus.
The SEC allows us to “incorporate by reference” into this prospectus information which we file with it. This means that we can disclose important information to you by referring you to the documents containing that information filed separately with the SEC and that such information will be regarded as an important part of this prospectus. We encourage you to read the SEC filings incorporated by reference into this prospectus before investing in any of our securities. Waters’ filings with the SEC and any amendments to those filings are available free of charge at the Investor Relations section of its website, located at https://ir.waters.com/financials/sec-filings, as soon as reasonably practicable after they are filed with, or furnished to, the SEC. We have included our website address in this prospectus solely as an inactive textual reference and the information contained in, or that can be accessed through, our website is not a part of, or incorporated by reference in, this prospectus.
We incorporate by reference into this prospectus the documents listed below (other than portions of these documents that are either (1) described in paragraph (e) of Item 201 of Regulation S-K or paragraphs (d)(1)-(3) and (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2) furnished or deemed to have been furnished and not filed or that are not deemed to be incorporated by reference into SEC filings, in each case, in accordance with SEC rules, unless otherwise indicated therein):
| • | Waters’ Annual Report on Form 10-K for the year ended December 31, 2025, filed with the SEC on February 23, 2026; |
| • | the portions of Waters’ Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 9, 2025, that are incorporated by reference into Part III of Waters’ Annual Report on Form 10-K for the year ended December 31, 2024, filed with the SEC on February 25, 2025; and |
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| • | Waters’ Current Reports on Form 8-K filed with the SEC on January 16, 2026, January 27, 2026, February 9, 2026 (SEC Accession No. 0001193125-26-042819) and March 16, 2026 (in each case, other than information furnished pursuant to Item 2.02 or Item 7.01 of any such Current Report on Form 8-K). |
We also incorporate by reference the information contained in any future filings made by Waters with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and, in the case of any particular offering of securities, until such offering of securities is terminated (other than portions of these documents that are either (1) described in paragraph (e) of Item 201 of Regulation S-K or paragraphs (d)(1)-(3) and (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2) furnished or deemed to have been furnished and not filed or that are not deemed to be incorporated by reference into SEC filings, in each case, in accordance with SEC rules, including Current Reports on Form 8-K furnished under Item 2.02 or Item 7.01 (including any financial statements or exhibits relating thereto furnished pursuant to Item 9.01), unless otherwise indicated therein). Our future filings with the SEC will automatically update and supersede any inconsistent information in this prospectus and in our other SEC filings, and such outdated or inconsistent information will no longer be regarded as part of this prospectus.
You may also obtain a copy of these filings at no cost by writing Waters at the following address:
Waters Corporation
34 Maple Street
Milford, Massachusetts 01757
Attention: Investor Relations
Telephone: (508) 478-2000
The registration statement containing this prospectus, including exhibits to the registration statement, provides additional information about us and the securities offered under this prospectus. The registration statement is available at the SEC’s website above.
We are not making an offer to sell, or the solicitation of an offer to buy, any of these securities in any jurisdiction where an offer or sale is not permitted. You should not assume that the information contained in this prospectus or the applicable prospectus supplement is accurate as of any date other than the date on the front cover of this prospectus or the applicable prospectus supplement, as the case may be, or that the information incorporated by reference herein and therein is accurate as of any date other than the date of the relevant report or other document in which such information is contained.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution. |
The following table sets forth estimated expenses relating to the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, to be paid by the registrants.
| Amount To Be Paid |
||||
| SEC registration fee |
$ | * | ||
| Trustee and transfer agent fees |
* | * | ||
| Legal fees and expenses |
* | * | ||
| Accounting fees and expenses |
* | * | ||
| Rating agency and listing fees |
* | * | ||
| Printing and engraving fees and expenses |
* | * | ||
| Miscellaneous |
* | * | ||
|
|
|
|||
| Total |
$ | * | * | |
|
|
|
|||
| * | To be deferred pursuant to Rule 456(b) under the Securities Act and calculated in connection with an offering of securities under this registration statement pursuant to Rule 457(r) under the Securities Act. |
| ** | These fees cannot be estimated at this time, as they are calculated based on the securities offered and the number of issuances. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate we will incur in connection with the offering of securities under this registration statement. An estimate of the aggregate expenses in connection with the sale and distribution of the securities being offered will be included in the applicable prospectus supplement. |
| Item 15. | Indemnification of Directors and Officers. |
Delaware Corporations
Section 145 of the DGCL permits a corporation to indemnify any person who is or has been a director, officer, employee or agent of the corporation or who is or has been serving as director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise at the request of the corporation, against expenses (including, but not limited to, attorneys’ fees and disbursements and amounts paid in settlement or in satisfaction of judgments or as fines or penalties) actually and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, in which he/she may be involved by reason of the fact that he/she served or is serving in these capacities, if he/she acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interest of the corporation and, with respect to any criminal action or proceeding, had no cause to believe his/her conduct was unlawful. In the case of an action, suit or proceeding made or brought by or in the right of the corporation to procure a judgment in its favor, the corporation shall not indemnify such person in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation, except for such expenses as the court may allow. Any such person who has been wholly successful on the merits or otherwise with respect to any such action, suit or proceeding or with respect to any such claim, issue or matter therein, shall be indemnified against all expenses actually and reasonably incurred in connection therewith.
Our Certificate provides for the indemnification of directors and officers of Waters to the fullest extent permitted by Section 145. The Certificate of Incorporation of Augusta (the “Augusta Charter”) provides for the indemnification of directors and officers of Augusta to the fullest extent permitted by Section 145, provided that such indemnification is authorized by the board of directors of Augusta. The Certificate of Incorporation of WTC (the “WTC Charter”) provides for the indemnification of directors and officers of WTC to the fullest extent permitted by Section 145, provided that such indemnification is authorized by the board of directors of WTC. The by-laws of Waters Asia (the “Waters Asia Bylaws”) provide for indemnification of directors and officers of
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Waters Asia against expenses, judgments, fines and amounts paid in settlement brought by reason of the fact that he or she is or was a director or officer of Waters Asia, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of Waters Asia, and with respect to any criminal proceeding, had no reasonable cause to believe such conduct was unlawful. The Certificate of Incorporation of HandyLab (the “HandyLab Charter”) provides for the indemnification of directors and officers of HandyLab to the fullest extent permitted by Section 145, provided that the corporation shall not be required to indemnify or advance expenses in connection with any action, suit, proceeding, claim or counterclaim initiated by or on behalf of such person. The by-laws of Accuri (the “Accuri Bylaws”) provide for indemnification of directors and officers of Accuri to the fullest extent authorized by the DGCL against any and all expenses, judgments, penalties, fines and amounts reasonably paid in settlement incurred in connection with any proceeding in which such director or officer is, or is threatened to be made, a party by reason of such director’s or officer’s corporate status, if such director or officer acted in good faith and in a manner such director or officer reasonably believed to be in or not opposed to the best interests of Accuri, and with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.
In addition, Section 102(b)(7) of the DGCL provides that a corporation may eliminate or limit the personal liability of a director or officer to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, as applicable, provided that such provision shall not eliminate or limit the liability of a director or officer, as applicable, (i) for any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director or officer derived an improper personal benefit. No such provision shall eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision becomes effective.
Our Certificate limits the liability of its directors and officers to the fullest extent permitted by the DGCL, as such may be amended. No amendment to or repeal of this provision of our Certificate will apply to, or have any effect on, the liability or alleged liability of any director or officer for, or with respect to, any acts or omissions of such director or officer occurring prior to such amendment or repeal. The Augusta Charter limits the liability of its directors to the fullest extent permitted by the DGCL, as such may be amended. The WTC Charter limits the liability of its directors to the fullest extent permitted by the DGCL. The Certificate of Incorporation of Cellular Research limits the liability of its directors to the fullest extent permitted by the DGCL except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived any improper personal benefit.
Our Bylaws provide that to the fullest extent permitted by the DGCL, as such may be amended, that a director of Waters shall not be liable to Waters or its stockholders for monetary damages for breach of fiduciary duty as a director. The Waters Asia Bylaws provide for the indemnification of any director or officer who was or is a party or is threatened to be made party to any threatened, pending or completed judicial action or suit brought by or in the right of Waters Asia to procure a judgment in its favor, against expenses actually and reasonably incurred in connection with the defense, settlement or appeal of such action or suit, except in cases as to which such person has been adjudged to be liable for gross negligence or willful misconduct in the performance of his or her duty to Waters Asia, unless and only to the extent that the applicable court determines that such person is fairly and reasonably entitled to indemnity for such expenses which such court deems proper.
In addition, pursuant to certain indemnification agreements between Waters and its directors and executive officers, Waters has agreed to indemnify such directors and executive officers to the fullest extent permitted by Delaware law. Among other things, the indemnification agreements provide indemnification procedures, advancement of expenses during proceedings subject to indemnification and mechanisms for reviewing executive conduct in connection with a claim for indemnification.
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Delaware Limited Liability Companies
Section 18-108 of the Delaware Limited Liability Company Act authorizes a limited liability company to indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever, subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement.
The Operating Agreement of TA provides that TA must indemnify its members, managers and certain respective affiliates to the fullest extent permitted by applicable law, for any loss, damage or claim incurred, except in cases of bad faith or outside the scope of authority, and must also pay expenses incurred in defending any proceeding in advance of its final disposition, upon presentation of an undertaking on behalf of such indemnified person to repay such amount if it shall ultimately be determined that such indemnified person is not entitled to be indemnified.
The Operating Agreements for each of ALS OpCo I, ALS OpCo II and ALS SpinCo provide that ALS OpCo I, ALS OpCo II and ALS SpinCo, as applicable, will, to the fullest extent permitted by applicable law, indemnify and make advances for expenses to any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a manager, officer or other authorized representative of the member or the managers of ALS OpCo I, ALS OpCo II and ALS SpinCo, as applicable, against losses, damages, expenses (including attorneys’ fees), judgments, fines and amounts reasonably incurred by such person in connection with such action, suit or proceeding.
California Corporations
Section 317 of the California Corporations Code (the “California Code”) authorizes a corporation to indemnify, subject to certain exceptions, any person who was or is a party or is threatened to be made a party to any proceeding (other than an action by or in the right of the corporation to procure a judgment in its favor) by reason of the fact that such person is or was an agent of the corporation, as the term “agent” is defined in section 317(a) of the California Code, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. A corporation is further authorized to indemnify, subject to certain exceptions, any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was an agent of the corporation, against expenses actually and reasonably incurred by that person in connection with the defense or settlement of the action if the person acted in good faith, in a manner the person believed to be in the best interests of the corporation and its shareholders. Further, Section 317 has no effect on claims arising under federal or state securities laws and does not affect the availability of injunctions and other equitable remedies available to a corporation’s shareholders for any violation of a director’s fiduciary duty to the corporation or its shareholders.
The Certificate of Incorporation of PharMingen (the “PharMingen Charter”) provides that PharMingen is authorized to provide for the indemnification of its agents (as defined in Section 317(a) of the California Code) to the fullest extent permissible under California law, through bylaw provisions, agreements with its agents, vote of the shareholders or disinterested directors, or otherwise, in excess of the indemnification otherwise permitted by Section 317 of the California Code, subject only to the limits set forth in Section 204 of the California Code.
Section 204 of the California Code provides that a corporation’s articles of incorporation may not eliminate or limit the liability of directors (i) for acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (ii) for acts or omissions that a director believes to be contrary to the best interests of the corporation or its shareholders or that involve the absence of good faith on the part of the director, (iii) for
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any transaction from which a director derived an improper personal benefit, (iv) for acts or omissions that show a reckless disregard for the director’s duty to the corporation or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director’s duties, of a risk of a serious injury to the corporation or its shareholders, (v) for acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director’s duty to the corporation or its shareholders, (vi) under Section 310 of the California Code (concerning transactions between corporations and directors or corporations having interrelated directors) or (vii) under Section 316 of the California Code (concerning directors’ liability for distributions, loans, and guarantees). Section 204 further provides that a corporation’s articles of incorporation may not eliminate or limit (i) the liability of a director for any act or omission occurring prior to the date when its indemnification provision became effective or (ii) the liability of an officer for any act or omission as an officer, notwithstanding that the officer is also a director or that his or her actions, if negligent or improper, have been ratified by the directors. The PharMingen Charter limits the liability of its directors for monetary damages to the fullest extent permissible under California law.
California Limited Liability Companies
Section 17704.08 of the California Revised Uniform Limited Liability Company Act provides that a limited liability company shall reimburse for any payment made and indemnify for any debt, obligation, or other liability incurred by a member of a member-managed limited liability company or the manager of a manager-managed limited liability company in the course of the member’s or manager’s activities on behalf of the limited liability company, if, in making the payment or incurring the debt, obligation, or other liability, the member or manager complied with their statutory duties. In addition, subject to any limitations set forth in its operating agreement, a limited liability company may reimburse for any payment made and may indemnify for any debt, obligation, or other liability incurred by any other person, including any officer, in the course of that person’s activities on behalf of the limited liability company, except that such indemnification cannot extend to any breach of the duty of loyalty, an improper financial benefit, liability for excess distributions, intentional infliction of harm on the limited liability company or a member, or an intentional violation of criminal law. A limited liability company may purchase and maintain insurance on behalf of a member or manager of the limited liability company against liability or any other person asserted against or incurred by the member, manager or other person even if, under the California Revised Uniform Limited Liability Company Act, the operating agreement could not eliminate or limit the person’s liability to the limited liability company for the conduct giving rise to the liability.
Wyatt’s operating agreement provides that Wyatt shall, to the fullest extent permitted by the California Revised Uniform Limited Liability Company Act, indemnify and make advances for reasonable expenses to any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that they are or were a member or officer of Wyatt, against losses, damages, expenses (including attorney’s fees), judgments, fines and amounts actually incurred by them in connection with such action, suit or proceeding.
| Item 16. | Exhibits. |
| Exhibit No. |
Document | |
| 1.1* | Form of Underwriting Agreement. | |
| 4.1 | Form of Indenture for debt securities of Augusta SpinCo Corporation. | |
| 4.2* | Form of Indenture for debt securities of Waters Corporation. | |
| 4.3* | Form of Indenture for debt securities of Waters Technologies Corporation. | |
| 4.4* | Form of debt security. | |
| 4.5* | Form of guarantee. | |
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| Exhibit No. |
Document | |
| 4.6* | Certificate of designation, preferences and rights with respect to Waters Corporation’s preferred stock. | |
| 4.7* | Specimen preferred stock certificate of Waters Corporation. | |
| 4.8* | Form of Warrant Agreement (Stock) (including form of Warrant Certificate). | |
| 4.9* | Form of Warrant Agreement (Debt) (including form of Warrant Certificate). | |
| 4.10* | Form of Stock Purchase Contract. | |
| 4.11* | Form of Unit Agreement. | |
| 5.1 | Opinion of Kirkland & Ellis LLP. | |
| 22.1 | List of Subsidiary Guarantors and Issuers of Guaranteed Securities. | |
| 23.1 | Consent of Kirkland & Ellis LLP (included in Exhibit 5.1). | |
| 23.2 | Consent of PricewaterhouseCoopers LLP. | |
| 23.3 | Consent of Ernst & Young LLP. | |
| 24.1 | Powers of attorney (included as part of the signature pages hereto). | |
| 25.1 | Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture filed as Exhibit 4.1 above. | |
| 25.2** | Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture filed as Exhibit 4.2 above. | |
| 25.3** | Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the indenture filed as Exhibit 4.3 above. | |
| 107 | Filing Fee Table. | |
| * | To be filed, if necessary, after the effectiveness of this registration statement as an exhibit to a post-effective amendment hereto or to a report filed with the SEC under the Securities Exchange Act of 1934, as amended. |
| ** | To be filed separately under the electronic form type 305B2, if applicable. |
| Item 17. | Undertakings. |
| (a) | The undersigned registrants hereby undertake: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
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| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrants pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (i) | Each prospectus filed by the registrants pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining liability of the registrants under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: |
The undersigned registrants undertake that in a primary offering of securities of the undersigned registrants 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 registrants 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 registrants relating to the offering required to be filed pursuant to Rule 424; |
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| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants 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 registrants or their securities provided by or on behalf of the undersigned registrants; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser. |
| (b) | The undersigned registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrants’ annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer or controlling person of the registrants 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 registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
| (d) | The undersigned registrants hereby undertake 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 (“Trust Indenture Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Trust Indenture Act. |
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Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned thereunto duly authorized, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| WATERS CORPORATION | ||
| By: | /s/ Amol Chaubal | |
| Name: Amol Chaubal | ||
| Title: Senior Vice President and Chief Financial Officer | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Dr. Flemming Ornskov, M.D., M.P.H. Dr. Flemming Ornskov, M.D., M.P.H. |
Chair of the Board of Directors | |
| /s/ Udit Batra, Ph.D. Udit Batra, Ph.D. |
President and Chief Executive Officer; Director (Principal Executive Officer) | |
| /s/ Amol Chaubal Amol Chaubal |
Senior Vice President and Chief Financial Officer (Principal Accounting Officer) | |
| /s/ Linda Baddour Linda Baddour |
Director | |
| /s/ Dan Brennan Dan Brennan |
Director | |
| /s/ Richard Fearon Richard Fearon |
Director | |
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| Signature |
Title | |
| /s/ Claire M. Fraser, Ph.D. Claire M. Fraser, Ph.D. |
Director | |
| /s/ Pearl S. Huang, Ph.D. Pearl S. Huang, Ph.D. |
Director | |
| /s/ Wei Jiang Wei Jiang |
Director | |
| /s/ Heather Knight Heather Knight |
Director | |
| /s/ Christopher A. Kuebler Christopher A. Kuebler |
Director | |
| /s/ Mark Vergnano Mark Vergnano |
Director | |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| AUGUSTA SPINCO CORPORATION | ||
| By: | /s/ Amol Chaubal | |
| Name: Amol Chaubal | ||
| Title: Senior Vice President, Chief Financial Officer and Treasurer | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Udit Batra, Ph.D. Udit Batra, Ph.D. |
President and Chief Executive Officer; Director (Principal Executive Officer) | |
| /s/ Amol Chaubal Amol Chaubal |
Senior Vice President, Chief Financial Officer and Treasurer; Director (Principal Accounting Officer) | |
| /s/ Keeley A. Aleman Keeley A. Aleman |
Senior Vice President, General Counsel and Secretary; Director | |
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| WATERS TECHNOLOGIES CORPORATION | ||
| By: | /s/ Amol Chaubal | |
| Name: Amol Chaubal | ||
| Title: Chief Financial Officer and Senior Vice President; Director | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Udit Batra, Ph.D. Udit Batra, Ph.D. |
President and Chief Executive Officer; Director (Principal Executive Officer) | |
| /s/ Amol Chaubal Amol Chaubal |
Chief Financial Officer and Senior Vice President; Director (Principal Accounting Officer) | |
| /s/ Keeley Aleman Keeley Aleman |
Director | |
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| TA INSTRUMENTS – WATERS L.L.C. | ||
| By: Waters Technologies Corporation, in its capacity as Managing Member of TA Instruments – Waters L.L.C. | ||
| By: | /s/ Amol Chaubal | |
| Name: Amol Chaubal | ||
| Title: Chief Financial Officer and Senior Vice President; Director | ||
POWER OF ATTORNEY
We, the directors of the managing member of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Udit Batra, Ph.D. Udit Batra, Ph.D. |
Director of the Managing Member of TA Instruments – Waters L.L.C. | |
| /s/ Amol Chaubal Amol Chaubal |
Director of the Managing Member of TA Instruments – Waters L.L.C. | |
| /s/ Keeley Aleman Keeley Aleman |
Director of the Managing Member of TA Instruments – Waters L.L.C. | |
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| WATERS ASIA LIMITED | ||
| By: | /s/ Amol Chaubal | |
| Name: Amol Chaubal | ||
| Title: President | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Amol Chaubal Amol Chaubal |
President (Principal Executive Officer) | |
| /s/ Michael Faria Silveira Michael Faria Silveira |
Chief Financial Officer; Director (Principal Financial Officer) (Principal Accounting Officer) | |
| /s/ John Edward Lynch John Edward Lynch |
Treasurer; Director | |
| /s/ Kathleen Marie White Kathleen Marie White |
Assistant Secretary; Director | |
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| WYATT TECHNOLOGY, LLC | ||
| By: | /s/ Amol Chaubal | |
| Name: Amol Chaubal | ||
| Title: Chief Executive Officer | ||
POWER OF ATTORNEY
We, the undersigned officers and members of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Amol Chaubal Amol Chaubal |
Chief Executive Officer (Principal Executive Officer) | |
| /s/ Michael Faria Silveira Michael Faria Silveira |
Chief Financial Officer and Treasurer (Principal Financial Officer) (Principal Accounting Officer) | |
| * Waters Technologies Corporation |
Sole Member of Wyatt Technology, LLC | |
| *By: | /s/ Amol Chaubal | |
| Amol Chaubal | ||
| Chief Financial Officer and Senior | ||
| Vice President; Director | ||
| Waters Technologies Corporation | ||
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| PHARMINGEN | ||
| By: | /s/ Steven Conly | |
| Name: Steven Conly | ||
| Title: President; Director | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Steven Conly Steven Conly |
President; Director (Principal Executive Officer) | |
| /s/ Michael Faria Silveira Michael Faria Silveira |
Treasurer (Principal Financial Officer) (Principal Accounting Officer) | |
| /s/ Bryan Smith Bryan Smith |
Director | |
| /s/ Elise Masiee Elise Masiee |
Director | |
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| ACCURI CYTOMETERS, INC. | ||
| By: | /s/ Steven Conly | |
| Name: Steven Conly | ||
| Title: President | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Steven Conly Steven Conly |
President (Principal Executive Officer) | |
| /s/ Michael Faria Silveira Michael Faria Silveira |
Treasurer (Principal Financial Officer) (Principal Accounting Officer) | |
| /s/ Bryan Smith Bryan Smith |
Director | |
| /s/ Elise Masiee Elise Masiee |
Director | |
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| AUGUSTA LIFE SCIENCES US OPCO I LLC | ||
| By: | /s/ Amol Chaubal | |
| Name: Amol Chaubal | ||
| Title: President | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Amol Chaubal Amol Chaubal |
President (Principal Executive Officer) | |
| /s/ Michael Faria Silveira Michael Faria Silveira |
Treasurer (Principal Financial Officer) (Principal Accounting Officer) | |
| /s/ Bryan Smith Bryan Smith |
Director | |
| /s/ Elise Masiee Elise Masiee |
Director | |
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| AUGUSTA LIFE SCIENCES US OPCO II LLC | ||
| By: | /s/ Steven Conly | |
| Name: Steven Conly | ||
| Title: President | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Steven Conly Steven Conly |
President (Principal Executive Officer) | |
| /s/ Michael Faria Silveira Michael Faria Silveira |
Treasurer (Principal Financial Officer) (Principal Accounting Officer) | |
| /s/ Bryan Smith Bryan Smith |
Director | |
| /s/ Elise Masiee Elise Masiee |
Director | |
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| AUGUSTA LIFE SCIENCES US SPINCO LLC | ||
| By: | /s/ Steven Conly | |
| Name: Steven Conly | ||
| Title: President | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Steven Conly Steven Conly |
President (Principal Executive Officer) | |
| /s/ Michael Faria Silveira Michael Faria Silveira |
Treasurer (Principal Financial Officer) (Principal Accounting Officer) | |
| /s/ Bryan Smith Bryan Smith |
Director | |
| /s/ Elise Masiee Elise Masiee |
Director | |
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| CELLULAR RESEARCH, INC. | ||
| By: | /s/ Steven Conly | |
| Name: Steven Conly | ||
| Title: President | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Steven Conly Steven Conly |
President (Principal Executive Officer) | |
| /s/ Michael Faria Silveira Michael Faria Silveira |
Treasurer (Principal Financial Officer) (Principal Accounting Officer) | |
| /s/ Bryan Smith Bryan Smith |
Director | |
| /s/ Elise Masiee Elise Masiee |
Director | |
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, in the Town of Milford, Massachusetts, on this 16th day of March, 2026.
| HANDYLAB, INC. | ||
| By: | /s/ Amol Chaubal | |
| Name: Amol Chaubal | ||
| Title: President | ||
POWER OF ATTORNEY
We, the undersigned officers and directors of the registrant, hereby severally constitute and appoint Udit Batra, Amol Chaubal and Keeley A. Aleman, or any of them, with full power of substitution and re-substitution and full power to act without the other, as our true and lawful attorneys-in-fact and agents, for such persons and in such persons’ name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such persons might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 16th day of March, 2026.
| Signature |
Title | |
| /s/ Amol Chaubal Amol Chaubal |
President (Principal Executive Officer) | |
| /s/ Michael Faria Silveira Michael Faria Silveira |
Treasurer (Principal Financial Officer) (Principal Accounting Officer) | |
| /s/ Bryan Smith Bryan Smith |
Director | |
| /s/ Elise Masiee Elise Masiee |
Director | |
II-21
Exhibit 4.1
AUGUSTA SPINCO CORPORATION
as Company
WATERS CORPORATION
as Parent Guarantor
INDENTURE
dated as of
, 2026
DEBT SECURITIES
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
TRUST INDENTURE ACT CROSS-REFERENCE TABLE*
| Trust Indenture Act Section |
Indenture Section | |
| 310(a)(1) | 7.09 | |
| (a)(2) | 7.09 | |
| (a)(3) | N.A. | |
| (a)(4) | N.A. | |
| (a)(5) | 7.09 | |
| (b) | 7.09, 7.10 | |
| 311 | 7.14 | |
| 312(a) | 8.01 | |
| (b) | 1.06 | |
| (c) | 1.06 | |
| 313(a) | 8.02(a), (b) | |
| (b)(1) | N.A. | |
| (b)(2) | 8.02(a) | |
| (c) | 8.02(c) | |
| (d) | 8.02(c) | |
| 314(a)(1)-(3) | 8.03 | |
| (a)(4) | 5.06 | |
| (b) | N.A. | |
| (c)(1) | 1.03 | |
| (c)(2) | 1.03 | |
| (c)(3) | N.A. | |
| (d) | N.A. | |
| (e) | 1.03 | |
| (f) | N.A. | |
| 315(a) | 7.01(a) | |
| (b) | 7.02 | |
| (c) | 7.01(b) | |
| (d) | 7.01(a), (c) | |
| (e) | 6.08 | |
| 316(a) (last sentence) | 1.01 (Definition of “Outstanding”) | |
| (a)(1) | 6.07 | |
| (a)(2) | N.A. | |
| (b) | 11.02 | |
| (c) | 9.02, 11.02 | |
| 317(a) | 6.03 | |
| (b) | 5.05 | |
| 318(a) | 1.08 |
N.A. means not applicable.
| * | This Cross-Reference Table shall not, for any purpose, be deemed to be a part of this Indenture. |
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | 1 | |||||
| 1.01 |
Definitions | 1 | ||||
| 1.02 |
Other Definitions | 8 | ||||
| 1.03 |
Compliance Certificates and Opinions | 8 | ||||
| 1.04 |
Form of Documents Delivered to Trustee | 8 | ||||
| 1.05 |
Notices to the Trustee, the Company and Holders | 9 | ||||
| 1.06 |
Communications with Holders; Waiver of Notice | 10 | ||||
| 1.07 |
Incorporation by Reference of the Trust Indenture Act | 11 | ||||
| 1.08 |
Trust Indenture Act Controls | 11 | ||||
| 1.09 |
Separability Clause | 11 | ||||
| 1.10 |
Benefits of Indenture | 11 | ||||
| 1.11 |
Governing Law; Submission to Jurisdiction; Jury Trial Waiver | 11 | ||||
| 1.12 |
Legal Holidays | 12 | ||||
| 1.13 |
Electronic Signatures and Counterparts | 12 | ||||
| 1.14 |
No Adverse Interpretation of Other Agreements | 12 | ||||
| 1.15 |
Rules of Construction | 12 | ||||
| 1.16 |
U.S.A. PATRIOT Act | 13 | ||||
| ARTICLE II SECURITY FORMS | 13 | |||||
| 2.01 |
Forms Generally | 13 | ||||
| 2.02 |
Form of Trustee’s Certificate of Authentication | 14 | ||||
| 2.03 |
Forms of Securities | 14 | ||||
| 2.04 |
Book-Entry Provisions for Global Securities | 14 | ||||
| ARTICLE III THE SECURITIES | 16 | |||||
| 3.01 |
Amount Unlimited; Issuable in Series | 16 | ||||
| 3.02 |
Denominations | 20 | ||||
| 3.03 |
Execution, Authentication, Delivery and Dating | 20 | ||||
| 3.04 |
Temporary Securities | 22 | ||||
| 3.05 |
Registration; Registration of Transfer and Exchange | 22 | ||||
| 3.06 |
Mutilated, Destroyed, Lost and Stolen Securities | 24 | ||||
| 3.07 |
Payment of Interest; Interest Rights Preserved | 24 | ||||
| 3.08 |
Persons Deemed Owners | 26 | ||||
| 3.09 |
Cancellation | 26 | ||||
| 3.10 |
Computation of Interest; Calculations | 26 | ||||
| 3.11 |
CUSIP Numbers, ISINs and Common Code Numbers | 27 | ||||
| ARTICLE IV REDEMPTION OF SECURITIES | 27 | |||||
| 4.01 |
Applicability of Right of Redemption | 27 | ||||
| 4.02 |
Election to Redeem; Notice of Redemption; Partial Redemption | 27 | ||||
| 4.03 |
Payment of Securities Called for Redemption | 29 | ||||
| 4.04 |
Deposit of Funds for Redemption of Securities | 29 | ||||
| 4.05 |
Mandatory Redemption | 30 | ||||
| 4.06 |
Other Transactions | 30 | ||||
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| ARTICLE V PARTICULAR COVENANTS | 30 | |||||
| 5.01 |
Payments of Principal, Premium, if Any, and Interest, if Any | 30 | ||||
| 5.02 |
Office or Agency for Certain Purposes | 30 | ||||
| 5.03 |
Waiver of Certain Covenants | 31 | ||||
| 5.04 |
Appointments to Fill Vacancies in Trustee’s Office | 31 | ||||
| 5.05 |
Provisions as to Paying Agent | 31 | ||||
| 5.06 |
Statement by Officers as to Default | 32 | ||||
| ARTICLE VI REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT | 32 | |||||
| 6.01 |
Events of Default | 32 | ||||
| 6.02 |
Acceleration of Maturity; Rescission and Annulment | 34 | ||||
| 6.03 |
Collection of Indebtedness by Trustee; Trustee May Prove Debt | 35 | ||||
| 6.04 |
Application of Proceeds | 36 | ||||
| 6.05 |
Limitations on Suits by Holders | 36 | ||||
| 6.06 |
Powers and Remedies Cumulative; Delay or Omission Not Waiver | 37 | ||||
| 6.07 |
Control by Holders; Waiver of Default | 37 | ||||
| 6.08 |
Undertaking for Costs | 38 | ||||
| ARTICLE VII CONCERNING THE TRUSTEE | 38 | |||||
| 7.01 |
Certain Duties and Responsibilities | 38 | ||||
| 7.02 |
Notice of Defaults | 39 | ||||
| 7.03 |
Certain Rights of Trustee | 40 | ||||
| 7.04 |
Trustee Not Responsible for Recitals | 41 | ||||
| 7.05 |
Trustee and Others May Hold Securities | 42 | ||||
| 7.06 |
Moneys Held by Trustee or Paying Agent | 42 | ||||
| 7.07 |
Compensation of Trustee and Its Lien | 42 | ||||
| 7.08 |
Right of Trustee to Rely on Certificate of Certain Officers | 43 | ||||
| 7.09 |
Persons Eligible for Appointment as Trustee | 43 | ||||
| 7.10 |
Resignation and Removal of Trustee; Appointment of Successor | 44 | ||||
| 7.11 |
Acceptance of Appointment by Successor Trustee | 45 | ||||
| 7.12 |
Merger, Conversion or Consolidation of Trustee | 46 | ||||
| 7.13 |
Authenticating Agents | 46 | ||||
| 7.14 |
Preferential Collection of Claims | 48 | ||||
| ARTICLE VIII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY | 48 | |||||
| 8.01 |
Company to Furnish Trustee Names and Addresses of Holders | 48 | ||||
| 8.02 |
Reports by Trustee | 48 | ||||
| 8.03 |
Reports by the Company | 49 | ||||
| ARTICLE IX CONCERNING THE HOLDERS | 49 | |||||
| 9.01 |
Evidence of Action Taken by Holders | 49 | ||||
| 9.02 |
Proof of Execution of Instruments and of Holding of Securities | 50 | ||||
| 9.03 |
Right of Revocation of Action Taken | 50 | ||||
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| ARTICLE X HOLDERS’ MEETINGS | 51 | |||||
| 10.01 |
Rules for Meetings | 51 | ||||
| ARTICLE XI SUPPLEMENTAL INDENTURES | 51 | |||||
| 11.01 |
Supplemental Indentures Without Consent of Holders | 51 | ||||
| 11.02 |
Supplemental Indentures With Consent of Holders | 53 | ||||
| 11.03 |
Effect of Supplemental Indentures | 54 | ||||
| 11.04 |
Notation on Securities in Respect of Supplemental Indentures | 54 | ||||
| 11.05 |
Opinion of Counsel and Officer’s Certificate to Be Given to Trustee | 55 | ||||
| ARTICLE XII CONSOLIDATION, MERGER AND SALE | 55 | |||||
| 12.01 |
Company and Any Guarantor May Consolidate or Merge, etc. | 55 | ||||
| 12.02 |
Conditions to the Company’s Consolidation or Merger, etc. | 55 | ||||
| 12.03 |
Conditions to the Parent Guarantor’s Consolidation or Merger, etc. | 56 | ||||
| 12.04 |
Conditions to Any Subsidiary Guarantor’s Consolidation or Merger, etc. | 57 | ||||
| 12.05 |
Documents and Opinion to Be Furnished to the Trustee | 58 | ||||
| ARTICLE XIII SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS | 58 | |||||
| 13.01 |
Satisfaction and Discharge | 58 | ||||
| 13.02 |
Defeasance and Covenant Defeasance | 60 | ||||
| 13.03 |
Application by Trustee of Funds Deposited for Payment of Securities | 63 | ||||
| 13.04 |
Repayment of Moneys Held by Paying Agent | 64 | ||||
| 13.05 |
Return of Unclaimed Moneys | 64 | ||||
| 13.06 |
Reinstatement | 64 | ||||
| ARTICLE XIV GUARANTEE | 64 | |||||
| 14.01 |
Guarantee | 64 | ||||
| 14.02 |
Reinstatement | 66 | ||||
| 14.03 |
Limitation of the Parent Guarantor’s Liability | 66 | ||||
| 14.04 |
Amendment | 66 | ||||
| ARTICLE XV IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS | 67 | |||||
| 15.01 |
Personal Immunity from Liability of Incorporators, Stockholders, etc. | 67 | ||||
| * | The Table of Contents is not a part of this Indenture. |
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INDENTURE, dated as of , 2026, among Augusta Spinco Corporation, a Delaware corporation, as issuer (the “Company”), Waters Corporation, a Delaware corporation, as parent guarantor (the “Parent Guarantor”), and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debt securities to be issued in one or more series as provided in this Indenture (hereinafter called the “Securities”), and the Parent Guarantor has duly authorized the execution and delivery of this Indenture to provide for the guarantee by the Parent Guarantor of the Securities;
WHEREAS, each series of Securities issued by the Company under this Indenture shall be fully and unconditionally guaranteed by the Parent Guarantor subject to the provisions under this Indenture;
WHEREAS, all things necessary to make this Indenture a valid and legally binding agreement of the Company and the Parent Guarantor, in accordance with its terms, have been done; and
WHEREAS, the Trustee has the power to enter into this Indenture and to accept and perform its duties as herein created.
NOW THEREFORE, each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.01 Definitions.
Unless the context otherwise requires, the terms defined in this Section 1.01 shall for all purposes of this Indenture have the meanings hereinafter set forth:
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Procedures” means, with respect to any payment, tender, redemption, transfer, exchange, conversion or other corporate action of or for beneficial interests in any Global Security, the rules and procedures of the Depositary that apply to such payment, tender, redemption, transfer, exchange, conversion or other corporate action.
“Authenticating Agent” means any agent of the Trustee that at any time shall be appointed and acting pursuant to the provisions of Section 7.13.
“Authorized Officer” means the Chief Executive Officer, Chief Financial Officer, Vice President, Treasurer, Controller, Principal Accounting Officer, Secretary and/or any other officer of the Company or any Guarantor, as the case may be.
“Board of Directors” means, as to any Person, the board of directors or managers, sole member or managing member or other governing body, as applicable, of such Person or any duly authorized committee thereof or any officers duly authorized so to act.
“Board Resolution” means a copy of a resolution or resolutions certified by the Secretary, an Assistant Secretary or by another appropriate officer or authorized natural person of such Person, as the case may be, to have been duly adopted by the Board of Directors or any duly authorized committee thereof and to be in force and effect on the date of such certification.
“Business Day” means any day other than a Legal Holiday.
“Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” means the corporation named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business in respect of this Indenture shall be administered, which office at the date hereof is located at One Federal Street, Boston, MA 02110, Attention: James H. Byrnes, Vice President or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“corporation” includes corporations, limited liability companies, partnerships, associations, companies and business trusts.
“debt securities” means notes, bonds, debentures or other similar evidences of indebtedness for borrowed money.
“default” means, with respect to the Securities of any series, any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series; provided that any default that results solely from the taking of an action that would have been permitted but for the continuation of a previous default will be deemed to be cured if such previous default is cured prior to becoming an Event of Default.
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“Depositary” means, with respect to the Securities of any series issuable or issued in whole or part in the form of one or more Global Securities, the Person designated as Depositary pursuant to Section 3.01 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any series shall mean the Depositary with respect to the Securities of that series.
“Depositary Custodian” means the Trustee as custodian with respect to the Global Securities or any successor entity thereto.
“Dollar” and “$” mean the coin or currency of the United States that, at the time of payment, is legal tender for the payment of public and private debts.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Foreign Currency” means a currency issued by the government of any country other than the United States of America.
“GAAP” means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, such accounting principles as are generally accepted in the United States, as of the date or time of any computation required hereunder.
“Global Security” means a Security evidencing all or part of a series of Securities issued to the Depositary for such series in accordance with Section 2.04 and Section 3.03.
“Government Obligations” means securities that are (i) direct obligations of the United States or the other government or governments in the confederation that issued the Foreign Currency in which the principal of, or any premium or interest on, the relevant Security shall be payable, in each case where the payment or payments thereunder are supported by the full faith and credit of such government or governments or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States or such other government or governments, in each case where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States or such other government or governments, and which, in the case of clause (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on, principal of or other amount with respect to any such Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of or other amount with respect to the Government Obligation evidenced by such depository receipt.
“Guarantee” means the guarantee by the Parent Guarantor of the Company’s obligations under the Securities and this Indenture as provided in Article XIV or a guarantee by any other Guarantor substantially in the form provided by Article XIV, in each case, as such guarantee may from time to time be modified by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, unless, in each case, as otherwise specified as contemplated by Section 3.01 with respect to any series of Securities.
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“Guarantors” means, with respect to the Securities of any series, the Parent Guarantor and each other Person that may be designated in accordance with Section 3.01(23) as a guarantor with respect to any such series, until, in each case, any such Person is released as a guarantor with respect to the Securities of such series pursuant to the terms of this Indenture and, to the extent applicable, any supplemental indenture hereto.
“Holder” means a Person in whose name such Security is registered in the Security Register.
“Indenture” means this indenture as originally executed or as it may from time to time be supplemented or amended by one or more supplemental indentures entered into pursuant to the applicable provisions hereof and shall include the form and terms of particular series of Securities established as contemplated by Section 3.01; provided, however, that if at any time more than one Person is acting as Trustee under this Indenture due to the appointment of one or more separate Trustees for any one or more separate series of Securities, “Indenture” shall mean, with respect to such series of Securities for which any such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such person had become such Trustee, but to which such person, as such Trustee, was not a party; provided, further, that in the event that this Indenture is supplemented or amended by one or more indentures supplemental hereto which are only applicable to certain series of Securities, the term “Indenture” for a particular series of Securities shall only include the supplemental indentures applicable thereto.
“interest,” when used with respect to an Original Issue Discount Security that by its terms bears interest only after maturity, means interest payable after maturity.
“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City of New York are authorized or required by law, regulation or executive order to remain closed.
“maturity” when used with respect to any Security, means the date on which the principal (or a portion thereof) of such Security becomes due and payable as therein or herein provided, whether at Stated Maturity or by declaration of acceleration, notice of redemption or otherwise.
“Officer’s Certificate” means a certificate signed by an Authorized Officer.
4
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an employee of the Company or any Guarantor, and who is reasonably acceptable to the Trustee.
“Original Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02.
“Outstanding,” when used with reference to Securities, means, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(i) Securities, or portions thereof, theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for the payment or redemption of which moneys or, as provided in Section 13.01 or Section 13.02 hereof, Government Obligations, as the case may be, in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company or any Guarantor (if the Company or any Guarantor shall act as its own Paying Agent) (in each case, except as provided in Section 13.01 or Section 13.02, as the case may be); provided that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for giving such notice;
(iii) Securities in lieu of or in substitution for which other Securities shall have been duly authenticated and delivered pursuant to Section 3.06;
(iv) Securities paid pursuant to the third paragraph of Section 3.06; and
(v) Securities exchanged for or converted into common stock, preferred stock or other equity securities pursuant to or in accordance with this Indenture if the terms of such Securities provide for exchangeability or convertibility pursuant to Section 3.01;
provided, however, that, in determining whether the Holders of the requisite principal amount of a series of Outstanding Securities have taken any action or given any request, demand, authorization, direction, notice, consent or waiver hereunder or whether a quorum is present at a meeting of Holders, (A) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the maturity thereof pursuant to Section 6.02; (B) the principal amount of a Security denominated in one or more Foreign Currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the principal amount of such Security; and (C) Securities owned by the Company or any other obligor upon the Securities of such series or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities of such series that a
5
Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon such Securities or any Affiliate of the Company or of such other obligor. In case of a dispute as to such right, any decision by the Trustee, taken upon the advice of counsel, shall be entitled to protection pursuant to Section 315(d) of the Trust Indenture Act.
“Parent Guarantee” means, with respect to each series of Securities, a Guarantee by the Parent Guarantor of the Company’s obligations with respect to the Securities of such series.
“Parent Guarantor” means the Person named as the “Parent Guarantor” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Parent Guarantor” shall mean such successor Person.
“Paying Agent” means any Person authorized (including any Affiliate) by the Company or any Guarantor, as applicable, to pay the principal of, premium, if any, and interest, if any, on any Securities on behalf of the Company or any such Guarantor, as applicable.
“Permitted Tax Restructuring” means any reorganizations and other activities related to tax planning and tax reorganization entered into prior to, on or after the issue date of any Securities so long as such Permitted Tax Restructuring is not materially adverse to the Holders of the Securities (as reasonably determined by the Company).
“Person” or “person” means an individual, a corporation, a limited liability company, a partnership, a trust, a joint venture, an association, a joint stock company, an unincorporated organization or a government or any agency or political subdivision thereof.
“Redemption Date,” when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture or the terms of such Security, as applicable.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the day specified for that purpose as contemplated by Section 3.01, whether or not such day shall be a Business Day.
“Responsible Officer,” when used with respect to the Trustee, means any vice president, assistant vice president, senior associate, associate or trust officer of the Trustee or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers who, in all cases, at the time shall have direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter relating to this Indenture, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
6
“Security” or “Securities” means one or more, as the case may be, of the Company’s debt securities authenticated and delivered under this Indenture.
“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date hereof.
“Special Record Date” for the payment of any Defaulted Interest on the Securities of any series means a date fixed by the Company pursuant to Section 3.07.
“Stated Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest, as the case may be, is due and payable.
“stock” includes any and all shares, interests, participations or other equivalents (however designated) of corporate stock.
“Subsidiary” means, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than 50% of the total voting power of the equity interests therein at the time. Unless otherwise qualified, with respect to a joint venture entity, to the extent that the Parent Guarantor and/or one or more of its Subsidiaries’ share of the total voting power of the equity interests of such joint venture entity are below 50% at the time of commencement of such joint venture but subsequently exceeds 50% in accordance with the terms of the applicable joint venture agreement, such joint venture entity shall not be considered a Subsidiary unless and until the Parent Guarantor’s and/or one or more Subsidiaries’ share of the total voting power of the equity interests of such joint venture entity exceeds 70%.
“Subsidiary Guarantor” means, with respect to the Securities of any series, any Person that may be designated in accordance with Section 3.01(23) as a guarantor with respect to any such series, until, in each case, any such Person is released as a guarantor with respect to the Securities of such series pursuant to the terms of this Indenture and, to the extent applicable, any indenture supplemental hereto.
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
7
“U.S.A. PATRIOT Act” means Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
1.02 Other Definitions.
| Term |
Defined in Section | |
| “covenant defeasance” | 13.02(c) | |
| “Defaulted Interest” | 3.07 | |
| “defeasance” | 13.02(b) | |
| “Event of Default” | 6.01 | |
| “obligor” | 1.07 | |
| “Payment Default” | 6.01 | |
| “Security Register” | 3.05 | |
| “Security Registrar” | 3.05 |
1.03 Compliance Certificates and Opinions.
(a) Upon any application or request by the Company or any Guarantor to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with.
(b) Such Officer’s Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Indenture (other than the statement required by Section 5.06) shall also include:
(i) a statement that such Authorized Officer or counsel has read such covenant or condition;
(ii) a brief statement as to the nature and scope of such examination or investigation upon which the statements or opinions contained in such Officer’s Certificate or Opinion of Counsel are based;
(iii) a statement that, in the opinion of such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether 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.
1.04 Form of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
8
(b) Any certificate, statement or opinion of an Authorized Officer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such Authorized Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representation with respect to the matters upon which the certificate, statement or opinion is based is erroneous. Any certificate, statement or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate, statement or opinion of or representations by an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate, statement or opinion or representation with respect to such matters is erroneous.
(c) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
1.05 Notices to the Trustee, the Company and Holders. Any notice, request, direction, consent or communication made pursuant to the provisions of this Indenture or the Securities is duly given if in writing and delivered in person or by e-mail, first-class mail (registered or certified, return receipt requested), electronically or overnight air courier guaranteeing next day delivery, addressed as follows:
If to the Company or the Parent Guarantor:
Waters Corporation
34 Maple Street
Milford, MA 01757
Attention: John Wood
E-mail: [***]
Telephone: [***]
With a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attention: Jennifer L. Lee, P.C.; Zoey Hitzert
E-mail: jennifer.lee@kirkland.com; zoey.hitzert@kirkland.com
9
If to the Trustee:
U.S. Bank Trust Company, National Association
One Federal Street
Boston, MA 02110
Attention: James H. Byrnes, Vice President
The Company, any Guarantor or the Trustee by notice to each other may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders or the Trustee) will be deemed to have been duly given: at the time so delivered, if personally delivered or if e-mailed; five calendar days after being deposited in the mail, postage prepaid, if mailed; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. All notices and communications to the Trustee will be deemed given upon actual receipt of such by a Responsible Officer of the Trustee or, if e-mailed, upon delivery.
Any notice or communication to a Holder may be (a) e-mailed and be deemed duly given at the time so delivered, (b) mailed by first-class mail, certified or registered, return receipt requested and be deemed duly delivered five calendar days after being deposited in the mail, or (c) mailed by overnight air courier guaranteeing next day delivery and be deemed duly delivered the next Business Day, in each case, to its e-mail or physical address shown on the register kept by the Security Registrar. Any notice or communication will also be so e-mailed or mailed to any Person described in Section 313(c) of the Trust Indenture Act, to the extent required by the Trust Indenture Act. Failure to e-mail or mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
In each case, if a notice or communication is e-mailed or mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event or any other communication (including any notice of redemption or repurchase) to a holder of a Global Security (whether by e-mail, mail or otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee) pursuant to Applicable Procedures.
1.06 Communications with Holders; Waiver of Notice.
(a) Holders may communicate pursuant to Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Trustee and the Security Registrar shall have the protection of Section 312(c) of the Trust Indenture Act.
(b) Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
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1.07 Incorporation by Reference of the Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act term used in this Indenture has the following meaning:
“obligor” on the Securities of any series means the Company, any Guarantor of the Securities of any series, including the Parent Guarantor, and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by reference in the Trust Indenture Act to another statute or defined by a Commission rule under the Trust Indenture Act and not otherwise defined herein are used herein as so defined.
1.08 Trust Indenture Act Controls. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
1.09 Separability Clause. 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.
1.10 Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
1.11 Governing Law; Submission to Jurisdiction; Jury Trial Waiver. This Indenture, the Securities and any Guarantee of the Securities shall be governed by, and construed in accordance with, the laws of the State of New York, as applied to contracts made and performed within the State of New York, without regard to principles of conflicts of law that would result in the application of the laws of another jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of the parties hereto and the Holders, by acceptance of the Securities, hereby irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
EACH OF THE COMPANY, THE PARENT GUARANTOR, ANY GUARANTOR, THE TRUSTEE AND EACH HOLDER OF A SECURITY, BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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1.12 Legal Holidays. Unless otherwise provided by, or pursuant to, Section 3.01, in any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security is a Legal Holiday, then (notwithstanding any other provision of this Indenture or of the Securities) payment of the principal of, premium, if any, or interest, if any, on such Security need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity; provided that no additional interest shall accrue with respect to the payment due on such date for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be, to the next succeeding Business Day.
1.13 Electronic Signatures and Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, and all of which taken together constitute one instrument. Signatures of the parties hereto transmitted by electronic PDF shall be deemed to be their original signatures for all purposes. This Indenture may be executed by way of electronic signatures, and any such electronic signature shall have the same binding effect as a physical signature. For the avoidance of doubt, the words “execution,” “signed,” “signature,” “delivery” and words of like import in or relating to this Indenture or any document to be signed in connection with this Indenture shall be deemed to include images of manually executed signatures transmitted by electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and electronic signatures (including, without limitation, DocuSign and AdobeSign), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means; provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee, pursuant to reasonable procedures approved by the Trustee.
1.14 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company, any Guarantor, including the Parent Guarantor, or any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
1.15 Rules of Construction. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and words in the plural include the singular;
(e) “will” shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
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(g) “including” means “including without limitation”;
(h) references to sections of, or rules under, the Securities Act, the Exchange Act and the Trust Indenture Act will be deemed to include substitute, replacement or successor sections or rules adopted by the Commission from time to time; and
(i) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular article, section or other subdivision of this Indenture.
The article and section headings and the table of contents are for convenience only and shall not affect the construction hereof.
1.16 U.S.A. PATRIOT Act. The Company acknowledges that, in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
ARTICLE II
SECURITY FORMS
2.01 Forms Generally. The Securities of each series shall be in substantially the form as shall be established by or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more supplemental indentures, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such notations, legends or endorsements placed thereon as may be required by the Depositary or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Securities of any series may be listed or quoted, or to conform to usage, or to indicate any special limitations or restrictions to which any particular series of Securities are subject or as may, consistently herewith, be determined by the Authorized Officers executing such Securities as evidenced by their execution of the Securities. If the form of Securities of any series is established by action taken pursuant to one or more Board Resolution(s), a copy of an appropriate record of any such action taken shall be certified by an Authorized Officer of the Company in an Officer’s Certificate, as the case may be, and delivered to the Trustee at or prior to the delivery of the written order(s) contemplated by Section 3.03 for the authentication and delivery of the initial Securities of each series. Any such Board Resolution or record of such action shall have attached thereto a true and correct copy of the form of Security approved by or pursuant to such Board Resolution(s). The Trustee’s certificate of authentication shall be in substantially the form set forth in Section 2.02.
The definitive Securities of each series shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner, including any manner permitted by the rules of any securities exchange or automated quotation system on which the Securities of such series may be listed or quoted, all as determined by the Authorized Officers executing such Securities, as evidenced by their execution of such Securities.
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2.02 Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication on all Securities shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein issued under the within-mentioned Indenture.
| [NAME OF TRUSTEE], as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
2.03 Forms of Securities. Each Security shall be in one of the forms approved from time to time by or pursuant to a Board Resolution or one or more supplemental indentures that shall set forth the information required by Section 3.01. Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, the Securities of each series shall be issuable in registered form without coupons.
2.04 Book-Entry Provisions for Global Securities. If the Company shall establish, pursuant to or as contemplated by Section 3.01, that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section 3.03, authenticate and deliver one or more Global Securities in temporary or permanent form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered, if in registered form, in the name of the Depositary for such Global Security or Global Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend to substantially the following effect:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, 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 TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
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Each Depositary designated pursuant to, or as contemplated by Section 3.01, for a Global Security to be delivered in the United States must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
If at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series, or if at any time the Depositary for the Securities of such series shall no longer be a clearing agency registered under the Exchange Act and any other applicable statute or regulation at a time when the Depositary is required to be so registered to act as depositary, the Company shall use its commercially reasonable efforts to appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 3.01(13) shall no longer be effective with respect to the Securities of such series and the Company shall execute and the Trustee, upon receipt of a written order of the Company for the authentication and delivery of definitive Securities of such series, shall authenticate and deliver as specified in such written order(s), Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
The Company may, at any time and in its sole discretion determine, that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event, the Company shall execute and the Trustee, upon receipt of a written order of the Company for the authentication and delivery of definitive Securities of such series, shall authenticate and deliver as specified in such written order(s), Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
If specified pursuant to Section 3.01 with respect to a series of Securities, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute and the Trustee shall, upon receipt of a written order of the Company as described in Section 3.03, authenticate and deliver, without service charge:
| (1) | to each Person specified by such Depositary, a new Security or Securities of the same series, of any authorized denomination as requested by such Person, in aggregate principal amount equal to, and in exchange for, such Person’s beneficial interest in the Global Security; and |
| (2) | to such Depositary, a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities so delivered to Holders thereof. |
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In any exchange provided for in any of the preceding three paragraphs, the Company shall execute and the Trustee, upon receipt of a written order of the Company as described in Section 3.03, shall authenticate and deliver, Securities in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for Securities in definitive form, such Global Security shall be cancelled by the Trustee. Securities issued in exchange for a Global Security pursuant to Section 3.05 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
Notwithstanding anything to the contrary in this Indenture, if any previously authenticated and delivered Global Securities are cancelled and Securities in definitive form are authenticated and delivered in exchange thereof pursuant to this Section 2.04, the Company shall not be required to deliver any Officer’s Certificate(s) or Opinion of Counsel to the Trustee.
The Company initially appoints the Trustee to act as the Security Registrar and Paying Agent and to act as Depositary Custodian with respect to the Global Securities. The Company has entered into (or will enter into in connection with the issuance of any series of Securities) a letter of representations with the Depositary in the form provided by the Depositary and the Trustee and each agent of the Company or the Trustee are hereby authorized to act in accordance with such letter and Applicable Procedures.
ARTICLE III
THE SECURITIES
3.01 Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each such series shall, except as otherwise provided by this Section 3.01, rank equally and pari passu with all other unsecured and unsubordinated indebtedness of the Company. There shall be established, in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more supplemental indentures, prior to the initial issuance of Securities of any series:
| (1) | the title of the Securities of such series (which shall distinguish the Securities of such series from all other Securities, except to the extent that additional Securities of an existing series are being, or will be, issued); |
| (2) | any limit upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Section 3.04, 3.05, 3.06, 4.03 or 11.04); provided, however, that the authorized aggregate principal amount of such series may from time to time be increased above such amount by a Board Resolution or as provided in the supplemental indenture establishing the Securities of such series; |
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| (3) | the date or dates on which the principal and premium, if any, on the Securities of such series are payable or the method used to determine such date or dates; |
| (4) | the rate or rates (which may be fixed or variable) at which the Securities of such series shall bear interest, if any, or the method by which such rate or rates shall be determined, whether such interest shall be payable in cash or additional Securities of the same series or shall accrue and increase the aggregate principal amount outstanding of such series, the date or dates from which such interest shall accrue, or the method of determination thereof, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Interest Payment Date; |
| (5) | if other than the currency of the United States, the currency or currencies or currency unit or units, including composite currencies, in which payment of the principal of, premium, if any, or interest, if any, on the Securities of such series shall be payable and the manner of determining the equivalent thereof in the currency of the United States for any purpose, including for purposes of the definition of “Outstanding” in Section 1.01; |
| (6) | if the principal of, premium, if any, or interest, if any, on the Securities of such series are to be payable, at the election of the Company, or a Holder, in a currency or currencies or currency unit or units other than that in which the Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the period or periods within which, and the terms and conditions upon which, such election may be made or the other circumstances under which any of such Securities are to be so payable, the time and manner of determining the exchange rate between the currency in which the Securities of such series are payable without such election and the currency in which the principal of or any premium or interest on such Securities are to be paid if such election is made, and any provision requiring the Holder to bear currency exchange costs by deduction from such payments; |
| (7) | if the amount of payments of principal of, premium, if any, or interest, if any, on, any of the Securities of such series may be determined with reference to an index, formula or other method, the manner in which such amounts shall be determined; |
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| (8) | the place or places, if any, in addition to or instead of the Corporate Trust Office of the Trustee, where the principal of, premium, if any, and interest, if any, on, the Securities of such series shall be payable, the place or places where the Securities of such series may be presented for registration of transfer or exchange, and the place or places where notices and demands to or upon the Company in respect of the Securities of such series may be made; |
| (9) | if applicable, the period or periods within or the date or dates on which, the price or prices at which, and the terms and conditions upon which, Securities of such series may be redeemed, purchased, exchanged or repaid, in whole or in part, at the option of the Company; |
| (10) | if applicable, the period or periods within or the date or dates on which, the price or prices at which, and the terms and conditions upon which, Securities of such series may be redeemed, in whole or in part, at the option of the Holders; |
| (11) | the obligation or right, if any, of the Company to redeem, purchase or repay Securities of such series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of such series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation; |
| (12) | whether the Securities of such series will be convertible into or exchangeable for other Securities, capital stock or other securities of any kind of the Company or another Person, and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the initial conversion or exchange price or rate or the method of calculation, how and when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory, at the option of the holder or at the Company’s option, the conversion or exchange period, and any other provision in addition to or in lieu of those described herein; |
| (13) | whether the Securities shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities and the form of any legend or legends which will be borne by any such Global Securities, and any circumstances in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of persons other than the Depositary for such Global Security or a nominee thereof and any other provisions governing exchanges or transfers of such Global Security; |
| (14) | the date as of which any Global Securities of such series shall be dated if other than the original issuance of the first Security of such series to be issued; |
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| (15) | the denominations in which Securities of such series, if any, shall be issuable, if other than the denominations of $2,000 and any integral multiple of $1,000 in excess thereof; |
| (16) | if other than the principal amount thereof, the portion of the principal amount of any of the Securities of such series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02; |
| (17) | whether the Securities of such series are to be issued with original issue discount, including whether such security may be deemed an Original Issue Discount Security, and the amount of discount with which such Securities may be issued; |
| (18) | the application, if any, of Section 13.01, or such other means of satisfaction and discharge as may be specified for such Securities of such series; |
| (19) | whether the Securities of such series, in whole or any specified part, shall be subject to defeasance or covenant defeasance pursuant to Section 13.02 and, if so, the provisions relating thereto and the manner in which any election by the Company to provide for defeasance or covenant defeasance of such Securities shall be evidenced if different from the provisions herein relating thereto; |
| (20) | the appointment of any Paying Agent or agents, Security Registrar or Authenticating Agent for the Securities of such series, if other than the Trustee; |
| (21) | any deletions from or modifications of or additions to the Events of Default set forth in Section 6.01 that apply to the Securities of such series, any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.02 or any other modifications to Article VI; |
| (22) | any deletions from or modifications of or additions to the covenants set forth in Article V that apply to the Securities of such series; |
| (23) | whether the Securities of such series are to be guaranteed and, if so, the terms and conditions upon which such Securities will be guaranteed, including (x) the form and terms of any Guarantor’s guarantee (including provisions relating to seniority or subordination of such guarantee, the release of such guarantee, any payment or other obligations on such Securities), (y) any additions or changes to this Indenture to permit or facilitate guarantees of such Securities and (z) any deletions from, modifications of or additions to the Guarantee set forth in Article XIV; |
| (24) | whether payment of amounts due with respect to Securities of such series is subordinated in right of payment to the prior payment of any other indebtedness, and, if so, the extent and the manner of such subordinations and any other provisions relating thereto; |
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| (25) | any additions or changes to this Indenture with respect to the Securities of such series as shall be necessary to permit or facilitate the issuance of the Securities of such series in bearer form, registrable or not registrable as to principal, and with or without interest coupons; |
| (26) | the form of the Securities of such series; |
| (27) | provisions, if any, granting special rights to Holders upon the occurrence of specified events; and |
| (28) | any other terms of the Securities of such series, and if applicable, the guarantees thereof, and any other deletions from or modification of or additions to this Indenture in respect of such Securities. |
If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions, a copy of an appropriate record of such action shall be delivered to the Trustee at or prior to the initial issuance of Securities of such series as may be requested by such Trustee. No Officer’s Certificate may affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise with respect to any series of Securities except as the Trustee may agree in writing.
3.02 Denominations. Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, and except as provided in Section 3.03, the Securities of each series shall be issuable in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the Authorized Officers executing the same may determine with the reasonable approval of the Trustee.
3.03 Execution, Authentication, Delivery and Dating. The Securities shall be signed on behalf of the Company by an Authorized Officer. Such signatures may be manual, facsimile or other electronic signatures, or electronic copies thereof, of any present or future Authorized Officer and may be imprinted or otherwise reproduced on the Securities.
Only such Securities as shall bear thereon a certificate of authentication substantially in the form set forth in Section 2.02, manually or electronically executed (or as otherwise specified in a supplemental indenture with respect to a series of Securities) by the Trustee, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder.
Securities bearing the manual or other electronic signatures, or electronic copies thereof, of an individual who was at any time an Authorized Officer shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Securities or did not hold such office at the date of such Securities.
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At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication. The Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Company, signed by an Authorized Officer, or pursuant to such procedures reasonably acceptable to the Trustee and such recipients, without any further action by the Company. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and shall be fully protected in relying upon:
| (1) | the instrument or instruments establishing the form or forms and terms of the Securities of such series, as provided in Section 2.01 and Section 3.01; |
| (2) | an Officer’s Certificate delivered in accordance with Section 1.03 hereof; and |
| (3) | an Opinion of Counsel prepared in accordance with Section 1.03, to the following effect, which Opinion of Counsel may contain such assumptions, qualifications and limitations as such counsel shall deem appropriate: |
| (i) | the forms and terms of such Securities have been established in conformity with Section 2.01 and Section 3.01 of this Indenture; |
| (ii) | all conditions precedent set forth in Section 2.01, Section 3.01 and Section 3.03 of this Indenture to the authentication and delivery of such Securities have been complied with; and |
| (iii) | such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company entitled to the benefits provided by this Indenture, and enforceable in accordance with their terms, subject to (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law), (c) other commonly recognized statutory and judicial constraints as to enforceability, including statutes of limitations, and (d) public policy considerations which may limit the rights of parties to obtain certain remedies. |
The Trustee shall have the right to decline to authenticate and deliver the Securities of such series if the Trustee on the advice of counsel reasonably determines that such action may not lawfully be taken or would expose the Trustee to personal liability. The Trustee shall have no duty to make such an examination or determination.
Each Security shall be dated the date of its authentication.
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Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officer’s Certificate(s) otherwise required pursuant to Section 3.01 or the written order of the Company and Opinion of Counsel otherwise required pursuant to this Section 3.03 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
3.04 Temporary Securities. Pending the preparation of a permanent Global Security or definitive Securities of any series, the Company may execute, and upon compliance with Section 3.03, the Trustee shall authenticate and deliver, temporary Securities that are printed, lithographed, typewritten, engraved or produced by any combination of these methods, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Authorized Officers executing such Securities may determine, as evidenced by their execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form, representing all or a portion of the Outstanding Securities of such series.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall, upon receipt of a written order of the Company as described in Section 3.03, authenticate and deliver in exchange therefor, a like principal amount of definitive Securities of the same series of authorized denominations and of like tenor.
Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series except as otherwise specified as contemplated by Section 3.01 with respect to the payment of interest on Securities in temporary form. Such exchanges shall be made by the Company at its expense and without any charge therefor.
Upon any exchange of a portion of a temporary Global Security for a definitive Security pursuant to this Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed. Notwithstanding anything to the contrary in this Indenture, if any portion of a temporary Global Security is cancelled and Securities in definitive form are authenticated and delivered in exchange thereof pursuant to this Section 3.04, the Company shall not be required to deliver any Officer’s Certificate(s) or Opinion of Counsel to the Trustee.
3.05 Registration; Registration of Transfer and Exchange. The Company shall cause to be kept for each series of Securities a register or registers herein sometimes collectively referred to as the “Security Register” in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of such Securities and of transfers of such Securities. Such register shall be kept at the office or agency of the “Security Registrar” for the purpose of registering such Securities and transfers of such Securities as herein provided.
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Upon surrender for registration of transfer of any Security of any series, the Company shall execute, and the Trustee shall, upon receipt of a written order of the Company as described in Section 3.03, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series and of like tenor, of any authorized denominations and of a like aggregate principal amount and Stated Maturity. In no case shall there be more than one Security Register for a series of Securities.
At the option of the Holder, Securities of any series (except a Global Security) may be exchanged for other Securities of the same series and of like tenor, of any authorized denominations and of a like aggregate principal amount and Stated Maturity upon surrender of the Securities to be exchanged. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall, upon receipt of a written order of the Company as described in Section 3.03, authenticate and deliver the Securities that the Holder making the exchange is entitled to receive.
Notwithstanding any other provision of this Section 3.05, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary 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 to a nominee of such successor Depositary.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, 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 any registration of transfer or exchange of Securities.
The Company shall not be required to (i) issue, register the transfer of or exchange Securities of any particular series during a period beginning at the opening of business 15 days before the day of selection of Securities of such series to be redeemed under Section 4.02 and ending at the close of business on the day of the sending of a notice of redemption of Securities of such series selected for redemption or (ii) register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
Each Holder agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s Security in violation of any provision of this Indenture and/or applicable U.S. federal or state securities laws.
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The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
None of the Trustee, any Paying Agent, the Security Registrar, the Company or any Guarantor shall have any responsibility for any actions taken or not taken by the Depositary.
3.06 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute, and the Trustee shall, upon receipt of a written order of the Company as described in Section 3.03, authenticate and deliver in exchange therefor, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be requested by them to hold each of them and any agent of any of them harmless, then the Company shall execute and, upon written request, the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 3.06 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
3.07 Payment of Interest; Interest Rights Preserved. Interest on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more predecessor Securities) is registered at the close of business on the Regular Record Date for such interest and, with respect to any Global Security, in accordance with the Applicable Procedures.
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Any interest on any Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder at the close of business on the relevant Regular Record Date, and such Defaulted Interest shall be paid by the Company, at its election, as provided in either clause (1) or (2) below:
| (1) | The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which Special Record Date shall be fixed in the following manner. The Company shall notify the Trustee, in writing, as to the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon, the Company shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and, unless otherwise agreed to by the Trustee, not less than 10 days after the receipt by the Trustee of the written notice of the proposed payment. The Company shall promptly notify the Trustee, in writing, of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be e-mailed or mailed (first-class postage prepaid) to each Holder of Securities of such series at such Holder’s e-mail or address as it appears in the Security Register or sent pursuant to Applicable Procedures, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective predecessor Securities) are registered at the close of business on such Special Record Date. |
| (2) | The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any Depositary or any securities exchange on which such Securities may be listed, and upon such notice as may be required by such Depositary or securities exchange, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be reasonably deemed practicable by the Trustee. |
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Subject to the foregoing provisions of this Section 3.07, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
3.08 Persons Deemed Owners. The Company and the Trustee, and their respective agents, shall treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payment of principal of, premium, if any, and (subject to Section 3.07) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security shall be overdue, and neither the Company nor the Trustee, nor their respective agents, shall be affected by notice to the contrary.
None of the Company, any Guarantor, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. The Company, any Guarantor, the Trustee, any Paying Agent and the Security Registrar shall be entitled to deal with the Depositary, and any nominee thereof, that is the registered holder of any Global Security for all purposes of this Indenture relating to such Global Security (including the payment of principal, premium, if any, and interest and additional amounts, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Security) as the sole holder of such Global Security and shall have no obligations to the beneficial owners thereof.
3.09 Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any payment in respect of a sinking fund or analogous obligation shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 3.09, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee pursuant to its standing procedures, and the Trustee shall, upon written request therefor, deliver to the Company a certificate of cancellation in respect thereof.
3.10 Computation of Interest; Calculations. Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, any determination of interest, additional amounts, redemption price, premium, if any, and any other amounts payable with respect to the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall be responsible for making calculations called for under the Securities and this Indenture, including determination of interest, additional amounts, redemption price, premium, if any, and any other amounts payable on the Securities. Absent manifest error, the Company’s calculations will be final and binding on the Holders. The Trustee is entitled to rely conclusively on the accuracy of the Company’s calculations without independent verification.
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3.11 CUSIP Numbers, ISINs and Common Code Numbers. The Company in issuing any Securities may use “CUSIP” numbers, “ISINs” and/or “Common Code” numbers (if then generally in use), and, if so, the Trustee shall as a convenience use “CUSIP” numbers, “ISINs” and/or “Common Code” numbers in notices to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Securities. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers, “ISINs” and/or “Common Code” numbers of any Securities.
ARTICLE IV
REDEMPTION OF SECURITIES
4.01 Applicability of Right of Redemption. Redemption of Securities (other than pursuant to a sinking fund or analogous provision, if applicable) permitted by the terms of any series of Securities shall be made in accordance with such terms and Section 4.02, Section 4.03, Section 4.04 and (with respect to any redemptions for which Section 4.02 Section 4.03 and Section 4.04 are not applicable) Section 4.06; provided, however, that, notwithstanding anything to the contrary in this Article IV, if any such terms of a series of Securities shall conflict with any provisions of this Article IV, the terms of such series shall govern.
4.02 Election to Redeem; Notice of Redemption; Partial Redemption. The election of the Company to redeem any Securities of any series shall be evidenced by, or effected pursuant to, an Officer’s Certificate delivered to the Trustee at least three Business Days prior to the time notice of redemption is sent to the Holders of the Securities (or such lesser number of days as the Trustee shall approve). In case the Company shall desire to exercise such right to redeem all, or, as the case may be, any part of the Securities of any series, it shall give notice of such redemption to Holders of the Securities to be redeemed as hereinafter provided in this Section 4.02.
Any notice of redemption to be given to the Holders of the Securities to be redeemed as a whole or in part shall be given in the manner provided in Section 1.05 not less than 10 nor more than 60 days prior to the date fixed for redemption, except that any notice of redemption may be mailed or electronically delivered more than 60 days prior to a redemption date if the notice is issued in connection with a legal or covenant defeasance of the Securities or a satisfaction and discharge of this Indenture. Any such notice of redemption may, in the Company’s discretion, be given subject to the satisfaction of one or more conditions precedent. In that case, such notice of redemption shall describe each such condition and, if applicable, shall state that, in the Company’s discretion, the (i) redemption date may be delayed until such time (including by more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied or waived by the Company in its sole
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discretion, or (ii) such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or waived by the Company by the relevant redemption date, or by the redemption date as so delayed. In addition, the Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.
Each such notice of redemption shall specify the date fixed for redemption and the redemption price (or manner of calculation if not then known) at which Securities are to be redeemed, shall state the section of this Indenture and the Securities authorizing redemption and shall state that payment of the redemption price of the Securities to be redeemed, together with interest accrued thereon to, but excluding, the date fixed for redemption (except that if such redemption date is an Interest Payment Date such interest due on such date with respect to a particular Security shall instead be payable on such Interest Payment Date to the Holder of record at the close of business on the Regular Record Date for such Interest Payment Date, unless, with respect to any Global Security, the procedures of the Depositary require payment to be completed in an alternate manner and in such case the procedures of the Depositary may control), will be made upon presentation and surrender of such Securities and that, from and after said date fixed for redemption, any interest thereon will cease to accrue, such Securities subject to such redemption shall cease to be Outstanding and the Holder(s) thereof shall have no rights with respect thereto other than the right to receive the redemption price upon such presentation and surrender. The notice shall state the “CUSIP” number, “ISIN” and/or “Common Code” number and that no representation is made as to the correctness or accuracy of the “CUSIP” number, “ISIN” and/or “Common Code” number, if any, listed in such notice or printed on the Securities.
In case any Security of a series is to be redeemed in part only (which part shall be an authorized denomination of the Securities of such series as set forth pursuant to Section 3.01), the notice that relates to such Securities shall state the portion of the principal amount to be redeemed, and that on and after the redemption date, upon surrender of such Security, a new Security or Securities of the same series in principal amount equal to the unredeemed portion thereof shall be issued (or transferred by book entry). No Security whose denomination is the minimum denomination, as set forth pursuant to Section 3.01, of principal amount may be redeemed in part.
To the extent that the Securities of any series have different terms, the Company shall designate the Securities to be redeemed if fewer than all of a series are to be redeemed. If fewer than all the Securities of a series having the same terms are to be redeemed, the Company shall give the Trustee, not less than three Business Days (or such lesser number of days as the Trustee shall approve) prior to the date such notice of redemption is to be sent to the Holders of the Securities, written notice of the aggregate amount of the Securities to be redeemed.
If fewer than all of the Securities of a series are to be redeemed at any time, and the Securities of such series are Global Securities, they will be selected for redemption in accordance with Applicable Procedures. If the Securities of such series are not Global Securities, the Trustee shall select the Securities to be redeemed among the Holders (1) in compliance with the requirements of the principal national securities exchange, if any, on which the Securities are listed or (2) if the Securities are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee shall deem appropriate or in accordance with applicable Depositary procedures, and shall thereafter promptly notify the Company and any Paying Agent (if other than the Trustee) in writing of the Securities selected for redemption and the principal amount thereof to be redeemed.
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Any notice of redemption may be given by the Company pursuant to this Section 4.02. At the Company’s request, the Trustee shall provide the notice of redemption in the Company’s name and at its expense; provided that the Company has delivered a written request to the Trustee at least three Business Days (or such lesser number of days as the Trustee shall approve) prior to the date such notice is to be given, which request shall set forth the information to be stated in such notice.
4.03 Payment of Securities Called for Redemption. If notice of redemption shall have been given in the manner provided in Section 4.02, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued thereon, if any, to, but excluding, the date fixed for redemption, and on and after such date of redemption (unless the Company shall default in the payment of such Securities or portions thereof at the redemption price, together with interest accrued thereon, if any, to, but excluding, the date fixed for redemption) any interest on the Securities or portions of Securities so called for redemption shall cease to accrue and such Securities and portions of Securities shall be deemed not to be Outstanding hereunder and shall not be entitled to any benefit under this Indenture except for the right of the Holder(s) thereof to receive, in accordance with the next sentence, payment of the redemption price, together, if applicable, with accrued interest thereon, if any, to, but excluding, the date fixed for redemption. On presentation and surrender of such Securities, on or after the redemption date specified in the notice of redemption, such Securities or specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with interest accrued thereon, if any, to, but, excluding, the date fixed for redemption; provided, however, that unless otherwise specified as contemplated by Section 3.01, installments of interest that mature on Securities on or prior to the redemption date shall be payable to the Holders of such Securities, or one or more predecessor Securities, registered as such at the close of business on the relevant Regular Record Dates according to their terms and the provisions of Section 3.07.
Upon presentation and surrender of any Security that is to be redeemed in part only, the Company shall execute, and the Trustee shall, upon receipt of a written order of the Company as described in Section 3.03, authenticate and deliver to the Holder or transfer by book entry, at the expense of the Company, a new Security or Securities of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so surrendered.
4.04 Deposit of Funds for Redemption of Securities. On or prior to 11:00 a.m. Eastern Time on the date fixed for redemption of any Securities as hereinbefore provided in this Article IV, the Company shall deposit in trust with the Trustee or with any Paying Agent (or if and to the extent that the Company shall be acting as its own Paying Agent, the Company shall set aside, segregate and hold in trust) funds sufficient to redeem the Securities or portions thereof to be redeemed on such redemption date, at the applicable redemption price, together with interest accrued thereon, if any, to, but excluding, the redemption date. The Trustee or the Paying Agent, as applicable, will promptly return to the Company any money deposited with the Trustee or the Paying Agent, as applicable, by the Company in excess of the amounts necessary to pay the applicable redemption price, together with interest accrued thereon, if any, to, but excluding, the redemption date.
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4.05 Mandatory Redemption. Unless otherwise indicated for a particular series of Securities by an Officer’s Certificate, supplemental indenture or Board Resolution, the Company shall not be required to make any mandatory redemption or sinking fund payment with respect to any series of Securities.
4.06 Other Transactions. Notwithstanding anything to the contrary in this Indenture, the Company, the Parent Guarantor and their respective Affiliates, and their respective members of management, among other parties, may, at any time and from time to time, purchase, repurchase, redeem, exchange, defease or otherwise acquire or retire the Securities by any means other than a redemption conducted pursuant to Section 4.02, Section 4.03 and Section 4.04 of this Indenture (and, for the avoidance of doubt, without being subject to any pro rata repurchase requirement), from any Person, upon such terms and conditions, at such prices and with such considerations as the Company, the Parent Guarantor and their respective Affiliates and their respective members of management, among other parties, may determine, including, without limitation, in negotiated transactions, open market purchases, by tender offer or any other transactions with one or more Holders and/or beneficial owners of Securities.
ARTICLE V
PARTICULAR COVENANTS
5.01 Payments of Principal, Premium, if Any, and Interest, if Any. The Company covenants and agrees, for the benefit of each series of Securities, that it will duly and punctually pay or cause to be paid the principal of, premium, if any, and interest, if any, on the Securities of that series at the times and places and in the manner provided herein and in the Securities of that series.
Notwithstanding anything to the contrary contained in this Indenture, the Company or the Paying Agent may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States or other state, local or non-U.S. taxing authorities from principal or interest payments hereunder.
5.02 Office or Agency for Certain Purposes. The Company will maintain an office or agency where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of such Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series 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 accordance with the requirements set forth above. The Company will 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.
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5.03 Waiver of Certain Covenants. The Company and any Guarantors may omit in any particular instance to comply with any term, provision or condition with respect to the Securities of any series and, if expressly provided pursuant to Section 3.01, any additional covenants applicable to the Securities of such series if, before the time for such compliance, the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series, by act of such Holders, either shall waive such compliance in such instance or generally shall have waived compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and any Guarantors and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
5.04 Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of the Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
5.05 Provisions as to Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee with respect to any series of Securities, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee subject to this Section 5.05, that it will, in addition to fulfilling the duties provided in Section 317 of the Trust Indenture Act, at any time during the continuance any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
(b) If the Company or any Guarantor shall act as its own Paying Agent with respect to any series of Securities, it will comply with Section 317 of the Trust Indenture Act.
(c) Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to 11:00 a.m. Eastern Time on each due date of the principal of, premium, if any, or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal, premium, if any, or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Holders of such Securities, and (unless such Paying Agent is the Trustee) the Paying Agent shall promptly notify the Trustee of the Company’s action or failure so to act.
(d) Anything in this Section 5.05 to the contrary notwithstanding, the Company may, at its option, at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee (or Paying Agent) all sums held in trust for any such series by it, or by any Paying Agent hereunder, as required by this Section 5.05, such sums to be held by the Trustee upon the trusts herein contained.
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(e) Anything in this Section 5.05 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 5.05 is subject to Section 13.04 and Section 13.05.
5.06 Statement by Officers as to Default. The Company or, at its option, the Parent Guarantor shall deliver to the Trustee, within 120 days after the end of its fiscal year, a written statement (which need not be contained in or accompanied by an Officer’s Certificate) signed by one of the delivering Person’s principal executive officer, principal financial officer or principal accounting officer, stating whether or not, to the best of his or her knowledge, the Company or any Guarantor (to the extent that such information as to a Guarantor is required under the Trust Indenture Act) is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to notice requirements or grace periods) and if the Company or any Guarantor (to the extent that such information as to a Guarantor is required under the Trust Indenture Act) shall be in default, specifying all such defaults and the nature and status thereof of which he or she may have knowledge. Such certificates need not comply with Section 1.03 of this Indenture.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
6.01 Events of Default.
“Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following events unless such event is specifically deleted or modified in or pursuant to the supplemental indenture or Officer’s Certificate establishing the terms of the Securities of such series pursuant to Section 3.01 of this Indenture:
| (1) | default in the payment of any interest on any of the Securities of such series when such interest becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company or a Guarantor with the Trustee or with a Paying Agent prior to 11:00 a.m., New York City time, on the 30th day of such period); |
| (2) | default in the payment of any principal of or premium, if any, on, any of the Securities of such series when due; |
| (3) | default in the performance, or breach, of any covenant of the Company or any applicable Guarantor in this Indenture or any Security of such series (other than a covenant for which the consequences of breach or nonperformance are addressed elsewhere in this Section 6.01 or a covenant that has expressly been included in this Indenture, whether or not by means of a supplemental indenture, solely for the benefit of Securities of a series other than such series), and continuance of such default or breach (without such default or breach having been cured or waived in accordance with the provisions of this Indenture) for a period of 90 days after the Company has received written notice, by registered or certified mail or overnight air courier guaranteeing next day delivery, |
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| delivered by the Trustee or after the Company and the Trustee have received written notice, by registered or certified mail or overnight air courier guaranteeing next day delivery, delivered by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series, specifying such default or breach and requiring it to be remedied and stating that such notice is a “notice of default” hereunder; |
| (4) | the Guarantee of the Parent Guarantor or any Significant Subsidiary with respect to such series of Securities is held in any judicial proceeding to be unenforceable or invalid or, except as permitted by this Indenture, ceases for any reason to be in full force and effect, or the Parent Guarantor or any Significant Subsidiary denies or disaffirms its obligations under its Guarantee with respect to the Securities of such series in writing, in each case other than by reason of release pursuant to the terms of this Indenture or the terms of any other documents with respect to such series of Securities; |
| (5) | the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company, the Parent Guarantor or any Significant Subsidiary in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudicating the Company, the Parent Guarantor or any Significant Subsidiary bankrupt or insolvent, or appointing a custodian, receiver, conservator, liquidator, assignee, trustee, sequestrator or other similar official of the Company, the Parent Guarantor or any Significant Subsidiary or for substantially all of the properties and assets of the Company, the Parent Guarantor and any Significant Subsidiary, taken as a whole, or ordering the winding up or liquidation of the affairs of the Company, the Parent Guarantor and any Significant Subsidiary, taken as a whole, other than as permitted under Article XII hereto, and the continuance of any such decree or order for relief unstayed and in effect for a period of 90 consecutive days; |
| (6) | the commencement by the Company, the Parent Guarantor or any Significant Subsidiary of a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated bankrupt or insolvent, or the consent by the Company, the Parent Guarantor or any Significant Subsidiary to the entry of a decree or order for relief in respect of the Company, the Parent Guarantor or any Significant Subsidiary in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company, the Parent Guarantor or any Significant Subsidiary or the consent by the Company, the Parent |
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| Guarantor or any Significant Subsidiary to the filing of such petition or to the appointment of a custodian, receiver, conservator, liquidator, assignee, trustee, sequestrator or similar official of the Company, the Parent Guarantor or any Significant Subsidiary or for substantially all of the properties and assets of the Company, the Parent Guarantor and any Significant Subsidiary, taken as a whole, or the making by the Company, the Parent Guarantor or any Significant Subsidiary of an assignment for the benefit of creditors; or |
| (7) | any other Event of Default provided with respect to Securities of such series that is specified in an Officer’s Certificate or supplemental indenture hereto pursuant to Section 3.01. |
6.02 Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other than an Event of Default specified in clauses (5) or (6) of Section 6.01) with respect to the Securities of any series occurs and is continuing, then either the Trustee or the Holders of not fewer than 25% in aggregate principal amount of the Outstanding Securities of such series may declare the principal of all the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, and accrued and unpaid interest, if any, thereon to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal or such lesser amount, as the case may be, and such accrued and unpaid interest shall become immediately due and payable. If an Event of Default specified in clauses (6) or (7) of Section 6.01 with respect to the Securities of any series occurs, then the principal of all of the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, and accrued and unpaid interest, if any, thereon shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Securities of such series.
At any time after Securities of any series have been accelerated (whether by declaration of the Trustee or the Holders or automatically) and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article VI provided, the Holders of not fewer than a majority in aggregate principal amount of the Outstanding Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such acceleration and its consequences if all existing Events of Default with respect to that series have been cured or waived as provided in Section 6.07, except non-payment of principal (or such lesser amount) or interest that has become due solely because of the acceleration, and amounts owing to the Trustee pursuant to Section 7.07 have been paid. No such rescission shall affect any subsequent default.
Any time period in this Indenture to cure any actual or alleged default or Event of Default may be extended or stayed by a court of competent jurisdiction; provided that a notice of default may not be given with respect to any action taken, and reported publicly or to the Holder of the Securities of such series, more than two years prior to such notice of default.
The Company and the Trustee may, to the extent provided in Section 11.01, enter into one or more supplemental indentures with respect to any series of the Securities that may provide for additional, different or fewer Events of Default with respect to such series of Securities. Additional, different or fewer Events of Default with respect to such series of Securities may also be set forth pursuant to Section 3.01.
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6.03 Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Company covenants that (i) in case a default shall be made in the payment of any installment of interest on any of the Securities, as and when the same shall become due and payable, and such default shall have continued for a period in excess of 30 days, or (ii) in case a default shall be made in the payment of the principal of or premium, if any, on any of the Securities when and as the same shall have become due and payable, whether upon maturity of the Securities or upon redemption or upon declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount that then shall have become due and payable on such Securities for principal and premium, if any, interest, if any, with interest upon the overdue principal and premium, if any, of each such Security and (to the extent legally enforceable under applicable law) upon any installments of interest, at the rate borne by such Security, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including a reasonable compensation to the Trustee, its agents, attorneys and counsel, and any expenses or liabilities incurred by the Trustee hereunder other than through its gross negligence or willful misconduct.
All rights of action and of asserting claims under this Indenture, or under any of the Securities of any series, may be enforced by the Trustee without the possession of any of the Securities of such series, or the production thereof on any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought, in accordance with Section 317 of the Trust Indenture Act as may be authorized therein, in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities of such series. In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party), the Trustee shall be held to represent all the Holders of the Securities of a series, and it shall not be necessary to make any Holders of the Securities of such series parties to any such proceedings.
In case of an Event of Default hereunder with respect to Securities of a particular series, the Trustee may, but shall not be under any obligation to, proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceedings in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. The Trustee is authorized to 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 (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Securities allowed in any judicial proceedings relative to the Company (or any other obligor upon the Securities), its creditors or their property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding 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
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the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be unpaid for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. The Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ committee or other similar committee. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of the Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series 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.
6.04 Application of Proceeds. Any money or property collected by the Trustee with respect to a series of Securities pursuant to Section 6.03, and after an Event of Default any money or other property distributable in respect of the Company’s obligations under this Indenture, shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such moneys or property:
FIRST: To the payment of all costs and expenses in connection with the collection of such moneys, and all amounts payable to the Trustee, its agents and attorneys under Section 7.07; and
SECOND: To the payment of the entire amounts then due and unpaid upon the Securities in respect of which or for the benefit of which such moneys shall have been collected, without any preference or priority, ratably according to the amounts due and payable upon such Securities upon presentation of the several Securities and notation of such payment thereon, if partly paid, and upon surrender thereof, if fully paid.
Any surplus then remaining shall be paid to the Company.
6.05 Limitations on Suits by Holders. Except as set forth in Section 316(b) of the Trust Indenture Act, no Holder of any Security of any series shall have any right by virtue or by availing itself of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (1) such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities of such series, (2) the Holders of no fewer than 25% in aggregate principal amount of the Outstanding Securities of that series shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered, and if requested, provided to the Trustee such security or indemnity as it may require against the costs, expenses and liabilities which may be incurred therein or thereby, (3) the Trustee for 60 days after its receipt of such notice, request and offer of security or indemnity, shall have failed to institute any such action, suit or proceeding and (4) no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.07; it being understood and intended, and being expressly covenanted by the Holder of every Security of such series with every other Holder of Securities of such series and the Trustee, that no one or more Holders of the Securities of such series shall have any right in any manner whatever by virtue or by availing itself of any
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provision of this Indenture to affect, disturb or prejudice the rights of the Holders of any other of Securities or to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of the Securities of such series.
6.06 Powers and Remedies Cumulative; Delay or Omission Not Waiver. All powers and remedies given by this Article VI to the Trustee or to the Holders of the Securities of any series shall, to the extent permitted by law and subject to Section 6.05, be deemed cumulative and not exclusive of any other such powers and remedies or of any other powers or remedies available to the Trustee or such Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of the Securities of any series to exercise any right or power accruing upon any default occurring and continuing as aforesaid, shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein, and, subject to Section 6.05, every power and remedy given by this Article VI or by law to the Trustee or to such Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by such Holders.
6.07 Control by Holders; Waiver of Default. The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to Securities of such series; provided, however, that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture, involve the Trustee in personal liability or have been determined by the Trustee to be unduly prejudicial to the rights of other Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such Holders); provided, further, that nothing in this Indenture shall impair the right of the Trustee to take any action deemed proper by the Trustee and that is not inconsistent with such direction by such Holders. The Holders of at least a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all of the Securities of such series waive any past default hereunder with respect to the securities of such series and its consequences, except a default in the payment of the principal of, premium, if any, or interest, if any, on any of the Securities of such series (provided, however, that the Holders of a majority in principal amount of the Outstanding Securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration). In the case of any such waiver, such default shall cease to exist, any Event of Default arising from such default shall be deemed to have been cured for every purpose of this Indenture, and the Company, any Guarantors, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively, but no such waiver shall extend to any subsequent or other default, except as may be provided for in the definition of “default.”
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6.08 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; provided, however, that this Section 6.08 shall not apply to a suit by the Trustee or the Company, a suit by a Holder pursuant to Section 6.05 hereof, or a suit by Holders of more than 10% in principal amount of the then Outstanding Securities of any series.
ARTICLE VII
CONCERNING THE TRUSTEE
7.01 Certain Duties and Responsibilities.
(a) The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. If an Event of Default has occurred and is continuing and is known to the Trustee, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
(b) Except during the continuance of an Event of Default actually known to a Responsible Officer of the Trustee,
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of willful misconduct or gross negligence on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) In case an Event of Default has occurred and is continuing and is actually known to a Responsible Officer of the Trustee, 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 his or her own affairs; provided, however, the Trustee shall be under no obligation to take any action to protect, preserve or enforce any rights or interests, or to take any action under any of the agreements or documents related hereto, whether on its own motion or the request of any other person unless from time to time the Trustee is provided with indemnity reasonably satisfactory to the Trustee.
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(d) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this Section 7.01(c) shall not be construed to limit the effect of Section 7.01(a);
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with a direction received by it pursuant to Section 6.07; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.01.
(f) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder. The permissive rights or powers of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee.
7.02 Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series that as to which a Responsible Officer of the Trustee has actual knowledge, the Trustee shall transmit to all Holders of the Securities of such series notice of such default hereunder actually known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any), or interest, if any, on any Security of such series, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of the Securities of such series; and provided, further, that in the case of any default of the character specified in Section 6.01(3) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.
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7.03 Certain Rights of Trustee.
| (1) | The Trustee may conclusively rely and shall be protected in acting, or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document (whether in its original or electronic form) believed by it to be genuine and to have been signed or presented by the proper party or parties; |
| (2) | Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Company by an Authorized Officer thereof (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors of the Company may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary, or another appropriate officer, of the Company; |
| (3) | The Trustee may consult with counsel of its selection, and the advice of counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; |
| (4) | 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, and if requested, provided to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred therein or thereby; |
| (5) | The Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; |
| (6) | The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture or other paper or document with respect to such series of Securities, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled, during normal business hours of the Company and upon reasonable prior notice to the Company, to examine the books, records and premises of the Company, personally or by agent or attorney, the reasonable costs thereof to be reimbursed to the Trustee by the Company; |
| (7) | The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; |
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| (8) | In no event shall the Trustee be responsible or liable to any Holder for special, punitive, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; |
| (9) | The Trustee shall only be deemed to have knowledge of any default or Event of Default (except with respect to an Event of Default pursuant to Section 6.01(1) or Section 6.01(2) only if the Trustee is also the Paying Agent) with respect to the Securities of any series if written notice of any event which is in fact such a default or Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities of such series and this Indenture; |
| (10) | The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be compensated, reimbursed, indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder; |
| (11) | The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture; |
| (12) | In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics, recognized public emergencies, quarantine restrictions, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, and hacking, cyber-attacks, or other use or infiltration of the Trustee’s technological infrastructure exceeding authorized access, or other unavailability of the Federal Reserve Bank wire or electronic or other wire or communication facility; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances; and |
| (13) | Before the Trustee acts or refrains from acting, it may require an Officer’s 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 Officer’s Certificate or Opinion of Counsel. |
7.04 Trustee Not Responsible for Recitals. The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication and the representation as to the power of the Trustee to enter into this Indenture and perform its duties, shall be taken as the statements of the Company and the Trustee assumes no responsibility for the correctness of the same. The
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Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be responsible for and makes no representations as to the validity or adequacy of this Indenture, the Securities, or any offering material, including any prospectus. The Trustee shall not be responsible for any inconsistencies between the terms of this Indenture and any offering material related to Securities issued hereunder or any supplement hereto. The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities or any money paid to the Company or upon the Company’s direction under any provision of this Indenture. The Trustee shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee. The Trustee shall not be bound to ascertain or inquire as to the performance or observance of any covenants, conditions, or agreements on the part of the Company but the Trustee may require full information and advice as to the performance of the aforementioned covenants. The Trustee shall not be responsible for any statement in any document in connection with the sale of the Securities other than information about the Trustee provided by the Trustee to the Company for incorporation or use in any such documents.
7.05 Trustee and Others May Hold Securities. The Trustee, any Paying Agent, the Security Registrar or any other agent of the Company or 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 any other obligor on the Securities with the same rights it would have if it were not the Trustee, any such Paying Agent, the Security Registrar or any such other agent.
7.06 Moneys Held by Trustee or Paying Agent. Subject to Section 13.04 and Section 13.05, all moneys received by the Trustee or any Paying Agent, need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any Paying Agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree in writing with the Company. The provisions of this Section 7.06 shall not apply to the Company acting as its own Paying Agent pursuant to Section 5.05(b).
7.07 Compensation of Trustee and Its Lien. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, compensation (which shall be agreed to in writing from time to time by the Company and the Trustee and which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as herein otherwise expressly provided, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its separate counsel) except any such expense, disbursement or advance as may arise from its gross negligence or willful misconduct, as determined by a final order of a court of competent jurisdiction. If any property other than cash shall at any time be subject to the lien of this Indenture, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property to such lien, shall be entitled (but shall not be required) to make advances from funds collected or held in trust by the Trustee as such for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon. The Company and each Guarantor, jointly and severally, also covenant and agree to indemnify the Trustee, any predecessor Trustee and their agents for, and to hold them harmless against, any loss, liability claim, damage or expense incurred without gross negligence or willful misconduct on their part, as determined by a final order of a court of competent jurisdiction, arising
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out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending themselves against any claim (whether asserted by the Company or any Holder or any other Person) or liability in connection with the exercise or performance of any of the Trustee’s powers or duties hereunder, or in connection with the enforcement of the provisions of this Section 7.07, except to the extent that such loss, liability, claim, damage or expense is due to their own gross negligence or willful misconduct, as determined by a final order of a court of competent jurisdiction; provided, however, that the Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The Trustee shall notify the Company promptly of any claim for which it may seek indemnification. The obligations of the Company under this Section 7.07 shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(4) or Section 6.01(5), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable bankruptcy, insolvency, reorganization or other similar law.
The provisions of this Section 7.07 shall survive the resignation or removal of the Trustee and the discharge or other termination of this Indenture.
7.08 Right of Trustee to Rely on Certificate of Certain Officers. Whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect hereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
7.09 Persons Eligible for Appointment as Trustee. There shall at all times be a Trustee hereunder that is an entity organized and doing business under the laws of the United States, any state or territory thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by U.S. federal, state, territorial or District of Columbia authority. If such entity publishes reports of condition at least annually, pursuant to law or to the requirements of a supervising or examining authority, then for the purposes of this Section 7.09, the combined capital and surplus of such entity shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with this Section 7.09 or the Trust Indenture Act, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10. Neither the Company nor any Affiliate of the Company shall serve as Trustee for the Securities of any series issued hereunder. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in
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the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or any other indenture of the Company.
7.10 Resignation and Removal of Trustee; Appointment of Successor.
(a) The Trustee, or any Trustee or Trustees hereafter appointed, may at any time resign with respect to any one or more or all series of Securities by giving 30 days prior written notice to the Company and by giving notice of such resignation to the Holders of the Securities in the manner provided in Section 1.05. Upon receiving such notice of resignation, the Company shall use its commercially reasonable efforts to promptly appoint a successor Trustee or Trustees with respect to the applicable series by written instrument executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor Trustee. If no successor Trustee shall have been so appointed with respect to a particular series and have accepted appointment within 30 days after the sending of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee, or any Holder who has been a bona fide Holder of a Security or Securities of the applicable series for at least 6 months may, on behalf of such Holder and all others similarly situated, petition any such court for the appointment of a successor Trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall cease to be eligible under Section 7.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(2) the Trustee shall become incapable of acting, or shall be adjudged bankrupt or insolvent, commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, the Company upon 30 days prior written notice may remove the Trustee with respect to the applicable series of Securities and appoint a successor Trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or any Holder who has been a bona fide Holder of a Security or Securities of any such series for at least 6 months may, on behalf of such Holder and all others similarly situated, petition, any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to such series. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor Trustee with respect to such series.
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(c) The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may at any time upon 30 days prior written notice remove the Trustee with respect to that series and appoint with respect to such series a successor Trustee by delivering to the Trustee so removed, to the successor Trustee so appointed and to the Company, the evidence provided for in Section 9.01 of the action taken by the Holders, unless within 10 days after notice to the Company of such nomination, the Company objects thereto, in which case, the Trustee so removed or any Holder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, on behalf of himself and all others similarly situated, and at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee.
(d) Any resignation or removal of the Trustee and any appointment of a successor Trustee pursuant to this Section 7.10 shall become effective only upon acceptance of appointment by the successor Trustee as provided in Section 7.11.
7.11 Acceptance of Appointment by Successor Trustee. Any successor Trustee appointed under Section 7.10 shall execute, acknowledge and deliver to the Company and to the predecessor Trustee with respect to any and all applicable series an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee shall become effective and such successor Trustee, without any further act, deed, or conveyance, shall become vested with all the rights, powers, trusts, duties and obligations with respect of such series of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor Trustee, the Trustee ceasing to act shall, upon payment of any such amounts then due it pursuant to the provisions of Section 7.07, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts with respect to such series of the Trustee so ceasing to act. Upon the reasonable request of any such successor Trustee, the Company shall execute any and all instruments in writing more fully and certainly vesting in and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to Section 7.07.
In the 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 predecessor Trustee and each successor Trustee with respect to the Securities of any applicable series shall execute and deliver a supplemental indenture which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such co-Trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee with respect to any series of Securities shall accept appointment as provided in this Section 7.11 unless at the time of such acceptance such successor Trustee shall with respect to such series be eligible under Section 7.09.
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Upon acceptance of appointment by a successor Trustee with respect to the Securities of any series, the Company shall give notice of the succession of such Trustee hereunder to the Holders of the Securities in the manner provided in Section 1.05. If the Company fails to give such notice within 10 days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be given at the expense of the Company.
7.12 Merger, Conversion or Consolidation of Trustee. Any entity into which the Trustee may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any entity succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such successor Trustee shall be eligible under the provisions of Section 7.09 hereof and Sections 310(a)(1), (2) and (5) of the Trust Indenture Act. The Trustee is subject to Section 310(b) of the Trust Indenture Act.
7.13 Authenticating Agents. The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the Company to authenticate any series of Securities, and the Trustee shall give written notice of such appointment to all Holders of the Securities of such series with respect to which such Authenticating Agent will serve. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
Each Authenticating Agent shall at all times be an entity organized and doing business under the U.S. federal or state laws, with a combined capital and surplus of at least $50,000,000 and authorized under such laws to act as an authenticating agent, duly registered to act as such, if and to the extent required by applicable law and subject to supervision or examination by U.S. federal or state authority. If such entity publishes reports of its condition at least annually, pursuant to law or the requirements of such authority, then for the purposes of this Section 7.13 the combined capital and surplus of such entity shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible to act as such in accordance with the provisions of this Section 7.13, it shall resign immediately in the manner and with the effect herein specified in this Section 7.13.
Any entity into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any entity succeeding to all or substantially all the corporate agency business of any Authenticating Agent, shall be the successor of the Authenticating Agent hereunder, if such successor entity is otherwise eligible to act as such in accordance with the provisions of this Section 7.13, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent or such successor entity.
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Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice or resignation or upon a termination, or in case at any time any Authenticating Agent shall cease to be eligible to act as such in accordance with the provisions of this Section 7.13, the Trustee may appoint a successor authenticating agent. Upon the appointment, at any time after the original issuance of any series of Securities, of any successor, additional or new authenticating agent, the Trustee shall give written notice of such appointment to the Company and shall at the expense of the Company give notice of such appointment to all Holders of the Securities of such series with respect to which such Authenticating Agent will serve in the manner provided in Section 1.05. Any successor authenticating agent upon acceptance of its appointment pursuant to the provisions of this Section 7.13 shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if initially appointed as an Authenticating Agent. No successor authenticating agent shall be appointed unless eligible to act as such in accordance with the provisions of this Section 7.13.
Any Authenticating Agent, by the acceptance of its appointment, shall be deemed to have agreed with the Trustee to indemnify the Trustee against any loss, liability or expense incurred by the Trustee and to defend any claim asserted against the Trustee by reason of any acts or failures to act of such Authenticating Agent, but such Authenticating Agent shall have no liability for any action taken by it in accordance with the specific written direction of the Trustee.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation and expenses for its services.
The provisions of Section 7.04, Section 7.05 and Section 7.08 shall inure to the benefit of each Authenticating Agent to the same extent that they inure to the benefit of the Trustee.
If an appointment with respect to one or more series is made pursuant to this Section 7.13, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Securities of the series designated therein issued under the within-mentioned Indenture.
| [NAME OF TRUSTEE], as Trustee | ||
| By: [FULL LEGAL NAME OF AUTHENTICATING AGENT], as Authenticating Agent | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
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7.14 Preferential Collection of Claims. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to Section 311(a) of the Trust Indenture Act regarding the collection of claims against the Company (or any other obligor upon the Securities), excluding any creditor relationship listed in Trust Indenture Act Section 311(b).
ARTICLE VIII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
8.01 Company to Furnish Trustee Names and Addresses of Holders. In accordance with Section 312(a) of the Trust Indenture Act, the Company (and to the extent applicable under Section 312(a) of the Trust Indenture Act, any other obligor) shall furnish, or cause to be furnished to the Trustee:
(a) semi-annually with respect to Securities of each series, within 15 days after each Regular Record Date, of each year or upon such other dates as are set forth in or pursuant to the Board Resolution, Officer’s Certificate or supplemental indenture authorizing such series, a list, in each case in such form as the Trustee may reasonably require, of the names and addresses of Holders as of the applicable date; and
(b) within 30 days after the receipt by the Company of any written request from the Trustee, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that so long as the Trustee is the Security Registrar no such list shall be required to be furnished.
8.02 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each anniversary date following the first issuance of Securities pursuant to Section 3.01, transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such anniversary date with respect to any of the events specified in said Sections 313(a) and 313(b)(2) of the Trust Indenture Act which may have occurred since the later of the immediately preceding anniversary date and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section 8.02 shall be transmitted in the manner and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture Act.
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8.03 Reports by the Company.
(a) To the extent required by Section 314(a) of the Trust Indenture Act, the Parent Guarantor shall, so long as the Securities of any series of Securities are Outstanding, file with the Trustee such information, documents and other reports as may be required to comply with the provisions of Section 314(a) of the Trust Indenture Act; provided that (i) any failure of the Parent Guarantor to comply with this provision shall not constitute a default or an Event of Default and (ii) only the Trustee, acting at the written direction of Holders of a majority of the aggregate outstanding principal amount of the Securities of the applicable series, may institute a legal proceeding against the Company or the Parent Guarantor to enforce such delivery obligation.
(b) Reports, information and documents filed by the Parent Guarantor with the SEC via EDGAR (or any successor system thereto) will be deemed filed with the Trustee for purposes of this Section 8.03 as of the time that such reports, information and documents are filed via EDGAR (or any successor system thereto).
(c) Delivery of reports, information and documents to the Trustee under this Section 8.03 are for informational purposes only, and the Trustee’s receipt of the foregoing shall not constitute constructive or actual notice or knowledge of any information contained therein or determinable from information contained therein, including the Company’s, the Parent Guarantor’s or any Guarantor’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed under any filing system or posted to any website.
ARTICLE IX
CONCERNING THE HOLDERS
9.01 Evidence of Action Taken by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage or a majority in aggregate principal amount of the Securities or of any series of Securities may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action the Holders of such specified percentage or majority have joined therein may be evidenced (i) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, (ii) by the record of the Holders of the Securities voting in favor thereof at any meeting of Holders duly called and held in accordance with the rules and procedures established pursuant to Article X or (iii) by a combination of such instrument or instruments and any such record of such a meeting of Holders.
Members of, or participants in, a Depositary shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or by the Depositary Custodian or under such Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its agent members, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Security.
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9.02 Proof of Execution of Instruments and of Holding of Securities. Subject to the provisions of Section 7.03 and Section 315 of the Trust Indenture Act, proof of the execution of any instrument by a Holder or its agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
The fact and date of the execution by any such Person of any instrument may be proved by the certificate of any notary public or other officer authorized to take acknowledgments of deeds to be recorded in any state within the United States, that the Person executing such instrument acknowledged to such notary or other officer the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer. Where such execution is by an officer of a corporation or association or a member of a partnership on behalf of such corporation, association or partnership, such certificate or affidavit shall also constitute sufficient proof of such officer’s or member’s authority. The fact and date of the execution of any such instrument may also be proved in any other manner which the Trustee may deem sufficient.
The ownership of Securities may be proved by the Security Register or by a certificate of the Security Registrar.
If the Company shall solicit from the Holders of the Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other act, the Company may, at its option, by Board Resolution, fix in advance a record date for the determination of Holders of the Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act, but the Company shall have no obligation to do so. Any such record date shall be fixed at the discretion of the Company. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be sought or given before or after the record date, but only the Holders of the Securities of record at the close of business on such record date shall be deemed to be the Holders of the Securities for the purpose of determining whether Holders of the requisite proportion of Securities of such series Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the Securities of such series Outstanding shall be computed as of such record date.
The Trustee may require such additional proof, if any, of any matter referred to in this Section 9.02 as it shall deem necessary.
9.03 Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 9.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities or of any series of Securities specified in this Indenture in connection with such action, any Holder of a Security which is shown, by evidence, to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal office and upon proof of holding as provided in Section 9.02, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security or any Security issued in exchange therefor or in place thereof. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities.
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ARTICLE X
HOLDERS’ MEETINGS
10.01 Rules for Meetings. The Trustee may make reasonable rules and procedures for meetings of Holders.
ARTICLE XI
SUPPLEMENTAL INDENTURES
11.01 Supplemental Indentures Without Consent of Holders. The Company, any applicable Guarantor, and the Trustee may from time to time and at any time enter into one or more supplemental indentures hereto (which shall, but only to the extent applicable, conform to the provisions of the Trust Indenture Act as it shall be in force at the date of execution of such supplemental indenture or indentures) for one or more of the following purposes:
| (1) | to convey, transfer, assign, mortgage or pledge to the Trustee as security for all or any series of Securities any property or assets that the Company may desire; |
| (2) | to evidence the succession of another corporation to the Company or any Guarantor, as applicable, and the assumption by the successor corporation of the covenants, agreements and obligations of the Company or such Guarantor, as applicable, pursuant to Article XII; |
| (3) | to add to or modify the covenants and agreements of the Company for the protection of the Holders of the Securities of all or any series (and if such covenants, agreements, restrictions or conditions are to be for the benefit of fewer than all series of Securities, stating that such covenants, agreements, restrictions or conditions are expressly being included solely for the benefit of such series); |
| (4) | to add or modify any Events of Default for the benefit of the Holders of the Securities of all or any series (and if such additional or modified Events of Default are to be for the benefit of fewer than all series of Securities, stating that such additional or modified Events of Default are expressly being included solely for the benefit of such series); |
| (5) | to prohibit the authentication and delivery of additional series of Securities under this Indenture; |
| (6) | to cure any ambiguity, omission, mistake, defect or inconsistency; |
| (7) | to make such other provisions in regard to matters or questions arising under this Indenture as shall not be inconsistent with the provisions of this Indenture or any supplemental indenture; provided that such action shall not adversely affect the rights of Holders of the Securities of any series in any material respect; |
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| (8) | to establish the form and terms of the Securities of any series as permitted in Section 2.01, Section 3.01 and Section 3.03, or to authorize the issuance of additional Securities of a series previously authorized or to add to the conditions, limitations or restrictions on the authorized amount, terms or purposes of issue, authentication or delivery of the Securities of any series, as herein set forth, or other conditions, limitations or restrictions thereafter to be observed; |
| (9) | to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 7.11; |
| (10) | to provide for uncertificated Securities in addition to or in place of certificated Securities; |
| (11) | to delete, amend or supplement any provision contained herein or in any supplemental indenture (which deletion, amendment or supplement may apply to one or more series of Securities or may apply to this Indenture generally, including the amendment and restatement of this Indenture), provided that such amendment or supplement does not (i) apply to any Security of any series then Outstanding created or issued prior to the date of the supplemental indenture pursuant to which such deletion, amendment or supplement, as the case may be, is made and entitled to the benefit of such provision deleted, amended or supplemented by such supplemental indenture or (ii) adversely modify the rights of the Holder of any such Security; |
| (12) | to add Guarantors or co-obligors for the benefit of the Securities of all or any series or to release Guarantors from their Guarantees of Securities in accordance with the terms of the applicable series of Securities; |
| (13) | to evidence or facilitate the release, termination, defeasance or discharge of a Guarantee of the Securities of all or any series when such release, termination or defeasance, discharge is permitted under the provisions of this Indenture; |
| (14) | to secure the Securities or Guarantees of the Securities of all or any series; |
| (15) | to comply with the applicable procedures of the applicable Depositary; |
| (16) | to comply with the Trust Indenture Act or maintain the qualification of this Indenture under the Trust Indenture Act; and |
| (17) | to conform the provisions of this Indenture and the Securities or any Guarantees of the Securities to the description thereof contained in the applicable prospectus and any related prospectus supplement. |
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Upon request of the Company, the Trustee is hereby authorized to join with the Company and any applicable Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture if the Trustee reasonably concludes that such supplemental indenture adversely affects the Trustee’s own rights, duties or immunities under this Indenture.
Any supplemental indenture authorized by the provisions of this Section 11.01 shall be executed by the Company and the Trustee and shall not require the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding Section 11.02.
11.02 Supplemental Indentures With Consent of Holders. With the consent (evidenced as provided in Section 9.01) of the Holders of not fewer than a majority of the aggregate principal amount of the Outstanding Securities of any series affected by such supplemental indenture, the Company, any applicable Guarantor, and the Trustee may from time to time and at any time enter into an indenture or supplemental indentures hereto (which shall, but only to the extent applicable, conform to the provisions of the Trust Indenture Act as shall be in force at the date of execution of such supplemental indenture or indentures) for the purpose, with respect to Securities of such series, of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture with respect to Securities of such series or of modifying in any manner the rights of the Holders of the Securities of such series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Security so affected:
(a) change the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on any Security, or reduce the principal amount thereof or the rate (or modify the calculation of such rate) of interest thereon, or reduce the amount payable upon redemption thereof at the option of the Company, or reduce the amount of the principal of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02;
(b) adversely affect the right of any Holder to receive payment of the principal of and interest on any Security on the Stated Maturity thereof or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, in each case as such Stated Maturity may, if applicable, be extended in accordance with the terms of such Security, or, in the case of redemption at the option of the Company, on or after the Redemption Date;
(c) change the currency in which the principal of, any premium or interest on, any Security is payable;
(d) reduce the percentage in principal amount of the Outstanding Securities of any series the consent of whose Holders is required for any such supplemental indenture or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in Section 5.03 or Section 6.07 of this Indenture; or
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(e) modify any of the provisions of this Section 11.02 or Section 6.07, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby.
Upon the written request of the Company and upon the filing with the Trustee of evidence of the consent of the Holders as aforesaid, the Trustee shall join with the Company and any applicable Guarantor in the execution of such supplemental indenture unless the Trustee reasonably concludes that such supplemental indenture adversely affects the Trustee’s own rights, duties or immunities under this Indenture, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture.
A supplemental indenture which changes or eliminates any provision of this Indenture or of any series of Securities that has expressly been included solely for the benefit of one or more particular series of Securities, or that modifies the rights of Holders of the Securities of such series with respect to such provisions, shall be deemed not to affect the rights under this Indenture of the Holders of the Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section 11.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any supplemental indenture under this Section 11.02, the Company shall give notice, setting forth in general terms the substance of such supplemental indenture, to the Holders of the applicable series of Securities in the manner provided in Section 1.05. Any failure of the Company to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
The Company may set a record date for purposes of determining the identity of the Holders of each series of Securities entitled to give a written consent or waive compliance by the Company as authorized or permitted by this Section 11.02.
11.03 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article XI, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, any Guarantors and the Holders of the Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
11.04 Notation on Securities in Respect of Supplemental Indentures. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article XI or after any action taken at a Holders meeting pursuant to the provisions of Article X may, and if required by the Trustee shall, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture or as to any such
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action. If the Company and the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Company and the Trustee, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
11.05 Opinion of Counsel and Officer’s Certificate to Be Given to Trustee. The Trustee, subject to Section 7.03 and, to the extent applicable, Section 315 of the Trust Indenture Act, shall be entitled to conclusively rely upon and shall be fully protected in acting upon, or refraining from acting upon, an Opinion of Counsel and an Officer’s Certificate stating that any such supplemental indenture is authorized or permitted by the terms of this Indenture.
ARTICLE XII
CONSOLIDATION, MERGER AND SALE
12.01 Company and Any Guarantor May Consolidate or Merge, etc.
Subject to the provisions of Section 12.02, Section 12.03 and Section 12.04, nothing contained in this Indenture shall prevent any consolidation of the Company or any Guarantor with, or the merger of the Company or any Guarantor into, any other Person, or any merger of any other Person into the Company or any Guarantor or successive consolidations or mergers to which the Company, any Guarantor or each of their respective successor or successors shall be a party or parties, or shall prevent any sale or transfer of all or substantially all of the properties and assets of the Company or any Guarantor to any other Person.
12.02 Conditions to the Company’s Consolidation or Merger, etc.
(a) The Company shall not consolidate with or merge into any other Person or sell or transfer all or substantially all of its properties and assets to any other Person (other than the Parent Guarantor or any of its Subsidiaries) unless the successor entity is organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and (i) in the case of a merger, the Company shall be the continuing Person or (ii) in case the Company shall consolidate with or merge into another Person (and the Company shall not be the continuing Person), or sell or transfer all or substantially all of its properties and assets to another Person (other than the Parent Guarantor or any of its Subsidiaries), (1) the Person formed by such consolidation or into which the Company is merged or the Person that acquires by sale or transfer all or substantially all of the properties and assets of the Company shall assume, by a supplemental indenture executed and delivered to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest, if any, on the Securities, and the Company’s other obligations under this Indenture and (2) immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing which has not otherwise been waived or remedied in accordance with this Indenture.
(b) Every such successor Person, upon executing such supplemental indenture, shall succeed to the Company, with the same effect as if it had been an original party hereto (which succession shall relieve the Company of all liabilities and discharge the Company from all obligations and covenants, in each case under this Indenture and the Securities), and such successor
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Person shall possess and from time to time may exercise each and every power hereunder of the Company, and any act or proceeding required by this Indenture to be done or performed by any board, governing body or officer of the Company may be done or performed with like force and effect by the like board or officer of such successor Person. In case of any such consolidation, merger, sale or transfer, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate. To the extent that a Board Resolution, Officer’s Certificate or supplemental indenture pertaining to any series of Securities provides for different provisions relating to the subject matter of this Article XII, the provisions in such Board Resolution, Officer’s Certificate or supplemental indenture shall govern for purposes of such series of Securities.
12.03 Conditions to the Parent Guarantor’s Consolidation or Merger, etc.
(a) The Parent Guarantor shall not consolidate with or merge into any other Person or sell or transfer all or substantially all of its properties and assets to any other Person (other than any of its Subsidiaries) unless the successor entity is organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and (i) in the case of a merger, the Parent Guarantor shall be the continuing Person or (ii) in case the Parent Guarantor shall consolidate with or merge into another Person (and the Parent Guarantor shall not be the continuing Person), or sell or transfer all or substantially all of its properties and assets to another Person (other than any of its Subsidiaries), (1) the Person formed by such consolidation or into which the Parent Guarantor is merged or the Person that acquires by sale or transfer all or substantially all of the properties and assets of the Parent Guarantor shall assume, by a supplemental indenture executed and delivered to the Trustee, all of the Parent Guarantor’s obligations under its Guarantee and this Indenture, and (2) immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing which has not otherwise been waived or remedied in accordance with this Indenture.
(b) Every such successor Person, upon executing such supplemental indenture, shall succeed to the Parent Guarantor, with the same effect as if it had been an original party hereto (which succession shall relieve the Parent Guarantor of all liabilities and discharge the Parent Guarantor from all obligations and covenants, in each case under this Indenture and the Securities), and such successor Person shall possess and from time to time may exercise each and every power hereunder of the Parent Guarantor, and any act or proceeding required by this Indenture to be done or performed by any board, governing body or officer of the Parent Guarantor may be done or performed with like force and effect by the like board or officer of such successor Person. In case of any such consolidation, merger, sale or transfer, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate. To the extent that a Board Resolution, Officer’s Certificate or supplemental indenture pertaining to any series of Securities provides for different provisions relating to the subject matter of this Article XII, the provisions in such Board Resolution, Officer’s Certificate or supplemental indenture shall govern for purposes of such series of Securities.
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12.04 Conditions to Any Subsidiary Guarantor’s Consolidation or Merger, etc.
(a) No Subsidiary Guarantor shall consolidate with or merge into any other Person or sell or transfer all or substantially all of its properties and assets to another Person (other than the Parent Guarantor or any of its Subsidiaries) unless the successor entity is organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and (i) in the case of a merger, a Guarantor or the Company shall be the continuing Person or (ii) in case such Subsidiary Guarantor shall consolidate with or merge into another Person (and a Guarantor or the Company shall not be the continuing Person), or sell or transfer all or substantially all of its properties and assets to another Person (other than the Parent Guarantor or any of its Subsidiaries), (1) the Person formed by such consolidation or into which it is merged or the Person that acquires by sale or transfer of all or substantially all of its properties and assets will assume, by supplemental indenture executed and delivered to the Trustee, all of such Subsidiary Guarantor’s obligations under its Guarantee and this Indenture, and (2) immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an event of default shall have occurred and be continuing shall have occurred and be continuing which has not otherwise been waived or remedied in accordance with this Indenture; provided, however, that the foregoing shall not apply to transactions pursuant to which such Subsidiary Guarantor will be released from its obligations under its Guarantee and this Indenture in accordance with the terms of this Indenture.
(b) Every such successor Person, upon executing such supplemental indenture, shall succeed to the applicable Subsidiary Guarantor, with the same effect as if it had been an original party hereto (which succession shall relieve such Subsidiary Guarantor of all liabilities and discharge such Subsidiary Guarantor from all obligations and covenants, in each case under this Indenture and the Securities), and such successor Person shall possess and from time to time may exercise each and every power hereunder of such Subsidiary Guarantor, and any act or proceeding required by this Indenture to be done or performed by any board, governing body or officer of such Subsidiary Guarantor may be done or performed with like force and effect by the like board or officer of such successor Person. In case of any such consolidation, merger, sale or transfer, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate. To the extent that a Board Resolution, Officer’s Certificate or supplemental indenture pertaining to any series of Securities provides for different provisions relating to the subject matter of this Article XII, the provisions in such Board Resolution, Officer’s Certificate or supplemental indenture shall govern for purposes of such series of Securities.
(c) Notwithstanding the foregoing, (i) any Subsidiary of the Parent Guarantor that is not the Company or a Guarantor may consolidate with or merge with or into, or convey, transfer or lease or otherwise dispose of all or part of its properties and assets to the Parent Guarantor or any of its Subsidiaries, (ii) the Company or any Guarantor may consolidate with or merge with or into, or sell, transfer or otherwise dispose of all or part of its properties and assets to the Company, the Parent Guarantor or another Guarantor (iii) any Guarantor, including the Parent Guarantor may consolidate with or merge with or into any Subsidiary of the Parent Guarantor solely for the purpose of reincorporating or reorganizing such Guarantor, (iv) the Company and any Guarantor, including the Parent Guarantor may convert into a corporation, partnership, limited partnership, limited liability company, trust or other entity organized under the laws of the United States of America, any state thereof or the District of Columbia, (v) the Parent Guarantor may sell, lease, convey, assign, transfer or otherwise dispose of assets and property to the Company or any Subsidiary of the Parent Guarantor, and (vi) any Subsidiary Guarantor may sell, lease, convey, assign, transfer or otherwise dispose of assets and property to the Parent Guarantor or any Subsidiary of the Parent Guarantor.
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12.05 Documents and Opinion to Be Furnished to the Trustee. If the Company or any Guarantor shall consolidate with or merge into any other Person, or if it shall sell or transfer all or substantially all of its properties and assets, it will promptly furnish to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that its covenants contained in Section 12.02, Section 12.03 or Section 12.04 as and to the extent applicable, have been complied with.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE; UNCLAIMED MONEYS
13.01 Satisfaction and Discharge. Unless pursuant to Section 3.01, this Section 13.01 is declared not applicable with respect to the Securities of any series, upon the direction of the Company by a written order, this Indenture shall cease to be of further effect with respect to any series of Securities specified in such written order, and the Trustee, on receipt of such written order, the amounts, the Officer’s Certificate and the Opinion of Counsel required by this Section 13.01, at the expense of the Company, shall execute instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture as to such series, when
(a) either:
(i) all Securities of such series theretofore authenticated and delivered (other than (1) Securities of such series that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 3.06 and (2) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 13.05) have been delivered to the Trustee for cancellation; or
(ii) all Securities of such series not theretofore delivered to the Trustee for cancellation:
(1) have become due and payable,
(2) will become due and payable at their Stated Maturity within one year, or
(3) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
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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 for such purpose, money in the currency in which the Securities are payable, or Government Obligations (determined on the basis of the currency in which such Securities are then specified as payable at Stated Maturity), or a combination thereof, as applicable, in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal of, any premium and interest on such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity thereof 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 with respect to the Outstanding Securities of such series; and
(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with; provided that any such counsel may rely on any Officer’s Certificate as to matters of fact (including with respect to clauses (a) and (b) above).
In the event there are Securities of two or more series Outstanding hereunder, the Trustee of each such series shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only with respect to Securities of such series as to which it is Trustee and if the other conditions specified in this Section 13.01 are met. Upon the Company being deemed to have been satisfied and discharged from its obligations with respect to Securities of any series pursuant to this Section 13.01, each Guarantor of the Securities of such series shall be automatically discharged, released from and relieved of all of its obligations under its Guarantee of such Securities, and the Trustee, at the expense of the Company, shall execute instruments reasonably requested by the Company acknowledging such discharge, release and relief with respect to each Guarantor.
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company to the Trustee under Section 7.07 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section 13.01, the obligations of the Company and the Trustee with respect to the Securities of such series under Section 3.05, Section 3.06, Section 5.02, Section 5.05, Section 13.03 and Section 13.06, any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) to require the Company to repurchase or repay, and the obligations of the Company to repurchase or repay, such Securities at the option of the Holders pursuant to Section 3.01, and any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) to convert or exchange, and the obligation of the Company to convert or exchange, such Securities into common stock or other securities, shall survive; provided, however, that following the satisfaction and discharge of this Indenture with respect to any series of Securities whose Holders have the right to require the Company to repurchase or repay such Securities or to convert or exchange such Securities into common stock or other securities, the right of the Holder to require repurchase, repayment, conversion or exchange, as the case may be, of any such Security and the Company’s obligation to repurchase, repay, convert or exchange, as the case may be, any such Security shall (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) terminate immediately following the close of business on the final Stated Maturity of such Security or immediately following the close of business on any earlier redemption date of such Security (so long as the Company does not default in the payment of the redemption price plus accrued and unpaid interest, if any, due on such redemption date), as the case may be.
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13.02 Defeasance and Covenant Defeasance.
(a) Unless pursuant to Section 3.01, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 13.02 or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 13.02 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 13.02 (with such modifications thereto as may be specified pursuant to Section 3.01 with respect to any Securities), shall be applicable to such Securities, and the Company may at its option by Board Resolution, at any time, with respect to the Securities of or within such series, elect to have Section 13.02(b) or Section 13.02(c) be applied to such Outstanding Securities upon compliance with the conditions set forth below in this Section 13.02. Unless otherwise specified pursuant to Section 3.01 with respect to the Securities of any series, defeasance under clause (b) of this Section 13.02 and covenant defeasance under clause (c) of this Section 13.02 may be effected only with respect to all, and not fewer than all, of the Outstanding Securities of any series. To the extent that the terms of any Security established in or pursuant to this Indenture permit the Company or any Holder thereof to extend the date on which any payment of principal of, or premium, if any, or interest, if any, on with respect to such Security is due and payable, then unless otherwise provided pursuant to Section 3.01, the right to extend such date shall terminate upon defeasance or covenant defeasance, as the case may be.
(b) Upon the Company’s exercise of the option applicable to this Section 13.02(b) with respect to any Securities of or within a series, the Company and any applicable Guarantors shall be deemed to have been discharged from their respective obligations with respect to such Outstanding Securities, on the date the conditions set forth in clause (d) of this Section 13.02 are satisfied (as used herein, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities, which shall thereafter be deemed to be “Outstanding” only for the purposes of clause (e) of this Section 13.02 and the other Sections of this Indenture referred to in clauses (i) through (iv) of this paragraph, and to have satisfied all of its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute instruments reasonably requested by the Company acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities to receive, solely (except as provided in clause (ii) below) from the trust fund described in clause (d)(1) of this Section 13.02 and as more fully set forth in this Section 13.02 and Section 13.03, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Securities under Section 3.05, Section 3.06, Section 5.02 and Section 5.05, with respect to any rights of Holders of such Securities (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) to require the Company to repurchase or repay, and the obligations of the Company to repurchase or repay, such Securities at the option of the Holders pursuant to Section 3.01, and with respect to any rights of Holders of such Securities (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) to convert
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or exchange, and the obligations of the Company to convert or exchange, such Securities into common stock or other securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 13.02 and Section 13.03 and Section 13.06; provided, however, that following defeasance with respect to any series of Securities whose Holders have the right to require the Company to repurchase or repay such Securities or to convert or exchange such Securities into common stock or other securities, the right of the Holder to require repurchase, repayment, conversion or exchange, as the case may be, of any such Security and the Company’s obligation to repurchase, repay, convert or exchange, as the case may be, any such Security shall (unless otherwise provided pursuant to Section 3.01 with respect to the Securities of such series) terminate immediately following the close of business on the final Stated Maturity of such Security or immediately following the close of business on any earlier redemption date of such Security (so long as the Company does not default in the payment of the redemption price plus accrued and unpaid interest, if any, due on such redemption date), as the case may be.
(c) Upon the Company’s exercise of the option applicable to this Section 13.02(c) with respect to any Securities of or within a series, the Company and any applicable Guarantors shall be released from their respective obligations under this Indenture and, to the extent specified pursuant to Section 3.01, any other covenant applicable to such Securities with respect to such Securities shall cease to be applicable to such Securities on and after the date the conditions set forth in clause (c) of this Section 13.02 are satisfied (as used herein, “covenant defeasance”), and such Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with any such covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that with respect to such Outstanding Securities, the Company may omit to comply with, and shall have no liability in respect of, any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 6.01(3)or Section 6.01(6), as the case may be.
(d) The following shall be the conditions to application of clause (b) or (c) of this Section 13.02 to any Outstanding Securities of or within a series:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another entity satisfying the requirements of Section 7.09 who shall agree to comply with the provisions of this Section 13.02 applicable to it) 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, (i) an amount in the currency in which such Securities are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with clause (5) below, on the relevant redemption date, as the case may be, (ii) Government Obligations applicable to such Securities (determined on the basis of the currency in which such Securities are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with clause (5) below, on the relevant redemption date, as the case may be) which through the scheduled payment of principal
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and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Securities, money in an amount, or (iii) a combination thereof, in any case, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on the Stated Maturity of such principal or installment of principal or interest or the applicable redemption date, as the case may be, and (z) any mandatory sinking fund payments or analogous payments applicable, if any, to such Outstanding Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities.
(2) No Event of Default or default (other than that resulting from borrowing funds to be applied to make the deposit under clause (1) above and the granting of any liens in connection therewith) shall have occurred and be continuing on the date of such deposit, and, solely in the case of defeasance under Section 13.02(b), no Event of Default or default with respect to such Securities under clause (4) or (5) of Section 6.01 shall have occurred and be continuing on the date of such deposit.
(3) In the case of defeasance pursuant to Section 13.02(b), the Company shall have delivered to the Trustee an Opinion of Counsel, subject to customary assumptions and exclusions, stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred; or, in the case of covenant defeasance pursuant to Section 13.02(c), the Company shall have delivered to the Trustee an Opinion of Counsel, subject to customary assumptions and exclusions, to the effect that the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(5) If the monies or Government Obligations or combination thereof, as the case may be, deposited under clause (1) above are sufficient to pay the principal of, and premium, if any, and interest, if any, on and, to the extent provided in such clause (1) with respect to a particular redemption date, the Company shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
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(6) Notwithstanding any other provisions of this Section 13.02(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 3.01.
(7) Upon the defeasance or covenant defeasance of the Company’s obligations with respect to Securities of any series, each Guarantor of the Securities of such series shall be automatically released from and relieved of all of its obligations under its Guarantee of such Securities, and the Trustee, at the expense of the Company, shall execute instruments reasonably requested by the Company acknowledging such release and relief with respect to each Guarantor.
(e) Subject to Section 13.05, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 13.02(e) and Section 13.03, the “Trustee”) pursuant to clause (d)(1) of Section 13.02 in respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and the Company shall indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 13.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities.
Anything in this Section 13.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon written order any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d)(1) of this Section 13.02 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 13.02(d)(1).
13.03 Application by Trustee of Funds Deposited for Payment of Securities. All money deposited with the Trustee pursuant to Section 13.01 and Section 13.02, or received by the Trustee in respect of obligations deposited with the Trustee pursuant to Section 13.01 or Section 13.02, shall be held in trust until such time as such money is to be applied by it to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of the particular Securities, for the payment of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for the principal thereof, premium, if any, and interest, if any, thereon. Moneys held under this Section 13.03 need not be segregated from other funds except to the extent required by law, and the Trustee shall be under no liability with respect to interest on any such moneys.
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13.04 Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture, all moneys then held by any Paying Agent, other than the Trustee, under this Indenture shall, upon and in accordance with demand of the Company, be paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
13.05 Return of Unclaimed Moneys. Subject to applicable abandoned property law, any moneys deposited with the Trustee or any Paying Agent not applied but remaining unclaimed by the Holders of the Securities for two years after the date upon which the principal of, premium, if any, or interest, if any, on such Securities shall have become due and payable shall be repaid to the Company by the Trustee or such agent on written demand. Thereafter, the Holder of any of the Securities entitled to receive such payment, as a general unsecured creditor, shall look only to the Company for the payment thereof unless applicable law designates another person, and the Company and the Trustee shall have no further liability with respect to such money.
13.06 Reinstatement. If the Trustee (or other qualifying trustee appointed pursuant to Section 7.10) or any Paying Agent is unable to apply any moneys or Government Obligations deposited pursuant to Section 13.01 or Section 13.02(d)(1) to pay any principal of or premium, if any, or interest, if any, on, with respect to the Securities of any series by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no such deposit had occurred, until such time as the Trustee (or other qualifying trustee) or Paying Agent is permitted to apply all such moneys and Government Obligations to pay the principal of and premium, if any, and interest, if any, on the Securities of such series as contemplated by Section 13.01 or Section 13.02 as the case may be, and Section 13.03; provided, however, that if the Company makes any payment of the principal of or premium, if any, or interest, if any, on, in respect of the Securities of such series following the reinstatement of its obligations as aforesaid, the Company shall be subrogated to the rights of the Holders of such payment from the funds held by the Trustee (or other qualifying trustee) or Paying Agent.
ARTICLE XIV
GUARANTEE
14.01 Guarantee.
(a) Subject to the terms of this Article XIV and as may be otherwise specified as contemplated by Section 3.01 with respect to any series of Securities, the Parent Guarantor unconditionally, fully and irrevocably guarantees the Securities and obligations of the Company under this Indenture, and guarantees to each Holder of a Security authenticated and delivered by the Trustee, and to the Trustee for itself and on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the Securities will be paid in full when due, whether at Stated Maturity, by acceleration, redemption or other event set forth in this Indenture, together with interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other
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obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Securities or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration, redemption or other event set forth in this Indenture. For the avoidance of doubt, this Article XIV will not become operative, and no Guarantee of the Parent Guarantor will be issued, unless and until the Company issues any series of Securities under this Indenture.
(b) The Parent Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture or the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof (other than those which expressly release, discharge or otherwise affect the Guarantee of the Parent Guarantor), any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Parent Guarantor; provided, however, that notwithstanding the foregoing, no such waiver, modification, or amendment shall, without the consent of the Parent Guarantor, increase the principal amount of such Securities, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration or the maturity thereof.
(c) The Parent Guarantor hereby waives (to the extent permitted by law) the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants, that the Guarantee of the Parent Guarantor shall not be discharged, except by complete performance of the obligations contained in the Securities and this Indenture. The Parent Guarantor acknowledges that its Guarantee is a guarantee of payment and not of collection.
(d) The Parent Guarantor hereby agrees that, in the Event of Default in payment of principal (or premium, if any) or interest on any Securities, whether at Stated Maturity, by acceleration, redemption, repurchase or other event set forth in this Indenture, legal proceedings may be instituted by the Trustee on behalf of itself or on behalf of, or by, the Holder of such Securities, subject to the terms and conditions set forth in this Indenture, directly against the Parent Guarantor to enforce its Guarantee without first proceeding against the Company or any other Guarantor.
(e) The Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Parent Guarantor further agrees that, as between the Parent Guarantor, on the one hand, and the Holders and the Trustee, on the other hand (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article VI hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Parent Guarantor for the purpose of this Guarantee. The Parent Guarantor shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under any Guarantee.
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(f) The Guarantee of the Parent Guarantor shall be evidenced solely by the execution and delivery of this Indenture and no notation of the Guarantee need be endorsed on any Security.
14.02 Reinstatement. The Parent Guarantor hereby agrees that its Guarantee provided hereunder shall continue to be effective or be reinstated, as the case may be, if at any time, payment, or any part thereof, of any obligations or interest with respect to its Guarantee is returned by a Holder to the Company or the Parent Guarantor to the extent a court of competent jurisdiction requires the return of such payment, which was previously discharged, to the Company, the Parent Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or any applicable Guarantor.
14.03 Limitation of the Parent Guarantor’s Liability. The Parent Guarantor and by its acceptance hereof, the Trustee, for itself and on behalf of each Holder, confirms that it is the intention of all such parties that the Guarantee by the Parent Guarantor not constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or the provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Trustee, for itself and on behalf of the Holders, and the Parent Guarantor hereby irrevocably agree that the obligations of such Guarantor under its Guarantee shall be limited to the maximum amount that will not, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor (and after giving effect to any collections from rights to receive contribution or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor), result in the obligations of such Guarantor under its Guarantee constituting such fraudulent transfer or conveyance. If the Parent Guarantor makes a payment under its Guarantee, it shall be entitled upon payment in full of all guaranteed obligations under this Indenture to a contribution from each other Guarantor (to the extent applicable) in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
14.04 Amendment. No amendment, modification or waiver of any provision of this Indenture relating to the Parent Guarantor or consent to any departure by the Parent Guarantor or any other Person from any such provision will in any event be effective unless it is signed by the Parent Guarantor and the Trustee for the Securities of such series.
66
ARTICLE XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
15.01 Personal Immunity from Liability of Incorporators, Stockholders, etc. No recourse under or upon any obligation, covenant or agreement of this Indenture or any supplemental indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator or against any past, present or future stockholder, partner, Subsidiary, employee, officer, director, Affiliate or controlling person, as such, of the Company, any Guarantor or of any predecessor or successor corporation, either directly or through the Company, Guarantor or any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability and any and all such claims being hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and issue of the Securities.
[The Remainder of this Page Intentionally Left Blank; Signature Page Follows]
67
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first above written.
| AUGUSTA SPINCO CORPORATION, as Company | ||
| By: |
| |
| Name: | ||
| Title: | ||
| WATERS CORPORATION, as Parent Guarantor | ||
| By: |
| |
| Name: | ||
| Title: | ||
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Indenture]
Exhibit 5.1
| 601 Lexington Avenue New York, NY 10022 United States
+1 212 446 4800
www.kirkland.com |
Facsimile: +1 212 446 4900 |
March 16, 2026
Waters Corporation
Augusta SpinCo Corporation
Waters Technologies Corporation
and the other registrants listed on Schedule A hereto
c/o Waters Corporation
34 Maple Street
Milford, Massachusetts 01757
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We are acting as special counsel to Waters Corporation, a Delaware corporation (“Waters”), Augusta SpinCo Corporation, a Delaware corporation (“Augusta”), Waters Technologies Corporation, a Delaware corporation (“WTC”), and the entities listed on Schedule A hereto (collectively with Augusta and WTC, the “Subsidiary Guarantors” and the Subsidiary Guarantors collectively with Waters, the “Covered Parties” and each individually, a “Covered Party”), in connection with the preparation and filing by the Covered Parties of an automatic shelf registration statement on Form S-3 (as amended from time to time, the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”).
The Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the General Rules and Regulations promulgated under the Securities Act, of an unspecified amount of the following securities: (i) common stock of Waters, par value $0.01 per share (the “Common Stock”); (ii) preferred stock of Waters, par value $0.01 per share (the “Preferred Stock”); (iii) one or more series of debt securities of Waters (the “Parent Debt Securities”); (iv) one or more series of debt securities of Augusta (the “Augusta Debt Securities”); (v) one or more series of debt securities of WTC (the “WTC Debt Securities” and, together with the Augusta Debt Securities, the “Subsidiary Debt Securities”); (vi) the full and unconditional guarantee of Waters of any Subsidiary Debt Securities (the “Parent Guarantees”); (vii) the full and unconditional guarantee of the applicable Subsidiary Guarantors of any Parent Debt Securities and/or Subsidiary Debt Securities (the “Subsidiary Guarantees” and, together with the Parent Guarantees, the “Guarantees”); (viii) warrants to purchase Parent Debt Securities, Subsidiary Debt Securities, Common Stock or Preferred Stock (the “Warrants”); (ix) stock purchase contracts,
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Waters Corporation
Augusta SpinCo Corporation
Waters Technologies Corporation
and the other registrants listed on Schedule A hereto
March 16, 2026
Page 2
pursuant to which the holder will purchase from Waters a specified number of shares of Common Stock at a future date or dates (the “Stock Purchase Contracts”); and (x) stock purchase units, consisting of a Stock Purchase Contract and a security (either debt securities of Waters or debt obligations of third parties) securing the holder’s obligation to purchase the Common Stock under the Stock Purchase Contracts (the “Stock Purchase Units” and, collectively with the Common Stock, the Preferred Stock, the Parent Debt Securities, the Subsidiary Debt Securities, the Guarantees, the Warrants and the Stock Purchase Contracts, the “Securities”), in one or more offerings from time to time on a delayed or continuous basis.
You have advised us that (i) the Parent Debt Securities and any related Subsidiary Guarantees will be issued under an indenture (the “Parent Debt Indenture”) in a form that will be filed as an exhibit to the Registration Statement or incorporated by reference therein, to be entered into between Waters and one or more trustees (each a “Parent Debt Trustee”), (ii) the Augusta Debt Securities, the related Parent Guarantees and any related Subsidiary Guarantees will be issued under an indenture (the “Augusta Debt Indenture”) in a form that will be filed as an exhibit to the Registration Statement, to be entered into among Augusta, Waters and one or more trustees (each an “Augusta Debt Trustee”), (iii) the WTC Debt Securities, the related Parent Guarantees and any related Subsidiary Guarantees will be issued under an indenture (the “WTC Debt Indenture” and, together with the Augusta Debt Indenture, the “Subsidiary Debt Indentures” and the Subsidiary Debt Indentures, together with the Parent Debt Indenture, the “Indentures” and each individually, an “Indenture”) in a form that will be filed as an exhibit to the Registration Statement or incorporated by reference therein, to be entered into among WTC, Waters and one or more trustees (each a “WTC Debt Trustee” and, together with the Parent Debt Trustees and the Augusta Debt Trustees, the “Trustees” and each individually, a “Trustee”), (iv) the Warrants will be issued pursuant to one or more warrant agreements (including a form of certificate evidencing the Warrants) (each, a “Warrant Agreement”), by and between Waters, the other parties named therein and a bank or trust company named therein as the warrant agent (the “Warrant Agent”), in a form that will be filed as an exhibit to the Registration Statement or incorporated by reference therein, (v) the Stock Purchase Contracts will be issued pursuant to one or more stock purchase contracts (including a form of Stock Purchase Contract) (each, a “Stock Purchase Contract”), by and among Waters and the other parties named therein, in a form that will be filed as an exhibit to the Registration Statement or incorporated by reference therein, and (vi) the Stock Purchase Units will be issued under one or more unit agreements (including a form of Stock Purchase Unit) (each, a “Unit Agreement”), by and among Waters and the other parties named therein, in a form that will be filed as an exhibit to the Registration Statement or incorporated by reference therein. Each of the Parent Debt Indenture and each Subsidiary Debt Indenture, Warrant Agreement, Stock Purchase Contract and Unit Agreement shall be referred to herein as a “Governing Document.” Each Trustee, Warrant Agent or other counterparty to a Governing Document shall be referred to herein as a “Governing Document Counterparty.”
Waters Corporation
Augusta SpinCo Corporation
Waters Technologies Corporation
and the other registrants listed on Schedule A hereto
March 16, 2026
Page 3
In connection with this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including (i) the formation and organizational documents of the Covered Parties and (ii) the Registration Statement and the exhibits thereto.
For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto and the due authorization, execution and delivery of all documents by the parties thereto (other than, with respect to due authorization, the Covered Parties). We have not independently established or verified any facts relevant to the opinions expressed herein, but have relied upon statements and representations of the officers and other representatives of the Covered Parties and others as to factual matters.
We have also assumed that:
(i) the Registration Statement and any amendments thereto (including any post-effective amendments) will be effective and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement;
(ii) a prospectus supplement or term sheet (each, a “Prospectus Supplement”) will have been prepared and filed with the Commission, along with any exhibits necessary under the rules and regulations of the Commission, describing the Securities offered thereby and will comply with all applicable laws;
(iii) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner and for the consideration stated in the Registration Statement and the applicable Prospectus Supplement;
(iv) the Securities will be issued and sold in the form and containing the terms set forth in the Registration Statement, the applicable Prospectus Supplement and the relevant Governing Document;
Waters Corporation
Augusta SpinCo Corporation
Waters Technologies Corporation
and the other registrants listed on Schedule A hereto
March 16, 2026
Page 4
(v) at the time of the issuance, sale and delivery of each Security, (1) the authorization of such Security by the applicable Covered Parties will not have been modified or rescinded, and there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Security and (2) the issuance, sale and delivery of such Security, the terms of such Security, the terms of the applicable Governing Document, and the compliance by the applicable Covered Parties with the terms of such Security and the terms of the applicable Governing Document, will not violate any applicable law, any agreement or instrument then binding upon such Covered Parties, or cause default thereunder, as applicable, or any restriction imposed by any court or governmental body having jurisdiction over such Covered Parties;
(vi) the applicable Covered Parties will have obtained any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities necessary to issue and sell the Securities being offered and to execute and deliver the applicable Governing Document;
(vii) the Indentures, and any supplements, amendments or certificates required to issue any Parent Debt Securities, Subsidiary Debt Securities or Guarantees thereunder, will have been duly authorized, executed and delivered by the applicable Covered Parties and the applicable Trustees;
(viii) the Indentures and the Trustees will have been qualified under the Trust Indenture Act of 1939, as amended;
(ix) a definitive purchase, underwriting, distribution, sales agent or similar agreement, if applicable (each, a “Purchase Agreement”), with respect to any Securities offered or issued will have been duly authorized and validly executed and delivered by the applicable Covered Parties and the other parties thereto; and
(x) any Securities issuable upon conversion, exchange, or exercise of any Security being offered or issued will be duly authorized, created, and, if appropriate, reserved for issuance upon such conversion, exchange, or exercise.
Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth herein, we are of the opinion that:
1. When, as and if (a) the shares of Common Stock to be offered and sold by Waters have been duly authorized by appropriate corporate or organizational action of Waters and (b) such shares of Common Stock have been issued, sold and delivered against payment therefor (which shall be in an amount at least equal to the par value of the shares being issued and sold) in
Waters Corporation
Augusta SpinCo Corporation
Waters Technologies Corporation
and the other registrants listed on Schedule A hereto
March 16, 2026
Page 5
accordance with such authorization, the applicable Purchase Agreement and applicable law (including any shares of Common Stock delivered upon exercise, conversion or exchange of any Securities that are exercisable, convertible into or exchangeable for shares of Common Stock pursuant to the terms thereof, assuming that such Securities have been duly authorized and established in accordance with applicable law, appropriate corporate or organizational action has been taken to authorize the form, terms, issuance and delivery of such Securities and such Securities have been issued, sold and delivered against payment therefor by duly authorized officers in accordance with such authorization, the applicable Purchase Agreement, any applicable Governing Document and applicable law), such shares of Common Stock will be validly issued, fully paid and non-assessable.
2. When, as and if (a) any particular series of Preferred Stock has been duly authorized and established in accordance with applicable law, (b) appropriate corporate or organizational action has been taken by Waters to authorize the form, terms, issuance and delivery of shares of such Preferred Stock (including the filing of any required certificate of designation, amendment or supplement to the organizational documents of Waters), and (c) the shares of such Preferred Stock have been issued, sold and delivered against payment therefor (which shall be in an amount at least equal to the par value of the shares being issued and sold) in accordance with such authorization, the applicable Purchase Agreement and applicable law (including any shares of Preferred Stock delivered upon exercise, conversion or exchange of any Securities that are exercisable, convertible into or exchangeable for shares of Preferred Stock pursuant to the terms thereof, assuming that such Securities have been duly authorized and established in accordance with applicable law, appropriate corporate or organizational action has been taken to authorize the form, terms, issuance and delivery of such Securities and such Securities have been issued, sold and delivered against payment therefor by duly authorized officers in accordance with such authorization, the applicable Purchase Agreement, any applicable Governing Document and applicable law), such shares of Preferred Stock will be validly issued, fully paid and non-assessable.
3. When, as and if (a) any Parent Debt Securities and related Subsidiary Guarantees, as applicable, have been duly authorized and duly established in accordance with the Parent Debt Indenture and applicable law, (b) appropriate corporate or organizational action has been taken to authorize the form, terms, execution and delivery of such Parent Debt Securities and related Subsidiaries Guarantees (and any required amendment or supplement to the Parent Debt Indenture or any required certificate pursuant to the Parent Debt Indenture) and the Parent Debt Indenture (and any required amendment or supplement to the Parent Debt Indenture or any required certificate pursuant to the Parent Debt Indenture) has been duly executed and delivered in accordance with such authorization, and (c) the applicable Parent Debt Securities have been duly executed, attested, issued and delivered by duly authorized officers against payment in accordance with such authorization, the Parent Debt Indenture, the applicable Purchase Agreement and
Waters Corporation
Augusta SpinCo Corporation
Waters Technologies Corporation
and the other registrants listed on Schedule A hereto
March 16, 2026
Page 6
applicable law, and duly authenticated by the applicable Parent Debt Trustee in accordance with the Parent Debt Indenture, (i) such Parent Debt Securities (including any Parent Debt Securities duly executed and delivered upon exercise, conversion or exchange of any Securities that are exercisable, convertible into or exchangeable for Parent Debt Securities pursuant to the terms thereof, assuming that such Securities have been duly authorized and established in accordance with applicable law, appropriate corporate or organizational action has been taken to authorize the form, terms, issuance and delivery of such Securities and such Securities have been issued, sold and delivered against payment therefor by duly authorized officers in accordance with such authorization, the applicable Purchase Agreement, any applicable Governing Document and applicable law) will be validly issued and will constitute binding obligations of Waters enforceable against Waters in accordance with their terms and (ii) such Subsidiary Guarantees will constitute binding obligations of the applicable Subsidiary Guarantors enforceable against such Subsidiary Guarantors in accordance with their terms.
4. When, as and if (a) any Subsidiary Debt Securities and related Guarantees, as applicable, have been duly authorized and duly established in accordance with the applicable Subsidiary Debt Indenture and applicable law, (b) appropriate corporate or organizational action has been taken to authorize the form, terms, execution and delivery of such Subsidiary Debt Securities and related Guarantees (and any required amendment or supplement to the applicable Subsidiary Debt Indenture or any required certificate pursuant to the applicable Subsidiary Debt Indenture) and the applicable Subsidiary Debt Indenture (and any required amendment or supplement to the applicable Subsidiary Debt Indenture or any required certificate pursuant to the applicable Subsidiary Debt Indenture) has been duly executed and delivered in accordance with such authorization, and (c) the applicable Subsidiary Debt Securities have been duly executed, attested, issued and delivered by duly authorized officers against payment in accordance with such authorization, the applicable Subsidiary Debt Indenture, the applicable Purchase Agreement and applicable law, and duly authenticated by the applicable Trustee in accordance with the applicable Subsidiary Debt Indenture, (i) such Subsidiary Debt Securities (including any Subsidiary Debt Securities duly executed and delivered upon exercise, conversion or exchange of any Securities that are exercisable, convertible into or exchangeable for Subsidiary Debt Securities pursuant to the terms thereof, assuming that such Securities have been duly authorized and established in accordance with applicable law, appropriate corporate or organizational action has been taken to authorize the form, terms, issuance and delivery of such Securities and such Securities have been issued, sold and delivered against payment therefor by duly authorized officers in accordance with such authorization, the applicable Purchase Agreement, any applicable Governing Document and applicable law) will be validly issued and will constitute binding obligations of Augusta or WTC, as applicable, enforceable against Augusta or WTC, as applicable, in accordance with their terms, (ii) any applicable Parent Guarantees will constitute binding obligations of Waters enforceable against Waters in accordance with their terms and (iii) any applicable Subsidiary Guarantees will constitute binding obligations of the applicable Subsidiary Guarantors enforceable against such Subsidiary Guarantors in accordance with their terms.
Waters Corporation
Augusta SpinCo Corporation
Waters Technologies Corporation
and the other registrants listed on Schedule A hereto
March 16, 2026
Page 7
5. When, as and if (a) any Warrants have been duly authorized and duly established in accordance with applicable law, (b) appropriate corporate action has been taken by Waters to authorize the form, terms, execution and delivery of the Warrant Agreement and the Warrants and the Warrant Agreement has been duly executed and delivered by the Warrant Agent and Waters in accordance with such authorization, (c) Warrants with such terms have been duly executed, attested, issued and delivered by the Warrant Agent and/or duly authorized officers of Waters against payment in accordance with such authorization, the applicable Purchase Agreement, applicable Warrant Agreement and applicable law, and (d) the Securities issuable upon exercise of such Warrants have been duly authorized and reserved for issuance by all necessary corporate or organizational action and, in the case of Warrants to purchase Parent Debt Securities or Subsidiary Debt Securities, when the terms of such Parent Debt Securities or Subsidiary Debt Securities have been duly authorized and duly established in accordance with the terms of the applicable Indenture, applicable law and the appropriate corporate or organizational action and, in the case of Warrants to purchase Common Stock or Preferred Stock, that the exercise price of such Warrants consists of legal consideration in excess of the par value of such securities, such Warrants will be validly issued and will constitute binding obligations of Waters enforceable against Waters in accordance with their terms.
6. When, as and if (a) any Stock Purchase Contracts have been duly authorized and duly established in accordance with applicable law, (b) appropriate corporate action has been taken by Waters to authorize the form, terms, execution and delivery of such Stock Purchase Contracts, (c) Stock Purchase Contracts with such terms have been duly executed, attested, issued and delivered by any applicable Governing Document Counterparty and/or duly authorized officers of Waters against payment in accordance with such authorization, the applicable Purchase Agreement, applicable Stock Purchase Contract and applicable law, and (d) the Common Stock issuable upon exercise of such Stock Purchase Contracts has been duly authorized and reserved for issuance by all necessary corporate or organizational action, such Stock Purchase Contracts will be validly issued and will constitute binding obligations of Waters enforceable against Waters in accordance with their terms.
7. When, as and if (a) any Stock Purchase Units have been duly authorized and duly established in accordance with applicable law, (b) appropriate corporate action has been taken by Waters to authorize the form, terms, execution and delivery of the Stock Purchase Units (including a form of certificate evidencing the Stock Purchase Units) and the related Unit Agreement, (c) the related Unit Agreement has been duly executed and delivered by any applicable Governing
Waters Corporation
Augusta SpinCo Corporation
Waters Technologies Corporation
and the other registrants listed on Schedule A hereto
March 16, 2026
Page 8
Document Counterparty and Waters in accordance with such authorization, (d) the Stock Purchase Units with such terms have been duly executed, attested, issued and delivered by any applicable Governing Document Counterparty and/or duly authorized officers of Waters against payment in accordance with such authorization, the applicable Purchase Agreement, applicable Unit Agreement and applicable law, and (e) the Common Stock and any other Securities issuable upon exercise of such Stock Purchase Units have been duly authorized and reserved for issuance by all necessary corporate or organizational action and, in the case of any Parent Debt Securities issuable thereunder, the terms of such Parent Debt Securities have been duly authorized and duly established in accordance with the terms of the Parent Debt Indenture, applicable law and the appropriate corporate action, such Stock Purchase Units will be validly issued and will constitute binding obligations of Waters enforceable against Waters in accordance with their terms.
Our opinions expressed above that any particular contract constitutes a valid and binding obligation or is enforceable in accordance with its terms (each, an “enforceability opinion”) is subject to: (i) the effect of bankruptcy, insolvency, fraudulent conveyance and other similar laws and judicially developed doctrines in this area, such as substantive consolidation and equitable subordination; (ii) the effect of general principles of equity; and (iii) other commonly recognized statutory and judicial constraints on enforceability, including statutes of limitations. “General principles of equity” include but are not limited to: (A) principles limiting the availability of specific performance and injunctive relief; (B) principles which limit the availability of a remedy under certain circumstances where another remedy has been elected; (C) principles requiring reasonableness, good faith and fair dealing in the performance and enforcement of an agreement by the party seeking enforcement; (D) principles which may permit a party to cure a material failure to perform its obligations; and (E) principles affording equitable defenses such as waiver, laches and estoppel. It is possible that terms in a particular contract covered by our enforceability opinion may not prove enforceable for reasons other than those explicitly cited in this opinion should an actual enforcement action be brought, but (subject to all the exceptions, qualifications, exclusions and other limitations contained in this opinion ) such unenforceability would not in our opinion prevent the party entitled to enforce that contract from realizing the principal benefits purported to be provided to that party by the terms in that contract which are covered by our enforceability opinion.
Our advice is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware. None of the opinions or other advice contained in this letter considers or covers any federal, state or foreign securities (or “blue sky”) laws or regulations. We have assumed the Governing Documents will be governed by, and construed in accordance with, the laws of the State of New York.
Waters Corporation
Augusta SpinCo Corporation
Waters Technologies Corporation
and the other registrants listed on Schedule A hereto
March 16, 2026
Page 9
We express no opinion with respect to the enforceability of (i) consents to, or restrictions upon, judicial relief or jurisdiction or venue; (ii) waivers of rights or defenses with respect to stay, extension or usury laws; (iii) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights; (iv) waivers of broadly or vaguely stated rights; (v) provisions for exclusivity, election or cumulation of rights or remedies; (vi) provisions authorizing or validating conclusive or discretionary determinations; (vii) grants of setoff rights; (viii) provisions for the payment of attorneys’ fees where such payment is contrary to law or public policy; (ix) proxies, powers and trusts; (x) restrictions upon non-written modifications and waivers; (xi) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property; (xii) any provision to the extent it requires any party to indemnify any other person against loss in obtaining the currency due following a court judgment in another currency; (xiii) provisions for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty; and (xiv) any rights to contribution or indemnification which may be violative of public policy underlying any law, rule or regulation (including federal or state securities law, rule or regulation) or the enforceability of any so called fraudulent conveyance or fraudulent transfer “savings clause” (and any similar provision in any other document or agreement) to the extent such provisions purport to limit the amount of the obligations of any party or the right to contribution of any other party with respect to such obligations. In addition, we express no opinion with respect to (i) whether acceleration of the Parent Debt Securities or the Subsidiary Debt Securities may affect the collectability of that portion of the stated principal amount thereof that might be determined to constitute unearned interest thereon, (ii) compliance with laws relating to permissible rates of interest or (iii) the creation, validity, perfection or priority of any security interest or lien.
The enforceability opinion related to the Guarantees is further subject to the effect of rules of law that may render guarantees unenforceable under circumstances where, in the absence of an effective consent or waiver by the applicable Covered Parties (as to which we express no opinion herein), actions, failures to act or waivers, amendments or replacement of the applicable Indenture or the applicable Parent Debt Securities or Subsidiary Debt Securities so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between the Trustee and the applicable Covered Parties, which is substantially and materially different from that presently contemplated by the applicable Indenture and the applicable Parent Debt Securities or Subsidiary Debt Securities.
Waters Corporation
Augusta SpinCo Corporation
Waters Technologies Corporation
and the other registrants listed on Schedule A hereto
March 16, 2026
Page 10
To the extent that the obligations of any Covered Party under any Governing Document may be dependent on such matters, we assume for purposes of this opinion that the applicable Governing Document Counterparty is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that the applicable Governing Document Counterparty is duly qualified to engage in the activities contemplated by the applicable Governing Document; that the applicable Governing Document has been duly authorized, executed and delivered by the applicable Governing Document Counterparty and constitutes the legally valid and binding obligations of such Governing Document Counterparty, enforceable against such Governing Document Counterparty in accordance with its terms; that the applicable Governing Document Counterparty is in compliance, generally and with respect to acting as Trustee, Warrant Agent or other Governing Document Counterparty, as the case may be, under the applicable Governing Document, with all applicable laws and regulations; and that the applicable Governing Document Counterparty has the requisite organizational and legal power and authority to perform its obligations under the applicable Governing Document.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. The Securities may be issued from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect. This opinion speaks only as of the date hereof and we assume no obligation to revise or supplement this opinion after the date hereof.
This opinion is furnished to you in connection with the filing of the Registration Statement and in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K promulgated under the Securities Act, and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act.
| Sincerely, |
| /s/ Kirkland & Ellis LLP |
| KIRKLAND & ELLIS LLP |
Schedule A
| 1. | Accuri Cytometers, Inc., a Delaware corporation |
| 2. | Augusta Life Sciences US OpCo I LLC, a Delaware limited liability company |
| 3. | Augusta Life Sciences US OpCo II LLC, a Delaware limited liability company |
| 4. | Augusta Life Sciences US SpinCo LLC, a Delaware limited liability company |
| 5. | Cellular Research, Inc., a Delaware corporation |
| 6. | HandyLab, Inc., a Delaware corporation |
| 7. | PharMingen, a California corporation |
| 8. | TA Instruments – Waters L.L.C., a Delaware limited liability company |
| 9. | Waters Asia Limited, a Delaware corporation |
| 10. | Wyatt Technology, LLC, a California limited liability company |
Exhibit 22.1
List of Subsidiary Issuers and Guarantors
The following subsidiaries (the “Subsidiary Issuers”) of Waters Corporation (the “Company”) may be the issuers of registered debt securities that may be fully and unconditionally guaranteed by the Company and the Guarantor Subsidiaries (as defined below), as applicable.
| Subsidiary Issuers |
Jurisdiction of incorporation or organization |
|||
| Augusta SpinCo Corporation |
Delaware | |||
| Waters Technologies Corporation |
Delaware | |||
The following subsidiaries (the “Guarantor Subsidiaries”) of the Company may fully and unconditionally guarantee registered debt securities issued by the Subsidiary Issuers or the Company, as applicable.
| Subsidiary Guarantors |
Jurisdiction of incorporation or organization |
|||
| PharMingen |
California | |||
| Wyatt Technology, LLC |
California | |||
| Accuri Cytometers, Inc. |
Delaware | |||
| Augusta SpinCo Corporation (1) |
Delaware | |||
| Augusta Life Sciences US OpCo I LLC |
Delaware | |||
| Augusta Life Sciences US OpCo II LLC |
Delaware | |||
| Augusta Life Sciences US SpinCo LLC |
Delaware | |||
| Cellular Research, Inc. |
Delaware | |||
| HandyLab, Inc. |
Delaware | |||
| TA Instruments - Waters L.L.C. |
Delaware | |||
| Waters Asia Limited |
Delaware | |||
| Waters Technologies Corporation (1) |
Delaware | |||
| (1) | Augusta SpinCo Corporation and Waters Technologies Corporation may guarantee each other’s debt securities. |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of Waters Corporation of our report dated February 23, 2026 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Waters Corporation’s Annual Report on Form 10-K for the year ended December 31, 2025. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
| /s/ PricewaterhouseCoopers LLP |
| Boston, Massachusetts |
| March 16, 2026 |
Exhibit 23.3
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of Waters Corporation for the registration of its common stock, preferred stock, debt securities, guarantees of debt securities, warrants, stock purchase contracts and stock purchase units and to the incorporation by reference therein of our report dated December 11, 2025, with respect to the combined financial statements of the Biosciences and Diagnostic Solutions Business of Becton, Dickinson and Company as of September 30, 2025 and 2024 and for each of the three years in the period ended September 30, 2025, incorporated by reference from Waters Corporation’s Current Report on Form 8-K dated February 9, 2026 filed with the Securities and Exchange Commission.
| /s/ Ernst & Young LLP |
| New York, New York |
| March 15, 2026 |
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
James H. Byrnes
U.S. Bank Trust Company, National Association
One Federal Street
Boston, MA 02110
(617) 603-6408
(Name, address and telephone number of agent for service)
AUGUSTA SPINCO CORPORATION
(Issuer with respect to the Securities)
| Delaware | 39-4076868 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 34 Maple Street Milford, MA |
01757 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Debt Securities
Guarantees of Debt Securities
(Title of the Indenture Securities)
TABLE OF ADDITIONAL REGISTRANTS
| Exact Name of Registrant as Specified in Its Charter* |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification Number | ||
| Waters Corporation | Delaware | 13-3668640 | ||
| Accuri Cytometers, Inc. | Delaware | 20-1574420 | ||
| Augusta Life Sciences US OpCo I LLC | Delaware | 39-4227177 | ||
| Augusta Life Sciences US OpCo II LLC | Delaware | 39-4251680 | ||
| Augusta Life Sciences US SpinCo LLC | Delaware | 39-4175214 | ||
| Cellular Research, Inc. | Delaware | 45-3756609 | ||
| HandyLab, Inc. | Delaware | 38-3507870 | ||
| PharMingen | California | 33-0252008 | ||
| TA Instruments – Waters L.L.C. | Delaware | 51-0389767 | ||
| Waters Technologies Corporation | Delaware | 13-3668640 | ||
| Waters Asia Limited | Delaware | 51-0353752 | ||
| Wyatt Technology, LLC | California | 77-0027705 |
| * | The address, including zip code, and telephone number, including area code, of the registrants’ principal executive offices is 34 Maple Street, Milford, MA 01757; (508)-478-2000. |
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee, attached as Exhibit 1. |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the authorization of the Trustee to exercise corporate trust powers, included as Exhibit 2. |
| 4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of December 31, 2025, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston, State of Massachusetts on the 16th day of March, 2026.
| By: | /s/ James H. Byrnes | |
| James H. Byrnes | ||
| Vice President | ||
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the “Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST. The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND. The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD. The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person’s most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director’s term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the
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Association is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix.
Transfers of the Association’s stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
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Unless otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders. Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors’ and shareholders’ meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) | Define the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association. |
| (3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
| (4) | Dismiss officers and employees. |
| (5) | Require bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify written policies authorized by the Association’s management or committees of the board. |
| (7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
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| (8) | Manage and administer the business and affairs of the Association. |
| (9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of the Association. |
| (10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| (11) | Make contracts. |
| (12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any authorized branch within the limits of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association’s activities and services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association’s board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
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In witness whereof, we have hereunto set our hands this 11th of June, 1997.
Exhibit 2
Exhibit 4
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution of the Association.
Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.
Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified, or until their earlier resignation or removal.
Section 2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by law.
Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five members, unless the OCC has exempted the Association from the twenty-five-member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board
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by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of those directors present and voting shall be the act of the Board.
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Section 2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board, provided, that the Board’s responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
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The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s fiduciary activities; and
(2) Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.
Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.
Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
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ARTICLE IV
Officers
Section 4.1 Who Shall Constitute. The Officers of the Association shall be a Chief Executive Officer, a President, a Secretary, and other officers such as Vice Chair, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Trust Officers, Assistant Trust Officers, Controller, and Assistant Controller, as the Board may appoint from time to time. The Board may appoint or elect a person as a Vice Chair without regard to whether such person is a member of the Board. The Board may choose to delegate authority to elect officers other than the Chief Executive Officer, President, Secretary, Vice Chairs and Senior Executive Vice Presidents, to the President. Any person may hold two offices. The President shall at all times be a member of the Board of Directors.
Section 4.2 Term of Office. All officers shall be elected for and shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board of Directors in its sole discretion to discharge any officer at any time. The Board may choose to delegate authority to remove officers other than the Chairman, Chief Executive Officer, President, Secretary, Vice Chair and Senior Executive Vice Presidents, to the President.
Section 4.3. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred upon or assigned by the Board.
Section 4.4. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
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Section 4.5. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.
Section 4.6. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.7. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to transact the business of the Association.
Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person may hold two offices.
ARTICLE V
Stock
Section 5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person’s shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
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ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under law.
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Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e-mail, in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. § 1813(u).
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
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ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting of the Board.
Section 9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first day of December following.
Section 10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(November 6, 2025)
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
| Dated: March 16, 2026 |
| By: | /s/ James H. Byrnes | |
| James H. Byrnes | ||
| Vice President | ||
Exhibit 7
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 12/31/2025
($000’s)
| 12/31/2025 | ||||
| Assets |
||||
| Cash and Balances Due From |
$ | 2,035,855 | ||
| Depository Institutions |
||||
| Securities |
4,696 | |||
| Federal Funds |
0 | |||
| Loans & Lease Financing Receivables |
0 | |||
| Fixed Assets |
623 | |||
| Intangible Assets |
574,084 | |||
| Other Assets |
173,370 | |||
|
|
|
|||
| Total Assets |
$ | 2,788,628 | ||
| Liabilities |
||||
| Deposits |
$ | 0 | ||
| Fed Funds |
0 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
0 | |||
| Other Borrowed Money |
0 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
0 | |||
| Other Liabilities |
237,596 | |||
|
|
|
|||
| Total Liabilities |
$ | 237,596 | ||
| Equity |
||||
| Common and Preferred Stock |
200 | |||
| Surplus |
1,171,635 | |||
| Undivided Profits |
1,379,197 | |||
| Minority Interest in Subsidiaries |
0 | |||
|
|
|
|||
| Total Equity Capital |
$ | 2,551,032 | ||
| Total Liabilities and Equity Capital |
$ | 2,788,628 | ||