Widepoint Corp S-3, filed Jun 19, 2020
Widepoint Corp (WYY)
S-3
2020-06-19
View Original
Added on
October 17, 2026
As filed with the Securities and Exchange Commission on June 19,
2020
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
______________________________
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
______________________________
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WIDEPOINT CORPORATION
(Exact
name of registrant as specified in its charter)
______________________________
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Delaware
(State
or other jurisdiction of incorporation or
organization)
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52-2040275
(I.R.S.
Employer Identification No.)
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11250 Waples Mill Road, South Tower 210
Fairfax, Virginia 22030
(703) 349-2577
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive
offices)______________________________
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Jin Kang
Chief Executive Officer
WidePoint Corporation
11250 Waples Mill Road, South Tower 210
Fairfax, Virginia 22030
(703) 349-2577
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
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With a
copy to:
John J. Wolfel, Esq.
Foley & Lardner LLP
One Independent Drive, Suite 1300
Jacksonville, Florida 32202
(904) 359-2000
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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, please
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:
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Large
accelerated filer ☐
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Accelerated filer
☐
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Non-accelerated
filer ☐
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Smaller
reporting company ☒
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Emerging growth
company ☐
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered
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Amount to Be
Registered(2)(3)
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Proposed Maximum Aggregate Offering Price(3)(4)
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Amount of Registration Fee
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Debt
Securities
Common
Stock, $0.001 par value
Preferred
Stock, $0.001 par value
Warrants
Subscription
Rights
Securities
Purchase Contracts
Units(1)
Total
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–
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$25,000,000(5)
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$3,245(5)
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(1)
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Each
unit consists of one or more shares of common stock, shares of
preferred stock, debt securities, warrants, subscription rights,
securities purchase contracts or any combination of the
foregoing.
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(2)
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Includes
an indeterminate aggregate principal amount and number of
securities of each identified class of securities up to a proposed
aggregate offering price of $25.0 million, which may be offered by
the registrant from time to time in unspecified numbers and at
indeterminate prices, and as may be issued upon conversion,
redemption, repurchase, exchange or exercise of any securities
registered hereunder, including any applicable anti-dilution
provisions. This registration statement also covers delayed
delivery contracts that may be issued by the registrant under which
the party purchasing such contracts may be required to purchase any
securities that may be offered hereunder. Such contracts may be
issued together with the specific securities to which they relate.
Securities registered hereunder to be sold by the registrant may be
sold either separately or as units comprised of more than one type
of security registered hereunder. Pursuant to Rule 416 under the
Securities Act of 1933, as amended (the “Securities
Act”), the securities being registered hereunder include such
indeterminate number of shares of common stock as may be issuable
with respect to the securities being registered hereunder as a
result of stock splits, stock dividends or similar
transactions.
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(3)
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Pursuant
to General Instruction II.D of Form S-3, the table lists each of
the classes of securities being registered and the aggregate
proceeds to be raised but does not specify by each class
information as to the amount to be registered, proposed maximum
offering price per unit, and proposed maximum aggregate offering
price.
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(4)
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If
applicable, includes consideration to be received by the registrant
for registered securities that are issuable upon exercise,
conversion or exchange of other registered securities or that are
issued in units.
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(5)
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Estimated
solely for the purpose of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act.
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The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
nor a solicitation of an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
Subject to completion, dated June 19, 2020
PRELIMINARY PROSPECTUS
WidePoint Corporation
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
WARRANTS
SUBSCRIPTION RIGHTS
SECURITIES PURCHASE CONTRACTS
UNITS
_________________________
We may
offer and sell from time to time up to $25.0 million of any
combination of the securities described in this prospectus, from
time to time, in one or more offerings, in amounts, at prices and
on terms determined at the times of offerings.
This
prospectus describes the general manner in which our securities may
be offered using this prospectus. We will provide specific terms of
the securities, including the offering prices, in one or more
supplements to this prospectus. The supplements may also add,
update or change information contained in this prospectus.
You should read this prospectus and the prospectus supplement
relating to the specific issue of securities carefully before you
invest.
We may
offer the securities for sale directly to the purchasers or through
one or more underwriters, dealers and agents to be designated at a
future date. The supplements to this prospectus will provide the
specific terms of the plan of distribution.
Our
common stock is listed on the NYSE
American under the symbol “WYY.” The last
reported sale price of the common stock on June 17, 2020 was $.84
per share. Each prospectus supplement will indicate if the
securities offered thereby will be listed on any securities
exchange.
The aggregate market value of our outstanding common stock held by
non-affiliates pursuant to General Instruction I.B.6 of Form S-3
was approximately $66,780,841,
which was calculated based on 85,910,275 shares of common stock outstanding as of
June 17, 2020, of which
6,409,274 shares were held by
affiliates, and a price of $.84 per share, which was the closing price of our
common stock on the NYSE American on June 17, 2020. We have not offered any securities
pursuant to General Instruction I.B.6 of Form S-3 during the prior
12 calendar month period that ends on, and includes, the date of
this prospectus.
Investing
in our securities involves risk. Please read carefully the section
entitled “Risk Factors” on Page 1 of this prospectus
and any similar section contained in the applicable prospectus
supplement and/or other offering material concerning factors you
should consider before investing in our securities which may be
offered hereby.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this
prospectus
is
, 2020.
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
Unless
the context otherwise requires, references in this prospectus to
“Company,” “WidePoint,” “we,”
“us,” “our,” and “ours” refer
to WidePoint Corporation, and its subsidiaries where the context so
requires.
This
prospectus is part of a registration statement on Form S-3
that we filed with the Securities and Exchange Commission, or the
SEC, using a “shelf” registration process. Under this
shelf registration process, we may, from time to time, sell the
securities described in this prospectus, in one or more offerings,
up to the maximum aggregate dollar amount $25.0 million. This
prospectus provides you with a general description of the
securities that we may offer. Each time we offer securities,
we will provide a prospectus supplement and/or other offering
material that will contain specific information about the terms of
that offering. The prospectus supplement and/or other offering
material may also add, update or change information contained in
this prospectus. You should read this prospectus and the applicable
prospectus supplement and any other offering material together with
the additional information described under the heading “Where
You Can Find More Information.”
You
should rely only on the information contained or incorporated by
reference in this prospectus and in any prospectus supplement or
other offering material. We have not authorized any other person to
provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely on it.
We are not making offers to sell the securities in any jurisdiction
in which an offer is not authorized or in which the person making
that offer is not qualified to do so or to anyone to whom it is
unlawful to make an offer. You should not assume that the
information contained in this prospectus or any prospectus
supplement or any other offering material, or the information we
previously filed with the SEC that we incorporate by reference in
this prospectus or any prospectus supplement, is accurate as of any
date other than its respective date. Our business, financial
condition, results of operations and prospects may have changed
since those dates.
RISK FACTORS
Investing in our
securities involves risks. Before making an investment decision,
you should carefully consider the risks and other information we
include or incorporate by reference in this prospectus and any
prospectus supplement. In particular, you should consider the risk
factors described under the heading “Risk Factors” in
our most recent Annual Report on Form 10-K and in Item 1A of
our Quarterly Report on Form 10-Q for the period ended March 31,
2020 under the heading “Risk Factors,” as may be
revised or supplemented by our subsequent Quarterly Reports on
Form 10-Q or Current Reports of Form 8-K, each of which are on
file with the SEC and are incorporated herein by reference, and
which may be amended, supplemented or superseded from time to time
by other reports we file with the SEC in the future. In addition to
those risk factors, there may be additional risks and uncertainties
of which are not currently known to us or that we currently deem
immaterial. Our business, financial condition or results of
operations could be materially adversely affected by any of these
risks. The occurrence of any of these risks might cause you
to lose all or part of your investment in the offered securities.
Additional risk factors may be included in a prospectus supplement
relating to a particular offering of securities.
CAUTIONARY STATEMENT REGARDING
FORWARD-LOOKING STATEMENTS
We make
forward-looking statements in this registration statement and may
make such statements in future filings with the Securities and
Exchange Commission, or SEC. We may also make forward-looking
statements in our press releases or other public or stockholder
communications. Our forward-looking statements are subject to risks
and uncertainties and include information about our expectations
and possible or assumed future results of our operations. When we
use words such as “may,” “might,”
“will,” “should,” “believe,”
“expect,” “anticipate,”
“estimate,” “continue,”
“could,” “plan,” “potential,”
“predict,” “forecast,”
“project,” “intend,” or similar
expressions, or make statements regarding our intent, belief, or
current expectations, we are making forward-looking
statements.
These
forward-looking statements are neither promises nor guarantees of
future performance due to a variety of risks and uncertainties,
many of which are beyond our control, which could cause actual
results to differ materially from those indicated by these
forward-looking statements, including, without limitation, risks
relating to:
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The impact of the
COVID-19 pandemic on our business and operations;
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Our ability to
successfully execute our strategy;
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Our ability to
sustain profitability and positive cash flows;
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Our ability to gain
market acceptance for our products;
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Our ability to win
new contracts, execute contract extensions and expansion of
services of existing contracts;
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Our ability to
re-win our Blanket Purchase Agreement with the Department of
Homeland Security;
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Our ability to
compete with companies that have greater resources than
us;
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Our ability to
penetrate the commercial sector to expand our
business;
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Our ability to
borrow funds against our credit facility and renew or replace our
credit facility on favorable terms or at all;
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Our ability to
raise additional capital on favorable terms or at all;
and
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Our ability to
retain key personnel; and
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other risks more
fully discussed in the “Risk Factors” section in this
prospectus, the section of any accompanying prospectus supplement
entitled “Risk Factors” and the risk factors and
cautionary statements described in other documents that we file
from time to time with the SEC, specifically under “Risk
Factors” and elsewhere in our most recent Annual Report on
Form 10-K and subsequent Quarterly Reports on Form
10-Q.
We
claim the protection of the safe harbor for forward-looking
statements contained in the Private Securities Litigation Reform
Act of 1995 for all of our forward-looking statements. While we
believe that our forward-looking statements are reasonable, you
should not place undue reliance on any such forward-looking
statements, which are based on information available to us on the
date of this report or, if made elsewhere, as of the date made.
Because these forward-looking statements are based on estimates and
assumptions that are subject to significant business, economic and
competitive uncertainties, many of which are beyond our control or
are subject to change, actual results could be materially
different. See “Risk Factors” in this prospectus for
more information. You should consider these factors and other
cautionary statements made in this prospectus and in the documents
we incorporate by reference as being applicable to all related
forward-looking statements wherever they appear in this prospectus
and in the documents incorporated by reference.
Other
factors not currently anticipated may also materially and adversely
affect our results of operations, cash flows and financial
position. We do not undertake any obligation to update or alter any
statements whether as a result of new information, future events or
otherwise, except as required by law.
2
OUR COMPANY
Overview
We
are a leading provider of Trusted Mobility Management (TM2) that
consists of federally certified communications management, identity
management, and interactive bill presentment and analytics
solutions. We help our clients achieve their organizational
missions for mobility management and security objectives in this
challenging and complex business environment.
We
offer our TM2 solutions through a flexible managed services model
which includes both a scalable and comprehensive set of functional
capabilities that can be used by any customer to meet the most
common functional, technical and security requirements for mobility
management. Our TM2 solutions were designed and implemented with
flexibility in mind such that it can accommodate a large variety of
customer requirements through simple configuration settings rather
than through costly software development. The flexibility of our
TM2 solutions enables our customers to be able to quickly expand or
contract their mobility management requirements. Our TM2 solutions
are hosted and accessible on-demand through a secure federal
government certified proprietary portal that provides our customers
with the ability to manage, analyze and protect their valuable
communications assets, and deploy identity management solutions
that provide secured virtual and physical access to restricted
environments.
Corporate Information
We
are a Delaware corporation and our corporate headquarters are
located 11250 Waples Mill Road, South Tower 210, Fairfax, Virginia
22030. Our telephone number is (703) 349-2577. Our Internet website
address is www.widepoint.com. We do not incorporate the information
on our website into this prospectus, and you should not consider it
part of this prospectus.
3
USE OF PROCEEDS
Except
as may be otherwise set forth in the applicable prospectus
supplement accompanying this prospectus, the net proceeds from the
sale of the securities will be used for general corporate purposes.
Pending such use, we may temporarily invest the net proceeds in
short-term investments.
4
DILUTION
We will
set forth in a prospectus supplement the following information
regarding any material dilution of the equity interests of
investors purchasing securities in an offering under this
prospectus:
●
the net tangible
book value per share of our equity securities before and after the
offering;
●
the amount of the
increase in such net tangible book value per share attributable to
the cash payments made by purchasers in the offering;
and
●
the amount of the
immediate dilution from the public offering price which will be
absorbed by such purchasers.
5
SECURITIES TO BE OFFERED
We may
offer, from time to time and in one or more offerings, debt
securities, shares of common stock, shares of preferred stock,
warrants, subscription rights, securities purchase contracts and
units. Set forth herein and below is a general description of the
securities that we may offer hereunder. We will set forth in the
applicable prospectus supplement a specific description of the
securities that may be offered under this prospectus. The terms of
the offering of securities, the initial offering price and the net
proceeds will be contained in the prospectus supplement and/or
other offering material relating to such offering.
6
DESCRIPTION OF DEBT
SECURITIES
We have
summarized below general terms and conditions of the debt
securities that we will offer and sell pursuant to this prospectus.
When we offer to sell a particular series of debt securities, we
will describe the specific terms and conditions of the series in a
prospectus supplement to this prospectus. We will also indicate in
the applicable prospectus supplement whether the general terms and
conditions described in this prospectus apply to the series of debt
securities. The terms and conditions of the debt securities of a
series may be different in one or more respects from the terms and
conditions described below. If so, those differences will be
described in the applicable prospectus supplement.
The
debt securities will be our senior debt securities and will be
issued under an indenture between us and a trustee, a form of which
is incorporated by reference into this prospectus and attached as
an exhibit to the registration statement of which this prospectus
is a part. See “Where You Can Find More Information.”
We refer to this indenture as the
“indenture.”
The
following is a summary of some provisions of the indenture. The
following summary does not purport to be complete, and is subject
to, and qualified in its entirety by reference to, all of the
provisions of the indenture, including the definitions of specified
terms used in the indenture, and the debt securities. We encourage
you to read the indenture and the debt securities because they, and
not this description, set forth your rights as a holder of our debt
securities. We will describe the particular terms of any debt
securities in the prospectus supplement relating to those debt
securities. Parenthetical section references under this heading are
references to sections in the indenture unless we indicate
otherwise.
General
We
may offer the debt securities from time to time in as many distinct
series as we may determine. The indenture does not limit the amount
of debt securities that we may issue under that indenture. We may,
without the consent of the holders of the debt securities of any
series, issue additional debt securities ranking equally with, and
otherwise similar in all respects to, the debt securities of the
series (except for the public offering price and the issue date) so
that those additional debt securities will be consolidated and form
a single series with the debt securities of the series previously
offered and sold.
The
debt securities of each series will be issued in fully registered
form without interest coupons. We currently anticipate that the
debt securities of each series offered and sold pursuant to this
prospectus will be issued as global debt securities as described
under “—Book-Entry; Delivery and Form; Global
Securities” and will trade in book-entry form
only.
Debt
securities denominated in U.S. dollars will be issued in
denominations of $2,000 and any integral multiple of $1,000 in
excess thereof, unless otherwise specified in the applicable
prospectus supplement. If the debt securities of a series are
denominated in a foreign or composite currency, the applicable
prospectus supplement will specify the denomination or
denominations in which those debt securities will be
issued.
Unless
otherwise specified in the applicable prospectus supplement, we
will repay the debt securities of each series at 100% of their
principal amount, together with any premium and accrued and unpaid
interest thereon at maturity, except if those debt securities have
been previously redeemed or purchased and cancelled.
Unless
otherwise specified in the applicable prospectus supplement, the
debt securities of each series will not be listed on any securities
exchange.
Provisions of Indenture
The
indenture provides that debt securities may be issued under it from
time to time in one or more series. For each series of debt
securities, this prospectus and the applicable prospectus
supplement will describe the following terms and conditions of that
series of debt securities:
●
the title of the
series;
●
the maximum
aggregate principal amount, if any, established for debt securities
of the series, provided, however, that such amount may from time to
time be increased by a board resolution;
●
the price or prices
at which the debt securities will be sold;
●
the person to whom
any interest on a debt security of the series will be payable, if
other than the person in whose name that debt security (or one or
more predecessor debt securities) is registered at the close of
business on the regular record date for such interest;
7
●
the date or dates
on which the principal and premium, if any, of any debt securities
of the series will be payable or the method used to determine or
extend those dates;
●
the rate or rates
at which any debt securities of the series will bear interest, if
any, or the method by which such rate or rates shall be determined,
the date or dates from which any such interest will accrue, or the
method by which such date or dates shall be determined, the
interest payment dates on which any such interest will be payable
and the regular record date, if any, for any such interest payable
on any interest payment date, or the method by which such date or
dates shall be determined, and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day
months, the right, if any, to extend or defer interest payments and
the duration of such extension or deferral;
●
the place or places
where the principal of and any premium and interest on any debt
securities of the series will be payable, the place or places where
the debt securities of such series may be presented for
registration of transfer or exchange, the place or places where
notices and demands to or upon us in respect of the debt securities
of such series may be made and the manner in which any payment may
be made;
●
the period or
periods within which or the date or dates on which, the price or
prices at which, the currency or currency units in which, and the
terms and conditions upon which any debt securities of the series
may be redeemed, in whole or in part, at our option and, if other
than by a board resolution, the manner in which any election by us
to redeem the debt securities will be evidenced;
●
our obligation or
right, if any, to redeem or purchase any debt securities of the
series pursuant to any sinking fund, amortization or analogous
provisions or at the option of the holder thereof and the period or
periods within which, the price or prices at which, the currency or
currency units in which, and the terms and conditions upon which
any debt securities of the series will be redeemed or purchased, in
whole or in part, pursuant to such obligation;
●
if other than
denominations of $2,000 and any integral multiple of $1,000 in
excess thereof, the denominations in which any debt securities of
the series will be issuable;
●
if other than the
trustee, the identity of each security registrar and/or paying
agent;
●
if the amount of
principal of or premium, if any, or interest on any debt securities
of the series may be determined with reference to a financial or
economic measure or index or pursuant to a formula, the manner in
which such amounts will be determined;
●
if other than U.S.
dollars, the currency, currencies or currency units in which the
principal of or premium, if any, or interest on any debt securities
of the series will be payable and the manner of determining the
equivalent thereof in U.S. dollars for any purpose;
●
if the principal of
or premium, if any, or interest on any debt securities of the
series is to be payable, at our election or the election of the
holder thereof, in one or more currencies or currency units other
than that or those in which such debt securities are stated to be
payable, the currency, currencies or currency units in which the
principal of or premium, if any, or interest on such debt
securities as to which such election is made will be payable, the
periods within which or the dates on which and the terms and
conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount will be
determined);
●
if the provisions
of the indenture relating to satisfaction and discharge thereof
shall apply to the debt securities of that series as set forth
therein, or if provisions for the satisfaction and discharge of the
indenture other than as set forth therein shall apply to the debt
securities of that series;
●
if other than the
entire principal amount thereof, the portion of the principal
amount of any debt securities of the series which will be payable
upon declaration of acceleration of the maturity thereof pursuant
to the indenture or the method by which such portion shall be
determined;
●
if the principal
amount payable at the stated maturity of any debt securities of the
series will not be determinable as of any one or more dates prior
to the stated maturity, the amount which will be deemed to be the
principal amount of such debt securities as of any such date for
any purpose thereunder or hereunder, including the principal amount
thereof which will be due and payable upon any maturity other than
the stated maturity or which will be deemed to be outstanding as of
any date prior to the stated maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount will
be determined);
8
●
if other than by a
board resolution, the manner in which any election by us to defease
any debt securities of the series pursuant to the indenture will be
evidenced; whether any debt securities of the series other than
debt securities denominated in U.S. dollars and bearing interest at
a fixed rate are to be subject to the defeasance provisions of the
indenture; or, in the case of debt securities denominated in U.S.
dollars and bearing interest at a fixed rate, if applicable, that
the debt securities of the series, in whole or any specified part,
will not be defeasible pursuant to the indenture;
●
if applicable, that
any debt securities of the series shall 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, the
form of any legend or legends which shall be borne by any such
global security in addition to or in lieu of that set forth in the
indenture 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;
●
any addition to,
deletion from or change in the events of default applicable to any
debt securities of the series and any change in the right of the
trustee or the requisite holders of such debt securities to declare
the principal amount thereof due and payable;
●
any addition to,
deletion from or change in the covenants applicable to debt
securities of the series;
●
the terms of any
right to convert or exchange debt securities of such series into
any other securities or property of ours or of any other
corporation or person, and the additions or changes, if any, to the
indenture with respect to the debt securities of such series to
permit or facilitate such conversion or exchange;
●
whether the debt
securities of the series will be guaranteed by any persons and, if
so, the identity of such persons, the terms and conditions upon
which such debt securities will be guaranteed and, if applicable,
the terms and conditions upon which such guarantees may be
subordinated to other indebtedness of the respective
guarantors;
●
whether the debt
securities of the series will be secured by any collateral and, if
so, the terms and conditions upon which such debt securities will
be secured and, if applicable, upon which such liens may be
subordinated to other liens securing other indebtedness of us or of
any guarantor;
●
whether the debt
securities will be issued in a transaction registered under the
Securities Act and any restriction or condition on the
transferability of the debt securities of such series;
●
the exchanges, if
any, on which the debt securities may be listed; and
●
any other terms of
the debt securities of the series (which terms will not be
inconsistent with the provisions of the indenture, except as
permitted thereunder).
Interest and Interest Rates
General
In
the applicable prospectus supplement, we will designate the debt
securities of a series as being either debt securities bearing
interest at a fixed or floating rate of interest. Each debt
security will begin to accrue interest from the date on which it is
originally issued. Interest on each such debt security will be
payable in arrears on the interest payment dates set forth in the
applicable prospectus supplement and as otherwise described below
and at maturity or, if earlier, the redemption date described
below. Interest will be payable to the holder of record of the debt
securities at the close of business on the record date for each
interest payment date, which record dates will be specified in such
prospectus supplement.
As
used in the indenture, the term “business day” means,
with respect to debt securities of a series, unless otherwise
specified in the applicable prospectus supplement, any day, other
than a Saturday or Sunday, that is not a day on which banking
institutions are authorized or obligated by law or executive order
to close in the place where the principal of and premium, if any,
and interest on the debt securities are payable.
If
any interest payment date, redemption date, repayment date or
stated maturity of a debt security, or any date on which a holder
has the right to convert such debt security, falls on a date that
is not a business day, then payment of principal and premium, if
any, or interest, or the redemption price or conversion of such
debt security, will be made on the next succeeding business day at
such place of payment with the same force and effect as if made on
the interest payment date, redemption date or repayment date, or at
the stated maturity, or on such conversion date. No interest shall
accrue for the period from and after any such interest payment
date, redemption date, repayment date, stated maturity or
conversion date, as the case may be, to the date of such
payment.
9
Optional Redemption
Redemption at Our Option
If
specified in the applicable prospectus supplement, we may elect to
redeem all or part of the outstanding debt securities of a series
from time to time before the maturity date of the debt securities
of that series. Upon such election, we will notify the trustee of
the redemption date and the principal amount of debt securities of
the series to be redeemed. If less than all the debt securities of
the series are to be redeemed, the particular debt securities of
that series to be redeemed will be selected by the trustee by such
method as the trustee deems fair and appropriate. If we shall so
direct, debt securities registered in our name or the name of any
of our affiliates or subsidiaries shall not be included in the debt
securities for redemption. The applicable prospectus supplement
will specify the redemption price for the debt securities to be
redeemed (or the method of calculating such price), in each case in
accordance with the terms and conditions of those debt
securities.
Notice
of redemption will be given to each holder of the debt securities
to be redeemed not less than 15 nor more than 60 days prior to the
date set for such redemption (or within such period as otherwise
specified as contemplated by the indenture for debt securities of a
series). This notice will identify the debt securities to be
redeemed and will include the following information: the redemption
date; the redemption price (or the method of calculating such
price); if less than all of the outstanding debt securities of such
series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the
particular debt securities to be redeemed; the place or places
where such debt securities are to be surrendered for payment of the
redemption price; and, if applicable, the CUSIP number of the debt
securities to be redeemed.
By
no later than 11:00 a.m. (New York City time) on the redemption
date, we will deposit or cause to be deposited with the trustee or
with a paying agent (or, if we are acting as our own paying agent
with respect to the debt securities being redeemed, we will
segregate and hold in trust as provided in the indenture) an amount
of money sufficient to pay the aggregate redemption price of, and
(except if the redemption date shall be an interest payment date or
the debt securities of such series provide otherwise) accrued
interest on, all of the debt securities or the part thereof to be
redeemed on that date. On the redemption date, the redemption price
will become due and payable upon all of the debt securities to be
redeemed, and interest, if any, on the debt securities to be
redeemed will cease to accrue from and after that date. Upon
surrender of any such debt securities for redemption, we will pay
those debt securities surrendered at the redemption price together,
if applicable, with accrued interest to the redemption date. If the
redemption date is after a regular record date and on or prior to
the applicable interest payment date, the accrued and unpaid
interest shall be payable to the holder of the redeemed securities
registered on the relevant regular record date.
Any
debt securities to be redeemed only in part must be surrendered at
the office or agency established by us for such purpose, and we
will execute, and the trustee will authenticate and deliver to a
holder without service charge, new debt securities of the same
series and of like tenor, of any authorized denominations as
requested by that holder, in a principal amount equal to and in
exchange for the unredeemed portion of the debt securities that
holder surrenders.
Repayment at Holder’s Option
If
specified in the applicable prospectus supplement, the holders of
the debt securities of a series will have the option to elect
repayment of those debt securities by us prior to the stated
maturity of the debt securities of that series at time or times and
subject to the conditions specified in the applicable prospectus
supplement. If the holders of those debt securities have that
option, the applicable prospectus supplement will specify the
optional repayment date or dates on which the debt security may be
repaid and the optional repayment price, or the method by which
such price will be determined. The optional repayment price is the
price at which, together with accrued interest to the optional
repayment date, the debt security may be repaid at the
holder’s option on each such optional repayment
date.
Except
as otherwise may be provided by the terms of the debt securities,
any tender of a debt security by the holder for repayment will be
irrevocable unless waived by us. Any repayment option of a holder
may be exercised by the holder of debt securities for less than the
entire principal amount of the debt security; provided that the
principal amount of the debt security remaining outstanding after
repayment will be an authorized denomination. Upon such partial
repayment, the debt securities will be canceled and new debt
securities for the remaining principal amount will be issued in the
name of the holder of the repaid debt securities.
10
If
debt securities are represented by a global security as described
under “—Book-Entry; Delivery and Form; Global
Securities,” the securities depository for the global
security or its nominee will be the holder of the debt security
and, therefore, will be the only person that can exercise a right
to repayment. In order to ensure that the depository or its nominee
will timely exercise a right to repayment relating to a particular
debt security, the beneficial owner of the debt security must
instruct the broker or other direct or indirect participant in the
depository through which it holds an interest in the debt security
to notify the depository of its desire to exercise a right to
repayment by the appropriate cut-off time for notifying the
participant. Different firms have different cut-off times for
accepting instructions from their customers. Accordingly, you
should consult the broker or other direct or indirect participant
through which you hold an interest in a debt security in order to
ascertain the cut-off time by which such an instruction must be
given for timely notice to be delivered to the appropriate
depository.
Payment and Transfer or Exchange
Principal
of and premium, if any, and interest on the debt securities of each
series will be payable, and the debt securities may be exchanged or
transferred, at the office or agency maintained by us for such
purpose. Payment of principal of and premium, if any, and interest
on a global security registered in the name of or held by The
Depository Trust Company, or DTC, or its nominee will be made in
immediately available funds to DTC or its nominee, as the case may
be, as the registered holder of such global security. If any of the
debt securities is no longer represented by a global security,
payment of interest on certificated debt securities in definitive
form may, at our option, be made by check mailed directly to
holders at their registered addresses. See
“—Book-Entry; Delivery and Form; Global
Securities.”
A
holder may transfer or exchange any certificated debt securities in
definitive form at the same location given in the preceding
paragraph. No service charge will be made for any registration of
transfer or exchange of debt securities, but we may require payment
of a sum sufficient to cover any transfer tax or other similar
governmental charge payable in connection therewith.
We
are not required to transfer or exchange any debt security selected
for redemption for a period of 15 days before mailing of a notice
of redemption of the debt security to be redeemed.
The
registered holder of a debt security will be treated as the owner
of it for all purposes.
All
amounts of principal of and premium, if any, or interest on the
debt securities paid by us that remain unclaimed two years after
such payment was due and payable will be repaid to us, and the
holders of such debt securities will thereafter look solely to us
for payment.
Covenants
The
indenture sets forth limited covenants that will apply to each
series of debt securities issued under the indenture, unless
otherwise specified in the applicable prospectus supplement.
However, these covenants do not, among other things:
●
limit
the amount of indebtedness or lease obligations that may be
incurred by us and our subsidiaries;
●
limit
our ability or that of our subsidiaries to issue, assume or
guarantee debt secured by liens; or
●
restrict
us from paying dividends or making distributions on our capital
stock or purchasing or redeeming our capital stock.
Consolidation, Merger and Sale of Assets
The
indenture provides that we may consolidate with or merge with or
into any other person, and may sell, transfer, or lease or convey
all or substantially all of our properties and assets to another
person; provided that the following conditions are
satisfied:
●
we
are the continuing entity, or the resulting, surviving or
transferee person (the “Successor”) is a person (if
such person is not a corporation, then the Successor will include a
corporate co-issuer of the debt securities) organized and existing
under the laws of the United States of America, any state thereof
or the District of Columbia and the Successor (if not us) will
expressly assume, by supplemental indenture, all of our obligations
under the debt securities and the indenture and, for each security
that by its terms provides for conversion, provide for the right to
convert such security in accordance with its terms;
●
immediately
after giving effect to such transaction, no default or event of
default under the indenture has occurred and is continuing;
and
●
the
trustee receives from us an officers’ certificate and an
opinion of counsel that the transaction and such supplemental
indenture, as the case may be, complies with the applicable
provisions of the indenture
If
we consolidate or merge with or into any other person or sell,
transfer, lease or convey all or substantially all of our
properties and assets in accordance with the indenture, the
Successor will be substituted for us in the indenture, with the
same effect as if it had been an original party to the indenture.
As a result, the Successor may exercise our rights and powers under
the indenture, and we will be released from all our liabilities and
obligations under the indenture and under the debt
securities.
11
Any
substitution of the Successor for us might be deemed for federal
income tax purposes to be an exchange of the debt securities for
“new” debt securities, resulting in recognition of gain
or loss for such purposes and possibly certain other adverse tax
consequences to beneficial owners of the debt securities. Holders
should consult their own tax advisors regarding the tax
consequences of any such substitution.
For
purposes of this covenant, “person” means any
individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof or any other entity.
Events of Default
Each
of the following events are defined in the indenture as an
“event of default” (whatever the reason for such event
of default and whether or not it will be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of
any administrative or governmental body) with respect to the debt
securities of any series:
(1)
default in the payment of any installment of interest on any debt
securities of such series for 30 days after becoming
due;
(2)
default in the payment of principal of or premium, if any, on any
debt securities of such series when it becomes due and payable at
its stated maturity, upon optional redemption, upon declaration or
otherwise;
(3)
default in the performance, or breach, of any covenant or agreement
of ours in the indenture with respect to the debt securities of
such series (other than a covenant or agreement, a default in the
performance of which or a breach of which is elsewhere in the
indenture specifically dealt with or that has expressly been
included in the indenture solely for the benefit of a series of
debt securities other than such series), which continues for a
period of 90 days after written notice to us by the trustee or to
us and the trustee by the holders of at least 25% in aggregate
principal amount of the outstanding debt securities of that
series;
(4)
we pursuant to or within the meaning of the Bankruptcy
Law:
●
commence
a voluntary case or proceeding;
●
consent
to the entry of an order for relief against us in an involuntary
case or proceeding;
●
consent
to the appointment of a custodian of us or for all or substantially
all of our property;
●
make
a general assignment for the benefit of our creditors;
●
file
a petition in bankruptcy or answer or consent seeking
reorganization or relief;
●
consent
to the filing of such petition or the appointment of or taking
possession by a custodian; or
●
take
any comparable action under any foreign laws relating to
insolvency;
(5)
a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
●
is
for relief against us in an involuntary case, or adjudicates us
insolvent or bankrupt;
●
appoints
a custodian of us or for all or substantially all of our property;
or
●
orders
the winding-up or liquidation of us (or any similar relief is
granted under any foreign laws);
and the order or decree remains unstayed and in effect for 90 days;
or
(6)
any other event of default provided with respect to debt securities
of such series occurs.
“Bankruptcy
Law” means Title 11, United States Code or any similar
federal or state or foreign law for the relief of debtors.
“Custodian” means any custodian, receiver, trustee,
assignee, liquidator or other similar official under any Bankruptcy
Law.
12
If
an event of default with respect to debt securities of any series
(other than an event of default relating to certain events of
bankruptcy, insolvency, or reorganization of us) occurs and is
continuing, the trustee by notice to us, or the holders of at least
25% in aggregate principal amount of the outstanding debt
securities of such series by notice to us and the trustee, may, and
the trustee at the request of these holders will, declare the
principal of and premium, if any, and accrued and unpaid interest
on all the debt securities of such series to be due and payable.
Upon such a declaration, such principal, premium and accrued and
unpaid interest will be due and payable immediately. If an event of
default relating to certain events of bankruptcy, insolvency, or
reorganization of us occurs and is continuing, the principal of and
premium, if any, and accrued and unpaid interest on the debt
securities of such series will become and be immediately due and
payable without any declaration or other act on the part of the
trustee or any holders.
The
holders of not less than a majority in aggregate principal amount
of the outstanding debt securities of any series may rescind a
declaration of acceleration and its consequences, if we have
deposited certain sums with the trustee and all events of default
with respect to the debt securities of such series, other than the
non-payment of the principal or interest which have become due
solely by such acceleration, have been cured or waived, as provided
in the indenture.
An
event of default for a particular series of debt securities does
not necessarily constitute an event of default for any other series
of debt securities issued under the indenture.
We
are required to furnish the trustee annually within 120 days after
the end of our fiscal year a statement by one of our officers to
the effect that, to the best knowledge of such officer, we are not
in default in the fulfillment of any of our obligations under the
indenture or, if there has been a default in the fulfillment of any
such obligation, specifying each such default and the nature and
status thereof.
No
holder of any debt securities of any series will have any right to
institute any judicial or other proceeding with respect to the
indenture, or for the appointment of a receiver or trustee, or for
any other remedy unless:
(1)
an event of default has occurred and is continuing and such holder
has given the trustee prior written notice of such continuing event
of default with respect to the debt securities of such
series;
(2)
the holders of not less than 25% of the aggregate principal amount
of the outstanding debt securities of such series have requested
the trustee to institute proceedings in respect of such event of
default;
(3)
the trustee has been offered indemnity reasonably satisfactory to
it against its costs, expenses and liabilities in complying with
such request;
(4)
the trustee has failed to institute proceedings 60 days after the
receipt of such notice, request and offer of indemnity;
and
(5)
no direction inconsistent with such written request has been given
for 60 days by the holders of a majority in aggregate principal
amount of the outstanding debt securities of such
series.
The
holders of a majority in aggregate principal amount of outstanding
debt securities of a series will have the right, subject to certain
limitations, to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee with respect to
the debt securities of that series or exercising any trust or power
conferred to the trustee, and to waive certain defaults. The
indenture provides that if an event of default occurs and is
continuing, the trustee will exercise such of its rights and powers
under the indenture, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
Subject to such provisions, the trustee will be under no obligation
to exercise any of its rights or powers under the indenture at the
request of any of the holders of the debt securities of a series
unless they will have offered to the trustee security or indemnity
satisfactory to the trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request.
Notwithstanding
the foregoing, the holder of any debt security will have an
absolute and unconditional right to receive payment of the
principal of and premium, if any, and interest on that debt
security on or after the due dates expressed in that debt security
and to institute suit for the enforcement of payment.
Modification and Waivers
Modification
and amendments of the indenture and the debt securities of any
series may be made by us and the trustee with the consent of the
holders of not less than a majority in aggregate principal amount
of the outstanding debt securities of that series affected thereby;
provided, however, that no such modification or amendment may,
without the consent of the holder of each outstanding debt security
of that series affected thereby:
13
●
change
the stated maturity of the principal of, or installment of interest
on, any debt security;
●
reduce
the principal amount of any debt security or reduce the amount of
the principal of any debt security which would be due and payable
upon a declaration of acceleration of the maturity thereof or
reduce the rate of interest on any debt security;
●
reduce
any premium payable on the redemption of any debt security or
change the date on which any debt security may or must be
redeemed;
●
change
the coin or currency in which the principal of, premium, if any, or
interest on any debt security is payable;
●
impair
the right of any holder to institute suit for the enforcement of
any payment on or after the stated maturity of any debt security
(or, in the case of redemption, on or after the redemption
date);
●
reduce
the percentage in principal amount of the outstanding debt
securities, the consent of whose holders is required in order to
take certain actions;
●
reduce
the requirements for quorum or voting by holders of debt securities
in the indenture or the debt security;
●
modify
any of the provisions in the indenture regarding the waiver of past
defaults and the waiver of certain covenants by the holders of debt
securities except to increase any percentage vote required or to
provide that certain other provisions of the indenture cannot be
modified or waived without the consent of the holder of each debt
security affected thereby;
●
make
any change that adversely affects the right to convert or exchange
any debt security or decreases the conversion or exchange rate or
increases the conversion price of any convertible or exchangeable
debt security, unless such decrease or increase is permitted by the
terms of the debt securities; or
●
modify
any of the above provisions.
We and
the trustee may, without the consent of any holders, modify or
amend the terms of the indenture and the debt securities of any
series with respect to the following:
●
to add to our
covenants for the benefit of holders of the debt securities of all
or any series or to surrender any right or power conferred upon
us;
●
to evidence the
succession of another person to, and the assumption by the
successor of our covenants, agreements and obligations under, the
indenture pursuant to the covenant described under
“—Covenants—Consolidation, Merger and Sale of
Assets”;
●
to add any
additional events of default for the benefit of holders of the debt
securities of all or any series;
●
to add one or more
guarantees for the benefit of holders of the debt
securities;
●
to secure the debt
securities pursuant to the covenants of the indenture;
●
to add or appoint a
successor or separate trustee or other agent;
●
to provide for the
issuance of additional debt securities of any series;
●
to establish the
form or terms of debt securities of any series as permitted by the
indenture;
●
to comply with the
rules of any applicable securities depository;
●
to provide for
uncertificated debt securities in addition to or in place of
certificated debt securities;
●
to add to, change
or eliminate any of the provisions of the indenture in respect of
one or more series of debt securities; provided that any such
addition, change or elimination (a) shall neither (1) apply to any
debt security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such
provision nor (2) modify the rights of the holder of any such debt
security with respect to such provision or (b) shall become
effective only when there is no debt security described in clause
(a)(1) outstanding;
14
●
to cure any
ambiguity, omission, defect or inconsistency;
●
to change any other
provision; provided that the change does not adversely affect the
interests of the holders of debt securities of any series in any
material respect;
●
to supplement any
of the provisions of the indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of
any series of debt securities pursuant to the indenture; provided
that any such action shall not adversely affect the interests of
the holders of debt securities of such series or any other series
of debt securities in any material respect;
●
to comply with the
rules or regulations of any securities exchange or automated
quotation system on which any of the debt securities may be listed
or traded; and
●
to add to, change
or eliminate any of the provisions of the indenture as shall be
necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided that such action does not adversely
affect the rights or interests of any holder of debt securities in
any material respect.
The
holders of at least a majority in aggregate principal amount of the
outstanding debt securities of any series may, on behalf of the
holders of all debt securities of that series, waive compliance by
us with certain restrictive provisions of the indenture. The
holders of not less than a majority in aggregate principal amount
of the outstanding debt securities of a series may, on behalf of
the holders of all debt securities of that series, waive any past
default and its consequences under the indenture with respect to
the debt securities of that series, except a default (1) in
the payment of principal or premium, if any, or interest on debt
securities of that series or (2) in respect of a covenant or
provision of the indenture that cannot be modified or amended
without the consent of the holder of each debt security of that
series. Upon any such waiver, such default will cease to exist, and
any event of default arising therefrom will be deemed to have been
cured, for every purpose of the indenture; however, no such waiver
will extend to any subsequent or other default or event of default
or impair any rights consequent thereon.
Discharge, Defeasance and Covenant Defeasance
We may
discharge certain obligations to holders of the debt securities of
a series that have not already been delivered to the trustee for
cancellation and that either have become due and payable or will
become due and payable within one year (or scheduled for redemption
within one year) by depositing with the trustee, in trust, funds in
U.S. dollars in an amount sufficient to pay the entire indebtedness
including, but not limited to, the principal and premium, if any,
and interest to the date of such deposit (if the debt securities
have become due and payable) or to the maturity thereof or the
redemption date of the debt securities of that series, as the case
may be. We may direct the trustee to invest such funds in U.S.
Treasury securities with a maturity of one year or less or in a
money market fund that invests solely in short-term U.S. Treasury
securities.
The
indenture provides that we may elect either (1) to defease and
be discharged from any and all obligations with respect to the debt
securities of a series (except for, among other things, obligations
to register the transfer or exchange of the debt securities, to
replace temporary or mutilated, destroyed, lost or stolen debt
securities, to maintain an office or agency with respect to the
debt securities and to hold moneys for payment in trust)
(“legal defeasance”) or (2) to be released from
our obligations to comply with the restrictive covenants under the
indenture, and any omission to comply with such obligations will
not constitute a default or an event of default with respect to the
debt securities of a series and clauses (3) and (6) under
“—Events of Default” will no longer be applied
(“covenant defeasance”). Legal defeasance or covenant
defeasance, as the case may be, will be conditioned upon, among
other things, the irrevocable deposit by us with the trustee, in
trust, of an amount in U.S. dollars, or U.S. government
obligations, or both, applicable to the debt securities of that
series which through the scheduled payment of principal and
interest in accordance with their terms will provide money in an
amount sufficient to pay the principal or premium, if any, and
interest on the debt securities on the scheduled due dates
therefor.
If we
effect covenant defeasance with respect to the debt securities of
any series, the amount in U.S. dollars, or U.S. government
obligations, or both, on deposit with the trustee will be
sufficient, in the opinion of a nationally recognized firm of
independent accountants, to pay amounts due on the debt securities
of that series at the time of the stated maturity but may not be
sufficient to pay amounts due on the debt securities of that series
at the time of the acceleration resulting from such event of
default. However, we would remain liable to make payment of such
amounts due at the time of acceleration.
We will
be required to deliver to the trustee an opinion of counsel that
the deposit and related defeasance will not cause the holders and
beneficial owners of the debt securities of that series to
recognize income, gain or loss for federal income tax purposes. If
we elect legal defeasance, that opinion of counsel must be based
upon a ruling from the U.S. Internal Revenue Service or a change in
law to that effect.
15
We may
exercise our legal defeasance option notwithstanding our prior
exercise of our covenant defeasance option.
Same-Day Settlement and Payment
Unless
otherwise provided in the applicable prospectus supplement, the
debt securities will trade in the same-day funds settlement system
of DTC until maturity or until we issue the debt securities in
certificated form. DTC will therefore require secondary market
trading activity in the debt securities to settle in immediately
available funds. We can give no assurance as to the effect, if any,
of settlement in immediately available funds on trading activity in
the debt securities.
Book-Entry; Delivery and Form; Global Securities
Unless
otherwise specified in the applicable prospectus supplement, the
debt securities of each series will be issued in the form of one or
more global debt securities, in definitive, fully registered form
without interest coupons, each of which we refer to as a
“global security.” Each such global security will be
deposited with the trustee as custodian for DTC and registered in
the name of a nominee of DTC in New York, New York for the accounts
of participants in DTC.
Investors may hold
their interests in a global security directly through DTC if they
are DTC participants, or indirectly through organizations that are
DTC participants. Except in the limited circumstances described
below, holders of debt securities represented by interests in a
global security will not be entitled to receive their debt
securities in fully registered certificated form.
DTC has
advised us as follows: DTC is a limited-purpose trust company
organized under New York Banking Law, a “banking
organization” within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a “clearing
corporation” within the meaning of the New York Uniform
Commercial Code and a “clearing agency” registered
pursuant to the provisions of Section 17A of the Exchange Act.
DTC was created to hold securities of institutions that have
accounts with DTC (“participants”) and to facilitate
the clearance and settlement of securities transactions among its
participants in such securities through electronic book-entry
changes in accounts of the participants, thereby eliminating the
need for physical movement of securities certificates. DTC’s
participants include both U.S. and non-U.S. securities brokers and
dealers, banks, trust companies, clearing corporations and certain
other organizations. Access to DTC’s book-entry system is
also available to others such as both U.S. and non-U.S. securities
brokers and dealers, banks, trust companies and clearing
corporations that clear through or maintain a custodial
relationship with a participant, whether directly or
indirectly.
Ownership of Beneficial Interests
Upon
the issuance of each global security, DTC will credit, on its
book-entry registration and transfer system, the respective
principal amount of the individual beneficial interests represented
by the global security to the accounts of participants. Ownership
of beneficial interests in each global security will be limited to
participants or persons that may hold interests through
participants. Ownership of beneficial interests in each global
security will be shown on, and the transfer of those ownership
interests will be effected only through, records maintained by DTC
(with respect to participants’ interests) and such
participants (with respect to the owners of beneficial interests in
the global security other than participants).
So long
as DTC or its nominee is the registered holder and owner of a
global security, DTC or such nominee, as the case may be, will be
considered the sole legal owner of the debt security represented by
the global security for all purposes under the indenture, the debt
securities and applicable law. Except as set forth below, owners of
beneficial interests in a global security will not be entitled to
receive certificated debt securities and will not be considered to
be the owners or holders of any debt securities represented by the
global security. We understand that under existing industry
practice, in the event an owner of a beneficial interest in a
global security desires to take any actions that DTC, as the holder
of the global security, is entitled to take, DTC would authorize
the participants to take such action, and that participants would
authorize beneficial owners owning through such participants to
take such action or would otherwise act upon the instructions of
beneficial owners owning through them. No beneficial owner of an
interest in a global security will be able to transfer such
interest except in accordance with DTC’s applicable
procedures, in addition to those provided for under the indenture.
Because DTC can only act on behalf of participants, who in turn act
on behalf of others, the ability of a person having a beneficial
interest in a global security to pledge that interest to persons
that do not participate in the DTC system, or otherwise to take
actions in respect of that interest, may be impaired by the lack of
a physical certificate representing that interest.
All
payments on the debt securities represented by a global security
registered in the name of and held by DTC or its nominee will be
made to DTC or its nominee, as the case may be, as the registered
owner and holder of the global security.
16
We
expect that DTC or its nominee, upon receipt of any payment of
principal, premium, if any, or interest in respect of a global
security, will credit participants’ accounts with payments in
amounts proportionate to their respective beneficial interests in
the principal amount of the global security as shown on the records
of DTC or its nominee. We also expect that payments by participants
to owners of beneficial interests in the global security held
through such participants will be governed by standing instructions
and customary practices as is now the case with securities held for
accounts for customers registered in the names of nominees for such
customers. These payments, however, will be the responsibility of
such participants and indirect participants, and neither we, the
trustee nor any paying agent will have any responsibility or
liability for any aspect of the records relating to, or payments
made on account of, beneficial ownership interests in any global
security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests or for any other
aspect of the relationship between DTC and its participants or the
relationship between such participants and the owners of beneficial
interests in the global security.
Unless
and until it is exchanged in whole or in part for certificated debt
securities, each global security may not be transferred except as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC. Transfers between participants in DTC will
be effected in the ordinary way in accordance with DTC rules and
will be settled in same-day funds.
We
expect that DTC will take any action permitted to be taken by a
holder of debt securities only at the direction of one or more
participants to whose account the DTC interests in a global
security are credited and only in respect of such portion of the
aggregate principal amount of the debt securities as to which such
participant or participants has or have given such direction.
However, if there is an event of default under the debt securities,
DTC will exchange each global security for certificated debt
securities, which it will distribute to its
participants.
Although we expect
that DTC will agree to the foregoing procedures in order to
facilitate transfers of interests in each global security among
participants of DTC, DTC is under no obligation to perform or
continue to perform such procedures, and such procedures may be
discontinued at any time. None of we, the underwriters or the
trustee will have any responsibility for the performance or
nonperformance by DTC or its participants or indirect participants
of their respective obligations under the rules and procedures
governing their operations.
The
indenture provides that the global securities will be exchanged for
debt securities in certificated form of like tenor and of an equal
principal amount, in authorized denominations in the following
limited circumstances:
(1) DTC
notifies us that it is unwilling or unable to continue as
depository or if DTC ceases to be eligible under the indenture and
we do not appoint a successor depository within 90
days;
(2) we
determine that the debt securities will no longer be represented by
global securities and execute and deliver to the trustee an order
to such effect; or
(3) an
event of default with respect to the debt securities will have
occurred and be continuing.
These
certificated debt securities will be registered in such name or
names as DTC will instruct the trustee. It is expected that such
instructions may be based upon directions received by DTC from
participants with respect to ownership of beneficial interests in
global securities.
The
information in this section of this prospectus concerning DTC and
DTC’s book-entry system has been obtained from sources that
we believe to be reliable, but we do not take responsibility for
this information.
Euroclear and Clearstream
If the
depositary for a global security is DTC, you may hold interests in
the global security through Clearstream Banking, société anonyme, which we
refer to as “Clearstream,” or Euroclear Bank SA/NV, as
operator of the Euroclear System, which we refer to as
“Euroclear,” in each case, as a participant in DTC.
Euroclear and Clearstream will hold interests, in each case, on
behalf of their participants through customers’ securities
accounts in the names of Euroclear and Clearstream on the books of
their respective depositaries, which in turn will hold such
interests in customers’ securities in the depositaries’
names on DTC’s books.
Payments,
deliveries, transfers, exchanges, notices and other matters
relating to the debt securities made through Euroclear or
Clearstream must comply with the rules and procedures of those
systems. Those systems could change their rules and procedures at
any time. We have no control over those systems or their
participants, and we take no responsibility for their activities.
Transactions between participants in Euroclear or Clearstream, on
one hand, and other participants in DTC, on the other hand, would
also be subject to DTC’s rules and procedures.
17
Investors
will be able to make and receive through Euroclear and Clearstream
payments, deliveries, transfers, exchanges, notices and other
transactions involving any securities held through those systems
only on days when those systems are open for business. Those
systems may not be open for business on days when banks, brokers
and other institutions are open for business in the United
States.
In
addition, because of time-zone differences, U.S. investors who hold
their interests in the debt securities through these systems and
wish on a particular day, to transfer their interests, or to
receive or make a payment or delivery or exercise any other right
with respect to their interests, may find that the transaction will
not be effected until the next business day in Luxembourg or
Brussels, as applicable. Thus, investors who wish to exercise
rights that expire on a particular day may need to act before the
expiration date. In addition, investors who hold their interests
through both DTC and Euroclear or Clearstream may need to make
special arrangements to finance any purchase or sales of their
interests between the U.S. and European clearing systems, and those
transactions may settle later than transactions within one clearing
system.
Governing Law
The
indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New
York.
Regarding the Trustee
We may
from time to time maintain lines of credit, and have other
customary banking relationships, with the trustee under the
indenture.
The
indenture and provisions of the Trust Indenture Act that are
incorporated by reference therein contain limitations on the rights
of the trustee, should it become one of our creditors, to obtain
payment of claims in certain cases or to realize on certain
property received by it in respect of any such claim as security or
otherwise. The trustee is permitted to engage in other transactions
with us or any of our affiliates; provided, however, that if it
acquires any conflicting interest (as defined under the Trust
Indenture Act), it must eliminate such conflict or
resign.
18
DESCRIPTION OF CAPITAL
STOCK
The following is a description of our capital stock and certain
provisions of our amended and restated certificate of
incorporation, bylaws and certain provisions of applicable law. The
following is only a summary and is qualified by applicable law and
by the provisions of our amended and restated certificate of
incorporation and bylaws, copies of which are included as exhibits
to the registration statement of which this prospectus forms a
part. We are incorporated in the State of Delaware. The rights of
our stockholders are generally covered by Delaware law and our
amended and restated certificate of incorporation and bylaws. The
terms of our capital stock are therefore subject to Delaware law,
including the Delaware General Corporation Law.
Our authorized capital stock consists of
110,000,000 shares of common stock, $.001 par value per share, and
7,954,286 shares of preferred stock, $0.001 par value per share. As
of June 17, 2020, 85,910,275 shares of our common stock were outstanding. As of
the date of this prospectus, no shares of our preferred stock were
outstanding.
Common Stock
Our
common stock is traded on the NYSE American under the symbol
“WYY.” 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. Holders of
common stock are entitled to receive ratably such dividends, if
any, as may be declared by the board of directors out of funds
legally available therefore, subject to a preferential dividend
right of outstanding preferred stock. Upon the liquidation,
dissolution or our winding up, the holders of common stock are
entitled to receive ratably our net assets available after the
payment of all debts and other liabilities and subject to the prior
rights of any outstanding preferred stock. The rights, preferences
and privileges of holders of common stock are subject to, and may
be adversely affected by the rights of the holders any series of
preferred stock that we may designate and issue in the
future.
Preferred Stock
Under
the terms of our certificate of incorporation, the board of
directors is authorized, subject to any limitations prescribed by
law, without stockholder approval, to issue such shares of
preferred stock in one or more series. Each such series of
preferred stock shall have such rights, preferences, privileges and
restrictions, including voting rights, dividend rights, conversion
rights, redemption privileges and liquidation preferences, as shall
be determined by the board of directors.
The
purpose of authorizing the board of directors to issue preferred
stock and determine its rights and preferences is to eliminate
delays associated with a stockholder vote on specific issuances.
The issuance of preferred stock, while providing desirable
flexibility in connection with possible acquisitions and other
corporate purposes, could have the effect of making it more
difficult for a third part to acquire, or of discouraging a third
party from acquiring, a majority of our outstanding voting stock.
We have no present plans to issue any additional shares of
preferred stock.
The
effects of issuing preferred stock could include one or more of the
following:
●
decreasing the
amount of earnings and assets available for distribution to holders
of common stock;
●
restricting
dividends on the common stock;
●
diluting the voting
power of the common stock;
●
impairing the
liquidation rights of the common stock; or
●
delaying, deferring
or preventing changes in our control or management.
As
of the date of this prospectus, there were no shares of preferred
stock outstanding.
Stock Options and Restricted Stock
As of June 17, 2020, we had outstanding options to
purchase a total of 3,040,000 shares of common stock at a weighted average
exercise price of $.59 per
share. Of this total, options to purchase 2,223,330 were vested and
816,670 remain unvested. As June 17, 2020, we had
outstanding 2,072,986
shares of restricted common stock subject to vesting conditions. As
of June 17, 2020, an additional 1,387,014 shares of common stock were available for future
award grants under our stock incentive
plan.
19
NYSE American Listing
Our
common stock is listed on the NYSE American under the symbol
“WYY.”
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company.
Delaware Law and Certain Charter and Bylaw Provisions
Certain Anti-Takeover Provisions of Delaware Law and our Amended
and Restated Certificate of Incorporation and Bylaws
Staggered board of
directors. Our amended and restated
certificate of incorporation provides that our board of directors
will be classified into three classes of directors of approximately
equal size. As a result, in most circumstances, a person can gain
control of our board only by successfully engaging in a proxy
contest at two or more annual meetings.
Authorized but unissued
shares. Our authorized but unissued Common
Stock and preferred stock are available for future issuances
without stockholder approval and could be utilized for a variety of
corporate purposes, including future offerings to raise additional
capital, acquisitions and employee benefit plans. The existence of
authorized but unissued and unreserved Common Stock and preferred
stock could render more difficult or discourage an attempt to
obtain control of us by means of a proxy contest, tender offer,
merger or otherwise.
Section 203 of the Delaware General
Corporation Law. We are subject to Section
203 of the Delaware General Corporation Law, which prohibits a
Delaware corporation from engaging in any business combination with
any interested stockholder for a period of three years after the
date that such stockholder became an interested stockholder, with
the following exceptions:
●
before such date,
the board of directors of the corporation approved either the
business combination or the transaction that resulted in the
stockholder becoming an interested stockholder;
●
upon completion of
the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time
the transaction began, excluding for purposes of determining the
voting stock outstanding (but not the outstanding voting stock
owned by the interested stockholder) those shares owned (1) by
persons who are directors and also officers and (2) employee stock
plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer; or
●
on or after such
date, the business combination is approved by the board of
directors and authorized at an annual or special meeting of the
stockholders, and not by written consent, by the affirmative vote
of at least 662∕3% of the outstanding voting stock that is
not owned by the interested stockholder.
In
general, Section 203 defines business combination to include the
following:
●
any merger or
consolidation involving the corporation and the interested
stockholder;
●
any sale, transfer,
pledge or other disposition of 10% or more of the assets of the
corporation involving the interested stockholder;
●
subject to certain
exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
●
any transaction
involving the corporation that has the effect of increasing the
proportionate share of the stock or any class or series of the
corporation beneficially owned by the interested stockholder;
or
●
the receipt by the
interested stockholder of the benefit of any loss, advances,
guarantees, pledges or other financial benefits by or through the
corporation.
20
Limitation on Liability and Indemnification of Directors and
Officers
Our
amended and restated certificate of incorporation provides that our
directors and officers will be indemnified by us to the fullest
extent authorized by Delaware law as it now exists or may in the
future be amended. In addition, our second amended and restated
certificate of incorporation provides that our directors will not
be personally liable for monetary damages to us for breaches of
their fiduciary duty as directors, unless they violated their duty
of loyalty to us or our stockholders, acted in bad faith, knowingly
or intentionally violated the law, authorized unlawful payments of
dividends, unlawful stock purchases or unlawful redemptions, or
derived an improper personal benefit from their actions as
directors. We have obtained a policy of directors’ and
officers’ liability insurance.
Our
agreements with our executive officers each provide that we shall
indemnify the executive to the fullest extent permitted by the laws
of the State of Delaware against all damages, costs, expenses and
other liabilities reasonably incurred or sustained in connection
with any suit, action or proceeding the executive may be made a
party by reason of being or having been a director or officer of
the Company or any of its subsidiaries, or having served in any
other capacity or taken any other action purportedly on behalf of
or at the request of the Company or any of its
subsidiaries.
These
provisions may discourage stockholders from bringing a lawsuit
against our directors for breach of their fiduciary duty. These
provisions also may have the effect of reducing the likelihood of
derivative litigation against directors and officers, even though
such an action, if successful, might otherwise benefit us and our
stockholders. Furthermore, a stockholder’s investment may be
adversely affected to the extent we pay the costs of settlement and
damage awards against directors and officers pursuant to these
indemnification provisions. We believe that these provisions, the
insurance and the indemnity agreements are necessary to attract and
retain talented and experienced directors and
officers.
Insofar
as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to our directors, officers
and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, and is, therefore,
unenforceable.
21
DESCRIPTION OF WARRANTS
We may
issue warrants in the future for the purchase of debt securities,
common stock, preferred stock, units or other securities. Warrants
may be issued independently or together with debt securities,
common stock, preferred stock or units offered by any prospectus
supplement and/or other offering material and may be attached to or
separate from any such offered securities. Each series of warrants
will be issued under a separate warrant agreement to be entered
into between us and a bank or trust company, as warrant agent,
provided that we may also act as warrant agent and enter into
warrant agreements directly with the purchasers of securities
offered pursuant to this prospectus. In each case, the terms of the
warrants will be set forth in the prospectus supplement and/or
other offering material relating to the particular issue of
warrants. The warrant agent, if any, will act solely as our agent
in connection with the warrants and will not assume any obligation
or relationship of agency or trust for or with any holders of
warrants or beneficial owners of warrants.
The
following summary of certain provisions of the warrants we may
issue in the future does not purport to be complete and is subject
to, and is qualified in its entirety by reference to, all
provisions of the warrant agreements.
Reference is made
to the prospectus supplement and/or other offering material
relating to the particular issue of warrants offered pursuant to
such prospectus supplement and/or other offering material for the
terms of and information relating to such warrants, including,
where applicable:
●
the designation,
aggregate principal amount, currencies, denominations and terms of
the series of debt securities purchasable upon exercise of warrants
to purchase debt securities and the price at which such debt
securities may be purchased upon such exercise;
●
the number of
shares of common stock or preferred stock purchasable upon the
exercise of warrants and the price at which such number of shares
of common stock or preferred stock may be purchased upon such
exercise;
●
the designation and
number of units of other securities purchasable upon the exercise
of warrants to purchase other securities and the price at which
such number of units of such other securities may be purchased upon
such exercise;
●
the date on which
the right to exercise such warrants shall commence and the date on
which such right shall expire;
●
U.S. federal income
tax consequences applicable to such warrants;
●
the amount of
warrants outstanding as of the most recent practicable date;
and
●
any other terms of
such warrants.
Warrants will be
issued in registered form only. The exercise price for warrants
will be subject to adjustment in accordance with the applicable
prospectus supplement and/or other offering material.
Each
warrant will entitle the holder thereof to purchase such principal
amount of debt securities or such number of shares of common stock,
preferred stock, units or other securities at such exercise price
as shall in each case be set forth in, or calculable from, the
prospectus supplement and/or other offering material relating to
the warrants, which exercise price may be subject to adjustment
upon the occurrence of certain events as set forth in such
prospectus supplement and/or other offering material. After the
close of business on the expiration date, or such later date to
which such expiration date may be extended by us, unexercised
warrants will become void. The place or places where, and the
manner in which, warrants may be exercised shall be specified in
the prospectus supplement and/or other offering material relating
to such warrants.
Prior
to the exercise of any warrants to purchase debt securities, common
stock, preferred stock, units or other securities, holders of such
warrants will not have any of the rights of holders of the
underlying securities, as the case may be, purchasable upon such
exercise, including the right to receive payments of principal of,
premium, if any, or interest, if any, on the debt securities
purchasable upon such exercise or to enforce covenants in the
applicable indenture, or to receive payments of dividends, if any,
on the common stock purchasable upon such exercise, or to exercise
any applicable right to vote.
22
DESCRIPTION OF SUBSCRIPTION
RIGHTS
We may
issue subscription rights to purchase debt securities, common
stock, preferred stock, warrants, units other securities described
in this prospectus or any combination thereof. These subscription
rights may be issued independently or together with any other
security offered by us and may or may not be transferable by the
stockholder receiving the subscription rights in such offering. In
connection with any offering of subscription rights, we may enter
into a standby arrangement with one or more underwriters or other
investors pursuant to which the underwriters or other investors may
be required to purchase any securities remaining unsubscribed for
after such offering.
To the
extent appropriate, the applicable prospectus supplement will
describe the specific terms of the subscription rights to purchase
shares of our securities offered thereby, including the
following:
●
the date of
determining the stockholders entitled to the rights
distribution;
●
the price, if any,
for the subscription rights;
●
the exercise price
payable for the debt securities, common stock, preferred stock,
warrants, units or other securities upon the exercise of the
subscription right;
●
the number of
subscription rights issued to each stockholder;
●
the amount of debt
securities, common stock, preferred stock, warrants, units or other
securities that may be purchased per each subscription
right;
●
any provisions for
adjustment of the amount of securities receivable upon exercise of
the subscription rights or of the exercise price of the
subscription rights;
●
the extent to which
the subscription rights are transferable;
●
the date on which
the right to exercise the subscription rights shall commence, and
the date on which the subscription rights shall
expire;
●
the extent to which
the subscription rights may include an over-subscription privilege
with respect to unsubscribed securities;
●
the material terms
of any standby underwriting or purchase arrangement entered into by
us in connection with the offering of subscription
rights;
●
any applicable
federal income tax considerations; and
●
any other terms of
the subscription rights, including the terms, procedures and
limitations relating to the transferability, exchange and exercise
of the subscription rights.
23
DESCRIPTION OF SECURITIES PURCHASE
CONTRACTS
We may
issue securities purchase contracts, which consist of contracts
obligating holders to purchase from us, and obligating us to sell
to the holders, a specified number of shares of common stock,
preferred stock, warrants, units, debt securities or other
securities at a future date or dates, which we refer to in this
prospectus as “securities purchase contracts.” The
terms and conditions for any purchase and sale rights or
obligations, as well as the price per share of the underlying
securities (if applicable) and the number or value of the
underlying securities, may be fixed at the time the securities
purchase contracts are issued or may be determined by reference to
a specific formula set forth in the securities purchase
contracts.
The
securities purchase contracts may be issued separately or as part
of units, other securities or debt obligations of third parties,
including U.S. treasury securities, securing the holders’
obligations to purchase the securities under the securities
purchase contracts. The securities purchase contracts may require
holders to secure their obligations under the securities purchase
contracts in a specified manner. The securities purchase contracts
also may require us to make periodic payments to the holders
thereof or vice versa, and those payments may be unsecured or
refunded on some basis.
The
securities purchase contracts, and, if applicable, collateral or
depositary arrangements, relating to the securities purchase
contracts, will be filed with the SEC in connection with the
offering of securities purchase contracts. The prospectus
supplement and/or other offering material relating to a particular
issue of securities purchase contracts will describe the terms of
those securities purchase contracts, including the
following:
●
if applicable, a
discussion of material U.S. federal income tax considerations;
and
●
any other
information we think is important about the securities purchase
contracts.
24
DESCRIPTION OF UNITS
As
specified in the applicable prospectus supplement, we may issue
units consisting of one or more shares of common stock, shares of
preferred stock, debt securities, warrants, subscription rights and
securities purchase contracts, or any combination of the
foregoing.
The
applicable prospectus supplement will specify the following terms
of the units:
●
the terms of the
underlying securities comprising the units, including whether and
under what circumstances the underlying securities may be traded
separate of the units;
●
a description of
the terms of any unit agreement governing the units (if
any);
●
if appropriate, a
discussion of material U.S. federal income tax considerations;
and
●
a description of
the provisions for the payment, settlement, transfer or exchange of
the units.
25
PLAN OF DISTRIBUTION
We may
sell securities in any one or more of the following ways from time
to time: (i) through agents; (ii) to or through underwriters; (iii)
through brokers or dealers; (iv) directly to purchasers, including
through a specific bidding, auction or other process; (v) upon
the exercise of subscription rights that may be distributed to our
stockholders; or (vi) through a combination of any of these methods
of sale. The applicable prospectus supplement and/or other offering
material will contain the terms of the transaction, name or names
of any underwriters, dealers, agents and the respective amounts of
securities underwritten or purchased by them, the initial public
offering price of the securities, and the applicable agent’s
commission, dealer’s purchase price or underwriter’s
discount. Any dealers and agents participating in the distribution
of the securities may be deemed to be underwriters, and
compensation received by them on resale of the securities may be
deemed to be underwriting discounts.
Any
initial offering price, dealer purchase price, discount or
commission may be changed from time to time.
The
securities may be distributed from time to time in one or more
transactions, at negotiated prices, at a fixed price or fixed
prices (that may be subject to change), at market prices prevailing
at the time of sale, at various prices determined at the time of
sale or at prices related to prevailing market prices.
Offers
to purchase securities may be solicited directly by us or by agents
designated by us from time to time. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act,
of the securities so offered and sold.
If
underwriters are utilized in the sale of any securities in respect
of which this prospectus is being delivered, such securities will
be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices or at
varying prices determined by the underwriters at the time of sale.
Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one
or more underwriters. If any underwriter or underwriters are
utilized in the sale of securities, unless otherwise indicated in
the applicable prospectus supplement and/or other offering
material, the obligations of the underwriters are subject to
certain conditions precedent, and that the underwriters will be
obligated to purchase all such securities if any are
purchased.
If a
dealer is utilized in the sale of the securities in respect of
which this prospectus is delivered, we will sell such securities to
the dealer, as principal. The dealer may then resell such
securities to the public at varying prices to be determined by such
dealer at the time of resale. Transactions through brokers or
dealers may include block trades in which brokers or dealers will
attempt to sell shares as agent but may position and resell as
principal to facilitate the transaction or in crosses, in which the
same broker or dealer acts as agent on both sides of the trade. Any
such dealer may be deemed to be an underwriter, as such term is
defined in the Securities Act, of the securities so offered and
sold.
Offers
to purchase securities may be solicited directly by us and the sale
thereof may be made directly to institutional investors or others,
who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any resale thereof.
If so
indicated in the applicable prospectus supplement and/or other
offering material, we may authorize agents and underwriters to
solicit offers by certain institutions to purchase securities at
the public offering price set forth in the applicable prospectus
supplement and/or other offering material pursuant to delayed
delivery contracts providing for payment and delivery on the date
or dates stated in the applicable prospectus supplement and/or
other offering material. Such delayed delivery contracts will be
subject only to those conditions set forth in the applicable
prospectus supplement and/or other offering material.
Agents,
underwriters and dealers may be entitled under relevant agreements
to indemnification against certain liabilities, including
liabilities under the Securities Act, or to contribution with
respect to payments which such agents, underwriters and dealers may
be required to make in respect thereof. The terms and conditions of
any indemnification or contribution will be described in the
applicable prospectus supplement and/or other offering
material.
We may
also sell shares of our common stock through various arrangements
involving mandatorily or optionally exchangeable securities, and
this prospectus may be delivered in connection with those
sales.
We may
engage in at-the-market offerings into an existing trading market
in accordance with Rule 415(a)(4) under the Securities Act. To the
extent that we make sales through one or more underwriters or
agents in at-the-market offerings, we will do so pursuant to the
terms of a sales agency financing agreement or other at-the-market
offering arrangement between us and the underwriters or agents. If
we engage in at-the-market sales pursuant to any such agreement or
arrangement, we will issue and sell our securities through one or
more underwriters or agents, which may act on an agency basis or a
principal basis. During the term of any such agreement or
arrangement, we may sell securities on a daily basis in exchange
transactions or otherwise as we agreement with the underwriters or
agents. Any such agreement or arrangement will provide that any
securities sold will be sold at prices related to the
then-prevailing market prices for our securities. Therefore, exact
figures regarding proceeds that will be raised or commissions to be
paid cannot be determined at this time. Pursuant to the terms of
the agreement or arrangement, we may agree to sell, and the
relevant underwriters or agents may agree to solicit offers to
purchase blocks of our common stock. The terms of any such
agreement or arrangement will be set forth in more detail in the
applicable prospectus supplement.
26
We may
enter into derivative, sale or forward sale transactions with third
parties, or sell securities not covered by this prospectus to third
parties in privately negotiated transactions. If the applicable
prospectus supplement and/or other offering material indicates, in
connection with those transactions, the third parties may sell
securities covered by this prospectus and the applicable prospectus
supplement and/or other offering material, including in short sale
transactions and by issuing securities not covered by this
prospectus but convertible into, or exchangeable for or
representing beneficial interests in such securities covered by
this prospectus, or the return of which is derived in whole or in
part from the value of such securities. The third parties may use
securities received under derivative, sale or forward sale
transactions, or securities pledged by us or borrowed from us or
others to settle those sales or to close out any related open
borrowings of stock, and may use securities received from us in
settlement of those transactions to close out any related open
borrowings of stock. The third party in such sale transactions will
be an underwriter and will be identified in the applicable
prospectus supplement (or a post-effective amendment) and/or other
offering material.
Underwriters,
broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from us. Underwriters,
broker-dealers or agents may also receive compensation from the
purchasers of shares for whom they act as agents or to whom they
sell as principals, or both. Compensation as to a particular
underwriter, broker-dealer or agent might be in excess of customary
commissions and will be in amounts to be negotiated in connection
with transactions involving shares. In effecting sales,
broker-dealers may arrange for other broker-dealers to participate
in the resales.
Each
series of securities will be a new issue and, other than the common
stock, which is listed on the NYSE American, will have no
established trading market. We may elect to list any series of
securities on an exchange, and in the case of the common stock, on
any additional exchange, but, unless otherwise specified in the
applicable prospectus supplement and/or other offering material, we
shall not be obligated to do so. No assurance can be given as to
the liquidity of the trading market for any of the
securities.
Agents,
underwriters and dealers may engage in transactions with, or
perform services for us and our respective subsidiaries in the
ordinary course of business.
Any
underwriter may engage in overallotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act. Overallotment involves sales
in excess of the offering size, which create a short position.
Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified
maximum. Short covering transactions involve purchases of the
securities in the open market after the distribution is completed
to cover short positions. Penalty bids permit the underwriters to
reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering
transaction to cover short positions. Those activities may cause
the price of the securities to be higher than it would otherwise
be. If commenced, the underwriters may discontinue any of the
activities at any time. An underwriter may carry out these
transactions on the NYSE American, in the over-the-counter market
or otherwise.
The
place and time of delivery for securities will be set forth in the
accompanying prospectus supplement and/or other offering material
for such securities.
27
WHERE YOU CAN FIND MORE
INFORMATION
We file
annual, quarterly and current 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, including WidePoint’s, that
file electronically with the SEC. The public can obtain any
document that WidePoint’s files electronically with the SEC
at www.sec.gov.
We are
“incorporating by reference” specified documents that
we file with the SEC, which means:
●
incorporated
documents are considered part of this prospectus;
●
we are disclosing
important information to you by referring you to those documents;
and
●
information we file
with the SEC will automatically update and supersede information
contained in this prospectus.
We
incorporate by reference the documents listed below and any future
filings we make with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Exchange Act (i) after the date of the
registration statement on Form S-3 filed under the Securities Act
with respect to securities offered by this prospectus and prior to
the effectiveness of such registration statement and (ii) after the
date of this prospectus and before the end of the offering of the
securities pursuant to this prospectus:
●
our Annual Report
on Form 10-K for the year ended December 31,
2019;
●
our Quarterly
Report on Form 10-Q for the quarter ended March 31,
2020;
●
our Definitive
Proxy Statement on Schedule 14A filed April 24, 2020;
●
our Current Reports
on Form 8-K filed April 30, 2020 and May 4, 2020; and
●
The description of
our common stock contained in or incorporated into our Registration
Statement on Form 8-A, filed September 19, 2006, and any amendment
or report updating that description.
Information in this
prospectus supersedes related information in the documents listed
above, and information in subsequently filed documents supersedes
related information in both this prospectus and the incorporated
documents.
We will
provide, without charge to you, upon written or oral request, a
copy of any or all of the documents incorporated by reference in
this prospectus, other than exhibits to those documents, unless the
exhibits are specifically incorporated by reference in those
documents. Requests should be directed to our principal
executive offices at:
WidePoint Corporation
11250 Waples Mill Road, South Tower, Suite 210
Fairfax, Virginia 22030
c/o Corporate Secretary.
(703) 349-2577
You can
also find these filings on our website at www.widepoint.com. We are not incorporating
the information on our website other than these filings into this
prospectus.
28
LEGAL MATTERS
The
validity of the securities offered by this prospectus will be
passed upon for us by Foley & Lardner LLP. The validity of the
securities offered by this prospectus will be passed upon for any
underwriters or agents by counsel named in the applicable
prospectus supplement. The opinions of Foley & Lardner LLP and
counsel for any underwriters or agents may be conditioned upon and
may be subject to assumptions regarding future action required to
be taken by us and any underwriters, dealers or agents in
connection with the issuance of any securities. The opinions of
Foley & Lardner LLP and counsel for any underwriters or agents
may be subject to other conditions and assumptions, as indicated in
the prospectus supplement.
EXPERTS
Our
consolidated financial statements appearing in our Annual Report on
Form 10-K for the year ended December 31, 2019, have been audited by
Moss Adams LLP, an independent registered public accounting firm,
as stated in their report, which is incorporated herein by
reference. Such consolidated financial statements have been so
incorporated in reliance upon the report of such firm (which report
expresses an unqualified opinion and includes an explanatory
paragraph regarding the adoption of new accounting standards) given
upon their authority as experts in accounting and
auditing.
29
PART II
INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 14. Other
Expenses of Issuance and Distribution.
The
following table sets forth the expenses, other than underwriting
discounts and commissions, payable by us in connection with the
sale of the securities being registered hereby are currently
anticipated as follows (all amounts are estimated except the SEC
registration fee):
|
|
Amount to
be paid
|
|
SEC Registration
Fee
|
$3,245
|
|
Accounting Fees and
Expenses
|
*
|
|
Legal Fees and
Expenses
|
*
|
|
Miscellaneous
Expenses (including any applicable listing fees, printing fees, and
transfer agent fees and expenses)
|
*
|
|
Total
|
$*
|
*
These fees and
expenses depend on the securities offered and the number of
issuances, and accordingly cannot be estimated at this time and
will be reflected in the applicable prospectus
supplement.
Item 15. Indemnification of Directors
and Officers.
Subsection
(a) of Section 145 of the General Corporation Law of the State of
Delaware, or the DGCL, empowers a corporation to indemnify any
person who was or is a party or who is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the person
in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person’s conduct was
unlawful.
Subsection
(b) of Section 145 empowers a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of
the fact that the person acted in any of the capacities set forth
above, against expenses (including attorneys’ fees) actually
and reasonably incurred by the person in connection with the
defense or settlement of such action or suit if the person acted in
good faith and in a manner the person reasonably believed to be in
or not opposed to the best interests of the corporation, except
that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section
145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in the
defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim,
issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection therewith; that
indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be
entitled; and the indemnification provided for by Section 145
shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of such
person’s heirs, executors and administrators. Section 145
also empowers the corporation to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power
to indemnify such person against such liabilities under Section
145.
30
Section
102(b)(7) of the DGCL provides that a corporation’s
certificate of incorporation may contain a provision eliminating or
limiting the personal liability of a director to the corporation or
its stockholders for monetary damages for breach of fiduciary duty
as a director, provided that such provision shall not eliminate or
limit the liability of a director (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 an improper personal
benefit.
Our
amended and restated certificate of incorporation provides that all
directors, officers, employees and agents of the registrant shall
be entitled to be indemnified by us to the fullest extent permitted
by Section 145 of the Delaware General Corporation
Law.
Article VII of the registrant’s Amended and
Restated Certificate of Incorporation provides to the full extent
permitted by the General Corporation Law of Delaware or any of the
applicable laws presently or hereafter in effect, no director of
the registrant will be personally liable to the registrant or the
registrant’s stockholders with respect to any act or omission
in the performance of his or her duties as a director of the
registrant. Any amendment or repeal of Article VII of the
registrant’s Amended and Restated Certificate of
Incorporation will not adversely affect any right or protection of
a director of the registrant with respect to any act or omission
occurring before such amendment or repeal.
Article
VIII of the registrant’s Amended and Restated Certificate of
Incorporation and Article VI of the Bylaws provide that the
registrant shall indemnify (a) any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
registrant), by reason of the fact that he is or was, a director of
the registrant, or is or was serving, or has agreed to serve, at
the request of the registrant, as a director, officer, employee or
agent of another entity (all such persons being referred to
hereafter as an “Indemnitee”), to the full extent then
permitted by law against judgments, fines, penalties, excise taxes,
amounts paid in settlement and costs charges and expenses
(including attorneys’ fees and disbursements) that he or she
incurs in connection with such proceeding. The right to
indemnification will continue as to an Indemnitee who has ceased to
hold the position by virtue of which he or she was entitled to
indemnification, and will inure to the benefit of his or her heirs
and personal representatives. The registrant will, from time to
time, reimburse or advance to any Indemnitee the funds necessary
for payment of expenses, including attorneys’ fees and
disbursements, incurred in connection with defending any proceeding
for which he or she is indemnified by the registrant, in advance of
the final disposition of such proceeding; provided that, if then
required by law, the expenses incurred by or on behalf of an
Indemnitee may be paid in advance of the final disposition of a
proceeding only upon receipt by the registrant of an undertaking by
or on behalf of such director or officer to repay any such amount
so advanced if it is ultimately determined by a final and
unappealable judicial decision that the Indemnitee is not entitled
to be indemnified for such expenses.
The
registrant has purchased directors’ and officers’
liability insurance that would indemnify its directors and officers
against damages arising out of certain kinds of claims that might
be made against them based on their negligent acts or omissions
while acting in their capacity as such.
Our
agreements with our executive officers each provide that we shall
indemnify the executive to the fullest extent permitted by the laws
of the State of Delaware against all damages, costs, expenses and
other liabilities reasonably incurred or sustained in connection
with any suit, action or proceeding the executive may be made a
party by reason of being or having been a director or officer of
the company or any of its subsidiaries, or having served in any
other capacity or taken any other action purportedly on behalf of
or at the request of the company or any of its
subsidiaries.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers, and controlling
persons pursuant to the foregoing provisions, or otherwise, we have
been advised that, in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment of
expenses incurred or paid by a director, officer or controlling
person in a successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, we will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to the court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
31
Item 16. Exhibits.
The
exhibits listed in the following Exhibit Index are filed as part of
this Registration Statement.
EXHIBIT
INDEX
|
EXHIBIT
NUMBER
|
|
DESCRIPTION
|
|
|
1.1
|
|
|
Form of
Underwriting Agreement.*
|
|
4.1
|
|
|
|
|
4.2
|
|
|
|
|
4.3
|
|
|
|
|
4.4
|
5
|
|
Form of
Debt Securities.*
|
|
4.5
|
|
|
Form of
Certificate of Designations.*
|
|
4.6
|
|
|
Form of
Warrant.*
|
|
4.7
|
|
|
Form of
Warrant Agreement.*
|
|
4.8
|
|
|
Form of
Securities Purchase Contract.*
|
|
4.9
|
|
|
Form of
Unit Agreement.*
|
|
5
|
|
|
|
|
23.1
|
|
|
|
|
23.2
|
|
|
|
|
24
|
|
|
Powers
of Attorney (included on the signature page to this Registration
Statement).
|
|
25
|
|
|
Form
T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939.**
|
__________________
*
If
required, to be filed by amendment or under subsequent Current
Report on Form 8-K.
**
To
be filed in accordance with the requirements of Section 305(b)(2)
of the Trust Indenture Act of 1939 and Rule 5b-3
thereunder.
Item 17. Undertakings.
(a)
The undersigned
registrant hereby undertakes:
(1)
To file, during any
period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i)
To include any
prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii)
To reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration
statement; and
32
(iii)
To include any
material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material
change to such information in this registration
statement;
provided, however, that paragraphs (i), (ii) and (iii)
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 Commission by the registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of
the registration statement.
(2)
That, for the
purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3)
To remove from
registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination
of the offering.
(5)
That, for the
purpose of determining liability under the Securities Act of 1933
to any purchaser:
(i)
If the registrant
is relying on Rule 430B:
A.
Each prospectus
filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the
registration statement; and
B.
Each prospectus
required to be filed pursuant to Rule 424(b)(2),
(b)(5) or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or
the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to
the securities in the registration statement to which the
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof; provided,
however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(ii)
If the registrant
is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other
than prospectuses filed in reliance on Rule 430A, shall be deemed
to be part of and included in the registration statement as of the
date it is first used after effectiveness. 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 first use,
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 date of
first use.
(6)
That, for the
purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a
primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i)
Any preliminary
prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to
Rule 424;
(ii)
Any free writing
prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii)
The portion of any
other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
33
(iv)
Any other
communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(b)
The undersigned
registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of its
annual reports 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.
(h)
Insofar as
indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of
the 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 registrant
of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question as to
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.
(j)
The undersigned
registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Trust Indenture
Act.
34
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the
City of Fairfax, Commonwealth of
Virginia, on June 19, 2020.
|
|
WIDEPOINT
CORPORATION
|
|
|
|
|
|
|
|
By:
|
/s/ Jin
H. Kang
|
|
|
|
Jin H.
Kang
|
|
|
|
Chief
Executive Officer
|
POWER OF ATTORNEY
Pursuant to the
requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the
capacities indicated below on June 19, 2020. Each person whose
signature appears below constitutes and appoints Jin Kang, his or
her true and lawful attorney-in-fact and agent, with full power of
substitution and revocation, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
Registration Statement, and any additional registration statement
to be filed pursuant to Rule 462(b) under the Securities Act of
1933, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or either of them, may
lawfully do or cause to be done by virtue hereof.
|
Signature
|
|
Title
|
|
|
|
|
|
/s/ Jin
Kang
|
|
President,
Chief Executive Officer and Director
|
|
Jin
Kang
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
/s/
Kellie Kim
|
|
Chief
Financial Officer
|
|
Kellie
Kim
|
|
(Principal
Financial and Accounting Officer)
|
|
|
|
|
|
/s/
Otto Guenther
|
|
Chairman
of the Board of Directors
|
|
Otto
Guenther
|
|
|
|
|
|
|
|
/s/
Julia Bowen
|
|
Director
|
|
Julia
Bowen
|
|
|
|
|
|
|
|
/s/
Richard Todaro
|
|
Director
|
|
Richard
Todaro
|
|
|
|
|
|
|
|
/s/
Phillip Garfinkle
|
|
Director
|
|
Phillip
Garfinkle
|
|
|
|
|
|
|
35
Exhibit 4.3
WIDEPOINT CORPORATION
AS ISSUER
and
[NAME OF TRUSTEE],
AS TRUSTEE
INDENTURE
Dated as of [_________________]
CERTAIN SECTIONS OF THIS INDENTURE
RELATING
TO SECTIONS 310 THROUGH 318 INCLUSIVE,
OF THE TRUST
INDENTURE ACT OF 1939
|
Trust Indenture Act Section
|
|
INDENTURE Section
|
|
Section
310(a)(1)
|
|
Section
6.9
|
|
(a)(2)
|
|
Section
6.9
|
|
(a)(3)
|
|
Not
Applicable
|
|
(a)(4)
|
|
Not
Applicable
|
|
(b)
|
|
Section
6.8
|
|
|
|
Section
6.10
|
|
Section
311(a)
|
|
Section
6.13
|
|
(b)
|
|
Section
6.13
|
|
Section
312(a)
|
|
Section
7.1
|
|
|
|
Section
7.2
|
|
(b)
|
|
Section
7.2
|
|
(c)
|
|
Section
7.2
|
|
Section
313(a)
|
|
Section
7.3
|
|
(b)
|
|
Section
7.3
|
|
(c)
|
|
Section
7.3
|
|
(d)
|
|
Section
7.3
|
|
Section
314(a)
|
|
Section
7.4
|
|
(a)(4)
|
|
Section
10.4
|
|
(b)
|
|
Not
Applicable
|
|
(c)(1)
|
|
Section
1.2
|
|
(c)(2)
|
|
Section
1.2
|
|
(c)(3)
|
|
Not
Applicable
|
|
(d)
|
|
Not
Applicable
|
|
(e)
|
|
Section
1.2
|
|
Section
315(a)
|
|
Section
6.1
|
|
(b)
|
|
Section
6.2
|
|
(c)
|
|
Section
6.1
|
|
(d)
|
|
Section
6.1
|
|
(e)
|
|
Section
5.13
|
|
Section
316(a)
|
|
Section
5.11
|
|
(a)(1)(A)
|
|
Section 5.2
Section 5.11
|
|
(a)(1)(B)
|
|
Section
5.12
|
|
(a)(2)
|
|
Not
Applicable
|
|
(b)
|
|
Section
5.8
|
|
(c)
|
|
Section
1.4
|
|
Section
317(a)(1)
|
|
Section
5.3
|
|
(a)(2)
|
|
Section
5.4
|
|
(b)
|
|
Section
10.3
|
|
Section
318(a)
|
|
Section
1.7
|
NOTE:
This reconciliation and tie shall not, for any purpose, be deemed
to be a part of this Indenture.
i
TABLE OF CONTENTS
|
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
|
1
|
|
|
1.1
|
Definitions.
|
1
|
|
1.2
|
Compliance
Certificates and Opinions.
|
6
|
|
1.3
|
Form
of Documents Delivered to Trustee.
|
6
|
|
1.4
|
Acts
of Holders; Record Dates.
|
7
|
|
1.5
|
Notices,
Etc., to Trustee and Company.
|
8
|
|
1.6
|
Notice
to Holders; Waiver.
|
9
|
|
1.7
|
Conflict
with Trust Indenture Act.
|
9
|
|
1.8
|
Effect
of Headings and Table of Contents.
|
9
|
|
1.9
|
Successors
and Assigns.
|
9
|
|
1.10
|
Separability
Clause.
|
9
|
|
1.11
|
Benefits
of Indenture.
|
10
|
|
1.12
|
Governing
Law.
|
10
|
|
1.13
|
Legal
Holidays.
|
10
|
|
1.14
|
No
Recourse Against Others.
|
10
|
|
1.15
|
WAIVER
OF JURY TRIAL.
|
10
|
|
1.16
|
Submission
to Jurisdiction.
|
10
|
|
ARTICLE II SECURITY FORMS
|
11
|
|
|
2.1
|
Forms
Generally.
|
11
|
|
2.2
|
Form
of Legend for Global Securities.
|
11
|
|
2.3
|
Form
of Trustee’s Certificate of Authentication.
|
12
|
|
ARTICLE III THE SECURITIES
|
12
|
|
|
3.1
|
Amount
Unlimited; Issuable in Series.
|
12
|
|
3.2
|
Denominations.
|
15
|
|
3.3
|
Execution,
Authentication, Delivery and Dating.
|
15
|
|
3.4
|
Temporary
Securities.
|
16
|
|
3.5
|
Registration,
Registration of Transfer and Exchange.
|
16
|
|
3.6
|
Mutilated,
Destroyed, Lost and Stolen Securities.
|
18
|
|
3.7
|
Payment
of Interest; Interest Rights Preserved.
|
18
|
|
3.8
|
Persons
Deemed Owners.
|
19
|
|
3.9
|
Cancellation.
|
19
|
|
3.10
|
Computation
of Interest.
|
19
|
|
3.11
|
CUSIP
Numbers.
|
20
|
|
3.12
|
Original
Issue Discount.
|
20
|
|
ARTICLE IV SATISFACTION AND DISCHARGE
|
20
|
|
|
4.1
|
Satisfaction
and Discharge of Indenture.
|
20
|
|
4.2
|
Application
of Trust Money.
|
21
|
|
ARTICLE V REMEDIES
|
21
|
|
|
5.1
|
Events
of Default.
|
21
|
|
5.2
|
Acceleration
of Maturity; Rescission and Annulment.
|
22
|
|
5.3
|
Collection
of Indebtedness and Suits for Enforcement by Trustee.
|
23
|
|
5.4
|
Trustee
May File Proofs of Claim.
|
24
|
|
5.5
|
Trustee
May Enforce Claims Without Possession of Securities.
|
24
|
|
5.6
|
Application
of Money Collected.
|
24
|
|
5.7
|
Limitation
on Suits.
|
24
|
|
5.8
|
Unconditional
Right of Holders to Receive Principal, Premium and Interest and to
Convert Securities.
|
25
|
|
5.9
|
Rights
and Remedies Cumulative.
|
25
|
ii
|
5.10
|
Delay
or Omission Not Waiver.
|
25
|
|
5.11
|
Control
by Holders.
|
25
|
|
5.12
|
Waiver
of Past Defaults.
|
26
|
|
5.13
|
Undertaking
for Costs.
|
26
|
|
5.14
|
Waiver
of Usury, Stay or Extension Laws.
|
26
|
|
5.15
|
Restoration
of Rights and Remedies.
|
26
|
|
ARTICLE VI THE TRUSTEE
|
26
|
|
|
6.1
|
Certain
Duties and Responsibilities of Trustee.
|
26
|
|
6.2
|
Notice
of Defaults.
|
27
|
|
6.3
|
Certain
Rights of Trustee.
|
27
|
|
6.4
|
Not
Responsible for Recitals or Issuance of Securities.
|
29
|
|
6.5
|
May
Hold Securities.
|
29
|
|
6.6
|
Money
Held in Trust.
|
29
|
|
6.7
|
Compensation
and Reimbursement.
|
29
|
|
6.8
|
Conflicting
Interests.
|
30
|
|
6.9
|
Corporate
Trustee Required; Eligibility.
|
30
|
|
6.10
|
Resignation
and Removal; Appointment of Successor.
|
30
|
|
6.11
|
Acceptance
of Appointment by Successor.
|
31
|
|
6.12
|
Merger,
Conversion, Consolidation or Succession to Business.
|
32
|
|
6.13
|
Preferential
Collection of Claims Against Company.
|
32
|
|
6.14
|
Appointment
of Authenticating Agent.
|
32
|
|
ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND
COMPANY
|
33
|
|
|
7.1
|
Company
to Furnish Trustee Names and Addresses of Holders.
|
33
|
|
7.2
|
Preservation
of Information; Communications to Holders.
|
34
|
|
7.3
|
Reports
by Trustee.
|
34
|
|
7.4
|
Reports
by Company.
|
34
|
|
ARTICLE VIII CONSOLIDATION, MERGER AND SALE OF ASSETS
|
34
|
|
|
8.1
|
Company
May Merge or Transfer Assets Only on Certain Terms.
|
34
|
|
8.2
|
Successor
Corporation Substituted.
|
35
|
|
ARTICLE IX SUPPLEMENTAL INDENTURES
|
35
|
|
|
9.1
|
Supplemental
Indentures Without Consent of Holders.
|
35
|
|
9.2
|
Supplemental
Indentures With Consent of Holders.
|
36
|
|
9.3
|
Execution
of Supplemental Indentures.
|
37
|
|
9.4
|
Effect
of Supplemental Indentures.
|
37
|
|
9.5
|
Conformity
with Trust Indenture Act.
|
37
|
|
9.6
|
Reference
in Securities to Supplemental Indentures.
|
38
|
|
ARTICLE X COVENANTS
|
38
|
|
|
10.1
|
Payment
of Principal, Premium, if any, and Interest.
|
38
|
|
10.2
|
Maintenance
of Office or Agency.
|
38
|
|
10.3
|
Money
for Securities Payments to Be Held in Trust.
|
39
|
|
10.4
|
Statement
by Officers as to Default.
|
39
|
|
10.5
|
Waiver
of Certain Covenants.
|
39
|
|
ARTICLE XI REDEMPTION OF SECURITIES
|
40
|
|
|
11.1
|
Applicability
of Article.
|
40
|
|
11.2
|
Election
to Redeem; Notice to Trustee.
|
40
|
|
11.3
|
Selection
by Trustee of Securities to Be Redeemed.
|
40
|
|
11.4
|
Notice
of Redemption.
|
41
|
|
11.5
|
Deposit
of Redemption Price.
|
42
|
|
11.6
|
Securities
Payable on Redemption Date.
|
42
|
|
11.7
|
Securities
Redeemed in Part.
|
42
|
iii
|
ARTICLE XII SINKING FUNDS
|
42
|
|
|
12.1
|
Applicability
of Article.
|
42
|
|
12.2
|
Satisfaction
of Sinking Fund Payments with Securities.
|
43
|
|
12.3
|
Redemption
of Securities for Sinking Fund.
|
43
|
|
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
|
43
|
|
|
13.1
|
Company’s
Option to Effect Defeasance or Covenant Defeasance.
|
43
|
|
13.2
|
Defeasance
and Discharge.
|
43
|
|
13.3
|
Covenant
Defeasance.
|
44
|
|
13.4
|
Conditions
to Defeasance or Covenant Defeasance.
|
44
|
|
13.5
|
Deposited
Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.
|
45
|
|
13.6
|
Reinstatement.
|
46
|
|
ARTICLE XIV REPAYMENT AT THE OPTION OF HOLDERS
|
46
|
|
|
14.1
|
Applicability
of Article.
|
46
|
|
14.2
|
Repayment
of Securities.
|
46
|
|
14.3
|
Exercise
of Option.
|
46
|
|
14.4
|
When
Securities Presented for Repayment Become Due and
Payable.
|
47
|
|
14.5
|
Securities
Repaid in Part.
|
47
|
iv
INDENTURE, dated as
of [_____________________], between WidePoint Corporation, a
corporation duly organized and existing under the laws of the State
of Delaware (herein called the “Company”), and [Name of
Trustee], a national banking association duly organized and
existing under the laws of the United States, as Trustee (herein
called the “Trustee”).
RECITALS OF THE COMPANY
The
Company has duly authorized
the execution and delivery of this Indenture to provide for the
issuance from time to time of its debt securities (herein called
the “Securities”), to be
issued in one or more series as in this Indenture
provided.
All
things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE,
THIS INDENTURE WITNESSETH:
For and
in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
OF GENERAL
APPLICATION
1.1
Definitions.
For all
purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the
terms defined in this Article I have the meanings assigned to them
in this Article I and include the plural as well as the
singular;
(2) all
other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all
accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(4) unless
the context otherwise requires, any reference to an
“Article” or a “Section” refers to an
Article or a Section, as the case may be, of this
Indenture;
(5) the
words “herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(6)
“including” means including without
limitation;
(7)
“or” is inclusive;
(8) references
to statutes are to be construed as including all statutory
provisions consolidating, amending or replacing the statute
referred to;
(9) when
used with respect to any Security, the words “convert,”
“converted” and “conversion” are intended
to refer to the right of the Holder or the Company to convert or
exchange such Security into or for securities or other property in
accordance with such terms, if any, as may hereafter be specified
for such Security as contemplated by Section 3.1, and these
words are not intended to refer to any right of the Holder or the
Company to exchange such Security for other Securities of the same
series and like tenor pursuant to Section 3.4 Section 3.5,
Section 3.6, Section 9.6 or Section 11.7 or another
similar provisions of this Indenture, unless the context otherwise
requires; and references herein to the terms of any Security that
may be converted mean such terms as may be specified for such
Security as contemplated in Section 3.1; and
(10) unless
otherwise provided, references to agreements and other instruments
shall be deemed to include all amendments and other modifications
to such agreements and instruments, but only to the extent such
amendments and other modifications are not prohibited by the terms
of this Indenture.
“Act,” when used with
respect to any Holder, has the meaning specified in
Section 1.4.
“Affiliate” means, with
respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For 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 a Depositary, as to any matter at any time,
the policies and procedures of such Depositary, if any, that are
applicable to such matter at such time.
“Authenticating Agent”
means any Person authorized by the Trustee pursuant to
Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
“Bankruptcy Law” has the
meaning specified in Section 5.1.
“Board of Directors” means
either the Board of Directors of the Company or any duly authorized
committee of that Board of Directors.
“Board Resolution” means a
copy of one or more resolutions certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date
of such certification and delivered to the Trustee.
“Business Day” means, when
used with respect to any Place of Payment, unless otherwise
specified as contemplated by Section 3.1, any day, other than
a Saturday or Sunday, which is not a day on which banking
institutions are authorized or obligated by law or executive order
to close in that Place of Payment.
“Commission” means the
U.S. Securities and Exchange Commission, from time to time
constituted, created under the Exchange Act, or, if at any time
after the execution 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 Person
named as the “Company” in the first paragraph of this
Indenture until a successor Person shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor
Person.
“Company Request” or
“Company
Order” means a written request or order signed in the
name of the Company by an Officer of the Company (or any Person
designated in writing by an Officer of the Company as authorized to
execute and deliver Company Requests and Company Orders), and
delivered to the Trustee.
“Corporate Trust Office”
means the principal office of the Trustee at which, at any
particular time, its corporate trust business shall be conducted
(which office is located as of the date of this Indenture at [Name
of Trustee], [Address of Trustee], or at any other time at such
other address as the Trustee may designate from time to time by
notice to the Holders).
“Covenant Defeasance” has
the meaning specified in Section 13.3.
2
“Custodian” has the
meaning specified in Section 5.1.
“Default” means any event
which is, or after notice or passage of time or both would be, an
Event of Default.
“Defaulted Interest” has
the meaning specified in Section 3.7.
“Defeasance” has the
meaning specified in Section 13.2.
“Depositary” means, with
respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by
Section 3.1.
“Event of Default” has the
meaning specified in Section 5.1.
“Exchange Act” means the
U.S. Securities Exchange Act of 1934 and any statute successor
thereto, in each case as amended from time to time.
“Expiration Date” has the
meaning specified in Section 1.4.
“GAAP” means generally
accepted accounting principles in the United States as in effect
from time to time.
“Global Security” means a
Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 202 (or such legend
as may be specified as contemplated by Section 3.1 for such
Securities).
“Holder” means a Person in
whose name a Security is registered in the Security
Register.
“Indenture” means this
instrument as originally executed and as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively. The term
“Indenture” shall also include the terms of particular
series of Securities established as contemplated by
Section 3.1.
“interest” means, when
used with respect to an Original Issue Discount Security which by
its terms bears interest only after Maturity, interest payable
after Maturity.
“Interest Payment Date”
means, when used with respect to any Security, the Stated Maturity
of an installment of interest on such Security.
“Internal Revenue Code”
means the U.S. Internal Revenue Code of 1986, as amended from time
to time.
“Maturity” means, when
used with respect to any Security, the date on which the principal
of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or
otherwise.
“Notice of Default” means
a written notice of the kind specified in
Section 5.1.
“Officer” means the Chief
Executive Officer, the Chief Financial Officer, the President, any
Vice President, the Treasurer and the Secretary, of the
Company.
3
“Officer’s
Certificate” means a certificate signed by an Officer
of the Company (or any Person designated in writing by an Officer
of the Company as authorized to execute and deliver Officer’s
Certificates) and delivered to the Trustee.
“Opinion of Counsel” means
a written opinion of counsel (who may be counsel for the Company)
and which shall be reasonably acceptable to the Trustee. The
counsel may be an employee of the Company. Opinions of Counsel
required to be delivered under this Indenture may have
qualifications customary for opinions of the type
required.
“Original Issue Discount
Security” means any Security which 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 5.2.
“Outstanding” means, when
used with respect to Securities, as of the date of determination,
all Securities theretofore authenticated and delivered under this
Indenture, except:
(1) Securities
theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation;
(2) Securities
for whose payment or redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities
as to which Defeasance has been effected pursuant to
Section 13.2;
(4) Securities
which have been paid pursuant to Section 3.6 or in exchange
for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held
by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
and
(5) Securities
as to which any property deliverable upon conversion thereof has
been delivered (or such delivery has been made available), or as to
which any other particular conditions have been satisfied, in each
case as may be provided for such Securities as contemplated in
Section 3.1;
provided, however, that in determining
whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request,
demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of
an Original Issue Discount Security which shall be deemed to be
Outstanding shall be the amount of the principal thereof which
would be due and payable as of such date upon acceleration of the
Maturity thereof to such date pursuant to Section 5.2,
(B) if, as of such date, the principal amount payable at the
Stated Maturity of a Security is not determinable, the principal
amount of such Security which shall be deemed to be Outstanding
shall be the amount as specified or determined as contemplated by
Section 3.1, (C) the principal amount of a Security
denominated in one or more foreign currencies, composite 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 3.1, of the
principal amount of such Security (or, in the case of a Security
described in clause (A) or (B) above, of the amount
determined as provided in such clause), and (D) Securities
owned by the Company or any other obligor upon the Securities 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 which a
Responsible Officer of the Trustee 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 the Securities or any Affiliate
of the Company or of such other obligor.
4
“Paying Agent” means any
Person authorized by the Company to pay the principal of or
premium, if any, or interest on any Securities on behalf of the
Company. The Company initially authorizes and appoints the Trustee
as the Paying Agent for each series of the Securities.
“Person” means any
individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof or any other entity.
“Place of Payment” means,
when used with respect to the Securities of any series, the place
or places where the principal of and premium, if any, and interest
on the Securities of such series are payable as specified as
contemplated by Section 3.1.
“Predecessor Security”
means, with respect to any particular Security, every previous
Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under
Section 3.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen
Security.
“Redemption Date” means,
when used with respect to any Security to be redeemed, the date
fixed for such redemption by or pursuant to this
Indenture.
“Redemption Price” means,
when used with respect to any Security to be redeemed, the price at
which it is to be redeemed pursuant to this Indenture.
“Regular Record Date”
means, for the interest payable on any Interest Payment Date on the
Securities of any series, the date specified for that purpose as
contemplated by Section 3.1.
“Repayment Date” means,
with used with respect to a Security to be repaid at the option of
a Holder, the date fixed for such repayment by or pursuant to this
Indenture.
“Responsible Officer”
means, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice
president, assistant secretary, senior associate, associate, trust
officer, or any other officer associated with the corporate trust
department of the Trustee customarily performing functions similar
to those performed by any of the above designated officers who
shall have direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of such person’s knowledge of and familiarity with
the particular subject.
“Securities” has the
meaning specified in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under
this Indenture.
“Securities Act” means the
U.S. Securities Act of 1933 and any statute successor thereto, in
each case as amended from time to time.
“Security Register” and
“Security
Registrar” have the respective meanings specified in
Section 3.5.
“Special Record Date”
means, for the payment of any Defaulted Interest, a date fixed by
the Trustee pursuant to Section 3.7.
“Stated Maturity” means,
when used with respect to any Security or any installment of
principal thereof or interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security
or such installment of principal or interest is due and
payable.
“Subsidiary” means a
corporation more than 50% of the outstanding voting stock of which
is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this definition, “voting
stock” means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no
senior class of stock has such voting power by reason of any
contingency.
5
“Successor” has the
meaning specified in Section 8.1 .
“Trust Indenture Act”
means the U.S. Trust Indenture Act of 1939 as in force at the date
as of which this Indenture was executed; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so
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.
“U.S. Government
Obligation” has the meaning specified in
Section 13.4(1).
“Vice President” means,
when used with respect to the Company or the Trustee, any vice
president, whether or not designated by a number or a word or words
added before or after the title “vice
president.”
1.2
Compliance
Certificates and Opinions.
Upon
any application or request by the Company 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, except
that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application
or request, no additional certificate or opinion need be furnished
by the Company.
Every
certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for certificates
provided for in Section 10.4) shall include:
(1) a
statement that each individual signing such certificate or opinion
has read such covenant or
(2) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a
statement that, in the opinion of each such individual, he or she
has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or
not such covenant or condition has been complied with;
and
(4) a
statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
1.3
Form
of Documents Delivered to Trustee.
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.
6
Any
certificate or opinion of an Officer (or any Person designated in
writing by an Officer of the Company as authorized to execute and
deliver the Securities) may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer (or any such Person designated in
writing by an Officer of the Company as authorized to execute and
deliver the Securities) knows, or in the exercise of reasonable
care should know, that the certificate or opinion or
representations with respect to the matters upon which such
Officer’s (or such Person’s) certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an Officer or
Officers of the Company (or any Person or Persons designated in
writing by an Officer of the Company as authorized to execute and
deliver the Securities) 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 or opinion or representations with
respect to such matters are erroneous. Counsel delivering an
Opinion of Counsel may also rely as to factual matters on
certificates of governmental or other officials customary for
opinions of the type required.
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.
1.4
Acts
of Holders; Record Dates.
Any
request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be
given, made or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders
signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and, subject to
Section 6.1, conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section 1.4.
The
fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Trustee reasonably
deems sufficient. Where such execution is by a Person acting in a
capacity other than such Person’s individual capacity, such
certificate or affidavit shall also constitute sufficient proof of
such Person’s authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
The
ownership of Securities shall be proved by the Security
Register.
Any
request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such
Security.
The
Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders
of Securities of such series; provided that the Company may
not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph,
the Holders of Outstanding Securities of the relevant series on
such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record
date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and
nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to
this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing
and to each Holder of Securities of the relevant series in the
manner set forth in Sections 1.5 and 1.6.
7
The
Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in
Section 5.2, (iii) any request to institute proceedings
referred to in Section 5.7(2) or (iv) any direction
referred to in Section 5.11, in each case with respect to
Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such
series on such record date, and no other Holders, shall be entitled
to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date;
provided that no
such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of
no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to
the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Sections 1.5 and
1.6.
With
respect to any record date set pursuant to this Section 1.4,
the party hereto which sets such record dates may designate any day
as the “Expiration
Date” and from time to time may change the Expiration
Date to any earlier or later day; provided that no such change
shall be effective unless notice of the proposed new Expiration
Date is given to the other party hereto in writing, and to each
Holder of Securities of the relevant series in the manner set forth
in Section 1.6, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record
date set pursuant to this Section 1.4, the party hereto which
set such record date shall be deemed to have initially designated
the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date
as provided in this paragraph.
Without
limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may
do so pursuant to such appointment with regard to all or any part
of such principal amount.
1.5
Notices,
Etc., to Trustee and Company.
Any
request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed
with,
(1) the
Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in
writing (which may be by facsimile) to or with the Trustee at its
Corporate Trust Office at the location specified in
Section 1.1; or
(2) the
Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to
the Company addressed to the attention of the Secretary of the
Company at the address of the Company’s principal office
specified in writing to the Trustee by the Company and, until
further notice, at WidePoint Corporation 11250 Waples Mill Road,
South Tower 210, Fairfax, Virginia 22030, fax number:
(____) _________________, Attention:
____________________.
8
In
addition to the foregoing, the Trustee agrees to accept and act
upon notice, instructions or directions pursuant to this Indenture
sent by unsecured e-mail, facsimile transmission or other similar
unsecured electronic methods. If the party elects to give the
Trustee e-mail or facsimile instructions (or instructions by a
similar electronic method) and the Trustee in its discretion elects
to act upon such instructions, the Trustee’s understanding of
such instructions shall be deemed controlling. The Trustee shall
not be liable for any losses, costs or expenses arising directly or
indirectly from the Trustee’s reliance upon and compliance
with such instructions notwithstanding such instructions conflict
or are inconsistent with a subsequent written instruction. The
party providing electronic instructions agrees to assume all risks
arising out of the use of such electronic methods to submit
instructions and directions to the Trustee, including without
limitation the risk of the Trustee acting on unauthorized
instructions, and the risk or interception and misuse by third
parties.
1.6
Notice
to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at such
Holder’s address as it appears in the Security Register, not
later than the latest date, if any, and not earlier than the
earliest date, if any, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Any notice when mailed
to a Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not actually received
by such Holder. 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.
In case
by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every
purpose hereunder.
Where
this Indenture provides for notice of any event to a Holder of a
Global Security, such notice shall be sufficiently given if given
to the Depositary for such Security (or its designee), pursuant to
the Applicable Procedures of the Depositary, not later than the
latest date, if any, and not earlier than the earliest date, if
any, prescribed for the giving of such notice.
1.7
Conflict
with Trust Indenture Act.
If any
provision of this Indenture limits, qualifies or conflicts with a
provision of the Trust Indenture Act which 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 which may be so
modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the case may
be.
1.8
Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction
hereof.
1.9
Successors
and Assigns.
All
covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not. All
agreements of the Trustee in this Indenture shall bind its
successors and assigns, whether so expressed or not.
1.10
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.
9
1.11
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.
1.12
Governing
Law.
This
Indenture and the Securities shall be governed by, and construed in
accordance with, the law of the State of New York.
1.13
Legal
Holidays.
In any
case where any Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity of any Security, or any date on which a
Holder has the right to convert such Holder’s Security, shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this
Section 1.13)) payment of principal and premium, if any, or
interest, or the Redemption Price or conversion of such Security,
shall not be made at such Place of Payment on such date, but shall
be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date or Repayment Date, or at the Stated
Maturity, or on such conversion date. No interest shall accrue for
the period from and after any such Interest Payment Date,
Redemption Date, Repayment Date, Stated Maturity or conversion
date, as the case may be, to the date of such payment.
1.14
No
Recourse Against Others.
No
recourse shall be had for the payment of principal of, or premium,
if any, or interest, if any, on any Security of any series, or for
any claim based thereon, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the
Company or any successor corporation of the Company, either
directly or indirectly through the Company or any successor
corporation of the Company, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment of
penalty or otherwise; it being expressly agreed and understood that
this Indenture and all the Securities of each series are solely
corporate obligations, and that no personal liability whatsoever
shall attach to, or is incurred by, any incorporator, shareholder,
officer or director, past, present or future, of the Company or of
any successor corporation of the Company, either directly or
indirectly through the Company or any successor corporation of the
Company, because of the incurring of the indebtedness hereby
authorized or under or by reason of any of the obligations,
covenants or agreements contained in this Indenture or in any of
the Securities of any series, or to be implied herefrom or
therefrom; and that all such personal liability is hereby expressly
released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance
of the Securities of each series.
1.15
WAIVER
OF JURY TRIAL.
EACH OF
THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING AS BETWEEN THE COMPANY AND
THE TRUSTEE ONLY ARISING OUT OF OR RELATING TO THIS INDENTURE OR
THE SECURITIES.
1.16
Submission
to Jurisdiction.
The
Company hereby irrevocably submits to the jurisdiction of any New
York State court sitting in the Borough of Manhattan in the City of
New York or any federal court sitting in the Borough of Manhattan
in the City of New York in respect of any suit, action or
proceeding arising out of or relating to this Indenture and the
Securities, and irrevocably accepts for itself and in respect of
its property, generally and unconditionally, jurisdiction of the
aforesaid courts.
10
ARTICLE II
SECURITY
FORMS
2.1
Forms
Generally.
The
Securities of each series shall be in substantially such form or
forms as shall be established by or pursuant to a Board Resolution
or, subject to Section 3.3, set forth in, or determined in the
manner provided in, an Officer’s Certificate pursuant to a
Board Resolution, or in one or more indentures supplemental hereto,
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 legends or endorsements placed thereon
as may be required to comply with applicable tax laws or the rules
of any securities exchange or Depositary therefor or as may,
consistently herewith, be determined by the Officer (or any Person
designated in writing by an Officer of the Company as authorized to
execute and deliver the Securities) executing such Securities, as
evidenced by his or her execution thereof. If the form of
Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.3 for
the authentication and delivery of such Securities. If all of the
Securities of any series established by action taken pursuant to a
Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a record of such action at the time of
issuance of each Security of such series, but an appropriate record
of such action shall be delivered at or before the time of issuance
of the first Security of such series.
The
definitive Securities shall be printed, lithographed or engraved or
may be produced in any other manner, all as determined by the
Officer (or any Person designated in writing by an Officer of the
Company as authorized to execute and deliver the Securities)
executing such Securities, as evidenced by his or her execution of
such Securities.
2.2
Form
of Legend for Global Securities.
Unless
otherwise specified as contemplated by Section 3.1 for the
Securities evidenced thereby or as required by Applicable
Procedures, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following
form:
[Insert, if applicable — UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.]
[Insert, if applicable — THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
REFERRED TO HEREIN AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR
A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR
IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY
IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
11
2.3
Form
of Trustee’s Certificate of Authentication.
The
Trustee’s certificates of authentication shall be in
substantially the following form:
This is
one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
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[Name of
Trustee], as Trustee
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By:
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Authorized
Signatory
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ARTICLE III
THE
SECURITIES
3.1
Amount
Unlimited; Issuable in Series.
The
aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The
Securities may be issued in one or more series. There shall be
established in or pursuant to (a) a Board Resolution or
pursuant to authority granted by a Board Resolution and, subject to
Section 3.3, set forth, or determined in the manner provided,
in an Officer’s Certificate, or (b) one or more
indentures supplemental hereto, prior to the issuance of Securities
of any series:
(1) the
title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other
series);
(2) the
limit, if any, on the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.4,
Section 3.5, Section 3.6, Section 9.6,
Section 11.7 or Section 14.5 and except for any
Securities which, pursuant to Section 3.3, are deemed never to
have been authenticated and delivered hereunder); 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 to such
effect;
(3) the
price or prices at which the Securities will be sold;
(4) the
Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(5) the
date or dates on which the principal and premium, if any, of any
Securities of the series is payable or the method used to determine
or extend those dates;
(6) the
rate or rates at which any Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which any such interest shall
accrue, or the method by which such date or dates shall be
determined, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date, if any, for any such
interest payable on any Interest Payment Date, or the method by
which such date or dates shall be determined, and the basis upon
which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months, the right, if any, to extend or defer
interest payments and the duration of
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(7) the
place or places where the principal of and any premium and interest
on any Securities of the series shall be payable, the place or
places where the Securities of such series may be presented for
registration of transfer or exchange, the place or places where
notices and demands to or upon the Company in respect of the
Securities of such series may be made and the manner in which any
payment may be made;
(8) the
period or periods within which or the date or dates on which, the
price or prices at which, the currency or currency units in which,
and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in
which any election by the Company to redeem the Securities shall be
evidenced;
(9) the
obligation or the right, if any, of the Company to redeem or
purchase any Securities of the series pursuant to any sinking fund,
amortization or analogous provisions or at the option of the Holder
thereof and the period or periods within which, the price or prices
at which, the currency or currency units in which, and the terms
and conditions upon which any Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(10) if
other than denominations of $2,000 and any integral multiple of
$1,000 in excess thereof, the denominations in which any Securities
of the series shall be issuable;
(11) if
other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(12) if
the amount of principal of or premium, if any, or interest on any
Securities of the series may be determined with reference to a
financial or economic measure or index or pursuant to a formula,
the manner in which such amounts shall be determined;
(13) if
other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or
premium, if any, or interest on any Securities of the series shall
be payable and the manner of determining the equivalent thereof in
the currency of the United States of America for any purpose,
including for purposes of the definition of “Outstanding” in
Section 1.1;
(14) if
the principal of or premium, if any, or interest on any Securities
of the series is to be payable, at the election of the Company or
the Holder thereof, in one or more currencies or currency units
other than that or those in which such Securities are stated to be
payable, the currency, currencies or currency units in which the
principal of or premium, if any, or interest on such Securities as
to which such election is made shall be payable, the periods within
which or the dates on which and the terms and conditions upon which
such election is to be made and the amount so payable (or the
manner in which such amount shall be determined);
(15) if
the provisions of Section 4.1 relating to the satisfaction and
discharge of this Indenture shall apply to the Securities of that
series; or if provisions for the satisfaction and discharge of this
Indenture other than as set forth in Section 4.1 shall apply
to the Securities of that series;
(16) if
other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2 or the method by which such portion
shall be determined;
(17) if
the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the
principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to
be Outstanding as of any date prior to the Stated Maturity (or, in
any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
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(18) if
other than by a Board Resolution, the manner in which any election
by the Company to defease any Securities of the series pursuant to
Section 13.2 or Section 13.3 shall be evidenced; whether
any Securities of the series other than Securities denominated in
U.S. dollars and bearing interest at a fixed rate are to be subject
to Section 13.2 or Section 13.3; or, in the case of
Securities denominated in U.S. dollars and bearing interest at a
fixed rate, if applicable, that the Securities of the series, in
whole or any specified part, shall not be defeasible pursuant to
Section 13.2 or Section 13.3 or both such
Sections;
(19) if
applicable, that any Securities of the series shall 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, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set
forth in Section 2.2 and any circumstances in addition to or
in lieu of those set forth in clause (2) of the last paragraph
of Section 3.5 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;
(20) any
addition to, deletion from or change in the Events of Default which
applies to any Securities of the series and any change in the right
of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to
Section 5.2;
(21) any
addition to, deletion from or change in the covenants set forth in
Article X which applies to Securities of the series;
(22) the
terms of any right to convert or exchange Securities of such series
into any other securities or property of the Company or of any
other corporation or Person, and the additions or changes, if any,
to this Indenture with respect to the Securities of such series to
permit or facilitate such conversion or exchange;
(23)
whether the Securities of the
series will be guaranteed by any Person or Persons and, if so, the
identity of such Person or Persons, the terms and conditions upon
which such Securities shall be guaranteed and, if applicable, the
terms and conditions upon which such guarantees may be subordinated
to other indebtedness of the respective guarantors;
(24) whether
the Securities of the series will be secured by any collateral and,
if so, the terms and conditions upon which such Securities shall be
secured and, if applicable, upon which such liens may be
subordinated to other liens securing other indebtedness of the
Company or any guarantor;
(25) whether
the Securities will be issued in a transaction registered under the
Securities Act and any restriction or condition on the
transferability of the Securities of such series;
(26) the
exchanges, if any, on which the Securities may be listed;
and
(27) any
other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by
Section 9.1).
All
Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above or
pursuant to authority granted by one or more Board Resolutions and,
subject to Section 3.3, set forth, or determined in the manner
provided, in the Officer’s Certificate referred to above or
in any such indenture supplemental hereto. All Securities of any
one series need not be issued at one time and, unless otherwise
provided in or pursuant to the Board Resolution referred to above
and, subject to Section 3.3, set forth, or determined in the
manner provided, in the Officer’s Certificate referred to
above or pursuant to authority granted by one or more Board
Resolutions or in any such indenture supplemental hereto with
respect to a series of Securities, additional Securities of a
series may be issued, at the option of the Company, without the
consent of any Holder, at any time and from time to
time.
If any
of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officer’s Certificate setting forth
the terms of the series.
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3.2
Denominations.
The
Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be
specified as contemplated by Section 3.1. In the absence of
any such specified denomination with respect to the Securities of
any series, the Securities of such series shall be issuable in
denominations of $2,000 and any integral multiple of $1,000 in
excess thereof.
3.3
Execution,
Authentication, Delivery and Dating.
The
Securities shall be executed on behalf of the Company by an Officer
of the Company (or any Person designated in writing by an Officer
of the Company as authorized to execute and deliver the
Securities). The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing
the manual or facsimile signatures of individuals who were at any
time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such
Securities.
At any
time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with an Officer’s Certificate and a Company Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the
series have been established by or pursuant to one or more Board
Resolutions or pursuant to authority granted by one or more Board
Resolutions as permitted by Section 2.1 and Section 3.1,
in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be provided with, and, subject to
Section 6.1, shall be fully protected in relying upon, an
Opinion of Counsel stating,
(1) if
the form of such Securities has been established by or pursuant to
Board Resolution or pursuant to authority granted by one or more
Board Resolutions as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this
Indenture;
(2) that
such Securities, when authenticated by the Trustee and issued and
delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors’ rights generally, (ii) general equitable
principles and (iii) an implied covenant of good faith and
fair dealing.
If such
form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will materially adversely
affect the Trustee’s own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Notwithstanding the
provisions of Section 3.1 and of the preceding paragraph of
this Section 3.3, if all Securities of a series are not to be
originally issued at one time, including in the event that the
aggregate principal amount of a series of Outstanding Securities is
increased as contemplated by Section 301, it shall not be
necessary to deliver the Officer’s Certificate, Board
Resolution or supplemental indenture otherwise required pursuant to
Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to this Section 3.3 at or prior to
the 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.
Each
Security shall be dated the date of its
authentication.
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No
Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature,
and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and
the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of
this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
3.4
Temporary
Securities.
Pending
the preparation of definitive Securities of any series, the Company
may execute, and, upon Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the
definitive Securities of such series in lieu of which they are
issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities.
If
temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same
series, of any authorized denominations and of like tenor and
aggregate principal amount. 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 and tenor.
3.5
Registration,
Registration of Transfer and Exchange.
The
Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the
“Security
Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The
Trustee is hereby appointed “Security Registrar” for
the purpose of registering Securities and transfers of Securities
as herein provided.
Upon
surrender for registration of transfer of any Security of a series
at the office or agency of the Company in a Place of Payment for
such series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of
any authorized denominations and of like tenor and principal
amount.
At the
option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized
denominations and of like tenor and principal amount, upon
surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
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 Security
Registrar duly executed, by the Holder thereof or such
Holder’s attorney duly authorized in writing.
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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, other than exchanges pursuant to
Section 3.4, Section 9.6, Section 11.7 or
Section 14.5 not involving any transfer.
If the
Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required
(A) to issue, register the transfer of or exchange any
Securities of such series (or of such series and specified tenor,
as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under
Section 11.3 and ending at the close of business on the day of
such mailing, or (B) to 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.
The
provisions of clauses (1), (2), (3) and (4) of this
paragraph shall apply only to Global Securities:
(1) Each
Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of
this Indenture.
(2) Notwithstanding
any other provision in this Indenture, and subject to such
applicable provisions, if any, as may be specified as contemplated
by Section 3.1, no Global Security may be exchanged in whole
or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Security or a
nominee thereof unless (A) such Depositary has notified the
Company that it is unwilling or unable or no longer permitted under
applicable law to continue as Depositary for such Global Security,
(B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security, (C) the Company
so directs the Trustee by a Company Order or (D) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated
by Section 3.1.
(3) Subject
to clause (2) above, and subject to such applicable
provisions, if any, as may be specified as contemplated by
Section 3.1, any exchange of a Global Security for other
Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof
shall be registered in such names as the Depositary for such Global
Security shall direct.
(4) Every
Security authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section 3.4,
Section 3.5, Section 3.6, Section 9.6,
Section 11.7 or Section 14.5 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a
nominee thereof.
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.
Neither
the Trustee nor any agent of the Trustee shall have any
responsibility for any actions taken or not taken by the
Depositary.
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3.6
Mutilated,
Destroyed, Lost and Stolen Securities.
If any
mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall 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 and shall cancel and dispose of such mutilated security
in accordance with its customary procedures.
If
there shall be delivered to the Company and the Trustee
(1) evidence to their satisfaction of the destruction, loss or
theft of any Security and (2) such security or indemnity as
may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the
Company shall execute and 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 3.6, 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
counsel to the Company and the fees and expenses of the Trustee and
its counsel) connected therewith.
Every
new Security of any series issued pursuant to this Section 3.6
in lieu of any mutilated, destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the mutilated, 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 such series
duly issued hereunder.
The
provisions of this Section 3.6 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.
3.7
Payment
of Interest; Interest Rights Preserved.
Except
as otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Security which
is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest.
Any
interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in
each case, as provided in clause (1) or
(2) below:
(1) The
Company may elect to make payment of any Defaulted Interest payable
on Securities of a series 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 shall
be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each 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 satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee in consultation with 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 not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given
to each Holder of Securities of such series in the manner set forth
in Section 1.6, 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
mailed, 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 and shall no longer be payable pursuant to
the following clause (b).
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(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 securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
Subject
to the foregoing provisions of this Section 3.7, 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.
In the
case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date
(other than any Security whose Maturity is prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not
punctually paid or made available for payment) 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 such Regular
Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Security which
is converted, interest whose Stated Maturity is after the date of
conversion of such Security shall not be payable. Notwithstanding
the foregoing, the terms of any Security that may be converted may
provide that the provisions of this paragraph do not apply, or
apply with such additions, changes or omissions as may be provided
thereby, to such Security.
3.8
Persons
Deemed Owners.
Prior
to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and, subject to Section 3.7,
any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
3.9
Cancellation.
All
Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion or for credit against any
sinking fund payment 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 which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued
and sold, 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 3.9, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be
disposed of in accordance with its customary procedures. The
Trustee shall provide the Company a list of all Securities that
have been cancelled from time to time as requested by the
Company.
3.10
Computation
of Interest.
Except
as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day
months.
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3.11
CUSIP
Numbers.
The
Company in issuing any series of the Securities may use
“CUSIP” or “ISIN” numbers and/or other
similar numbers, if then generally in use, and thereafter with
respect to such series, the Trustee may use such numbers in any
notice of redemption with respect to such series; provided that any such notice
may state that no representation is made as to the correctness of
such numbers either as printed on the Securities of such series or
as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the
Securities of such series, and any such redemption shall not be
affected by any defect in or omission of such numbers.
3.12
Original
Issue Discount.
If any
of the Securities is an Original Issue Discount Security, the
Company shall file with the Trustee promptly at the end of each
calendar year (1) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods)
accrued on such Outstanding Original Issue Discount Securities as
of the end of such year and (2) such other specific
information relating to such original issue discount as may then be
relevant under the Internal Revenue Code.
ARTICLE IV
SATISFACTION AND
DISCHARGE
4.1
Satisfaction
and Discharge of Indenture.
This
Indenture shall, upon Company Request, cease to be of further
effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration
of transfer or exchange of Securities of such series herein
expressly provided for), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series,
when:
(1) either
(A) all
Securities of such series theretofore authenticated and delivered
(other than (i) Securities which have been mutilated,
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all
such Securities of such series not theretofore delivered to the
Trustee for cancellation
(i)
have become due and
payable, or
(ii)
will become due and payable at their
Stated Maturity within one year of the date of deposit,
or
(iii)
are to be called
for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the
Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and premium, if any, and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the
Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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(3) 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.
Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of
the Company to the Trustee under Section 6.7 and, if money
shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section 4.1, the
obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive such satisfaction and
discharge.
4.2
Application
of Trust Money.
Subject
to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall
be held in trust and applied by it, in accordance with the
provisions of the applicable series of Securities and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the
principal and premium, if any, and interest for whose payment such
money has been deposited with the Trustee. All money deposited with
the Trustee pursuant to Section 4.1 (and held by it or any
Paying Agent) for the payment of Securities subsequently converted
into other property shall be returned to the Company upon Company
Request. The Company may direct by a Company Order the investment
of any money deposited with the Trustee pursuant to
Section 4.1, without distinction between principal and income,
in (1) United States Treasury securities with a maturity of
one year or less or (2) a money market fund that invests
solely in short-term United States Treasury securities (including
money market funds for which the Trustee or an affiliate of the
Trustee serves as investment advisor, administrator, shareholder,
servicing agent and/or custodian or sub-custodian, notwithstanding
that (a) the Trustee charges and collects fees and expenses
from such funds for services rendered and (b) the Trustee
charges and collects fees and expenses for services rendered
pursuant to this Indenture at any time) and from time to time the
Company may direct the reinvestment of all or a portion of such
money in other securities or funds meeting the criteria specified
in clause (1) or (2) of this
Section 4.2.
ARTICLE V
REMEDIES
5.1
Events
of Default.
Except
as may be otherwise provided pursuant to Section 3.1 for
Securities of any series, an “Event of Default” means,
whenever used herein or in a Security issued hereunder with respect
to Securities of any series, any one of the following events
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) the
Company defaults in the payment of any installment of interest on
any Security of such series for 30 days after becoming
due;
(2) the
Company defaults in the payment of the principal of or premium, if
any, on any Security of such series when the same becomes due and
payable at its Stated Maturity, upon optional redemption, upon
declaration or otherwise;
(3) the
Company defaults in the performance of, or breaches any of its
covenants and agreements in respect of any Security of such series
contained in this Indenture or in the Securities of such series
(other than a covenant or agreement, a default in the performance
of which or a breach of which is elsewhere in this Section
specifically dealt with or that has expressly been included in this
Indenture solely for the benefit of a series of Securities other
than that series), and such default or breach continues for a
period of 90 days after the notice specified below;
(4) the
Company, pursuant to or within the meaning of the Bankruptcy Law
(as defined below):
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(A) commences
a voluntary case or proceeding;
(B) consents
to the entry of an order for relief against it in an involuntary
case or proceeding;
(C) consents
to the appointment of a Custodian (as defined below) of it or for
all or substantially all of its property;
(D) makes
a general assignment for the benefit of its creditors;
(E) files
a petition in bankruptcy or answer or consent seeking
reorganization or relief;
(F) consents
to the filing of such petition or the appointment of or taking
possession by a Custodian; or
(G) takes
any comparable action under any foreign laws relating to
insolvency;
(5) a
court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is
for relief against the Company in an involuntary case, or
adjudicates the Company insolvent or bankrupt;
(B) appoints
a Custodian of the Company or for all or substantially all of the
property of the Company; or
(C) orders
the winding-up or liquidation of the Company (or any similar relief
is granted under any foreign laws)
and the
order or decree remains unstayed and in effect for 90 days;
or
(6) any
other Event of Default provided with respect to Securities of such
series occurs.
The
term “Bankruptcy
Law” means Title 11, United States Code, or any
similar federal or state or foreign law for the relief of debtors.
The term “Custodian” means any
custodian, receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
A
Default with respect to Securities of any series under clause
(3) of this Section 5.1 shall not be an Event of Default
until the Trustee (by written notice to the Company) or the Holders
of at least 25% in aggregate principal amount of the outstanding
Securities of such series (by written notice to the Company and the
Trustee) gives notice of the Default and the Company does not cure
such Default within the time specified in clause (3) after
receipt of such notice. Such notice must specify the Default,
demand that it be remedied and state that such notice is a
“Notice of
Default.”
5.2
Acceleration
of Maturity; Rescission and Annulment.
If an
Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in
Section 5.1(4) or (5) with respect to the Company) occurs and
is continuing, then in every such case the Trustee or the Holders
of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series may declare the principal
amount of all the Securities of such series (or, if any Securities
of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by
the terms thereof), together with any accrued and unpaid interest
thereon, to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon
any such declaration, such principal amount (or specified amount),
together with any accrued and unpaid interest thereon, shall become
immediately due and payable. If an Event of Default specified in
Section 5.1(4) or (5) with respect to the Securities of any
series at the time Outstanding occurs, the principal amount of all
the Securities of such series (or, in the case of any Security of
such series which specifies an amount to be due and payable thereon
upon acceleration of the Maturity thereof, such amount as may be
specified by the terms thereof), together with any accrued and
unpaid interest thereon, shall automatically, and without any
declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable. Upon payment of such
amount, all obligations of the Company in respect of the payment of
principal and interest of the Securities of such series shall
terminate.
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Except
as may otherwise be provided pursuant to Section 3.1 for all
or any specific Securities of any series, at any time after such a
declaration of acceleration with respect to the Securities of any
series has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in
this Article V provided, the Holders of 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 declaration and its consequences if:
(1) the
Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A) all
overdue interest on all Securities of such series,
(B) the
principal of and premium, if any, on any Securities of such series
which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates
prescribed therefor in the Securities of such series,
(C) to
the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all
sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all
Events of Default with respect to Securities of such series, other
than the non-payment of the principal of Securities of such series
which have become due solely by such declaration of acceleration,
have been cured or waived as provided in
Section 5.12.
No such
rescission shall affect any subsequent default or impair any right
consequent thereon.
5.3
Collection
of Indebtedness and Suits for Enforcement by Trustee.
The
Company covenants that if (1) default is made in the payment
of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days or
(2) default is made in the payment of the principal of or
premium, if any, on any Security at the Maturity thereof, the
Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If an
Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings
as the Trustee shall deem necessary to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
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5.4
Trustee
May File Proofs of Claim.
In case
of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized
under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive
any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar
official 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 it
and any predecessor Trustee under Section 6.7.
No
provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding; provided, however, that 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’ or other similar committee.
5.5
Trustee
May Enforce Claims Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, any predecessor Trustee
under Section 6.7, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
5.6
Application
of Money Collected.
Any
money collected by the Trustee pursuant to this Article V shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account
of principal or premium, if any, or interest, upon presentation of
the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully
paid:
FIRST:
To the payment of all amounts due the Trustee under
Section 6.7;
SECOND:
To the payment of the amounts then due and unpaid for principal of
and premium, if any, and interest on the Securities in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind (other than
contractual subordination agreements pursuant to the Indenture),
according to the amounts due and payable on such Securities for
principal and premium, if any, and interest, respectively;
and
THIRD:
To the payment of the remainder, if any, to the
Company.
5.7
Limitation
on Suits.
No
Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver, assignee,
trustee, liquidator or sequestrator (or similar official) or for
any other remedy hereunder, unless:
(1) Such
Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of such
series;
(2) the
Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such
Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with such request;
24
(4) the
Trustee has failed to institute any such proceeding for 60 days
after its receipt of such notice, request and offer of indemnity;
and
(5) no
direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities of such
series;
it
being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or
to seek to obtain priority or preference over any other of such
Holders (it being understood that the Trustee does not have an
affirmative duty to ascertain whether or not such actions are
unduly prejudicial to such Holders) or to enforce any right under
this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.
5.8
Unconditional
Right of Holders to Receive Principal, Premium and Interest and to
Convert Securities.
Notwithstanding any
other provision in this Indenture, the Holder of any Security shall
have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and, subject to
Section 3.7, interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of
redemption or repayment, on the Redemption Date or date for
repayment, as the case may be, and, if the terms of such Security
so provide, to convert such Security in accordance with its terms)
and to institute suit for the enforcement of any such payment and,
if applicable, any such right to convert, and such rights shall not
be impaired without the consent of such Holder.
5.9
Rights
and Remedies Cumulative.
Except
as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
5.10
Delay
or Omission Not Waiver.
No
delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and
remedy given by this Article V or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
5.11
Control
by Holders.
The
Holders of not less than 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 the Securities of
such series; provided that
(1) such
direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the
Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
25
5.12
Waiver
of Past Defaults.
The
Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except
a default
(1) in
the payment of the principal of or premium, if any, or interest on
any Security of such series, or
(2) in
respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon
any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture, but no such waiver shall
extend to any subsequent or other default or impair any right
consequent thereon.
5.13
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,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of
such suit, and may assess reasonable costs against any such party
litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this
Section 5.13 nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such
an assessment in any suit instituted by the Company or the Trustee,
a suit by a Holder under Section 5.8, or a suit by Holders of
more than 10% in aggregate principal amount of the Outstanding
Securities.
5.14
Waiver
of Usury, Stay or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury,
stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
5.15
Restoration
of Rights and Remedies.
If the
Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE VI
THE
TRUSTEE
6.1
Certain
Duties and Responsibilities of Trustee.
(1) Except
during the continuance of an Event of Default with respect to any
series of Securities,
(A) the
Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations
shall be read into this Indenture against the Trustee with respect
to such series; and
26
(B) in
the absence of bad faith on its part, the Trustee may rely with
respect to the Securities of such series, 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).
(2) In
case an Event of Default with respect to any series of Securities
has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect
to the Securities of such series, 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.
(3) 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:
(A) this
Section 6.1(3) shall not be construed to limit the effect of
Section 6.1(1);
(B) 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;
(C) he
Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series, determined as
provided in Section 1.1, Section 1.4 and
Section 5.11, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such series;
and
(D) 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.
(4) 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 6.1.
6.2
Notice
of Defaults.
If a
Default or an Event of Default occurs with respect to Securities of
any series and is continuing and if it is actually known to the
Trustee, the Trustee shall mail to each Holder of Securities of
such series notice of the Default within 90 days after it is known
to a Responsible Officer or written notice of it is received by a
Responsible Officer of the Trustee. Except in the case of a Default
in payment of principal of or interest on any Security, the Trustee
may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the
notice is not opposed to the interests of Holders of Securities of
such series.
6.3
Certain
Rights of Trustee.
Subject
to the provisions of Section 6.1:
(1) the
Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
27
(2) if
so requested by the Trustee, any request or direction of the
Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, and any resolution of the Board
of Directors shall be sufficiently evidenced by a Board
Resolution;
(3) whenever
in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an
Officer’s Certificate;
(4) the
Trustee may consult with counsel of its selection and the advice of
such 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;
(5) the
Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses
and liabilities which might be incurred by it in compliance with
such request or direction;
(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, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document, 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 to
examine the books, records and premises of the Company, personally
or by agent or attorney at the sole cost of the Company and shall
incur no liability or additional liability of any kind by reason of
such inquiry or investigation;
(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;
(8) the
rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder and to its
agents;
(9) the
Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture;
(10) in
no event shall the Trustee be responsible or liable for special,
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;
(11) 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, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services (it being understood that
the Trustee shall use reasonable efforts which are consistent with
accepted practices in the banking industry to avoid and mitigate
the effects of such occurrences and to resume performance as soon
as practicable under the circumstances);
(12) the
Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee shall have
actual knowledge thereof or unless written notice of any event
which is in fact such a default shall have been received by the
Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture;
and
28
(13) 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.
6.4
Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities, except the
Trustee’s certificates of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture
or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
6.5
May
Hold Securities.
The
Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to
Section 6.8 and Section 6.13, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
6.6
Money
Held in Trust.
Money
held by the Trustee in trust hereunder shall, until used or applied
as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except
as otherwise agreed with the Company.
6.7
Compensation
and Reimbursement.
The
Company agrees
(1) to
pay to the Trustee from time to time such reasonable compensation
as shall be agreed to in writing between the Company and the
Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except
as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation
and the reasonable expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as shall
have been caused by its negligence or willful misconduct, and the
Trustee shall provide the Company reasonable notice of any
expenditure not in the ordinary course of business;
and
(3) to
indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or willful
misconduct on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The
Trustee shall notify the Company promptly of any claim for which it
may seek indemnity.
When
the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.1(4) or (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 federal
or state bankruptcy, insolvency or other similar law.
The
Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or
any predecessor Trustee pursuant to this Section 6.7, except
with respect to funds held in trust for the benefit of the Holders
of Securities.
29
The
provisions of this Section 6.7 shall survive the termination
of this Indenture and the resignation or removal of the
Trustee.
6.8
Conflicting
Interests.
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 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.
6.9
Corporate
Trustee Required; Eligibility.
There
shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee
shall be a Person that is eligible pursuant to the Trust Indenture
Act to act as such, has a combined capital and surplus of at least
$50,000,000 and has its Corporate Trust Office in the Borough of
Manhattan, The City of New York or any other major city in the
United States that is acceptable to the Company. If any such Person
publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority,
then for the purposes of this Section 6.9 and to the extent
permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent annual report of
condition so published. If at any time the Trustee with respect to
the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section 6.9, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article VI.
6.10
Resignation
and Removal; Appointment of Successor.
No
resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article VI shall become
effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of
Section 6.11.
The
Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee, at the expense of the Company, may petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The
Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series, upon
written notice delivered to the Trustee and to the Company. If the
instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of removal, the
Trustee being removed, at the expense of the Company, may petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
If at
any time:
(1) the
Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a
bona fide Holder of a
Security for at least six months, or
(2) the
Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company or by
any such Holder, or
30
(3) the
Trustee shall become incapable of acting or shall be adjudged
bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then,
in any such case, (A) the Company may remove the Trustee with
respect to all Securities or (B) subject to Section 5.13,
Holders of 10% in aggregate principal amount of Securities of any
series who have been bona
fide Holders of such Securities for at least six months may,
on behalf of themselves and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor
Trustee or Trustees.
If the
Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company
shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities
of any particular series) and shall comply with the applicable
requirements of Section 6.11. If a successor Trustee with
respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 6.11, Holders of 10% in aggregate principal amount of
Securities of any series who have been bona fide Holders of Securities of such
series for at least six months may, on behalf of themselves and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The
Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities
of any series to all Holders of Securities of such series in the
manner provided in Section 1.6. Each notice shall include the
name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust
Office.
6.11
Acceptance
of Appointment by Successor.
In case
of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee a written instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee, but, on the
request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver a
written instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case
of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary 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 Trustees 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; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.
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Upon
request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as
the case may be.
No
successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and
eligible under this Article VI.
6.12
Merger,
Conversion, Consolidation or Succession to Business.
Any
corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder; provided that such corporation
shall be otherwise qualified and eligible under this Article VI,
without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion, consolidation or sale
to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities;
and in case at that time any Securities shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in
the Securities or in this Indenture provided that the certificate
of the Trustee shall have.
6.13
Preferential
Collection of Claims Against Company.
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 the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other
obligor)
6.14
Appointment
of Authenticating Agent.
The
Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration
of transfer or partial redemption thereof or pursuant to
Section 3.6, and 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.
Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under
the laws of the United States of America, any state thereof or the
District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by
federal or state authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section 6.14, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report
of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section 6.14 such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this
Section 6.14.
32
Any
corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation
succeeding to all or substantially all of the corporate agency or
corporate trust business of an Authenticating Agent shall be the
successor Authenticating Agent hereunder, provided such corporation
shall be otherwise eligible under this Section 6.14, without
the execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An
Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may
at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to
the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions
of this Section 6.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in
Section 1.6 to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.14.
The
Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this
Section 6.14.
If an
appointment with respect to one or more series is made pursuant to
this Section 6.14, the Securities of such series may have
endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the
following form:
This is
one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
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Dated:
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[Name
of Trustee],
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As
Trustee
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By:
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As
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By:
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Authorized
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ARTICLE VII
HOLDERS’
LISTS AND REPORTS BY TRUSTEE
AND
COMPANY
7.1
Company
to Furnish Trustee Names and Addresses of Holders.
If the
Trustee is not the Security Registrar, the Company shall cause the
Security Registrar to furnish to the Trustee, in writing at least
five Business Days before each Interest Payment Date and at such
other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders of Securities of each
series.
33
7.2
Preservation
of Information; Communications to Holders.
The
Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in
Section 7.1 and the names and addresses of Holders received by
the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.1
upon receipt of a new list so furnished.
The
rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as
provided by the Trust Indenture Act.
Every
Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable
by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture
Act.
7.3
Reports
by Trustee.
Within
60 days after each May 15, beginning in 2021, 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. The Trustee shall promptly deliver to the
Company a copy of any report it delivers to Holders pursuant to
this Section 7.3.
A copy
of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange and
automated quotation system, if any, upon which any Securities are
listed, with the Commission and with the Company. The Company will
notify the Trustee when any Securities are listed on any stock
exchange or automated quotation system or delisted
therefrom.
7.4
Reports
by Company.
So long
as the Securities of any series are outstanding, the Company
shall:
(1) furnish
to the Trustee, within 15 days after the Company files the same
with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company files
with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; provided, however, that any such information,
document or report filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval (or EDGAR) system
or any successor thereto shall be deemed to be filed with the
Trustee; provided, however, that the Trustee shall have no
responsibility whatsoever to determine whether such filing has
occurred; and
(2) comply
with the other provisions of Section 314(a) of the Trust Indenture
Act.
Provided that, the
delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee’s receipt
of such shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including the Company’s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates).
ARTICLE VIII
CONSOLIDATION,
MERGER
AND SALE OF
ASSETS
8.1
Company
May Merge or Transfer Assets Only on Certain Terms.
The
Company shall not consolidate with or merge with or into, or sell,
transfer, lease or convey all or substantially all of its
properties and assets to, in one transaction or a series of related
transactions, any other Person, unless:
34
(1) the
Company shall be the continuing entity, or the resulting, surviving
or transferee Person (the “Successor”) shall be a
Person (if such Person is not a corporation, then the Successor
shall include a corporate co-issuer of the Securities) organized
and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor (if not
the Company) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all the obligations of the Company
under the Securities and this Indenture and, for each Security that
by its terms provides for conversion, shall have provided for the
right to convert such Security in accordance with its
terms;
(2) immediately
after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; and
(3) the
Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that such
transaction and such supplemental indenture, if any, complies with
this Indenture (except that such Opinion of Counsel need not opine
as to clause (2) above).
8.2
Successor
Corporation Substituted.
The
Successor shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Indenture,
with the same effect as if the Successor had been an original party
to this Indenture, and the Company shall be released from all its
liabilities and obligations under this Indenture and the
Securities.
ARTICLE IX
SUPPLEMENTAL
INDENTURES
9.1
Supplemental
Indentures Without Consent of Holders.
Without
the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to
add to the covenants for the benefit of the Holders of all or any
series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred
upon the Company;
(2) to
evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the
Company pursuant to Article VIII;
(3) to
add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such
series);
(4) to
add one or more guarantees for the benefit of Holders of the
Securities;
(5) to
secure the Securities;
(6) to
evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11;
(7) subject
to any limitations established pursuant to Section 3.1, to
provide for the issuance of additional Securities of any
series;
35
(8) to
establish the form or terms of Securities of any series as
permitted by Section 2.1 and Section 3.1;
(9)
to comply with the rules of any applicable
Depositary;
(10)
to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance
of Securities in uncertificated form;
(11) to
add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities; provided that any such
addition, change or elimination (A) shall neither
(i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no Security
described in clause (A)(i) Outstanding;
(12) to
cure any ambiguity, to correct or supplement any provision of this
Indenture which may be defective or inconsistent with any other
provision herein;
(13) to
change any other provision under this Indenture; provided that such action
pursuant to this clause (13) shall not adversely affect the
interests of the Holders of Securities of any series in any
material respect;
(14) to
supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 4.1,
Section 13.2 and Section 13.3; provided that any such
action shall not adversely affect the interests of the Holders of
Securities of such series or any other series of Securities in any
material respect;
(15) to
comply with the rules or regulations of any securities exchange or
automated quotation system on which any of the Securities may be
listed or traded; and
(16) to
add to, change or eliminate any of the provisions of this Indenture
as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided that such action
does not adversely affect the rights or interests of any Holder of
Securities in any material respect.
9.2
Supplemental
Indentures With Consent of Holders.
With
the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series
affected by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange for
Securities), by Act of said Holders delivered to the Company and
the Trustee, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under
this Indenture; provided, however, no such supplemental
indenture shall, without the consent of the Holder of each
Outstanding Security of such series affected thereby:
(1) change
the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security;
(2) reduce
the principal amount of any Security or reduce the amount of the
principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2,
or reduce the rate of interest on any Security;
(3) reduce
any premium payable upon the redemption of or change the date on
which any Security may or must be redeemed;
(4) change
the coin or currency in which the principal of or premium, if any,
or interest on any Security is payable;
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(5) impair
the right of any Holder to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption
Date);
(6) 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 this Indenture;
(7) modify
any of the provisions of this Section 9.2, Section 5.12
or Section 10.5, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and
concomitant changes in this Section 9.2 and Section 10.5,
or the deletion of this proviso, in accordance with the
requirements of Section 6.11 and Section 9.1(6);
or
(8) if
the Securities of any series are convertible into or for any other
securities or property of the Company, make any change that
adversely affects in any material respect the right to convert any
Security of such series (except as permitted by Section 9.1)
or decrease the conversion rate or increase the conversion price of
any such Security of such series, unless such decrease or increase
is permitted by the terms of such Security.
A
supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other
series.
It
shall not be necessary for any Act of Holders under this
Section 9.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
After a
supplemental indenture under this Section 2 becomes effective,
the Company shall mail to the Trustee a notice briefly describing
such supplemental indenture or a copy of such supplemental
indenture and the Trustee shall mail such notice or supplemental
indenture to Section 9.2 Holders affected thereby. Any failure of
the Company to mail such notice, or any defect therein, or any
failure of the Company to mail such supplemental indenture, shall
not in any way impair or affect the validity of any such
supplemental indenture.
9.3
Execution
of Supplemental Indentures.
In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article IX or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and, subject to
Section 6.1, shall be fully protected in relying upon, an
Officer’s Certificate and an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or
permitted by this Indenture and that all conditions precedent in
this Indenture to the execution of such supplemental indenture, if
any, have been complied with. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which
affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.
9.4
Effect
of Supplemental Indentures.
Upon
the execution of any supplemental indenture under this Article IX,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound
thereby.
9.5
Conformity
with Trust Indenture Act.
Every
supplemental indenture executed pursuant to this Article IX shall
conform to the requirements of the Trust Indenture
Act.
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9.6
Reference
in Securities to Supplemental Indentures.
Securities of any
series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and shall
if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such
series.
ARTICLE X
COVENANTS
10.1
Payment
of Principal, Premium, if any, and Interest.
The
Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of
and premium, if any, and interest on the Securities of such series
in accordance with the terms of the Securities and this Indenture.
Principal and interest shall be considered paid on the date due if,
on or before 11:00 a.m. (New York City time) on such date, the
Trustee or the Paying Agent (or, if the Company or any of its
Subsidiaries is the Paying Agent, the segregated account or
separate trust fund maintained by the Company or such Subsidiary
pursuant to Section 10.3) holds in accordance with this
Indenture money sufficient to pay all principal and interest then
due.
The
Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on
overdue installments of interest at the same rate to the extent
lawful as provided in Section 3.7.
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 of America or other domestic or foreign taxing
authorities from principal or interest payments
hereunder.
10.2
Maintenance
of Office or Agency.
The
Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of such series may
be presented or surrendered for payment, where Securities of such
series may be surrendered for registration of transfer or exchange,
where Securities may be surrendered for conversion, and where
notices and demands to or upon the Company in respect of the
Securities of such series 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 such office or agency.
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee; and such required office or agency in New York, New York
shall be at an office of the Trustee located at 101 Barclay Street,
Floor 4W, New York, New York 10286, Attention: Corporate Trust
Administration. The Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and
demands.
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 each Place of
Payment for Securities of any series for such purposes. 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.
With
respect to any Global Security, and except as otherwise may be
specified for such Global Security as contemplated by
Section 3.1, the Corporate Trust Office of the Trustee shall
be the Place of Payment where such Global Security may be presented
or surrendered for payment or for registration of transfer or
exchange, or where successor Securities may be delivered in
exchange therefor; and such Place of Payment with respect to a
Global Security in New York, New York shall be at an office of the
Trustee located at 101 Barclay Street, Floor 4W, New York, New York
10286, Attention: Corporate Trust Administration; provided, however, that any such payment,
presentation, surrender or delivery effected pursuant to the
Applicable Procedures of the Depositary for such Global Security
shall be deemed to have been effected at the Place of Payment for
such Global Security in accordance with the provisions of this
Indenture.
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10.3
Money
for Securities Payments to Be Held in Trust.
If the
Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date
for the principal of or premium, if any, or interest on any of the
Securities of such series, segregate and hold in trust for the
benefit of the Holders of such Securities a sum sufficient to pay
the principal and premium, if any, and interest so becoming due
until such sums shall be paid to such Holders or otherwise disposed
of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the
Company shall have one or more Paying Agents for any series of
Securities, it will, no later than 11:00 a.m. (New York City time)
on each due date for the principal of or premium, if any, or
interest on any Securities of such series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held in
trust for the Holders of such Securities entitled to the same, and
(unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The
Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 10.3, that such
Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by such Paying Agent for the payment of
principal of or interest on the Securities and shall notify the
Trustee in writing of any default by the Company in making any such
payment.
The
Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such money.
Subject
to any applicable abandoned property law, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or premium, if any, or
interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and
the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
10.4
Statement
by Officers as to Default.
The
Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company ending after the date hereof an
Officer’s Certificate signed by its principal executive
officer, principal financial officer or principal accounting
officer, stating whether or not, to the best knowledge of such
officer, the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of
which they may have knowledge.
10.5
Waiver
of Certain Covenants.
Except
as otherwise specified as contemplated by Section 3.1 for
Securities of such series, the Company may, with respect to the
Securities of any series, omit in any particular instance to comply
with any term, provision or condition set forth in any covenant
provided pursuant to Section 301(21), Section 9.1(1) or
Section 9.1(8) for the benefit of the Holders 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 shall, by Act of such Holders, either
waive such compliance in such instance or generally waive
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 the
duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
39
ARTICLE XI
REDEMPTION OF
SECURITIES
11.1
Applicability
of Article.
Securities of any
series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for such Securities)
in accordance with this Article XI.
11.2
Election
to Redeem; Notice to Trustee.
The
election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or an Officer’s Certificate or in
another manner specified as contemplated by Section 3.1 for
such Securities. In case of any redemption at the election of the
Company of the Securities of any series (including any such
redemption affecting only a single Security), the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount
of Securities of such series to be redeemed and, if applicable, of
the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (b) pursuant to
an election of the Company which is subject to a condition
specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an
Officer’s Certificate evidencing compliance with such
restriction or condition.
11.3
Selection
by Trustee of Securities to Be Redeemed.
If less
than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to
be redeemed or unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date, from
the Outstanding Securities of such series not previously called for
redemption, by lot or, in the case of Global Securities, pursuant
to applicable Depositary procedures; provided that the unredeemed
portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be
redeemed (unless such redemption affects only a single Security),
the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date, from the Outstanding
Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding
sentence.
If any
Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the
portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be) to be the portion
selected for redemption. Securities which have been converted
during a selection of securities to be redeemed shall be treated by
the Trustee as Outstanding for the purpose of such
selection.
The
Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the
principal amount thereof to be redeemed.
The
provisions of the three preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether
such Security is to be redeemed in whole or in part. In the case of
any such redemption in part, the unredeemed portion of the
principal amount of the Security shall be in an authorized
denomination (which shall not be less than the minimum authorized
denomination) for such Security.
40
For all
purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed
only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed. If the Company
shall so direct, Securities registered in the name of the Company,
any Affiliate or any Subsidiary thereof shall not be included in
the Securities selected for redemption.
11.4
Notice
of Redemption.
Notice
of redemption shall be given by first-class mail, postage prepaid,
mailed or otherwise in accordance with the Applicable Procedures
not less than 15 nor more than 60 days prior to the Redemption Date
(or within such period as otherwise specified as contemplated by
Section 3.1 for Securities of a series), to each Holder of
Securities to be redeemed, at such Holder’s address appearing
in the Security Register.
All
notices of redemption shall identify the Securities to be redeemed
and shall state:
(1) the
Redemption Date;
(2) the
Redemption Price (or the method of calculating such
price);
(3) if
less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to
be redeemed and, if less than all the Outstanding Securities of any
series consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be
redeemed;
(4) that
on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said
date;
(5) the
place or places where each such Security is to be surrendered for
payment of the Redemption Price;
(6) for
any Securities that by their terms may be converted, the terms of
conversion, the date on which the right to convert the Security to
be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion;
(7) that
the redemption is for a sinking fund, if such is the case;
and
(8) if
applicable, the CUSIP numbers of the Securities of such series;
provided,
however, that no
representation will be made as to the correctness or accuracy of
the CUSIP number, or any similar number, if any, listed in such
notice or printed on the Securities.
Notice
of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company’s
request (which may be rescinded or revoked at any time prior to the
time at which the Trustee shall have given such notice to the
Holders), by the Trustee in the name and at the expense of the
Company. The notice, if sent in the manner herein provided, shall
be conclusively presumed to have been given, whether or not the
Holder receives such notice. In any case, failure to give such
notice by mail or otherwise in accordance with the Applicable
Procedures or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any
other Securities.
41
11.5
Deposit
of Redemption Price.
By no
later than 11:00 a.m. (New York City time) on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date or the Securities
of the series provide otherwise) accrued interest on, all the
Securities which are to be redeemed on that date, other than
Securities or portions of Securities called for redemption which
are owned by the Company or a Subsidiary and have been delivered by
the Company or such Subsidiary to the Trustee for cancellation. All
money, if any, earned on funds held by the Paying Agent shall be
remitted to the Company. In addition, the Paying Agent shall
promptly return to the Company any money deposited with the Paying
Agent by the Company in excess of the amounts necessary to pay the
Redemption Price of, and accrued interest, if any, on, all
Securities to be redeemed.
If any
Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held
in trust for the redemption of such Security shall (subject to any
right of the Holder of such Security or any Predecessor Security to
receive interest as provided in the last paragraph of
Section 3.7 or in the terms of such Security) be paid to the
Company upon Company Request or, if then held by the Company, shall
be discharged from such trust.
11.6
Securities
Payable on Redemption Date.
Notice
of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease
to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together, if
applicable, with accrued interest to the Redemption Date;
provided,
however, that,
unless otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or prior to
the Redemption Date will 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 Record Dates
according to their terms and the provisions of Section 3.7;
provided
further that,
unless otherwise specified as contemplated by Section 3.1, if
the Redemption Date is after a Regular Record Date and on or prior
to the Interest Payment Date, the accrued and unpaid interest shall
be payable to the Holder of the redeemed Securities registered on
the relevant Regular Record Date.
If any
Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
11.7
Securities
Redeemed in Part.
Any
Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holder’s attorney
duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination
as requested by such Holder, in principal amount equal to and in
exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE XII
SINKING
FUNDS
12.1
Applicability
of Article.
The
provisions of this Article XII shall be applicable to any sinking
fund for the retirement of Securities of any series except as
otherwise specified as contemplated by Section 3.1 for such
Securities.
The
minimum amount of any sinking fund payment provided for by the
terms of any series of Securities is herein referred to as a
“mandatory sinking fund payment,” and any payment in
excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an “optional sinking fund
payment.” If provided for by the terms of any series of
Securities, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.2. Each sinking
fund payment shall be applied to the redemption of Securities of
the series as provided for by the terms of such
Securities.
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12.2
Satisfaction
of Sinking Fund Payments with Securities.
The
Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may
apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment
with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent
provided for by the terms of such Securities; provided that the Securities to
be so credited have not been previously so credited. The Securities
to be so credited shall be received and credited for such purpose
by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of
the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
12.3
Redemption
of Securities for Sinking Fund.
Not
less than 60 days (or such shorter period as shall be satisfactory
to the Trustee) prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an
Officer’s Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the
terms of such Securities, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities
pursuant to Section 12.2 and will also deliver to the Trustee
any Securities to be so delivered. Not less than 30 days prior to
each such sinking fund payment date, the Securities to be redeemed
upon such sinking fund payment date shall be selected in the manner
specified in Section 11.3 and the Company shall cause notice
of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.4.
Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in
Section 11.6 and Section 11.7.
ARTICLE XIII
DEFEASANCE AND
COVENANT DEFEASANCE
13.1
Company’s
Option to Effect Defeasance or Covenant Defeasance.
Unless
otherwise provided as contemplated by Section 3.1,
Section 13.2 and Section 13.3 shall apply to all
Securities or each series of Securities, as the case may be, in
either case, denominated in U.S. dollars and bearing interest at a
fixed rate, in accordance with any applicable requirements provided
pursuant to Section 3.1 and upon compliance with the
conditions set forth below in this Article XIII; and the Company
may elect, at its option at any time, to have Section 13.2 and
Section 13.3 applied to any Securities or any series of
Securities, as the case may be, pursuant to such Section 13.2
or Section 13.3, in accordance with any applicable
requirements provided pursuant to Section 3.1 and upon
compliance with the conditions set forth below in this Article
XIII. Any such election to have or not to have Section 13.2
and Section 13.3 apply, as the case may be, shall be evidenced
by a Board Resolution, Officer’s Certificate or in another
manner specified as contemplated by Section 3.1 for such
Securities.
13.2
Defeasance
and Discharge.
Upon
the Company’s exercise of its option, if any, to have this
Section 13.2 applied to any Securities or any series of
Securities, as the case may be, or if this Section 13.2 shall
otherwise apply to any Securities or any series of Securities, as
the case may be, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities as
provided in this Section 13.2 on and after the date the
conditions set forth in Section 13.4 are satisfied
(hereinafter called “Defeasance”). For this
purpose, such Defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by
such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in
Section 13.4 and as more fully set forth in such
Section 13.5, payments in respect of the principal of and
premium, if any, and interest on such Securities when payments are
due, (2) the Company’s obligations with respect to such
Securities under Section 3.4, Section 3.5,
Section 3.6, Section 10.2 and Section 10.3,
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article XIII. Subject to
compliance with this Article XIII, the Company may exercise its
option, if any, to have this Section 13.2 applied to the
Securities of any series notwithstanding the prior exercise of its
option, if any, to have Section 13.3 applied to such
Securities.
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13.3
Covenant
Defeasance.
Upon
the Company’s exercise of its option, if any, to have this
Section 13.3 applied to any Securities or any series of
Securities, as the case may be, or if this Section 13.3 shall
otherwise apply to any Securities or any series of Securities, as
the case may be, (1) the Company shall be released from its
obligations under any covenants provided pursuant to
Section 3.1(21), Section 9.1(1) or Section 9.1(8)
for the benefit of the Holders of such Securities and (2) the
occurrence of any event specified in Section 5.1(3) and
Section 5.1(6) shall be deemed not to be or result in an Event
of Default, in each case with respect to such Securities as
provided in this Section 13.3 on and after the date the
conditions set forth in Section 13.4 are satisfied
(hereinafter called “Covenant Defeasance”).
For this purpose, such Covenant Defeasance means that, with respect
to such 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 specified Section, whether directly or
indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any
other provision herein or in any other document, but the remainder
of this Indenture and such Securities shall be unaffected
thereby.
13.4
Conditions
to Defeasance or Covenant Defeasance.
The
following shall be the conditions to the application of
Section 13.2 or Section 13.3 to any Securities or any
series of Securities, as the case may be:
(1) The
Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply
with the provisions of this Article XIII 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
benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide money in an amount, or
(C) a combination thereof, in each case sufficient, in the
opinion of an independent public accountant or financial advisor
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and premium, if any, and interest on
such Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities. As used
herein, “U.S.
Government Obligation” means (x) any security
which is (i) a direct obligation of the United States of
America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation of
a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case
(i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is
specified in clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held; provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.
(2) In
the event of an election to have Section 13.2 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or
(B) since the date of this Indenture, there has been a change
in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were
not to occur.
44
(3) In
the event of an election to have Section 13.3 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result
of the deposit and Covenant Defeasance to be effected with respect
to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to
occur.
(4) The
Company shall have delivered to the Trustee an Officer’s
Certificate to the effect that neither such Securities nor any
other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such
deposit.
(5) No
Default or Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time
of such deposit or, insofar as Sections 5.1(4) or 5.1(5) are
concerned, at any time on or prior to the 90th day after the date
of such deposit (it being understood that this condition shall not
be deemed satisfied until after such 90th day).
(6) Such
Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other material
agreement or instrument to which the Company is a party or by which
it is bound.
(7) The
Company shall have delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with (in each case, subject to the
satisfaction of the condition in clause (5)).
Before
or after a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption of Securities at a future date in
accordance with Article XI.
13.5
Deposited
Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.
Subject
to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section 13.5 and
Section 13.6, the Trustee and any such other trustee are
referred to collectively as the “Trustee”) pursuant to
Section 13.4 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including 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,
but money so held in trust need not be segregated from other funds
except to the extent required by law.
The
Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 13.4 or the
principal and 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 Outstanding Securities; provided that the Trustee shall
be entitled to charge any such tax, fee or other charge to such
Holder’s account.
Anything in this
Article XIII to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as
provided in Section 13.4 with respect to any Securities which
are in excess of the amount thereof which would then be required to
be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
45
13.6
Reinstatement.
If the
Trustee or the Paying Agent is unable to apply any money in
accordance with this Article XIII with respect to any Securities by
reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such
Securities from which the Company has been discharged or released
pursuant to Section 13.2 or Section 13.3 shall be revived
and reinstated as though no deposit had occurred pursuant to this
Article XIII with respect to such Securities, until such time as
the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 13.5 with respect to such Securities
in accordance with this Article XIII; provided, however, that (a) if the
Company makes any payment of principal of or premium, if any, or
interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights, if any,
of the Holders of such Securities to receive such payment from the
money so held in trust and (b) unless otherwise required by
any legal proceeding or any order or judgment of any court or
governmental authority, the Trustee or Paying Agent shall return
all such money and U.S. Government Obligations to the Company
promptly after receiving a written request therefor at any time, if
such reinstatement of the Company’s obligations has occurred
and continues to be in effect.
ARTICLE XIV
REPAYMENT AT THE
OPTION OF HOLDERS
14.1
Applicability
of Article.
Repayment of
Securities of any series before their Stated Maturity at the option
of Holders thereof shall be made in accordance with the terms of
such Securities and (except as otherwise specified as contemplated
by Section 3.1 for Securities of any series) in accordance
with this Article XIV.
14.2
Repayment
of Securities.
Securities of any
series subject to repayment in whole or in part at the option of
the Holders thereof will, unless otherwise provided in the terms of
such Securities, be repaid at a price equal to the principal amount
thereof and premium, if any, thereon, together with interest
thereon accrued to the Repayment Date specified in or pursuant to
the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with
a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money sufficient to pay the
principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of, the premium, if any, and
(except if the Repayment Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof, as the
case may be, to be repaid on such date.
14.3
Exercise
of Option.
Securities of any
series subject to repayment at the option of the Holders thereof
will contain an “Option to Elect Repayment” form on the
reverse of such Securities. To be repaid at the option of the
Holder, any Security so providing for such repayment, with the
“Option to Elect Repayment” form on the reverse of such
Security duly completed by the Holder (or by the Holder’s
attorney duly authorized in writing), must be received by the
Company at the Place of Payment therefor specified in the terms of
such Security (or at such other place or places of which the
Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior
to the Repayment Date. If less than the entire principal amount of
such Security is to be repaid in accordance with the terms of such
Security, the principal amount of such Security to be repaid, in
increments of the minimum denomination for Securities of such
series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not
be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at
the option of the Holder thereof, exercise of the repayment option
by the Holder shall be irrevocable unless waived by the
Company.
46
14.4
When
Securities Presented for Repayment Become Due and
Payable.
If
Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this
Article XIV and as provided by or pursuant to the terms of such
Securities, such Securities or the portions thereof, as the case
may be, to be repaid shall become due and payable and shall be paid
by the Company on the Repayment Date therein specified, and on and
after such Repayment Date (unless the Company shall default in the
payment of such Securities on such Repayment Date) such Securities
shall, if the same were interest-bearing, cease to bear interest.
Upon surrender of any such Security for repayment in accordance
with such provisions, the principal amount of such Security so to
be repaid shall be paid by the Company, together with accrued
interest and/or premium, if any, to (but excluding) the Repayment
Date; provided,
however, that,
unless otherwise specified as contemplated by Section 3.1,
installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest
thereon, unless the Company shall default in the payment thereof)
to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions
of Section 3.7.
If the
principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment
Date) and any premium shall, until paid, bear interest from the
Repayment Date at the rate of interest or yield to maturity (in the
case of Original Issue Discount Securities) set forth in such
Security.
14.5
Securities
Repaid in Part.
Upon
surrender of any Security which is to be repaid in part only, the
Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and
at the expense of the Company, a new Security or Securities of the
same series, of any authorized denomination specified by the
Holder, in a principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is
not to be repaid.
* *
*
This
Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
[Signature page follows]
47
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above
written.
WIDEPOINT
CORPORATION
By:
Name:
Title:
[____________________________],
as
Trustee
By:
Name:
Title:
48
Exhibit 5
 |
ATTORNEYS AT LAW
ONE
INDEPENDENT DRIVE, SUITE 1300
JACKSONVILLE,
FL 32202-5017
904.359.2000
TEL
904.359.8700
FAX
WWW.FOLEY.COM
|
June
19, 2020
|
WidePoint
Corporation
11250
Waples Mill Road, South Tower 210,
Fairfax,
Virginia 22030
|
|
Ladies
and Gentlemen:
We have
acted as securities counsel for WidePoint Corporation, a Delaware
corporation (the “Company”), in connection with the
preparation of a Registration Statement on Form S-3 (the
“Registration Statement”), including the prospectus
constituting a part thereof (the “Prospectus”), to be
filed with the Securities and Exchange Commission (the
“SEC”) under the Securities Act of 1933, as amended
(the “Securities Act”), relating to the potential
issuance and sale by the Company from time to time of up to $25.0
million aggregate amount of any of the following: (i) shares of the
Company’s common stock, $0.001 par value (the “Common
Stock”); (ii) shares of the Company’s preferred
stock, $0.001 par value (the “Preferred Stock”); (iii)
contracts (the “Securities Purchase Contracts”) that
obligate holders to purchase from the Company, and the Company to
sell to these holders, shares of the Common Stock or other
securities at a future date; (iv) units (the “Units”)
consisting of one or more shares of Common Stock, shares of
Preferred Stock, Debt Securities, Warrants, Rights, Securities
Purchase Contracts or any combination of the foregoing; (v) debt
securities of the Company (the “Debt Securities”); (vi)
subscription rights (the “Rights”) to purchase Debt
Securities, Common Stock, Preferred Stock or other securities of
the Company (or any combination thereof); and (vii) warrants (the
“Warrants”) to purchase Common Stock, Preferred Stock,
Debt Securities, Units or other securities of the Company. The
Common Stock, the Preferred Stock, the Securities Purchase
Contracts, the Units, the Debt Securities, the Rights and the
Warrants are referred to herein collectively as the
“Securities.” The Prospectus provides that it will be
supplemented in the future by one or more supplements to such
Prospectus and/or other offering material in connection with the
Company’s specific proposed offering of any of such
Securities (each, a “Prospectus
Supplement”).
As
securities counsel to the Company in connection with the proposed
potential issuance and sale of the above referenced Securities, we
have examined: (i) the Registration Statement, including the
Prospectus, and the exhibits (including those incorporated by
reference) constituting a part of the Registration Statement; (ii)
the Company’s Amended and Restated Certificate of
Incorporation and Bylaws, each as amended to date; (iii) the Form
of Indenture, filed as an exhibit to the Registration Statement;
(iv) certain resolutions of the Board of Directors of the Company
relating to the registration of the Securities; and (v) such other
proceedings, documents and records as we have deemed necessary or
appropriate to enable us to render this opinion.
|
BOSTON
BRUSSELS
CHICAGO
DETROIT
|
JACKSONVILLE
LOS
ANGELES
MADISON
MIAMI
|
MILWAUKEE
NEW
YORK
ORLANDO
SACRAMENTO
|
SAN
DIEGO
SAN
FRANCISCO
SHANGHAI
SILICON
VALLEY
|
TALLAHASSEE
TAMPA
TOKYO
WASHINGTON,
D.C.
|
WidePoint
Corporation
June
19, 2020
Page
2
In our
examination of the above-referenced documents, we have assumed the
genuineness of all signatures, the authenticity of all documents,
certificates and instruments submitted to us as originals and the
conformity with the originals of all documents submitted to us as
copies. We have also assumed that (i) the Registration Statement,
and any amendments thereto (including post-effective amendments),
will have become effective and will comply with all applicable
laws; (ii) a Prospectus Supplement, if required, will have been
prepared and filed with the SEC describing the Securities offered
thereby; (iii) all Securities will be issued and sold in compliance
with applicable federal and state securities laws and in the manner
stated in the Registration Statement and any applicable Prospectus
Supplement; (iv) any indenture (including the Form of Indenture)
providing for the issuance of Debt Securities, together with any
supplemental indenture or officer’s certificate setting forth
the terms of a series of Debt Securities to be issued under such
indenture, will each be duly authorized, executed and delivered by
the parties thereto in substantially the form reviewed by us; (v) a
Form T-1 will be filed with the SEC with respect to the trustee
executing any indenture or any supplemental indenture to such
indenture; (vi) a definitive purchase, underwriting, placement,
dealer or similar agreement with respect to any Securities offered
will have been duly authorized and validly executed and delivered
by the Company and the other parties thereto; (vii) any Securities
issuable upon conversion, exchange or exercise of any Security
being offered will have been duly authorized, created and, if
appropriate, reserved for issuance upon such conversion, exchange
or exercise; and (viii) with respect to shares of Common Stock or
Preferred Stock offered, there will be sufficient shares of Common
Stock or Preferred Stock authorized under the Company’s
Amended and Restated Certificate of Incorporation, and not
otherwise reserved for issuance.
Based
upon and subject to the foregoing and the other matters set forth
herein, and having regard for such legal considerations as we deem
relevant, we are of the opinion that:
1.
All requisite
actions necessary to make the shares of Common Stock subsequently
offered by the Company under the Registration Statement validly
issued, fully paid and non-assessable shall have been taken
when:
a.
The Company’s
Board of Directors, or a committee thereof duly authorized by the
Board of Directors, has adopted appropriate resolutions to
authorize the issuance and sale of the Common Stock;
and
b.
Such shares of
Common Stock have been issued and sold by the Company for the
consideration contemplated by, and otherwise in conformity with,
the Registration Statement, as supplemented by a Prospectus
Supplement with respect to such issuance and sale, and the acts,
proceedings and documents referred to above.
2.
All requisite
actions necessary to make the shares of Preferred Stock
subsequently offered by the Company under the Registration
Statement validly issued, fully paid and non-assessable shall have
been taken when:
WidePoint
Corporation
June
19, 2020
Page
3
a.
The Company’s
Board of Directors, or a committee thereof duly authorized by the
Board of Directors, has adopted appropriate resolutions to
establish the voting powers, designations, preferences and
relative, participating, optional or other special rights, if any,
or the qualifications, limitations or restrictions, if any, and
other terms of such shares as set forth in or contemplated by the
Registration Statement, the exhibits thereto and any Prospectus
Supplement relating to such Preferred Stock, and to authorize the
issuance and sale of such shares of Preferred Stock;
b.
A Certificate of
Amendment to the Company’s Amended and Restated Certificate
of Incorporation with respect to any such established voting
powers, designations, preferences and relative, participating,
optional or other special rights, if any, or the qualifications,
limitations or restrictions, if any, and other terms of such shares
have been filed with the Delaware Secretary of State in the form
and manner required by law; and
c.
Such shares of
Preferred Stock have been issued and sold by the Company for the
consideration contemplated by, and otherwise in conformity with,
the Registration Statement, as supplemented by a Prospectus
Supplement with respect to such issuance and sale, and the acts,
proceedings and documents referred to above.
3.
All requisite
actions necessary to make the Securities Purchase Contracts and
Units subsequently offered by the Company under the Registration
Statement valid, legal and binding obligations of the Company,
subject to (i) bankruptcy, insolvency, reorganization,
fraudulent transfer, fraudulent conveyance, moratorium and other
similar laws of general application affecting the rights and
remedies of creditors and (ii) general principles of equity,
regardless of whether applied in a proceeding in equity or at law,
shall have been taken when:
a.
The Company’s
Board of Directors, or a committee thereof or one or more officers
of the Company, in each case duly authorized by the Board of
Directors, has taken action to approve and establish the terms and
form of such Securities Purchase Contracts and the documents,
including any agreements, evidencing and used in connection with
the issuance and sale of such Units, and to authorize the issuance
and sale of such Securities Purchase Contracts and
Units;
b.
The terms of such
Securities Purchase Contracts and Units and of their issuance and
sale have been established so as not to violate any applicable law
or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any
requirements or restrictions imposed by any court or governmental
entity having jurisdiction over the Company;
c.
Such Securities
Purchase Contracts and Units have been duly executed and delivered
in accordance with their respective terms and provisions, as
applicable; and
d.
Such Securities
Purchase Contracts and Units have been sold by the Company for the
consideration contemplated by, and otherwise in conformity with,
the Registration Statement, as supplemented by a Prospectus
Supplement with respect to such issuance and sale, and the acts,
proceedings and documents referred to above.
WidePoint
Corporation
June
19, 2020
Page
4
4.
All requisite
actions necessary to make the Debt Securities subsequently offered
by the Company under the Registration Statement valid, legal and
binding obligations of the Company, subject to (i) bankruptcy,
insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium and other similar laws of general
application affecting the rights and remedies of creditors and (ii)
general principles of equity, regardless of whether applied in a
proceeding in equity or at law, shall have been taken
when:
a.
The Company’s
Board of Directors, or a committee thereof or one or more officers
of the Company, in each case duly authorized by the Board of
Directors, has taken action to establish the terms of such Debt
Securities and to authorize the issuance and sale of such Debt
Securities;
b.
The terms of such
Debt Securities and of their issuance and sale by the Company have
been established in conformity with the underlying indenture so as
not to violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon the Company and
so as to comply with any requirements or restrictions imposed by
any court or governmental entity having jurisdiction over the
Company;
c.
Such Debt
Securities have been duly executed, authenticated and delivered in
accordance with the terms and provisions of the underlying
indenture; and
d.
Such Debt
Securities have been issued and sold by the Company for the
consideration contemplated by, and otherwise in conformity with,
the Registration Statement, as supplemented by a Prospectus
Supplement with respect to such issuance and sale, and the acts,
proceedings and documents referred to above.
5.
All requisite
actions necessary to make the Rights subsequently offered by the
Company under the Registration Statement valid, legal and binding
obligations of the Company, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, fraudulent conveyance,
moratorium and other similar laws of general application affecting
the rights and remedies of creditors and (ii) general principles of
equity, regardless of whether applied in a proceeding in equity or
at law, shall have been taken when:
a.
The Company’s
Board of Directors, or a committee thereof or one or more officers
of the Company, in each case duly authorized by the Board of
Directors, has taken action to establish the terms of such Rights
and to authorize the issuance and sale of such Rights;
WidePoint
Corporation
June
19, 2020
Page
5
b.
The terms of such
Rights and of their issuance and sale have been established so as
not to violate any applicable law or result in a default or breach
of any agreement or instrument binding upon the Company and so as
to comply with any requirements or restrictions imposed by any
court or governmental entity having jurisdiction over the Company;
and
c.
Such Rights have
been issued and sold by the Company for the consideration
contemplated by, and otherwise in conformity with, the Registration
Statement, as supplemented by a Prospectus Supplement with respect
to such issuance and sale, and the acts, proceedings and documents
referred to above.
6.
All requisite
actions necessary to make the Warrants subsequently offered by the
Company under the Registration Statement will be valid, legal and
binding obligations of the Company, subject to (i) bankruptcy,
insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium and other similar laws of general
application affecting the rights and remedies of creditors and (ii)
general principles of equity, regardless of whether applied in a
proceeding in equity or at law, shall have been taken
when:
a.
The Company’s
Board of Directors, or a committee thereof or one or more officers
of the Company, in each case duly authorized by the Board of
Directors, has taken action to approve and establish the terms and
form of the Warrants and the documents, including any warrant
agreements, evidencing and used in connection with the issuance and
sale of the Warrants, and to authorize the issuance and sale of
such Warrants;
b.
The terms of such
Warrants and of their issuance and sale by the Company have been
established so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirements or
restrictions imposed by any court or governmental entity having
jurisdiction over the Company;
c.
Any such warrant
agreements have been duly executed and delivered;
d.
Such Warrants have
been duly executed and delivered in accordance with the terms and
provisions of any applicable warrant agreement; and
e.
Such Warrants have
been issued and sold by the Company for the consideration
contemplated by, and otherwise in conformity with, the Registration
Statement, as supplemented by a Prospectus Supplement with respect
to such issuance and sale, and the acts, proceedings and documents
referred to above.
WidePoint
Corporation
June
19, 2020
Page
6
We
render no opinion as to the effect of the laws of any state or
jurisdiction other than the laws of the State of New York, the
corporate law of the State of Delaware and the federal laws of the
United States. We assume no obligation to supplement this opinion
letter if any applicable law changes after the date hereof or if we
become aware of any fact that might change the opinions expressed
herein after the date hereof.
We
hereby consent to the filing of this letter as an exhibit to the
Registration Statement and to the reference to our firm under the
caption "Legal Matters" in the prospectus that is a part of 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 of the rules and
regulations of the Commission.
Very
truly yours,
/s/
Foley & Lardner LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We
consent to the incorporation by reference in this Registration
Statement on Form S-3 of WidePoint Corporation (the
“Company”) of our report dated March 24, 2020, relating
to the consolidated financial statements of the Company, which
report appears in the Company’s Annual Report on Form 10-K
for the year ended December 31, 2019 (and expresses an unqualified
opinion and includes an explanatory paragraph regarding the
adoption of new accounting standards), filed with the Securities
and Exchange Commission, and to the reference to our firm under the
heading “Experts” in the Prospectus, which is part of
this Registration Statement.
/s/
Moss Adams LLP
San
Diego, California
June
19, 2020