As
filed with the Securities and Exchange Commission on April 30,
2010
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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
ZIOPHARM
Oncology, Inc.
(Exact name of registrant as specified
in its charter)
Delaware
(State
or jurisdiction
of
incorporation or organization)
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84-1475642
(I.R.S.
Employer
Identification
No.)
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1180
Avenue of the Americas, 19th Floor
New
York, NY 10036
(646)
214-0700
(Address
and telephone number of registrant’s principal executive offices and principal
place of business)
Dr.
Jonathan Lewis
Chief
Executive Officer
ZIOPHARM
Oncology, Inc.
1180
Avenue of the Americas, 19th Floor
New
York, NY 10036
Telephone:
(646) 214-0700
Facsimile:
(646) 214-0711
(Name,
address and telephone number of agent for service)
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Copies
to:
Alan
M. Gilbert, Esq.
Maslon
Edelman Borman & Brand, LLP
90
South 7th Street, Suite 3300
Minneapolis,
Minnesota 55402
Telephone:
(612) 672-8200
Facsimile:
(612) 642-8381
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Approximate date of proposed sale to
the public: From time to time after the effective date of this
Registration Statement.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. ¨
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: þ
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If this
form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If this
form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See definition of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act. (Check one):
Large
accelerated filer ¨
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Accelerated
filer ¨
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Non-accelerated
filer ¨
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Smaller
reporting company þ
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
Title Of Each Class Of
Securities To Be Registered
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Amount To Be
Registered (1)
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Proposed Maximum
Offering Price
Per Share (1) (2)
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Proposed Maximum
Aggregate
Offering Price (1) (2)
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Amount Of
Registration Fee (3)
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Common
stock, par value $0.001 per share
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(4 |
) |
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|
(4 |
) |
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(4 |
) |
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(4 |
) |
Preferred
Stock, par value $0.001 per share
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(4 |
) |
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(4 |
) |
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(4 |
) |
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|
(4 |
) |
Warrants
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(4 |
) |
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|
(4 |
) |
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(4 |
) |
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|
(4 |
) |
Debt
Securities
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(4 |
) |
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(4 |
) |
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(4 |
) |
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(4 |
) |
Total
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(4 |
) |
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(4 |
) |
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$ |
100,000,000 |
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$ |
7,130 |
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(1)
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An
indeterminate number of shares of common stock and preferred stock, an
indeterminate number of warrants to purchase debt securities, common stock
or preferred stock and an indeterminate amount of debt securities are
being registered hereunder, but in no event will the aggregate initial
offering price exceed $100,000,000. If any debt securities are issued at
an original issue discount, then the offering price of such debt
securities shall be in such greater principal amount as shall result in an
aggregate initial offering price not to exceed $100,000,000, less the
aggregate dollar amount of all securities previously issued hereunder. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder. The securities registered also
include such indeterminate amount and number of shares of common stock and
preferred stock as may be issued upon conversion of or exchange for
preferred stock and provide for conversion or exchange, upon exercise of
warrants or pursuant to antidilution provisions of any such securities. In
addition, pursuant to Rule 416 under the Securities Act, there are also
being registered hereunder an indeterminate number of shares of common
stock and preferred stock as may be issuable with respect to the shares
being registered hereunder as a result of stock splits, stock dividends or
similar transactions.
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(2)
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Unspecified
pursuant to General Instruction II.D to Form S-3 under the Securities
Act.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities
Act.
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(4)
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Not
required to be included in accordance with General Instruction II.D. of
Form S-3.
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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 Commission, acting pursuant to said Section 8(a),
may determine.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting offers to buy these securities in any
jurisdiction where the offer or sale is not permitted.
Subject
to completion, dated April 30, 2010
PROSPECTUS
$100,000,000
ZIOPHARM
Oncology, Inc.
Common
Stock, Preferred Stock,
Warrants
and Debt Securities
We may
offer and sell any combination of common stock, preferred stock, warrants and
debt securities, with a total initial offering price of up to
$100,000,000.
This
prospectus provides a general description of securities we may offer and sell
from time to time. Each time we sell these securities, we will provide their
specific terms in a supplement to this prospectus. This prospectus supplement
may also add, update or change information contained in this prospectus. You
should read this prospectus and the applicable prospectus supplement carefully
before you invest in any securities. This prospectus may not be used to
consummate a sale of securities unless accompanied by the applicable prospectus
supplement.
We may
offer and sell these securities, from time to time, to or through one or more
underwriters, dealers and agents, or directly to purchasers, on a continuous or
delayed basis, at prices and on other terms to be determined at the time of
offering. If we use agents, underwriters or dealers to sell the securities, we
will name them and describe their compensation in a prospectus
supplement.
Our
common stock is listed on the Nasdaq Capital Market under the symbol “ZIOP.” On
April 27, 2010, the closing price of our common stock, as reported on the Nasdaq
Capital Market, was $5.99. We urge prospective purchasers of our common stock to
obtain current information about the market prices of our common
stock.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved these securities or determined if this prospectus is
truthful or complete. A representation to the contrary is a criminal
offense.
The date
of this Prospectus
is ,
20 .
TABLE
OF CONTENTS
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Page
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About
This Prospectus
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Prospectus
Summary
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1
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Risk
Factors
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4
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Special
Note Regarding Forward-Looking Statements
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4
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Ratio
of Earnings to Fixed Charges
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5
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Use
of Proceeds
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5
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Plan
of Distribution
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5
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Description
of Capital Stock
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6
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Description
of Debt Securities
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8
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Description
of Warrants
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16
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Certain
Provisions of Delaware Law, the Certificate of Incorporation and
Bylaws
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18
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Where
You Can Find More Information
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20
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Incorporation
of Certain Information by Reference
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20
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Legal
Matters
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21
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Experts
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21
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or SEC, using a “shelf” registration process. Under
this shelf registration process, from time to time, we may sell any combination
of the securities described in this prospectus in one or more offerings, up to a
total dollar amount of $100,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we offer and sell
securities under this prospectus, we will provide a prospectus supplement that
will contain more specific information about the terms of the applicable
offering. We may also add, update or change in the prospectus supplement any of
the information contained in this prospectus. This prospectus, together with the
applicable prospectus supplement(s) and the documents incorporated by reference
into this prospectus and such supplement(s), includes all material information
relating to this offering. To the extent there is a conflict between the
information contained in this prospectus and the prospectus supplement, you
should rely on the information in the prospectus supplement; provided that, if
any statement in one of these documents is inconsistent with a statement in
another document having a later date — for example, a document incorporated by
reference in this prospectus or any prospectus supplement — the statement in the
document having the later date modifies or supersedes the earlier statement.
Please carefully read both this prospectus and any prospectus supplement,
together with the additional information described below under “Where You Can
Find More Information,” before buying securities in this offering.
You
should rely only on the information contained or incorporated by reference in
this prospectus or a prospectus supplement. We have not authorized any other
person to provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely on it. This
prospectus and the accompanying supplement to this prospectus do not constitute
an offer to sell or the solicitation of an offer to buy any securities other
than the registered securities to which they relate, nor do this prospectus and
the accompanying supplement to this prospectus constitute an offer to sell or
the solicitation of an offer to buy securities in any jurisdiction to any person
to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus and the
accompanying prospectus supplement is accurate on any date subsequent to the
date set forth on the front cover of this document or that any information we
have incorporated by reference is correct on any date subsequent to the date of
the document incorporated by reference, even though this prospectus and any
accompanying prospectus supplement is delivered or securities sold on a later
date.
This
prospectus may not be used to consummate a sale of our securities unless it is
accompanied by a prospectus supplement.
PROSPECTUS
SUMMARY
The
following is a summary of this prospectus. Because it is only a summary, it does
not contain all of the detailed information contained elsewhere in this
prospectus or in the documents incorporated by reference into this prospectus or
included as exhibits to the registration statement that contains this
prospectus. Accordingly, you are urged to carefully review this prospectus
(including all documents incorporated by reference into this prospectus) in its
entirety. Unless otherwise indicated, “ZIOPHARM,” our “Company,” “we,” “us,”
“our” and similar terms refer to ZIOPHARM Oncology, Inc.
Our
Company
ZIOPHARM
Oncology, Inc. is a biopharmaceutical company that is seeking to develop and
commercialize a diverse, risk-sensitive portfolio of in-licensed cancer drugs
that can address unmet medical needs through enhanced efficacy and/or safety and
quality of life. Our principal focus is on the licensing and development of
proprietary small molecule drug candidates that are related to cancer
therapeutics already on the market or in development and that can be
administered by intravenous and/or oral capsule dosing. We believe this strategy
will result in lower risk and expedited drug development programs with product
candidates having a low cost of manufacturing to address changing reimbursement
requirements around the world. While we may endeavor to commercialize our
products on our own in North America, we recognize that favorable clinical trial
results can be better addressed by partnering with companies with the requisite
financial resources. With partnering, we could also negotiate the right to
complete development and marketing in certain geographies, especially for
certain limited (niche) indications. Although we are currently in phase I and/or
II studies for three product candidates identified as darinaparsin (ZinaparTM,
ZIO-101), palifosfamide (ZymafosTM,
ZIO-201), and indibulin (ZybulinTM,
ZIO-301), our primary focus has been and remains on palifosfamide development
and more specifically on completing the ongoing randomized phase II trial with
palifosfamide to support a registration trial for palifosfamide in combination
with doxorubicin in the front- and second-line setting of soft tissue sarcoma.
We anticipate the initiation of such a registration trial as early as the first
half of 2010.
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ZIO-101
or darinaparsin (ZinaparTM)
is an anti-mitochondrial (organic arsenic) compound covered by issued
patents and pending patent applications in the U.S. and in foreign
countries. A form of commercially available inorganic arsenic (arsenic
trioxide [Trisenox ®] or “ATO”) has been approved in the United States and
the European Union and Japan for the treatment of acute promyelocytic
leukemia, a precancerous condition. In the United States, ATO is on the
compendia listing for the therapy of multiple myeloma, and has been
studied for the treatment of various other cancers. Nevertheless, ATO has
been shown to be toxic to the heart, liver, and brain, which limits its
use as an anti-cancer agent. ATO carries a “black box” warning for ECG
abnormalities since arsenic trioxide has been shown to cause QT interval
prolongation and complete atrioventricular block. QT prolongation can lead
to a torsade de pointes-type ventricular arrhythmia, which can be fatal.
Inorganic arsenic has also been shown to cause cancer of the skin and lung
in humans. The toxicity of arsenic is generally correlated to its
accumulation in organs and tissues. Our preclinical and clinical studies
to date have demonstrated that darinaparsin is considerably less toxic
than ATO, particularly with regard to cardiac toxicity. In vitro testing
of darinaparsin using the National Cancer Institute’s human cancer cell
panel demonstrated activity against a series of tumor cell lines including
lung, colon, brain, melanoma, ovarian, and kidney cancer. Moderate
activity was shown against breast and prostate cancer tumor cell lines. In
addition to solid tumors, in vitro testing in both the National Cancer
Institute’s cancer cell panel and in vivo testing in a leukemia animal
model demonstrated substantial activity against hematological cancers
(cancers of the blood and blood-forming tissues) such as leukemia,
lymphoma, myelodysplastic syndromes, and multiple myeloma. Results
indicate significant activity against the HuT 78 cutaneous T-cell
lymphoma, the NK-G2MI natural killer-cell NHL, KARPAS-299 T-cell NHL,
SU-DHL-8 B-cell NHL, SU-DHL-10 B-cell NHL and SU-DHL-16 B-cell NHL cell
lines. Preclinical studies have also established anti-angiogenic
properties of darinaparsin and provided support for the development of an
oral capsule form of the drug, and established synergy of darinaparsin in
combination with other approved anti-cancer
agents.
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Phase
I testing of the intravenous (IV) form of darinaparsin in solid tumors and
hematological cancers has been completed. We reported clinical activity
and, importantly, a safety profile from these studies as predicted by
preclinical results. We subsequently completed Phase II studies in
advanced myeloma and primary liver cancer and are nearing completion of a
Phase II study in certain other hematological cancers. In addition, we are
completing two Phase I studies with an oral capsule form of darinaparsin.
At the May 2009 annual meeting of the American Society of Clinical
Oncology, we reported favorable results from the trial with
IV-administered darinaparsin in lymphoma, particularly peripheral T-cell
lymphoma. In the ongoing Phase I trials, also reported at the ASCO annual
meeting, preliminary data primarily in solid tumors indicate the oral form
is active and well tolerated. We are completing data collection from the
IV Phase II trial to address a registration and other trials with the U.S.
Food and Drug Administration. The oral Phase I program will be progressed
to establish a dose for further clinical
testing.
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ZIO-201
or palifosfamide (ZymafosTM
), comprises the active metabolite of ifosfamide, a compound chemically
related to cyclophosphamide. Patent applications covering proprietary
forms of palifosfamide for pharmaceutical composition and method of use
have been filed in the U.S. and internationally and in the U.S. we
recently received a patent covering pharmaceutical composition. Like
cyclophosphamide, ifosfamide and bendamustine, palifosfamide is a DNA
alkylating agent, a form of cancer therapy to treat a wide range of solid
tumors and hematological malignancies. We believe that cyclophosphamide is
the most widely used alkylating agent in cancer therapy, with significant
use in the treatment of breast cancer and non-Hodgkin’s lymphoma.
Bendamustine has been recently approved and successfully launched by
Cephalon Oncology in the U.S. and Europe to treat certain hematological
malignancies. Ifosfamide has been shown to be effective in the treatment
of sarcoma and lymphoma, either by itself or in combination with other
anticancer agents. Ifosfamide is approved by the FDA as a treatment for
testicular cancer while ifosfamide-based treatment is a standard of care
for sarcoma, although it is not licensed for this indication by the FDA.
Preclinical studies have shown that palifosfamide has activity against
leukemia and solid tumors. These studies also indicate that palifosfamide
may have a better safety profile than ifosfamide or cyclophosphamide
because it does not appear to produce known toxic metabolites of
ifosfamide, such as acrolein and chloroacetaldehyde. Acrolein, which is
toxic to the kidneys and bladder, can mandate the administration of a
protective agent called mesna, which is inconvenient and expensive.
Chloroacetaldehyde is toxic to the central nervous system, causing “fuzzy
brain” syndrome for which there is currently no protective measure.
Similar toxicity concerns pertain to high-dose cyclophosphamide, which is
widely used in bone marrow and blood cell transplantation. Palifosfamide
has evidenced activity against ifosfamide- and/or
cyclophosphamide-resistant cancer cell lines. Also in preclinical cancer
models, palifosfamide was shown to be orally active and encouraging
results have been obtained with palifosfamide in combination with
doxorubicin, an agent approved to treat
sarcoma.
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Following
completion of Phase I study, we completed Phase II testing of the intravenous
form of palifosfamide as a single agent to treat advanced sarcoma. In both Phase
I and Phase II testing, palifosfamide has been administered without the
“uroprotectant” mesna, and the toxicities associated with acrolein and
chloroacetaldehyde have not been observed. We reported clinical activity of
palifosfamide when used alone in the Phase II study addressing advanced sarcoma.
Following review of preclinical combination studies, clinical data, and
discussion with sarcoma experts, we initiated a Phase I dose escalation study of
palifosfamide in combination with doxorubicin primarily in patients with soft
tissue sarcoma. We reported favorable results and safety profile from this study
at ASCO’s 2009 annual meeting. In light of reported favorable Phase II clinical
activity data and with the combination of palifosfamide with doxorubicin well
tolerated in the Phase I trial and evidencing activity, we initiated a Phase II
randomized controlled trial in the second half of 2008 to compare doxorubicin
plus palifosfamide to doxorubicin alone in patients with front and second-line
metastatic or unresectable soft tissue sarcoma. The study has generated positive
top line interim data in 2009. Upon reaching a pre-specified efficacy milestone
and following safety and efficacy data review by the Data Committee, sarcoma
experts, and our Medical Advisory Board, we elected to suspend enrollment in the
trial in October 2009. We subsequently presented further positive interim data
from the trial at the 15th Annual Connective Tissue Oncology Society meeting
held in November 2009. We currently plan to initiate a registration trial
following regulatory review of the palifosfamide program to date. We are also
developing an oral capsule form of palifosfamide to be studied clinically
following receipt of further data from the IV trials and subject to obtaining
sufficient additional sources of funding, either from potential partnering
arrangements or from other sources. To date we have no such partnering
arrangements or other sources of such financing in place. We are also
considering additional Phase II trials in other solid tumors as funding becomes
available. Orphan Drug Designation for palifosfamide has been obtained in both
the United States and the European Union for the treatment of soft tissue
sarcomas.
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ZIO-301
or indibulin (ZybulinTM
), is a novel, orally available small molecular-weight inhibitor of
tubulin polymerization that we acquired from Baxter Healthcare in 2006 and
is the subject of numerous patents worldwide, including the United States,
the European Union and Japan. The microtubule component, tubulin, is one
of the more well established drug targets in cancer. Microtubule
inhibitors interfere with the dynamics of tubulin polymerization,
resulting in inhibition of chromosome segregation during mitosis and
consequently inhibition of cell division. A number of marketed IV
anticancer drugs target tubulin, such as the taxane family members,
paclitaxel (Taxol ® ), docetaxel (Taxotere ® ) , the Vinca alkaloid family
members, vincristine and vinorelbine, and the new class of epothilones
with IxempraTM
marketed. This class of agents is typically the mainstay of therapy in a
wide variety of indications. In spite of their effectiveness, the use of
these drugs is associated with significant toxicities, notably peripheral
neurotoxicity.
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Preclinical
studies with indibulin demonstrate significant and broad antitumor activity,
including activity against taxane-refractory cell lines. The cytotoxic activity
of indibulin was demonstrated in several rodent and human tumor cell lines
derived from prostate, brain, breast, pancreas, lung, ovary, and cervical tumor
tissues and in rodent tumor and human tumor xenograft models. In addition,
indibulin was effective against multidrug resistant tumor cell lines (breast,
lung, and leukemia) both in vitro and in vivo. Indibulin is potentially safer
than other tubulin inhibitors. No neurotoxicity has been observed at therapeutic
doses in rodents and in the Phase I trials. Indibulin has also demonstrated
synergy with approved anti-cancer agents in preclinical studies. The
availability of an oral capsule formulation of indibulin creates significant
commercial opportunity because no oral capsule formulations of the taxane family
are currently on the market in the United States.
Indibulin,
as a single agent, has completed Phase I trials in patients with advanced solid
tumors. We have reported clinical activity at well-tolerated doses using a
continuous dosing scheme without the development of clinically relevant
peripheral neuropathy. Following encouraging results obtained with indibulin in
combination with erlotinib, and 5-FU in preclinical models, two Phase I
combination studies were initiated with TarcevaTM and
XelodaTM,
respectively. Favorable activity and safety profile of oral indibulin with oral
XelodaTM were
reported at ASCO’s annual meeting in May 2009. Preclinical work with our
consultant, Dr. Larry Norton, to explore dose scheduling for the clinical
setting have been completed, with results supporting the recently initiated
Phase I safety trial necessary for a Phase I/II breast cancer trial and using
the mathematical dose schedule / frequency established
preclinically.
We intend
to continue with clinical development of IV palifosfamide for soft tissue
sarcoma both completing the ongoing Phase
II multicenter, parallel group, randomized study of palIfosfamide
tris plus doxorubicin versus doxorubiCin
in subjects with unresectAble
or metastatic Soft
tissue SarcOma
(“PICASSO”) trial and in a planned registration trial and, with additional
resources, to initiate a clinical study with the oral form and/or in additional
indications beyond STS. For IV darinaparsin, we will complete the ongoing Phase
I oral trial and will address peripheral T-cell lymphoma (“PTCL”) registration
and other trials, in part dependent on additional funding. For oral indibulin,
we will complete the Phase I breast cancer safety trial and initiate the
subsequent Phase I/II trial and, with additional funding, other trials. However,
the successful development of our product candidates is highly uncertain.
Product development costs and timelines can vary significantly for each product
candidate, are difficult to accurately predict, and will require us to obtain
additional funding, either alone or in connection with partnering arrangements.
Various statutes and regulations also govern or influence the manufacturing,
safety, labeling, storage, record keeping and marketing of each product. The
lengthy process of seeking approval and the subsequent compliance with
applicable statutes and regulations require the expenditure of substantial
resources. Any failure by us to obtain, or any delay in obtaining, regulatory
approvals could materially, adversely affect our business. To date, we have not
received approval for the sale of any drug candidates in any market and,
therefore, have not generated any revenues from our drug
candidates.
Corporate
Information
We were
originally incorporated in Colorado in September 1998 (under the name Net
Escapes, Inc.) and later changed our name to “EasyWeb, Inc.” in February 1999.
We were re-incorporated in Delaware on May 16, 2005 under the same name. On
September 13, 2005, we completed a “reverse” acquisition of privately held
ZIOPHARM, Inc., a Delaware corporation. To effect this transaction, we caused
ZIO Acquisition Corp., our wholly-owned subsidiary, to merge with and into
ZIOPHARM, Inc., with ZIOPHARM, Inc. surviving as our wholly owned subsidiary. In
accordance with the terms of the merger, the outstanding common stock of
ZIOPHARM, Inc. automatically converted into the right to receive an aggregate of
approximately 97.3% of our outstanding common stock (after giving effect to the
transaction). Following the merger, we caused ZIOPHARM, Inc. to merge with and
into us and we changed our name to “ZIOPHARM Oncology, Inc.” Although EasyWeb,
Inc. was the legal acquirer in the transaction, we accounted for the transaction
as a reverse acquisition under generally accepted accounting principles. As a
result, ZIOPHARM, Inc. became the registrant with the Securities and Exchange
Commission and the historical financial statements of ZIOPHARM, Inc. became our
historical financial statements.
Our
executive offices are located at 1180 Avenue of the Americas, 19th Floor, New
York, NY 10036, and our telephone number is (646) 214-0700. Our internet site is
www.ziopharm.com. None of the information on our internet site is part of this
prospectus.
RISK
FACTORS
As with
most pharmaceutical product candidates, the development of our product
candidates is subject to numerous risks, including the risk of delays in or
discontinuation of development from lack of financing, inability to obtain
necessary regulatory approvals to market the products, unforeseen safety issues
relating to the products and dependence on third party collaborators to conduct
research and development of the products. Because we are a development stage
company with a limited history of operations, we are also subject to many risks
associated with early-stage companies. For a more detailed discussion of the
risks you should consider before purchasing shares of our common stock, you
should carefully consider the specific risks discussed under “Risk Factors” in
the applicable prospectus supplement and in our filings with the Securities and
Exchange Commission that are incorporated by reference in this prospectus and
such prospectus supplement.
SPECIAL
NOTE REGARDING
FORWARD-LOOKING
STATEMENTS
This
prospectus contains, and the documents incorporated by reference herein and in
any prospectus supplement hereto may contain, forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended (the
“Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). These statements relate to future events or to our
future financial performance and involve known and unknown risks, uncertainties
and other factors which may cause our actual results, performance or
achievements to be materially different from any future results, performances or
achievements expressed or implied by the forward-looking statements.
Forward-looking statements may include, but are not limited to statements
about:
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the
progress and timing of preclinical and clinical trials involving our drug
candidates;
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the
progress and timing of our research and development
programs;
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the
benefits to be derived from relationships with our
collaborators;
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|
·
|
the
receipt or anticipated receipt of regulatory clearances and
approvals;
|
|
·
|
our
ability to enforce intellectual property
rights;
|
|
·
|
our
estimates of future revenues and profitability;
and
|
|
·
|
our
estimates regarding our capital requirements and our need for additional
financing.
|
In some
cases, you can identify forward-looking statements by terms such as “may,”
“will,” “should,” “could,” “would,” “expects,” “plans,” “anticipates,”
“believes,” “estimates,” “projects,” “predicts,” “potential” and similar
expressions intended to identify forward-looking statements. These statements
reflect our current views with respect to future events and are based on
assumptions and subject to risks and uncertainties. Given these uncertainties,
you should not place undue reliance on these forward-looking statements. We
discuss many of these risks in greater detail under the heading “Risk Factors”
in the applicable prospectus supplement and in our reports filed from time to
time under the Securities Act and/or the Exchange Act. We encourage you to read
these filings as they are made.
Further,
any forward-looking statement speaks only as of the date on which it is made,
and we undertake no obligation to update any forward-looking statement or
statements to reflect events or circumstances after the date on which such
statement is made or to reflect the occurrence of unanticipated events. New
factors emerge from time to time, and it is not possible for us to predict which
factors will arise. In addition, we cannot assess the impact of each factor on
our business or the extent to which any factor, or combination of factors, may
cause actual results to differ materially from those contained in any
forward-looking statements.
RATIO
OF EARNINGS TO FIXED CHARGES
The
following table shows our ratio of earnings to fixed charges for the periods
indicated.
|
|
Fiscal Year Ended December 31,
|
|
|
Three Months
Ended
March 31,
|
|
$ In Thousands, Except Ratio
|
|
2005
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio
of earnings to fixed charges(1)
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deficiency
of earnings to fixed charges(2)
|
|
$ |
(9,517 |
) |
|
$ |
(17,857 |
) |
|
$ |
(26,608 |
) |
|
$ |
(25,231 |
) |
|
$ |
(7,649 |
) |
|
$ |
(17,653 |
) |
(1)
|
In
each of the periods presented, no earnings were sufficient to cover fixed
charges.
|
(2)
|
The
deficiency of earnings is equivalent to net income (loss) before tax
benefit (provision) and extraordinary
gain.
|
USE
OF PROCEEDS
We will
retain broad discretion over the use of the net proceeds to us from the sale of
our securities offered by this prospectus. Unless we indicate otherwise in the
applicable prospectus supplement, we anticipate that any net proceeds will be
used for working capital and general corporate purposes. We will set forth in
the applicable prospectus supplement our intended use for the net proceeds
received from the sale of securities sold pursuant to that prospectus
supplement.
PLAN
OF DISTRIBUTION
We may
sell the securities covered by this prospectus:
|
·
|
to
or through one or more underwriters or
dealers;
|
|
·
|
directly
to purchasers, or to purchasers through agents;
or
|
|
·
|
through
a combination of any of these methods of
sale.
|
We may
distribute the securities offered hereby:
|
·
|
from
time to time in one or more transactions at a fixed price or prices, which
may be changed from time to time;
|
|
·
|
at
market prices prevailing at the times of
sale;
|
|
·
|
at
prices related to such prevailing market prices;
or
|
We will
describe the method of distribution of the securities in the applicable
prospectus supplement.
We may
determine the price or other terms of the securities offered under this
prospectus by use of an electronic auction. We will describe how any auction
will determine the price or any other terms, how potential investors may
participate in the auction and the nature of the obligations of the underwriter,
dealer or agent in the applicable prospectus supplement.
Underwriters,
dealers or agents may receive compensation in the form of discounts, concessions
or commissions from us or our purchasers (as their agents in connection with the
sale of the securities). In addition, underwriters may sell securities to or
through dealers, and those dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they act as agent. These underwriters, dealers or
agents may be considered to be underwriters under the Securities Act. As a
result, discounts, commissions, or profits on resale received by the
underwriters, dealers or agents may be treated as underwriting discounts and
commissions. Each applicable prospectus supplement will identify any such
underwriter, dealer or agent, and describe any compensation received by them
from us. Any initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to
time.
We may
enter into agreements that provide for indemnification against certain civil
liabilities, including liabilities under the Securities Act, or for contribution
with respect to payments made by the underwriters, dealers or agents and to
reimburse these persons for certain expenses.
We may
grant underwriters who participate in the distribution of the securities an
option to purchase additional securities to cover over-allotments, if any, in
connection with the distribution. Underwriters or agents and their associates
may be customers of, engage in transactions with, or perform services for us in
the ordinary course of business.
In
connection with the offering of the securities, certain underwriters and selling
group members and their respective affiliates, may engage in transactions that
stabilize, maintain or otherwise affect the market price of the securities.
These transactions may include stabilization transactions effected in accordance
with Rule 104 of Regulation M promulgated by the SEC pursuant to which these
persons may bid for or purchase securities for the purpose of stabilizing its
market price.
The
underwriters in the offering may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids in accordance with
rules and regulations under the Securities Exchange Act of 1934, as amended (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 these activities at any
time.
In
compliance with guidelines of the Financial Industry Regulatory Authority, or
FINRA, the maximum consideration or discount to be received by any FINRA member
or independent broker dealer may not exceed 8% of the aggregate amount of the
securities offered pursuant to this prospectus and any applicable prospectus
supplement.
DESCRIPTION
OF CAPITAL STOCK
Pursuant
to our certificate of incorporation, as amended and restated to date, our
authorized capital stock consists of 280,000,000 shares, comprised of
250,000,000 shares of common stock, par value $.001 per share, and 30,000,000
shares of preferred stock, par value $.001 per share. As of April 27, 2010,
there were 41,765,445 shares of common stock and no shares of preferred stock
issued and outstanding. Our common stock is traded on the Nasdaq Capital Market
under the symbol “ZIOP”.
The
following description summarizes the material terms of our capital stock. This
summary is, however, subject to the provisions of our certificate of
incorporation and bylaws. For greater detail about our capital stock, please
refer to our certificate of incorporation and bylaws.
Common
Stock
Voting. The holders of our
common stock are entitled to one vote for each outstanding share of common stock
owned by such stockholder on every matter properly submitted to the stockholders
for their vote. Stockholders are not entitled to vote cumulatively for the
election of directors. At any meeting of the stockholders, a quorum as to any
matter shall consist of a majority of the votes entitled to be cast on the
matter, except where a larger quorum is required by law, by our certificate of
incorporation or by our bylaws.
Dividend Rights. Holders of
our common stock are entitled to receive ratably dividends and other
distributions of cash or any other right or property as may be declared by the
registrant’s Board of Directors out of our assets or funds legally available for
such dividends or distributions. The dividend rights of holders of common stock
are subject to the dividend rights of the holders of any series of preferred
stock that may be issued and outstanding from time to time.
Liquidation Rights. In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
our affairs, holders of our common stock would be entitled to share ratably in
our assets that are legally available for distribution to stockholders after
payment of liabilities. If we have any preferred stock outstanding at such time,
the holders of such preferred stock may be entitled to distribution and/or
liquidation preferences that require us to pay the applicable distribution to
the holders of preferred stock before paying distributions to the holders of
common stock.
Conversion, Redemption and
Preemptive Rights. Holders of our common stock have no conversion,
redemption, preemptive, subscription or similar rights.
The
transfer agent and registrar for our common stock is American Stock Transfer and
Trust Company.
See
“Certain Provisions of Delaware Law, the Company’s Certificate of Incorporation
and Bylaws for a description of provisions of the Company’s certificate of
incorporation and bylaws which may have the effect of delaying, deferring or
preventing changes in the Company’s control.
Preferred
Stock
The
following description of preferred stock and the description of the terms of any
particular series of preferred stock that we choose to issue hereunder and that
will be set forth in the related prospectus supplement are not complete. These
descriptions are qualified in their entirety by reference to the certificate of
designation relating to that series. The rights, preferences, privileges and
restrictions of the preferred stock of each series will be fixed by the
certificate of designation relating to that series.
The board
of directors has the authority, without stockholder approval, subject to
limitations prescribed by law, to provide for the issuance of the shares of
preferred stock in one or more series, and by filing a certificate pursuant to
the applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each series and the
qualifications, limitations or restrictions, including, but not limited to, the
following:
|
·
|
the
number of shares constituting that
series;
|
|
·
|
dividend
rights and rates;
|
|
·
|
rights
and terms of redemption (including sinking fund provisions);
and
|
|
·
|
rights
of the series in the event of liquidation, dissolution or winding
up.
|
All
shares of preferred stock offered hereby will, when issued, be fully paid and
nonassessable and will not have any preemptive or similar rights. Our board of
directors could authorize the issuance of shares of preferred stock with terms
and conditions that could have the effect of discouraging a takeover or other
transaction that might involve a premium price for holders of the shares or
which holders might believe to be in their best interests.
We will
set forth in a prospectus supplement relating to the series of preferred stock
being offered the following items:
|
·
|
the
title and stated value of the preferred
stock;
|
|
·
|
the
number of shares of the preferred stock offered, the liquidation
preference per share and the offering price of the preferred
stock;
|
|
·
|
the
dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation applicable to the preferred
stock;
|
|
·
|
whether
dividends are cumulative or non-cumulative and, if cumulative, the date
from which dividends on the preferred stock will
accumulate;
|
|
·
|
the
procedures for any auction and remarketing, if any, for the preferred
stock;
|
|
·
|
the
provisions for a sinking fund, if any, for the preferred
stock;
|
|
·
|
the
provision for redemption, if applicable, of the preferred
stock;
|
|
·
|
any
listing of the preferred stock on any securities
exchange;
|
|
·
|
the
terms and conditions, if applicable, upon which the preferred stock will
be convertible into common stock, including the conversion price (or
manner of calculation) and conversion
period;
|
|
·
|
voting
rights, if any, of the preferred
stock;
|
|
·
|
a
discussion of any material and/or special United States federal income tax
considerations applicable to the preferred
stock;
|
|
·
|
the
relative ranking and preferences of the preferred stock as to dividend
rights and rights upon the liquidation, dissolution or winding up of our
affairs;
|
|
·
|
any
limitations on issuance of any class or series of preferred stock ranking
senior to or on a parity with the class or series of preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding up of
our affairs; and
|
|
·
|
any
other specific terms, preferences, rights, limitations or restrictions of
the preferred stock.
|
The
transfer agent and registrar for any series of preferred stock will be set forth
in the applicable prospectus supplement.
DESCRIPTION
OF DEBT SECURITIES
General
The terms
of each series of debt securities will be established by or pursuant to a
resolution of our board of directors and set forth or determined in the manner
provided in an officers’ certificate or by a supplemental indenture. Debt
securities may be issued in separate series without limitation as to aggregate
principal amount. We may specify a maximum aggregate principal amount for the
debt securities of any series. The particular terms of each series of debt
securities will be described in a prospectus supplement relating to such series,
including any pricing supplement. The prospectus supplement will set forth
specific terms relating to some or all of the following:
|
·
|
any limit on the aggregate
principal amount;
|
|
·
|
the person who shall be entitled
to receive interest, if other than the record holder on the record
date;
|
|
·
|
the date the principal will be
payable;
|
|
·
|
the interest rate, if any, the
date interest will accrue, the interest payment dates and the regular
record dates;
|
|
·
|
the place where payments may be
made;
|
|
·
|
any mandatory or optional
redemption provisions;
|
|
·
|
if applicable, the method for
determining how the principal, premium, if any, or interest will be
calculated by reference to an index or
formula;
|
|
·
|
if other than U.S. currency, the
currency or currency units in which principal, premium, if any, or
interest will be payable and whether we or the holder may elect payment to
be made in a different
currency;
|
|
·
|
the portion of the principal
amount that will be payable upon acceleration of stated maturity, if other
than the entire principal
amount;
|
|
·
|
any defeasance provisions if
different from those described below under “Satisfaction and Discharge;
Defeasance”;
|
|
·
|
any conversion or exchange
provisions;
|
|
·
|
any obligation to redeem or
purchase the debt securities pursuant to a sinking
fund;
|
|
·
|
whether the debt securities will
be issuable in the form of a global
security;
|
|
·
|
any subordination provisions, if
different from those described below under
“Subordination”;
|
|
·
|
any deletions of, or changes or
additions to, the events of default or covenants;
and
|
|
·
|
any other specific terms of such
debt securities.
|
Unless
otherwise specified in the prospectus supplement, the debt securities will be
registered debt securities. Debt securities may be sold at a substantial
discount below their stated principal amount, bearing no interest or interest at
a rate which at the time of issuance is below market rates.
Exchange
and Transfer
Debt
securities may be transferred or exchanged at the office of the security
registrar or at the office of any transfer agent designated by us.
We will
not impose a service charge for any transfer or exchange, but we may require
holders to pay any tax or other governmental charges associated with any
transfer or exchange.
In the
event of any potential redemption of debt securities of any series, we will not
be required to:
|
·
|
issue, register the transfer of,
or exchange, any debt security of that series during a period beginning at
the opening of business 15 days before the day of mailing of a notice of
redemption and ending at the close of business on the day of the mailing;
or
|
|
·
|
register the transfer of or
exchange any debt security of that series selected for redemption, in
whole or in part, except the unredeemed portion being redeemed in
part.
|
We may
initially appoint the trustee as the security registrar. Any transfer agent, in
addition to the security registrar, initially designated by us will be named in
the prospectus supplement. We may designate additional transfer agents or change
transfer agents or change the office of the transfer agent. However, we will be
required to maintain a transfer agent in each place of payment for the debt
securities of each series.
Global
Securities
The debt
securities of any series may be represented, in whole or in part, by one or more
global securities. Each global security will:
|
·
|
be registered in the name of a
depositary that we will identify in a prospectus
supplement;
|
|
·
|
be deposited with the depositary
or nominee or custodian; and
|
|
·
|
bear any required
legends.
|
No global
security may be exchanged in whole or in part for debt securities registered in
the name of any person other than the depositary or any nominee
unless:
|
·
|
the depositary has notified us
that it is unwilling or unable to continue as depositary or has ceased to
be qualified to act as
depositary;
|
|
·
|
an event of default is
continuing; or
|
|
·
|
the Company executes and delivers
to the trustee an officers’ certificate stating that the global security
is exchangeable.
|
As long
as the depositary, or its nominee, is the registered owner of a global security,
the depositary or nominee will be considered the sole owner and holder of the
debt securities represented by the global security for all purposes under the
indenture. Except in the above limited circumstances, owners of beneficial
interests in a global security:
|
·
|
will not be entitled to have the
debt securities registered in their
names;
|
|
·
|
will not be entitled to physical
delivery of certificated debt securities;
and
|
|
·
|
will not be considered to be
holders of those debt securities under the
indentures.
|
Payments
on a global security will be made to the depositary or its nominee as the holder
of the global security. Some jurisdictions have laws that require that certain
purchasers of securities take physical delivery of such securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
global security.
Institutions
that have accounts with the depositary or its nominee are referred to as
“participants.” Ownership of beneficial interests in a global security will be
limited to participants and to persons that may hold beneficial interests
through participants. The depositary will credit, on its book-entry registration
and transfer system, the respective principal amounts of debt securities
represented by the global security to the accounts of its
participants.
Ownership
of beneficial interests in a global security will be shown on and effected
through records maintained by the depositary, with respect to participants’
interests, or any participant, with respect to interests of persons held by
participants on their behalf.
Payments,
transfers and exchanges relating to beneficial interests in a global security
will be subject to policies and procedures of the depositary.
The
depositary policies and procedures may change from time to time. Neither we nor
the trustee will have any responsibility or liability for the depositary’s or
any participant’s records with respect to beneficial interests in a global
security.
Payment
and Paying Agent
The
provisions of this paragraph will apply to the debt securities unless otherwise
indicated in the prospectus supplement. Payment of interest on a debt security
on any interest payment date will be made to the person in whose name the debt
security is registered at the close of business on the regular record date.
Payment on debt securities of a particular series will be payable at the office
of a paying agent or paying agents designated by us. However, at our option, we
may pay interest by mailing a check to the record holder. The corporate trust
office will be designated as our sole paying agent.
We may
also name any other paying agents in the prospectus supplement. We may designate
additional paying agents, change paying agents or change the office of any
paying agent. However, we will be required to maintain a paying agent in each
place of payment for the debt securities of a particular series.
All
moneys paid by us to a paying agent for payment on any debt security which
remain unclaimed at the end of two years after such payment was due will be
repaid to us. Thereafter, the holder may look only to us for such
payment.
Consolidation,
Merger and Sale of Assets
Except as
otherwise set forth in the prospectus supplement, we may not consolidate with or
merge into any other person, in a transaction in which we are not the surviving
corporation, or convey, transfer or lease our properties and assets
substantially as an entirety to, any person, unless:
|
·
|
the successor, if any, is a U.S.
corporation, limited liability company, partnership, trust or other
entity;
|
|
·
|
the successor assumes our
obligations on the debt securities and under the
indenture;
|
|
·
|
immediately after giving effect
to the transaction, no default or event of default shall have occurred and
be continuing; and
|
|
·
|
certain other conditions are
met.
|
Events
of Default
Unless
we inform you otherwise in the prospectus supplement, the indenture will define
an event of default with respect to any series of debt securities as one or more
of the following events:
|
(1)
|
failure
to pay principal of or any premium on any debt security of that series
when due;
|
|
(2)
|
failure
to pay any interest on any debt security of that series for 30 days when
due;
|
|
(3)
|
failure
to deposit any sinking fund payment when
due;
|
|
(4)
|
failure
to perform any other covenant in the indenture continued for 90 days after
being given the notice required in the
indenture;
|
|
(5)
|
our
bankruptcy, insolvency or reorganization;
and
|
|
(6)
|
any
other event of default specified in the prospectus
supplement.
|
An event
of default of one series of debt securities is not necessarily an event of
default for any other series of debt securities.
If an
event of default, other than an event of default described in clause (5) above,
shall occur and be continuing, either the trustee or the holders of at least 25%
in aggregate principal amount of the outstanding securities of that series may
declare the principal amount of the debt securities of that series to be due and
payable immediately.
If
an event of default described in clause (5) above shall occur, the principal
amount of all the debt securities of that series will automatically become
immediately due and payable. Any payment by us on subordinated debt securities
following any such acceleration will be subject to the subordination provisions
described below under “Subordinated Debt Securities.”
After
acceleration the holders of a majority in aggregate principal amount of the
outstanding securities of that series may, under certain circumstances, rescind
and annul such acceleration if all events of default, other than the non-payment
of accelerated principal, or other specified amount, have been cured or
waived.
Other
than the duty to act with the required care during an event of default, the
trustee will not be obligated to exercise any of its rights or powers at the
request of the holders unless the holders shall have offered to the trustee
reasonable indemnity. Generally, the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series will 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.
A holder
will not have any right to institute any proceeding under the indentures, or for
the appointment of a receiver or a trustee, or for any other remedy under the
indentures, unless:
|
(1)
|
the holder has previously given
to the trustee written notice of a continuing event of default with
respect to the debt securities of that
series;
|
|
(2)
|
the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of that
series have made a written request and have offered reasonable indemnity
to the trustee to institute the proceeding;
and
|
|
(3)
|
the trustee has failed to
institute the proceeding and has not received direction inconsistent with
the original request from the holders of a majority in aggregate principal
amount of the outstanding debt securities of that series within 90 days
after the original request.
|
Holders
may, however, sue to enforce the payment of principal or interest on any debt
security on or after the due date without following the procedures listed in (1)
through (3) above.
Modification
and Waiver
Except as
provided in the next two succeeding paragraphs, the applicable trustee and we
may make modifications and amendments to the indentures (including, without
limitation, through consents obtained in connection with a tender offer or
exchange offer for, outstanding securities) and may waive any existing default
or event of default (including, without limitation, through consents obtained in
connection with a tender offer or exchange offer for, outstanding securities)
with the consent of the holders of a majority in aggregate principal amount of
the outstanding securities of each series affected by the modification or
amendment.
However,
neither we nor the trustee may make any amendment or waiver without the consent
of the holder of each outstanding security of that series affected by the
amendment or waiver if such amendment or waiver would, among other
things:
|
·
|
change
the amount of securities whose holders must consent to an amendment,
supplement or waiver;
|
|
·
|
change the stated maturity of any
debt security;
|
|
·
|
reduce the principal on any debt
security or reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund;
|
|
·
|
reduce the principal of an
original issue discount security on acceleration of
maturity;
|
|
·
|
reduce the rate of interest or
extend the time for payment of interest on any debt
security;
|
|
·
|
make a principal or interest
payment on any debt security in any currency other than that stated in the
debt security;
|
|
·
|
impair the right to enforce any
payment after the stated maturity or redemption
date;
|
|
·
|
waive any default or event of
default in payment of the principal of, premium or interest on any debt
security (except certain rescissions of acceleration);
or
|
|
·
|
waive a redemption payment or
modify any of the redemption provisions of any debt
security.
|
Notwithstanding
the preceding, without the consent of any holder of outstanding securities, we
and the trustee may amend or supplement the indentures:
|
·
|
to provide for the issuance of
and establish the form and terms and conditions of debt securities of any
series as permitted by the
indenture;
|
|
·
|
to provide for uncertificated
securities in addition to or in place of certificated
securities;
|
|
·
|
to provide for the assumption of
our obligations to holders of any debt security in the case of a merger,
consolidation, transfer or sale of all or substantially all of our
assets;
|
|
·
|
to make any change that does not
adversely affect the legal rights under the indenture of any such
holder;
|
|
·
|
to comply with requirements of
the Commission in order to effect or maintain the qualification of an
indenture under the Trust Indenture Act;
or
|
|
·
|
to evidence and provide for the
acceptance of appointment by a successor trustee with respect to the debt
securities of one or more series and to add to or change any of the
provisions of the indenture as shall be necessary to provide for or
facilitate the administration of the trusts by more than one
Trustee.
|
The
consent of holders is not necessary under the indentures to approve the
particular form of any proposed amendment. It is sufficient if such consent
approves the substance of the proposed amendment.
Satisfaction
and Discharge; Defeasance
We may be
discharged from our obligations on the debt securities of any series that have
matured or will mature or be redeemed within one year if we deposit with the
trustee enough cash to pay all the principal, interest and any premium due to
the stated maturity date or redemption date of the debt securities.
Each
indenture contains a provision that permits us to elect:
|
·
|
to be discharged from all of our
obligations, subject to limited exceptions, with respect to any series of
debt securities then outstanding;
and/or
|
|
·
|
to be released from our
obligations under the following covenants and from the consequences of an
event of default resulting from a breach of certain covenants, including
covenants as to payment of taxes and maintenance of corporate
existence.
|
To make
either of the above elections, we must deposit in trust with the trustee enough
money to pay in full the principal and interest on the debt securities. This
amount may be made in cash and/or U.S. government obligations. As a condition to
either of the above elections, we must deliver to the trustee an opinion of
counsel that the holders of the debt securities will not recognize income, gain
or loss for federal income tax purposes as a result of the action.
If any of
the above events occurs, the holders of the debt securities of the series will
not be entitled to the benefits of the indenture, except for the rights of
holders to receive payments on debt securities or the registration of transfer
and exchange of debt securities and replacement of lost, stolen or mutilated
debt securities.
Notices
Notices
to holders will be given by mail to the addresses of the holders in the security
register.
Governing
Law
The
indentures and the debt securities will be governed by, and construed under, the
law of the State of New York.
Regarding
the Trustee
The
indenture limits the right of the trustee, should it become a creditor of us, to
obtain payment of claims or secure its claims.
The
trustee is permitted to engage in certain other transactions. However, if the
trustee acquires any conflicting interest, and there is a default under the debt
securities of any series for which they are trustee, the trustee must eliminate
the conflict or resign.
Subordination
Payment
on subordinated debt securities will, except as otherwise provided in the
indenture, be subordinated in right of payment to the prior payment in full of
all of our senior indebtedness (except that holders of the notes may receive and
retain (i) permitted junior securities and (ii) payments made from the trust
described under “Satisfaction and Discharge; Defeasance”). Any subordinated debt
securities also are effectively subordinated to all debt and other liabilities,
including lease obligations, if any.
Upon any
distribution of our assets upon any dissolution, winding up, liquidation or
reorganization, the payment of the principal of and interest on subordinated
debt securities will be subordinated in right of payment to the prior payment in
full in cash or other payment satisfactory to the holders of senior
indebtedness. In the event of any acceleration of subordinated debt securities
because of an event of default, the holders of any senior indebtedness would be
entitled to payment in full in cash or other payment satisfactory to such
holders of all senior indebtedness obligations before the holders of
subordinated debt securities are entitled to receive any payment or
distribution, except for certain payments made by the trust described under
“Satisfaction and Discharge; Defeasance.” The indenture requires us or the
trustee to promptly notify holders of designated senior indebtedness if payment
of subordinated debt securities is accelerated because of an event of
default.
We may
not make any payment on subordinated debt securities, including upon redemption
at the option of the holder of any subordinated debt securities or at our
option, if:
|
·
|
a default in the payment of the
principal, premium, if any, interest, rent or other obligations in respect
of designated senior indebtedness occurs and is continuing beyond any
applicable period of grace (called a “payment default”);
or
|
|
·
|
a default other than a payment
default on any designated senior indebtedness occurs and is continuing
that permits holders of designated senior indebtedness to accelerate its
maturity, and the trustee receives notice of such default (called a
“payment blockage notice) from us or any other person permitted to give
such notice under the indenture (called a “non-payment
default”).
|
If the
trustee or any holder of the notes receives any payment or distribution of our
assets in contravention of the subordination provisions on subordinated debt
securities before all senior indebtedness is paid in full in cash, property or
securities, including by way of set-off, or other payment satisfactory to
holders of senior indebtedness, then such payment or distribution will be held
in trust for the benefit of holders of senior indebtedness or their
representatives to the extent necessary to make payment in full in cash or
payment satisfactory to the holders of senior indebtedness of all unpaid senior
indebtedness.
In the
event of our bankruptcy, dissolution or reorganization, holders of senior
indebtedness may receive more, ratably, and holders of subordinated debt
securities may receive less, ratably, than our other creditors (including our
trade creditors). This subordination will not prevent the occurrence of any
event of default under the indenture.
We are
not prohibited from incurring debt, including senior indebtedness, under the
indenture unless otherwise provided in the indenture. We may from time to time
incur additional debt, including senior indebtedness.
We are
obligated to pay reasonable compensation to the trustee and to indemnify the
trustee against certain losses, liabilities or expenses incurred by the trustee
in connection with its duties under the indenture. The trustee’s claims for
these payments will generally be senior to those of noteholders in respect of
all funds collected or held by the trustee.
Certain
Definitions
“indebtedness”
means:
|
(1)
|
all
indebtedness, obligations and other liabilities for borrowed money,
including overdrafts, foreign exchange contracts, currency exchange
agreements, interest rate protection agreements, and any loans or advances
from banks, or evidenced by bonds, debentures, notes or similar
instruments, other than any account payable or other accrued current
liability or obligation incurred in the ordinary course of business in
connection with the obtaining of materials or
services;
|
|
(2)
|
all
reimbursement obligations and other liabilities with respect to letters of
credit, bank guarantees or bankers’
acceptances;
|
|
(3)
|
all
obligations and liabilities in respect of leases required in conformity
with generally accepted accounting principles to be accounted for as
capitalized lease obligations on our balance
sheet;
|
|
(4)
|
all
obligations and other liabilities under any lease or related document in
connection with the lease of real property which provides that we are
contractually obligated to purchase or cause a third party to purchase the
leased property and thereby guarantee a minimum residual value of the
leased property to the lessor and our obligations under the lease or
related document to purchase or to cause a third party to purchase the
leased property;
|
|
(5)
|
all
obligations with respect to an interest rate or other swap, cap or collar
agreement or other similar instrument or agreement or foreign currency
hedge, exchange, purchase or other similar instrument or
agreement;
|
|
(6)
|
all
direct or indirect guaranties or similar agreements in respect of, and our
obligations or liabilities to purchase, acquire or otherwise assure a
creditor against loss in respect of, indebtedness, obligations or
liabilities of others of the type described in (1) through (5)
above;
|
|
(7)
|
any
indebtedness or other obligations described in (1) through (6) above
secured by any mortgage, pledge, lien or other encumbrance existing on
property which is owned or held by us;
and
|
|
(8)
|
any
and all refinancings, replacements, deferrals, renewals, extensions and
refundings of, or amendments, modifications or supplements to, any
indebtedness, obligation or liability of the kind described in clauses (1)
through (7) above.
|
“permitted
junior securities” means (i) equity interests in the Company; or (ii) debt
securities of the Company that are subordinated to all senior indebtedness and
any debt securities issued in exchange for senior indebtedness to substantially
the same extent as, or to a greater extent than the notes are subordinated to
senior indebtedness under the indenture.
“senior
indebtedness” means the principal, premium, if any, interest, including any
interest accruing after bankruptcy, and rent or termination payment on or other
amounts due on our current or future indebtedness, whether created, incurred,
assumed, guaranteed or in effect guaranteed by us, including any deferrals,
renewals, extensions, refundings, amendments, modifications or supplements to
the above. However, senior indebtedness does not include:
|
·
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indebtedness that expressly
provides that it shall not be senior in right of payment to subordinated
debt securities or expressly provides that it is on the same basis or
junior to subordinated debt
securities;
|
|
·
|
our indebtedness to any of our
majority-owned subsidiaries;
or
|
|
·
|
subordinated debt
securities.
|
DESCRIPTION
OF WARRANTS
General
We
may issue warrants for the purchase of our debt securities, preferred stock or
common stock, or any combination thereof. Warrants may be issued independently
or together with our debt securities, preferred stock or common stock and may be
attached to or separate from any offered securities. Each series of warrants
will be issued under a separate warrant agreement. We may enter into a warrant
agreement with a bank or trust company, as warrant agent. We will indicate the
name and address and other information regarding the warrant agent in the
applicable prospectus supplement relating to a particular series of warrants.
The warrant agent will act solely as our agent in connection with the warrants.
The warrant agent will not have any obligation or relationship of agency or
trust for or with any holders or beneficial owners of warrants. This summary of
certain provisions of the warrants is not complete. For the terms of a
particular series of warrants, you should refer to the prospectus supplement for
that series of warrants and the warrant agreement for that particular
series.
Debt
Warrants
The
prospectus supplement relating to a particular issue of warrants to purchase
debt securities will describe the terms of the debt warrants, including the
following:
|
·
|
the title of the debt
warrants;
|
|
·
|
the offering price for the debt
warrants, if any;
|
|
·
|
the aggregate number of the debt
warrants;
|
|
·
|
the designation and terms of the
debt securities, including any conversion rights, purchasable upon
exercise of the debt
warrants;
|
|
·
|
if applicable, the date from and
after which the debt warrants and any debt securities issued with them
will be separately
transferable;
|
|
·
|
the principal amount of debt
securities that may be purchased upon exercise of a debt warrant and the
exercise price for the warrants, which may be payable in cash, securities
or other property;
|
|
·
|
the dates on which the right to
exercise the debt warrants will commence and
expire;
|
|
·
|
if applicable, the minimum or
maximum amount of the debt warrants that may be exercised at any one
time;
|
|
·
|
whether the debt warrants
represented by the debt warrant certificates or debt securities that may
be issued upon exercise of the debt warrants will be issued in registered
or bearer form;
|
|
·
|
information
with respect to book-entry procedures, if
any;
|
|
·
|
the
currency or currency units in which the offering price, if any, and the
exercise price are payable;
|
|
·
|
if applicable, a discussion of
material U.S. federal income tax
considerations;
|
|
·
|
the antidilution provisions of
the debt warrants, if any;
|
|
·
|
the redemption or call
provisions, if any, applicable to the debt
warrants;
|
|
·
|
any provisions with respect to
the holder’s right to require us to repurchase the warrants upon a change
in control or similar event;
and
|
|
·
|
any additional terms of the debt
warrants, including procedures, and limitations relating to the exchange,
exercise and settlement of the debt
warrants.
|
Debt
warrant certificates will be exchangeable for new debt warrant certificates of
different denominations. Debt warrants may be exercised at the corporate trust
office of the warrant agent or any other office indicated in the prospectus
supplement. Prior to the exercise of their debt warrants, holders of debt
warrants will not have any of the rights of holders of the debt securities
purchasable upon exercise and will not be entitled to payment of principal or
any premium, if any, or interest on the debt securities purchasable upon
exercise.
Equity
Warrants
The
prospectus supplement relating to a particular series of warrants to purchase
our common stock or preferred stock will describe the terms of the warrants,
including the following:
|
·
|
the title of the
warrants;
|
|
·
|
the offering price for the
warrants, if any;
|
|
·
|
the aggregate number of
warrants;
|
|
·
|
the designation and terms of the
common stock or preferred stock that may be purchased upon exercise of the
warrants;
|
|
·
|
if applicable, the designation
and terms of the securities with which the warrants are issued and the
number of warrants issued with each
security;
|
|
·
|
if applicable, the date from and
after which the warrants and any securities issued with the warrants will
be separately transferable;
|
|
·
|
the number of shares of common
stock or preferred stock that may be purchased upon exercise of a warrant
and the exercise price for the
warrants;
|
|
·
|
the dates on which the right to
exercise the warrants shall commence and
expire;
|
|
·
|
if applicable, the minimum or
maximum amount of the warrants that may be exercised at any one
time;
|
|
·
|
the currency or currency units in
which the offering price, if any, and the exercise price are
payable;
|
|
·
|
if applicable, a discussion of
material U.S. federal income tax
considerations;
|
|
·
|
the antidilution provisions of
the warrants, if any;
|
|
·
|
the redemption or call
provisions, if any, applicable to the
warrants;
|
|
·
|
any provisions with respect to
holder’s right to require us to repurchase the warrants upon a change in
control or similar event;
and
|
|
·
|
any additional terms of the
warrants, including procedures, and limitations relating to the exchange,
exercise and settlement of the
warrants.
|
Holders
of equity warrants will not be entitled:
|
·
|
to vote, consent or receive
dividends;
|
|
·
|
to receive notice as stockholders
with respect to any meeting of stockholders for the election of our
directors or any other matter;
or
|
|
·
|
to exercise any rights as
stockholders of the Company.
|
CERTAIN
PROVISIONS OF DELAWARE LAW,
THE
CERTIFICATE OF INCORPORATION AND BYLAWS
Limitations
on Directors’ Liability
Our
certificate of incorporation and our bylaws contain provisions indemnifying our
directors and officers to the fullest extent permitted by law. In addition, as
permitted by Delaware law, our certificate of incorporation provides that
no director will be liable to us or our stockholders for monetary damages for
breach of certain fiduciary duties as a director. The effect of this provision
is to restrict our rights and the rights of our stockholders in derivative suits
to recover monetary damages against a director for breach of certain fiduciary
duties as a director, except that a director will be personally liable
for:
|
·
|
the benefits to be derived from
relationships with our
collaborators;
|
|
·
|
any breach of his or her duty of
loyalty to the registrant or its
stockholders;
|
|
·
|
acts or omissions not in good
faith which involve intentional misconduct or a knowing violation of
law;
|
|
·
|
the payment of dividends or the
redemption or purchase of stock in violation of Delaware law;
or
|
|
·
|
any transaction from which the
director derived an improper personal
benefit.
|
This
provision does not affect a director’s liability under the federal securities
laws.
To the
extent that our directors, officers and controlling persons are indemnified
under the provisions contained in our certificate of incorporation,
Delaware law or contractual arrangements against liabilities arising under the
Securities Act, we have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act, and is therefore unenforceable.
Provisions
that May Have an Anti-Takeover Effect
Certain
provisions set forth in our certificate of incorporation, bylaws and in Delaware
law, which are summarized below, are intended to enhance the likelihood of
continuity and stability in the composition of our Board of Directors and in the
policies formulated by our Board of Directors and to discourage certain types of
transactions that may involve an actual or threatened change of control. In that
regard, these provisions are designed to reduce our vulnerability to an
unsolicited acquisition proposal. The provisions also are intended to discourage
certain tactics that may be used in proxy fights. However, such provisions could
have the effect of discouraging others from making tender offers for our shares
and, as a consequence, they also may inhibit fluctuations in the market price of
our common stock that could result from actual or rumored takeover attempts.
Such provisions also may have the effect of preventing changes in our
management.
Blank Check Preferred Stock.
Our certificate of incorporation contains provisions that permit our Board of
Directors to issue, without any further vote or action by the stockholders, up
to 30,000,000 shares of preferred stock in one or more series and, with respect
to each such series, to fix the number of shares constituting the series and the
designation of the series, the voting powers (if any) of the shares of the
series, and the preferences and relative, participating, optional and other
special rights, if any, and any qualifications, limitations or restrictions, of
the shares of such series. As a result, our Board of Directors could authorize
the issuance of shares of preferred stock with terms and conditions that could
have the effect of delaying, deferring or preventing a transaction or a change
in control that might involve a premium price for holders of the registrant’s
common stock or otherwise be in their best interest.
Special Meetings of
Stockholders. Our bylaws provide that special meetings of stockholders
may be called only by the Board of Directors. Stockholders are not permitted to
call a special meeting of stockholders or to require that the Board of Directors
call such a special meeting.
Delaware
Takeover Statute.
In
general, Section 203 of the Delaware General Corporation Law prohibits a
Delaware corporation that is a public company from engaging in any “business
combination” (as defined below) with any “interested stockholder” (defined
generally as an entity or person beneficially owning 15% or more of the
outstanding voting stock of the corporation and any entity or person affiliated
with such entity or person) for a period of three years following the date that
such stockholder became an interested stockholder, unless: (1) prior to 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; (2) on consummation 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 commenced, excluding for purposes of determining the number
of shares outstanding those shares owned (x) by persons who are directors and
also officers and (y) by 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 (3) on or subsequent
to such date, the business combination is approved by the board of directors and
authorized at an annual or special meeting of 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.
Section
203 of the Delaware General Corporation Law defines “business combination” to
include: (1) any merger or consolidation involving the corporation and the
interested stockholder; (2) any sale, transfer, pledge or other disposition of
10% or more of the assets of the corporation involving the interested
stockholder; (3) 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; (4) any transaction involving the corporation that
has the effect of increasing the proportionate share of the stock of any class
or series of the corporation beneficially owned by the interested stockholder;
or (5) the receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or through
the corporation.
WHERE
YOU CAN FIND MORE INFORMATION
We are a
reporting company and file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy these
reports, proxy statements and other information at the SEC’s public reference
room at 100 F. Street, N.E., Washington, D.C. 20549 or at the SEC’s other public
reference facilities. Please call the SEC at 1-800-SEC-0330 for more information
about the operation of the public reference rooms. You can request copies of
these documents by writing to the SEC and paying a fee for the copying
costs. In addition, the SEC maintains an Internet site at http://www.sec.gov
that contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC. Our SEC
filings are available on the SEC’s Internet site.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We are
allowed to incorporate by reference information contained in documents that we
file with the SEC. This means that we can disclose important information to you
by referring you to those documents and that the information in this prospectus
is not complete and you should read the information incorporated by reference
for more detail. We incorporate by reference in two ways. First, we list certain
documents that we have already filed with the SEC. The information in these
documents is considered part of this prospectus. Second, the information in
documents that we file in the future will update and supersede the current
information in, and incorporated by reference in, this prospectus.
We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, or the Exchange Act (other than
information furnished in Current Reports on Form 8-K filed under Item 2.02
or 7.01 of such form), including filings made after the date of the initial
registration statement of which this prospectus is a part and prior to the
effective date of such registration statement:
|
·
|
Annual
Report on Form 10-K for the fiscal year ended December 31, 2009,
filed on March 17, 2010;
|
|
·
|
Quarterly
Report on Form 10-Q for the quarter ended March 31, 2010, filed
on April 30, 2010;
|
|
·
|
Current
Report on Form 8-K filed on April 6, 2010;
and
|
|
·
|
The
description of our common stock set forth in the registration statement on
Form 8-A registering our common stock under Section 12 of the Exchange
Act, which was filed with the SEC on September 20,
2006.
|
We will
provide to each person, including any beneficial owner, to whom a prospectus is
delivered, a copy of any or all of the information that has been incorporated by
reference in this prospectus but not delivered with this prospectus. You may
request a copy of this information at no cost, by writing or telephoning us at
the following address or telephone number:
ZIOPHARM
Oncology, Inc.
1180
Avenue of the Americas, 19th Floor
New York,
NY 10036
Attention:
President
Telephone:
(646) 214-0700
You
should rely only on the information incorporated by reference or provided in
this prospectus or any supplement. We have not authorized anyone else to provide
you with different information. The selling stockholders will not make an offer
of these shares in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any supplement is accurate as
of any date other than the date on the front of these
documents.
LEGAL
MATTERS
The
validity of the securities offered hereby will be passed upon by Maslon Edelman
Borman & Brand, LLP, Minneapolis, Minnesota.
EXPERTS
The
balance sheets of ZIOPHARM Oncology, Inc. as of December 31, 2009 and 2008 and
the related statements of operations, changes in convertible preferred stock and
stockholders’ equity (deficit) and cash flows for each of the years in the
three-year period ended December 31, 2009 and for the period from September 9,
2003 (date of inception) through December 31, 2009, included in this prospectus,
have been included herein in reliance on the report, dated March 17, 2010, of
Caturano and Company, P.C., independent registered public accounting firm,
(which report expresses an unqualified opinion and includes an explanatory
paragraph relating to the change in the manner in which the Company accounts for
certain warrants), given on the authority of that firm as experts in auditing
and accounting.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses Of Issuance And Distribution.
The
following table sets forth the fees and expenses, other than underwriting
compensation, payable in connection with the registration of securities
hereunder. All amounts are estimates except for the SEC registration fee. The
assumed amount has been used to demonstrate the expenses of an offering and does
not represent an estimate of the amount of securities that may be registered or
distributed because such amount is unknown at this time.
SEC
registration fee
|
|
$ |
7,130 |
|
Legal
fees and expenses
|
|
$ |
75,000 |
|
Accounting
fees and expenses
|
|
$ |
25,000 |
|
Printing
and engraving expenses
|
|
$ |
25,000 |
|
Miscellaneous
expenses
|
|
$ |
25,000 |
|
Blue
sky fees and expenses
|
|
$ |
25,000 |
|
|
|
$ |
182,130 |
|
Item
15. Indemnification of Directors and Officers.
Under
Article 6 of the Registrant’s bylaws, each director and officer of the
Registrant will be indemnified to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or she, or a person for whom he or she is the legal
representative, is or was a director or officer of the Registrant or, while a
director or officer of the Registrant, is or was serving at the request of the
Registrant as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys’ fees) reasonably incurred
by such director or officer. However, the Registrant shall be required to
indemnify a director or officer in connection with a proceeding commenced by
such director or officer only if the commencement of such proceeding (or part
thereof) by the director or officer was authorized by the Board. The
Registrant’s Amended and Restated Certificate of Incorporation also eliminates
the liability of directors of the Registrant for monetary damages to the fullest
extent permissible under Delaware law.
Section
145 of the Delaware General Corporation Law states:
(a) A
corporation shall have the power 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, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action arising by or in the right of the
corporation) by reason of the fact that he 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 him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he 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 reasonable cause to believe that his conduct
was unlawful.
(b) A
corporation shall have power 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 he 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)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect to 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 expense which the Court of Chancery or such other court shall
deem proper.
The
Registrant maintains insurance on behalf of its officers and directors, insuring
them against liabilities that they may incur in such capacities or arising out
of this status.
The above
discussion of the Registrant’s Amended and Restated Certificate of Incorporation
and Bylaws and of Section 145 of the Delaware General Corporation Law is not
intended to be exhaustive and is respectively qualified in its entirety by such
Amended and Restated Certificate of Incorporation, Bylaws and
statute.
To the
extent that our directors, officers and controlling persons are indemnified
under the provisions contained in our amended and restated certificate of
incorporation, Delaware law or contractual arrangements against liabilities
arising under the Securities Act, we have been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933, as amended, and is therefore
unenforceable.
Item
16. Exhibits.
The following exhibits are filed as
part of this Registration Statement:
Exhibit No.
|
|
Description of Document
|
|
|
|
1.1 *
|
|
Underwriting
Agreement
|
4.1
|
|
Amended
and Restated Certificate of Incorporation, as filed with the Delaware
Secretary of State on April 26, 2006 (incorporated by reference to Exhibit
3.1 to the Registrant’s Current Report of Form 8-K filed April 26,
2006)
|
4.2
|
|
Certificate
of Merger dated September 13, 2005, relating to the merger of ZIO
Acquisition Corp. with and into ZIOPHARM, Inc. (incorporated by reference
to Exhibit 3.1 to the Registrant’s Form 8-K filed September 19,
2005)
|
4.3
|
|
Certificate
of Ownership of the Registrant (formerly “EasyWeb, Inc.”) dated as of
September 14, 2005, relating the merger of ZIOPHARM, Inc. with and into
the Registrant, and changing the Registrant’s corporate name from EasyWeb,
Inc. to ZIOPHARM Oncology, Inc. (incorporated by reference to Exhibit 3.2
to the Registrant’s Form 8-K filed September 19, 2005)
|
4.4
|
|
Bylaws,
as amended to date (incorporated by reference to Exhibit 3.3 to the
Registrant’s Form 8-K filed September 19, 2005)
|
4.5
|
|
Specimen
common stock certificate (incorporated by reference to Exhibit 4.1 to the
Registrant’s Registration Statement on Form SB-2 [SEC File No. 333-129020]
filed October 14, 2005)
|
4.6 *
|
|
Specimen
preferred stock certificate
|
4.7 *
|
|
Form
of Debt Security
|
4.8
|
|
Form
of Indenture between the Registrant and one or more trustees to be
named
|
4.9 *
|
|
Form
of Warrant
|
4.10*
|
|
Form
of Warrant Agreement
|
5.1
|
|
Legal
opinion of Maslon Edelman Borman & Brand, LLP
|
12.1
|
|
Statement
of Computation of Ratio of Earnings to Fixed Charges
|
23.1
|
|
Consent
of Independent Registered Public Accounting Firm - Caturano and Company,
P.C.
|
23.2
|
|
Consent
of Maslon Edelman Borman & Brand, LLP (included as part of Exhibit
5.1)
|
24.1
|
|
Power
of Attorney (included on signature page)
|
25.1**
|
|
Statement
of Eligibility of Trustee on
Form T-1
|
*
|
To
be filed by amendment or as an exhibit to a report pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange
Act.
|
**
|
To
be filed pursuant to Section 305(b)(2) of the Trust Indenture Act at
the time of an offering of debt
securities.
|
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 a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however, that
the
undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) above 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 a part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide
offering thereof. Provided,
however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers, and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The
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 Securities and Exchange Commission under
Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on April 30, 2010.
|
ZIOPHARM
Oncology, Inc.
|
|
|
|
|
By:
|
/s/
Jonathan Lewis
|
|
|
Jonathan
Lewis
|
|
|
Chief
Executive Officer
|
POWER
OF ATTORNEY
Each person whose signature appears
below hereby constitutes and appoints Jonathan Lewis and Richard E. Bagley, and
each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, 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, 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 might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
Name
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Jonathan Lewis
|
|
Director
and Chief Executive Officer
|
|
April
30, 2010
|
Jonathan
Lewis
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
/s/ Richard E. Bagley
|
|
Director,
President, Treasurer and Chief
|
|
April
30, 2010
|
Richard
E. Bagley
|
|
Operating
Officer (Principal
|
|
|
|
|
Accounting
and Financial Officer)
|
|
|
/s/ George B. Abercrombie
|
|
Director
|
|
April
30, 2010
|
George
B. Abercrombie
|
|
|
|
|
|
|
|
|
|
/s/ Murray Brennan
|
|
Director
|
|
April
30, 2010
|
Murray
Brennan
|
|
|
|
|
|
|
|
|
|
/s/ James Cannon
|
|
Director
|
|
April
30, 2010
|
James
Cannon
|
|
|
|
|
|
|
|
|
|
/s/ Timothy McInerney
|
|
Director
|
|
April
30, 2010
|
Timothy
McInerney
|
|
|
|
|
|
|
|
|
|
/s/ Wyche Fowler, Jr.
|
|
Director
|
|
April
30, 2010
|
Wyche
Fowler, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
April
30, 2010
|
Gary
S. Fragin
|
|
|
|
|
|
|
|
|
|
/s/ Michael Weiser
|
|
Director
|
|
April
30, 2010
|
Michael
Weiser
|
|
|
|
|
EXHIBIT
INDEX
Exhibit No.
|
|
Description of Document
|
|
|
|
1.1 *
|
|
Underwriting
Agreement
|
4.6 *
|
|
Specimen
preferred stock certificate
|
4.7 *
|
|
Form
of Debt Security
|
4.8
|
|
Form
of Indenture between the Registrant and one or more trustees to be
named
|
4.9 *
|
|
Form
of Warrant
|
4.10*
|
|
Form
of Warrant Agreement
|
5.1
|
|
Legal
opinion of Maslon Edelman Borman & Brand, LLP
|
12.1
|
|
Statement
of Computation of Ratio of Earnings to Fixed Charges
|
23.1
|
|
Consent
of Independent Registered Public Accounting Firm - Caturano and Company,
P.C.
|
23.2
|
|
Consent
of Maslon Edelman Borman & Brand, LLP (included as part of Exhibit
5.1)
|
24.1
|
|
Power
of Attorney (included on signature page)
|
25.1*
|
|
Statement
of Eligibility of Trustee on
Form T-1
|
*
|
To
be filed by amendment or as an exhibit to a report pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange
Act.
|
**
|
To
be filed pursuant to Section 305(b)(2) of the Trust Indenture Act at
the time of an offering of debt
securities.
|
Exhibit 4.8
FORM
OF INDENTURE TO BE ENTERED INTO BETWEEN THE COMPANY AND
A
TRUSTEE TO BE NAMED
ZIOPHARM
ONCOLOGY, INC.
INDENTURE
DEBT
SECURITIES
DATED AS OF
, 20___
[Name
of Trustee]
TRUSTEE
ZIOPHARM
ONCOLOGY, INC.
Reconciliation
and tie between Trust Indenture Act of 1939 and Indenture, dated as
of ,
20
Section
310(a) (1)
|
7.10
|
(a)
(2)
|
7.10
|
(a)
(3)
|
Not
Applicable
|
(a)
(4)
|
Not
Applicable
|
(a)
(5)
|
7.10
|
(b)
|
7.10
|
Section
311(a)
|
7.11
|
(b)
|
7.11
|
(c)
|
Not
Applicable
|
Section
312(a)
|
2.6
|
(b)
|
10.3
|
(c)
|
10.3
|
Section
313(a)
|
7.6
|
(b)
(1)
|
7.6
|
(b)
(2)
|
7.6
|
(c)
(1)
|
7.6
|
(d)
|
7.6
|
Section
314(a)
|
4.2,
10.5
|
(b)
|
Not
Applicable
|
(c)
(1)
|
10.4
|
(c)
(2)
|
10.4
|
(c)
(3)
|
Not
Applicable
|
(d)
|
Not
Applicable
|
(e)
|
10.5
|
(f)
|
Not
Applicable
|
Section
315(a)
|
7.1
|
(b)
|
7.5
|
(c)
|
7.1
|
(d)
|
7.1
|
(e)
|
6.14
|
Section
316(a)
|
2.10
|
(a)
(1)(a)
|
6.12
|
(a)
(1)(b)
|
6.13
|
(b)
|
6.8
|
Section
317(a)(1)
|
6.3
|
(a)(2)
|
6.4
|
(b)
|
2.5
|
Section
318(a)
|
10.1
|
Note:
This reconciliation and tie shall not, for any purpose, be deemed to be part of
the Indenture.
Indenture
dated as of
, 20__ between ZIOPHARM Oncology, Inc.., a Delaware corporation (“Company”), and
[Name of Trustee], a
(“Trustee”).
Each
party agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the Holders of the Securities issued under this
Indenture.
ARTICLE
I.
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section 1.1
Definitions
”Affiliate” of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
“control” (including, with correlative meanings, the terms “controlled by” and
“under common control with”), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
“Agent”
means any Registrar, Paying Agent, Service Agent or authenticating
agent.
“Bearer”
means anyone in possession from time to time of a Bearer Security.
“Bearer
Security” means any Security, including any interest coupon appertaining
thereto, that does not provide for the identification of the Holder
thereof.
“Board
of Directors” means the Board of Directors of the Company or any duly authorized
committee thereof.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in
full force and effect on the date of the certificate, and delivered to the
Trustee.
“Business
Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate
or supplemental indenture hereto for a particular Series, any day except a
Saturday, Sunday or a legal holiday in The City of New York on which banking
institutions are authorized or required by law, regulation or executive order to
close.
“Company”
means the party named as such above until a successor replaces it and thereafter
means the successor.
“Company
Order” means a written order signed in the name of the Company by two Officers,
one of whom must be the Company’s chief executive officer, chief financial
officer or principal accounting officer.
“Company
Request” means a written request signed in the name of the Company by its
Chairman of the Board, a President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
“Corporate
Trust Office” means the office of the Trustee at which at any particular time
its corporate trust business shall be principally administered.
“Debt”
of any person as of any date means, without duplication, all indebtedness of
such person in respect of borrowed money, including all interest, fees and
expenses owed in respect thereto (whether or not the recourse of the lender is
to the whole of the assets of such person or only to a portion thereof), or
evidenced by bonds, notes, debentures or similar instruments.
“Default”
means any event which is, or after notice or passage of time would be, an Event
of Default.
“Depository”
means, with respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the person designated
as Depository for such Series by the Company, which Depository shall be a
clearing agency registered under the Exchange Act; and if at any time there is
more than one such person, “Depository” as used with respect to the Securities
of any Series shall mean the Depository with respect to the Securities of such
Series.
[INCLUDE
THIS LANGUAGE FOR SUBORDINATED SECURITIES:
“Designated
Senior Indebtedness” means any of our senior indebtedness that expressly
provides that it is “designated senior indebtedness” for purposes of this
Indenture (provided that the instrument, agreement or other document creating or
evidencing such Senior Indebtedness may place limitations and conditions on the
right of such Senior Indebtedness to exercise the rights of Designated Senior
Indebtedness).]
“Discount
Security” means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.2.
“Dollars”
means the currency of The United States of America.
“ECU”
means the European Currency Unit as determined by the Commission of the European
Union.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Foreign
Currency” means any currency or currency unit issued by a government other than
the government of The United States of America.
“Foreign
Government Obligations” means with respect to Securities of any Series that are
denominated in a Foreign Currency, (i) direct obligations of the government
that issued or caused to be issued such currency for the payment of which
obligations its full faith and credit is pledged or (ii) obligations of a
person controlled or supervised by or acting as an agency or instrumentality of
such government the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case under
clauses (i) or (ii), are not callable or redeemable at the option of the
issuer thereof.
“Global
Security” or “Global Securities” means a Security or Securities, as the case may
be, in the form established pursuant to Section 2.2 evidencing all or part
of a Series of Securities, issued to the Depository for such Series or its
nominee, and registered in the name of such Depository or nominee.
“Holder”
or “Securityholder” means a person in whose name a Security is registered or the
holder of a Bearer Security.
[INCLUDE
THIS LANGUAGE FOR SUBORDINATED SECURITIES:
“Indebtedness”
means, with respect to any person, and without duplication, (a) all
indebtedness, obligations and other liabilities (contingent or otherwise) of
such person for borrowed money (including obligations of the Company in respect
of overdrafts, foreign exchange contracts, currency exchange agreements,
interest rate protection agreements, and any loans or advances from banks,
whether or not evidenced by notes or similar instruments) or evidenced by bonds,
debentures, notes or similar instruments (whether or not the recourse of the
lender is to the whole of the assets of such person or to only a portion
thereof) (other than any account payable or other accrued current liability or
obligation incurred in the ordinary course of business in connection with the
obtaining of materials or services), (b) all reimbursement obligations and
other liabilities (contingent or otherwise) of such person with respect to
letters of credit, bank guarantees or bankers’ acceptances, (c) all
obligations and liabilities (contingent or otherwise) in respect of leases of
such person required, in conformity with generally accepted accounting
principles, to be accounted for as capitalized lease obligations on the balance
sheet of such person and all obligations and other liabilities (contingent or
otherwise) under any lease or related document (including a purchase agreement) in
connection with the lease of real property which provides that such person is
contractually obligated to purchase or cause a third party to purchase the
leased property and thereby guarantee a minimum residual value of the leased
property to the lessor and the obligations of such person under such lease or
related document to purchase or to cause a third party to purchase such leased
property, (d) all obligations of such person (contingent or otherwise) with
respect to an interest rate or other swap, cap or collar agreement or other
similar instrument or agreement or foreign currency hedge, exchange, purchase or
similar instrument or agreement, (e) all direct or indirect guaranties or
similar agreements by such person in respect of, and obligations or liabilities
(contingent or otherwise) of such person to purchase or otherwise acquire or
otherwise assure a creditor against loss in respect of indebtedness, obligations
or liabilities of another person of the kind described in clauses
(a) through (d), (f) any indebtedness or other obligations described
in clauses (a) through (e) secured by any mortgage, pledge, lien or
other encumbrance existing on property which is owned or held by such person,
regardless of whether the indebtedness or other obligation secured thereby shall
have been assumed by such person and (g) any and all refinancings,
replacements, deferrals, renewals, extensions and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or liability of
the kind described in clauses (a) through (f).]
“Indenture”
means this Indenture as amended from time to time and shall include the form and
terms of particular Series of Securities established as contemplated
hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only
after Maturity, means interest payable after Maturity.
“Maturity,”
when used with respect to any Security or installment of principal thereof,
means the date on which the principal of such Security or such installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption, notice
of option to elect repayment or otherwise.
“Officer”
means the Chairman of the Board, any President, any Vice-President, the
Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of
the Company.
“Officers’
Certificate” means a certificate signed by two Officers, one of whom must be the
Company’s principal executive officer, principal financial officer or principal
accounting officer.
“Opinion
of Counsel” means a written opinion of legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the
Company.
“person”
means any individual, corporation, partnership, joint venture, association,
limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
“principal”
of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on the Security.
[INCLUDE
THIS LANGUAGE FOR SUBORDINATED SECURITIES:
“Representative”
means the (a) indenture trustee or other trustee, agent or representative
for any Senior Indebtedness or (b) with respect to any Senior Indebtedness
that does not have any such trustee, agent or other representative, (i) in
the case of such Senior Indebtedness issued pursuant to an agreement providing
for voting arrangements as among the holders or owners of such Senior
Indebtedness, any holder or owner of such Senior Indebtedness acting with the
consent of the required persons necessary to bind such holders or owners of such
Senior Indebtedness and (ii) in the case of all other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.]
“Responsible
Officer” means any officer of the Trustee in its Corporate Trust Office and also
means, with respect to a particular corporate trust matter, any other officer to
whom any corporate trust matter is referred because of his or her knowledge of
and familiarity with a particular subject.
“SEC”
means the Securities and Exchange Commission.
“Securities”
means the debentures, notes or other debt instruments of the Company of any
Series authenticated and delivered under this Indenture.
[INCLUDE
THIS LANGUAGE FOR SUBORDINATED SECURITIES:
“Senior
Indebtedness” means the principal, premium, if any, interest, including any
interest accruing after bankruptcy, and rent or termination payment on or other
amounts due on our current or future Indebtedness, whether created, incurred,
assumed, guaranteed or in effect guaranteed by us, including any deferrals,
renewals, extensions, refundings, amendments, modifications or supplements to
the above. However, Senior Indebtedness does not include: (i) Indebtedness
that expressly provides that it shall not be senior in right of payment to the
Securities or expressly provides that it is on the same basis or junior to the
Securities; (ii) our indebtedness to any of our majority-owned
subsidiaries; and (iii) the Securities.]
“Series”
or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.1 and 2.2
hereof.
“Significant
Subsidiary” means (i) any direct or indirect Subsidiary of the Company that
would be a “significant subsidiary” as defined in Article 1, Rule 1-02
of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as
amended, as such regulation is in effect on the date hereof, or (ii) any
group of direct or indirect Subsidiaries of the Company that, taken together as
a group, would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act of 1933, as amended, as such regulation is in effect on the date
hereof.
“Stated
Maturity” when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
“Subsidiary”
of any specified person means any corporation of which at least a majority of
the outstanding stock having by the terms thereof ordinary voting power for the
election of directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned by such person, or by one or more other
Subsidiaries, or by such person and one or more other Subsidiaries.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb)
as in effect on the date of this Indenture; provided, however, that in the event
the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the
extent required by any such amendment, the Trust Indenture Act as so
amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this
instrument 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 Obligations” means securities which are (i) direct obligations of The
United States of America for the payment of which its full faith and credit is
pledged or (ii) obligations of a person controlled or supervised by and acting
as an agency or instrumentality of The United States of America the payment of
which is unconditionally guaranteed as a full faith and credit obligation by The
United States of America, and which in the case of (i) and (ii) are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such
depository receipt.
Section 1.2
Other
Definitions.
|
|
DEFINED IN
|
TERM
|
|
SECTION
|
“Bankruptcy
Law”
|
|
6.1
|
“Custodian”
|
|
6.1
|
“Event
of Default”
|
|
6.1
|
“Journal”
|
|
10.15
|
“Judgment
Currency”
|
|
10.16
|
“Legal
Holiday”
|
|
10.7
|
“mandatory
sinking fund payment”
|
|
11.1
|
“Market
Exchange Rate”
|
|
10.15
|
“New
York Banking Day”
|
|
10.16
|
“optional
sinking fund payment”
|
|
11.1
|
“Paying
Agent”
|
|
2.4
|
[INCLUDE
THIS LANGUAGE FOR SUBORDINATED SECURITIES:
|
|
|
“Payment
Blockage Notice”
|
|
12.2]
|
“Registrar”
|
|
2.4
|
“Required
Currency”
|
|
10.16
|
“Service
Agent”
|
|
2.4
|
“successor
person”
|
|
5.1
|
Section 1.3
Incorporation by
Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture
securities” means the Securities. “indenture security holder” means a
Securityholder. “indenture to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company and any successor obligor upon the
Securities.
All
other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA and not
otherwise defined herein are used herein as so defined.
Section 1.4
Rules of
Construction.
Unless
the context otherwise requires:
|
(a)
|
a term has the meaning assigned
to it;
|
|
(b)
|
an accounting term not otherwise
defined has the meaning assigned to it in accordance with generally
accepted accounting
principles;
|
|
(c)
|
references to “generally accepted
accounting principles” shall mean generally accepted accounting principles
in the United States in effect as of the time when and for the period as
to which such accounting principles are to be
applied;
|
|
(d)
|
“or” is not
exclusive;
|
|
(e)
|
words in the singular include the
plural, and in the plural include the singular;
and
|
|
(f)
|
provisions apply to successive
events and transactions.
|
ARTICLE
II.
THE
SECURITIES
Section 2.1
Issuable in
Series.
The
aggregate principal amount of Securities that may be authenticated and delivered
under this Indenture is unlimited. The Securities may be issued in one or more
Series. All Securities of a Series shall be identical except as may be set forth
in a Board Resolution, a supplemental indenture or an Officers’ Certificate
detailing the adoption of the terms thereof pursuant to the authority granted
under a Board Resolution. In the case of Securities of a Series to be issued
from time to time, the Board Resolution, Officers’ Certificate or supplemental
indenture may provide for the method by which specified terms (such as interest
rate, maturity date, record date or date from which interest shall accrue) are
to be determined. Securities may differ between Series in respect of any
matters, provided that all Series of Securities shall be equally and ratably
entitled to the benefits of the Indenture [INCLUDE THIS LANGUAGE FOR
SUBORDINATED SECURITIES: but all Securities issued hereunder shall be
subordinate and junior in right of payment, to the extent and in the manner set
forth in Article XII, to all Senior Indebtedness of the
Company.]
Section 2.2
Establishment of Terms
of Series of Securities.
At
or prior to the issuance of any Securities within a Series, the following shall
be established (as to the Series generally, in the case of Subsection 2.2.1
and either as to such Securities within the Series or as to the Series generally
in the case of Subsections 2.2.2 through 2.2.22) by a Board Resolution, a
supplemental indenture or an Officers’ Certificate pursuant to authority granted
under a Board Resolution:
2.2.1.
the title of the Series (which shall distinguish the Securities of that
particular Series from the Securities of any other Series);
2.2.2.
the price or prices (expressed as a percentage of the principal amount thereof)
at which the Securities of the Series will be issued;
2.2.3.
any limit upon the aggregate principal amount of the Securities of the Series
which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the Series pursuant to
Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4.
the date or dates on which the principal of the Securities of the Series is
payable;
2.2.5.
the rate or rates (which may be fixed or variable) per annum or, if applicable,
the method used to determine such rate or rates (including, but not limited to,
any commodity, commodity index, stock exchange index or financial index) at
which the Securities of the Series shall bear interest, if any, the date or
dates from which such interest, if any, shall accrue, the date or dates on which
such interest, if any, shall commence and be payable and any regular record date
for the interest payable on any interest payment date;
2.2.6.
the place or places where the principal of and interest, if any, on the
Securities of the Series shall be payable, or the method of such payment, if by
wire transfer, mail or other means;
2.2.7.
if applicable, the period or periods within which, the price or prices at which
and the terms and conditions upon which the Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
2.2.8.
the obligation, if any, of the Company to redeem or purchase the Securities of
the Series pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the Series shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation;
2.2.9.
the dates, if any, on which and the price or prices at which the Securities of
the Series will be repurchased by the Company at the option of the Holders
thereof and other detailed terms and provisions of such repurchase
obligations;
2.2.10.
if other than denominations of $2,000 and any integral multiple thereof, the
denominations in which the Securities of the Series shall be
issuable;
2.2.11.
the forms of the Securities of the Series in bearer or fully registered form
(and, if in fully registered form, whether the Securities will be issuable as
Global Securities);
2.2.12.
if other than the principal amount thereof, the portion of the principal amount
of the Securities of the Series that shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13.
the currency of denomination of the Securities of the Series, which may be
Dollars or any Foreign Currency, including, but not limited to, the ECU, and if
such currency of denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing such composite
currency;
2.2.14.
the designation of the currency, currencies or currency units in which payment
of the principal of and interest, if any, on the Securities of the Series will
be made;
2.2.15.
if payments of principal of or interest, if any, on the Securities of the Series
are to be made in one or more currencies or currency units other than that or
those in which such Securities are denominated, the manner in which the exchange
rate with respect to such payments will be determined;
2.2.16.
the manner in which the amounts of payment of principal of or interest, if any,
on the Securities of the Series will be determined, if such amounts may be
determined by reference to an index based on a currency or currencies or by
reference to a commodity, commodity index, stock exchange index or financial
index;
2.2.17.
the provisions, if any, relating to any security provided for the Securities of
the Series;
2.2.18.
if the holders of Securities of the Series may convert or exchange the
Securities into or for securities of the Issuer or of other entities or other
property, the period or periods within which, the rate or rates at which and the
terms and conditions upon which Securities of the Series may be converted or
exchanged, in whole or in part;
2.2.19.
any addition to or change in the Events of Default which applies to any
Securities of the Series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof due
and payable pursuant to Section 6.2;
2.2.20.
any addition to or change in the covenants set forth in Articles IV or V which
applies to Securities of the Series;
2.2.21.
any other terms of the Securities of the Series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1, but which may modify or delete any provision of this Indenture
insofar as it applies to such Series); and
2.2.22.
any depositories, interest rate calculation agents, exchange rate calculation
agents or other agents with respect to Securities of such Series if other than
those appointed herein.
All
Securities of any one Series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture or
Officers’ Certificate referred to above, and the authorized principal amount of
any Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers’ Certificate.
Section 2.3
Execution and
Authentication.
Two
Officers shall sign the Securities for the Company by manual or facsimile
signature.
If
an Officer whose signature is on a Security no longer holds that office at the
time the Security is authenticated, the Security shall nevertheless be
valid.
A
Security shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
The
Trustee shall at any time, and from time to time, authenticate Securities for
original issue in the principal amount provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate, upon receipt by the
Trustee of a Company Order. Such Company Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Company or its
duly authorized agent or agents, which oral instructions shall be promptly
confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate.
The
aggregate principal amount of Securities of any Series outstanding at any time
may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officers’
Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior
to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying
on:
|
(a)
|
the Board Resolution,
supplemental indenture hereto or Officers’ Certificate establishing the
form of the Securities of that Series or of Securities within that Series
and the terms of the Securities of that Series or of Securities within
that Series,
|
|
(b)
|
an Officers’ Certificate
complying with Section 10.4,
and
|
|
(c)
|
an Opinion of Counsel complying
with Section 10.4.
|
The
Trustee shall have the right to decline to authenticate and deliver any
Securities of such Series: (a) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (b) if the
Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors and/or vice-presidents shall determine that
such action would expose the Trustee to personal liability to Holders of any
then outstanding Series of Securities.
The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
Section 2.4
Registrar and Paying
Agent.
The
Company shall maintain, with respect to each Series of Securities, at the place
or places specified with respect to such Series pursuant to Section 2.2, an
office or agency where Securities of such Series may be presented or surrendered
for payment (“Paying Agent”), where Securities of such Series may be surrendered
for registration of transfer or exchange (“Registrar”) and where notices and
demands to or upon the Company in respect of the Securities of such Series and
this Indenture may be served (“Service Agent”). The Registrar shall keep a
register with respect to each Series of Securities and to their transfer and
exchange. The Company will give prompt written notice to the Trustee of the name
and address, and any change in the name or address, of each Registrar, Paying
Agent or Service Agent. If at any time the Company shall fail to maintain any
such required Registrar, Paying Agent or Service Agent or shall fail to furnish
the Trustee with the name and address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The
Company may also from time to time designate one or more co-registrars,
additional paying agents or additional service agents 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 obligations to
maintain a Registrar, Paying Agent and Service Agent in each place so specified
pursuant to Section 2.2 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 name or address of any such co-registrar,
additional paying agent or additional service agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional
paying agent; and the term “Service Agent” includes any additional service
agent.
The
Company hereby appoints the Trustee the initial Registrar, Paying Agent and
Service Agent for each Series unless another Registrar, Paying Agent or Service
Agent, as the case may be, is appointed prior to the time Securities of that
Series are first issued.
Section 2.5
Paying Agent to Hold
Money in Trust.
The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal of or interest on the Series of
Securities, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of Securityholders of any Series of Securities all money
held by it as Paying Agent.
Section 2.6
Securityholder
Lists.
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Securityholders
of each Series of Securities and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least ten 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 Securityholders of each Series of Securities.
Section 2.7
Transfer and
Exchange.
Where
Securities of a Series are presented to the Registrar or a co-registrar with a
request to register a transfer or to exchange them for an equal principal amount
of Securities of the same Series, the Registrar shall register the transfer or
make the exchange if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Trustee shall authenticate
Securities at the Registrar’s request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither
the Company nor the Registrar shall be required (a) to issue, register the
transfer of, or exchange Securities of any Series for the period beginning at
the opening of business fifteen days immediately preceding the mailing of a
notice of redemption of Securities of that Series selected for redemption and
ending at the close of business on the day of such mailing, or (b) to
register the transfer of or exchange Securities of any Series selected, called
or being called for redemption as a whole or the portion being redeemed of any
such Securities selected, called or being called for redemption in
part.
Section 2.8
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.
If
there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be 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 upon its request the Trustee shall
authenticate and make available for delivery, 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, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every
new Security of any Series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The
provisions of this Section 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.
Section 2.9
Outstanding
Securities.
The
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in
accordance with the provisions hereof and those described in this Section as not
outstanding.
If
a Security is replaced pursuant to Section 2.8, it ceases to be outstanding
until the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser.
If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds on the Maturity of Securities of a Series money sufficient to pay
such Securities payable on that date, then on and after that date such
Securities of the Series cease to be outstanding and interest on them ceases to
accrue.
A
Security does not cease to be outstanding because the Company or an Affiliate
holds the Security.
In
determining whether the Holders of the requisite principal amount of outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Discount Security that
shall be deemed to be outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.2.
Section 2.10
Treasury
Securities.
In
determining whether the Holders of the required principal amount of Securities
of a Series have concurred in any request, demand, authorization, direction,
notice, consent or waiver Securities of a Series owned by the Company or an
Affiliate shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver only Securities of a Series
that the Trustee knows are so owned shall be so disregarded.
Section 2.11
Temporary
Securities.
Until
definitive Securities are ready for delivery, the Company may prepare and the
Trustee shall authenticate temporary Securities upon a Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee upon
request shall authenticate definitive Securities of the same Series and date of
maturity in exchange for temporary Securities. Until so exchanged, temporary
securities shall have the same rights under this Indenture as the definitive
Securities.
Section 2.12
Cancellation.
The
Company at any time may deliver Securities to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Securities surrendered for transfer, exchange, payment,
replacement or cancellation and shall destroy such canceled Securities (subject
to the record retention requirement of the Exchange Act) and deliver a
certificate of such destruction to the Company, unless the Company otherwise
directs. The Company may not issue new Securities to replace Securities that it
has paid or delivered to the Trustee for cancellation.
Section 2.13
Defaulted
Interest.
If
the Company defaults in a payment of interest on a Series of Securities, it
shall pay the defaulted interest, plus, to the extent permitted by law, any
interest payable on the defaulted interest, to the persons who are
Securityholders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least 30 days before the
record date, the Company shall mail to the Trustee and to each Securityholder of
the Series a notice that states the record date, the payment date and the
amount of interest to be paid. The Company may pay defaulted interest in any
other lawful manner.
Section 2.14
Global
Securities.
2.14.1.
Terms of
Securities. A Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate shall establish whether the Securities of a Series shall
be issued in whole or in part in the form of one or more Global Securities and
the Depository for such Global Security or Securities.
2.14.2.
Transfer and
Exchange. Notwithstanding any provisions to the contrary contained in
Section 2.7 of the Indenture and in addition thereto, any Global Security
shall be exchangeable pursuant to Section 2.7 of the Indenture for
Securities registered in the names of Holders other than the Depository for such
Security or its nominee only if (i) such Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company fails to
appoint a successor Depository within 90 days of such event, (ii) the
Company executes and delivers to the Trustee an Officers’ Certificate to the
effect that such Global Security shall be so exchangeable or (iii) an Event
of Default with respect to the Securities represented by such Global Security
shall have happened and be continuing. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities
registered in such names as the Depository shall direct in writing in an
aggregate principal amount equal to the principal amount of the Global Security
with like tenor and terms.
Except
as provided in this Section 2.14.2, a Global Security may not be
transferred except as a whole by the Depository with respect to such Global
Security to a nominee of such Depository, by a nominee of such Depository to
such Depository or another nominee of such Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such a successor
Depository.
2.14.3.
Legend. Unless
otherwise provided pursuant to Section 2.2, any Global Security issued
hereunder shall bear a legend in substantially the following form:
“This
Security is a Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of the Depository or a nominee of the
Depository. This Security is exchangeable for Securities registered in the name
of a person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not be transferred except as a
whole by the Depository to a nominee of the Depository, by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such a
successor Depository.”
2.14.4.
Acts of
Holders. The Depository, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a Holder is entitled to
give or take under the Indenture.
2.14.5.
Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise
specified as contemplated by Section 2.2, payment of the principal of,
premium, if any, and interest, if any, on any Global Security shall be made to
the Holder thereof.
2.14.6.
Consents, Declaration
and Directions. Except as provided in Section 2.14.5, the Company,
the Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of such Series represented by a Global Security
as shall be specified in a written statement of the Depositary with respect to
such Global Security, for purposes of obtaining any consents, declarations,
waivers or directions required to be given by the Holders pursuant to this
Indenture.
Section 2.15
CUSIP
Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.
ARTICLE
III.
REDEMPTION
Section 3.1
Notice to
Trustee.
The
Company may, with respect to any Series of Securities, reserve the right to
redeem and pay the Series of Securities or may covenant to redeem and pay the
Series of Securities or any part thereof prior to the Stated Maturity thereof at
such time and on such terms as provided for in such Securities. If a Series of
Securities is redeemable and the Company wants or is obligated to redeem prior
to the Stated Maturity thereof all or part of the Series of Securities pursuant
to the terms of such Securities, it shall notify the Trustee of the redemption
date and the principal amount of Series of Securities to be redeemed. The
Company shall give the notice at least 45 days before the redemption date
(or such shorter notice as may be acceptable to the Trustee).
Section 3.2
Selection of
Securities to be Redeemed.
Unless
otherwise indicated for a particular Series by a Board Resolution, a
supplemental indenture or an Officers’ Certificate, if less than all the
Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed in any manner that the Trustee deems
fair and appropriate. The Trustee shall make the selection from Securities of
the Series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities of the Series that
have denominations larger than $2,000. Securities of the Series and portions of
them it selects shall be in amounts of $2,000 or whole multiples of $2,000 or,
with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.2.10, the minimum principal denomination for each
Series and integral multiples thereof. Provisions of this Indenture that apply
to Securities of a Series called for redemption also apply to portions of
Securities of that Series called for redemption.
Section 3.3
Notice of
Redemption.
Unless
otherwise indicated for a particular Series by Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, at least 30 days but not more
than 60 days before a redemption date, the Company shall mail a notice of
redemption by first-class mail to each Holder whose Securities are to be
redeemed.
The
notice shall identify the Securities of the Series to be redeemed and shall
state:
|
(b)
|
the redemption
price;
|
|
(c)
|
the name and address of the
Paying Agent;
|
|
(d)
|
that Securities of the Series
called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
|
|
(e)
|
that interest on Securities of
the Series called for redemption ceases to accrue on and after the
redemption date; and
|
|
(f)
|
any other information as may be
required by the terms of the particular Series or the Securities of a
Series being redeemed.
|
At
the Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense.
Section 3.4
Effect of Notice of
Redemption.
Once
notice of redemption is mailed or published as provided in Section 3.3,
Securities of a Series called for redemption become due and payable on the
redemption date and at the redemption price. A notice of redemption may not be
conditional. Upon surrender to the Paying Agent, such Securities shall be paid
at the redemption price plus accrued interest to the redemption
date.
Section 3.5
Deposit of Redemption
Price.
On
or before the redemption date, the Company shall deposit with the Paying Agent
money sufficient to pay the redemption price of and accrued interest, if any, on
all Securities to be redeemed on that date.
Section 3.6
Securities Redeemed in
Part.
Upon
surrender of a Security that is redeemed in part, the Trustee shall authenticate
for the Holder a new Security of the same Series and the same maturity equal in
principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE
IV.
COVENANTS
Section 4.1
Payment of Principal
and Interest.
The
Company covenants and agrees for the benefit of the Holders of each Series of
Securities that it will duly and punctually pay the principal of and interest,
if any, on the Securities of that Series in accordance with the terms of such
Securities and this Indenture.
Section 4.2
SEC
Reports.
The
Company shall deliver to the Trustee within 15 days after it files them
with the SEC copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of TIA
Section 314(a).
Section 4.3
Compliance
Certificate.
The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company, an Officers’ Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge the Company has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he may have knowledge).
The
Company will, so long as any of the Securities are outstanding, deliver to the
Trustee, forthwith upon becoming aware of any Default or Event of Default, an
Officers’ Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect
thereto.
Section 4.4
Stay, Extension and
Usury Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture or the Securities; and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not, by resort to any such law, 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
has been enacted.
Section 4.5
Corporate
Existence.
Subject
to Article V, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence and the
corporate, partnership or other existence of each Significant Subsidiary in
accordance with the respective organizational documents of each Significant
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Significant Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any Significant Subsidiary,
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole and that the loss thereof is not adverse in any
material respect to the Holders.
Section 4.6
Taxes.
The
Company shall, and shall cause each of its Significant Subsidiaries to, pay
prior to delinquency all taxes, assessments and governmental levies, except as
contested in good faith and by appropriate proceedings.
ARTICLE
V.
SUCCESSORS
Section 5.1
When Company May
Merge, Etc.
The
Company shall not consolidate with or merge into, or convey, transfer or lease
all or substantially all of its properties and assets to, any person (a
“successor person”), and may not permit any person to merge into, or convey,
transfer or lease its properties and assets substantially as an entirety to, the
Company, unless:
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(a)
|
the successor person (if any) is
a corporation, partnership, trust or other entity organized and validly
existing under the laws of any U.S. domestic jurisdiction and in a
subsequent indenture expressly assumes the Company’s obligations on the
Securities and under this Indenture
and
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|
(b)
|
immediately after giving effect
to the transaction, no Default or Event of Default, shall have occurred
and be continuing.
|
The
Company shall deliver to the Trustee prior to the consummation of the proposed
transaction an Officers’ Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture.
Section 5.2
Successor Corporation
Substituted.
Upon
any consolidation or merger, or any sale, lease, conveyance or other disposition
of all or substantially all of the assets of the Company in accordance with
Section 5.1, the successor corporation formed by such consolidation or into
or with which the Company is merged or to which such sale, lease, conveyance or
other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor person has been named as the Company herein;
provided, however, that the predecessor Company in the case of a sale, lease,
conveyance or other disposition shall not be released from the obligation to pay
the principal of and interest, if any, on the Securities.
ARTICLE
VI.
DEFAULTS
AND REMEDIES
Section 6.1
Events of
Default.
“Event
of Default,” wherever used herein with respect to Securities of any Series,
means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers’ Certificate, it is provided that
such Series shall not have the benefit of said Event of Default:
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(a)
|
default in the payment of any
interest on any Security of that Series when it becomes due and payable,
and continuance of such default for a period of 30 days (unless the
entire amount of such payment is deposited by the Company with the Trustee
or with a Paying Agent prior to the expiration of such period of
30 days); or
|
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(b)
|
default in the payment of the
principal of any Security of that Series at its Maturity;
or
|
|
(c)
|
default in the deposit of any
sinking fund payment, when and as due in respect of any Security of that
Series; or
|
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(d)
|
default in the performance or
breach of any covenant or warranty of the Company in this Indenture (other
than a covenant or warranty that has been included in this Indenture
solely for the benefit of Series of Securities other than that Series),
which default continues uncured for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the outstanding Securities of that Series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder;
or
|
|
(e)
|
the Company or any of its
Significant Subsidiaries pursuant to or within the meaning of any
Bankruptcy Law:
|
|
(i)
|
commences a voluntary
case,
|
|
(ii)
|
consents to the entry of an order
for relief against it in an involuntary
case,
|
|
(iii)
|
consents to the appointment of a
Custodian of it or for all or substantially all of its
property,
|
|
(iv)
|
makes a general assignment for
the benefit of its creditors,
or
|
|
(v)
|
generally is unable to pay its
debts as the same become due;
or
|
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(f)
|
a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law
that:
|
|
(i)
|
is for relief against the Company
or any of its Significant Subsidiaries in an involuntary
case,
|
|
(ii)
|
appoints a Custodian of the
Company or any of its Significant Subsidiaries or for all or substantially
all of its property, or
|
|
(iii)
|
orders the liquidation of the
Company or any of its Significant Subsidiaries, and the order or decree
remains unstayed and in effect for 60 days;
or
|
|
(g)
|
any other Event of Default
provided with respect to Securities of that Series, which is specified in
a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate, in accordance with
Section 2.2.19.
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The
term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State
law for the relief of debtors. The term “Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.2
Acceleration of
Maturity; Rescission and Annulment.
If an
Event of Default with respect to Securities of any Series at the time
outstanding occurs and is continuing (other than an Event of Default referred to
in Section 6.1(e) or (f) ) then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the outstanding Securities of that
Series may declare the principal amount (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as may be
specified in the terms of such Securities) of and accrued and unpaid interest,
if any, on all of the Securities of that Series 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) and accrued and unpaid interest, if any, shall become immediately due
and payable. If an Event of Default specified in Section 6.1(e) or (f) shall
occur, the principal amount (or specified amount) of and accrued and unpaid
interest, if any, on all outstanding Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At
any time after such a declaration of acceleration with respect to 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 provided, the Holders of
a majority in principal amount of the outstanding Securities of that Series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
|
(a)
|
the Company has paid or deposited
with the Trustee a sum sufficient to
pay
|
|
(i)
|
all overdue interest, if any, on
all Securities of that
Series,
|
|
(ii)
|
the principal of any Securities
of that Series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor
in such Securities,
|
|
(iii)
|
to the extent that payment of
such interest is lawful, interest upon any overdue principal and overdue
interest at the rate or rates prescribed therefor in such Securities,
and
|
|
(iv)
|
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
|
|
(b)
|
all Events of Default with
respect to Securities of that Series, other than the non-payment of the
principal of Securities of that Series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 6.13.
|
No
such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 6.3
Collection of
Indebtedness and Suits for Enforcement by Trustee.
The
Company covenants that if
|
(a)
|
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
|
|
(b)
|
default is made in the payment of
principal of any Security at the Maturity thereof,
or
|
|
(c)
|
default is made in the deposit of
any sinking fund payment when and as due by the terms of a Security, then,
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 interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any
overdue principal or 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
the Company fails to pay such amounts forthwith upon such demand, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same against the
Company or any other obligor upon such Securities and collect the moneys
adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If
an Event of Default with respect to any 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 most effectual 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.
Section 6.4
Trustee May File
Proofs of Claim.
In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
|
(a)
|
to file and prove a claim for the
whole amount of principal and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding,
and
|
|
(b)
|
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 for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under
Section 7.7.
|
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5
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, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 6.6
Application of Money
Collected.
Any
money collected by the Trustee pursuant to this Article 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 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 7.7;
and
Second:
To the payment of the amounts then due and unpaid for principal of 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, according
to the amounts due and payable on such Securities for principal and interest,
respectively; and
Third:
To the Company.
Section 6.7
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 or trustee, or for any other remedy hereunder,
unless
|
(a)
|
such Holder has previously given
written notice to the Trustee of a continuing Event of Default with
respect to the Securities of that
Series;
|
|
(b)
|
the Holders of not less than 25%
in principal amount of the outstanding Securities of that 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;
|
|
(c)
|
such Holder or Holders have
offered to the Trustee reasonable indemnity against the costs, expenses
and liabilities to be incurred in compliance with such
request;
|
|
(d)
|
the Trustee for 90 days
after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding;
and
|
|
(e)
|
no direction inconsistent with
such written request has been given to the Trustee during such 90-day
period by the Holders of a majority in principal amount of the outstanding
Securities of that 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 or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all such
Holders.
|
Section 6.8
Unconditional Right of
Holders to Receive Principal and Interest.
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 interest, if any, on such Security on the Stated Maturity or Stated
Maturities expressed in such Security (or, in the case of redemption, on the
redemption date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such
Holder.
Section 6.9
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.
Section 6.10
Rights and Remedies
Cumulative.
Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 2.8, 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.
Section 6.11
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 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.
Section 6.12
Control by
Holders.
The
Holders of a majority in 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
|
(a)
|
such direction shall not be in
conflict with any rule of law or with this
Indenture,
|
|
(b)
|
the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction, and
|
|
(c)
|
subject to the provisions of
Section 6.1, the Trustee shall have the right to decline to follow
any such direction if the Trustee in good faith shall, by a Responsible
Officer of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal
liability.
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Section 6.13
Waiver of Past
Defaults.
Subject
to Section 6.2, the Holders of not less than a majority in 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 in the payment of the principal of
or interest on any Security of such Series (provided, however, that the Holders
of a majority in principal amount of the outstanding Securities of any Series
may rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration). 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.
Section 6.14
Undertaking for
Costs.
All
parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, 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, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest on
any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption
date).
ARTICLE
VII.
TRUSTEE
Section 7.1
Duties of
Trustee.
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(a)
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If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own
affairs.
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(b)
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Except during the continuance of
an Event of Default:
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(i)
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The Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others.
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(ii)
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In the absence of bad faith on
its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
Officers’ Certificates or Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture; however, in the case of
any such Officers’ Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers’ Certificates and
Opinions of Counsel to determine whether or not they conform to the
requirements of this
Indenture.
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(c)
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The Trustee may not be relieved
from liability for its own negligent action, its own negligent failure to
act or its own willful misconduct, except
that:
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(i)
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This paragraph does not limit the
effect of paragraph (b) of this
Section.
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(ii)
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The Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts.
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(iii)
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The Trustee shall not be liable
with respect to any action taken, suffered or omitted to be taken by it
with respect to Securities of any Series in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series 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.
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(d)
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Every provision of this Indenture
that in any way relates to the Trustee is subject to paragraph (a), (b)
and (c) of this Section.
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(e)
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The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or
expense.
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(f)
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The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree
in writing with the Company. Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by
law.
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(g)
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No provision of this Indenture
shall require the Trustee to risk its own funds or otherwise incur any
financial liability in the performance of any of its duties, 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 is not reasonably assured to
it.
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(h)
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The Paying Agent, the Registrar
and any authenticating agent shall be entitled to the protections and
immunities as are set forth in paragraphs (a), (b) and (c) of this Section
with respect to the Trustee.
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Section 7.2
Rights of
Trustee.
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(a)
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The Trustee may rely on and shall
be protected in acting or refraining from acting upon any document
believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated
in the document.
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(b)
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Before the Trustee acts or
refrains from acting, it may require an Officers’ Certificate or an
Opinion of Counsel. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of
Counsel.
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(c)
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The Trustee may act through
agents and shall not be responsible for the misconduct or negligence of
any agent appointed with due care. No Depository shall be deemed an agent
of the Trustee and the Trustee shall not be responsible for any act or
omission by any Depository.
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(d)
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The Trustee shall not be liable
for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or
powers.
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(e)
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The Trustee may consult with
counsel 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.
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(f)
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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 of Securities
unless such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction.
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Section 7.3
Individual Rights of
Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or an Affiliate with the
same rights it would have if it were not Trustee. Any Agent may do the same with
like rights. The Trustee is also subject to Sections 7.10 and
7.11.
Section 7.4
Trustee’s
Disclaimer.
The
Trustee makes no representation as to the validity or adequacy of this Indenture
or the Securities, it shall not be accountable for the Company’s use of the
proceeds from the Securities, and it shall not be responsible for any statement
in the Securities other than its authentication.
Section 7.5
Notice of
Defaults.
If
a Default or Event of Default occurs and is continuing with respect to the
Securities of any Series and if it is known to a Responsible Officer of the
Trustee, the Trustee shall mail to each Securityholder of the Securities of that
Series notice of a Default or Event of Default within 90 days after it
occurs or, if later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default. Except in the case of a Default or Event of
Default in payment of principal of or interest on any Security of any Series,
the Trustee may withhold the notice if and so long as its corporate trust
committee or a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Securityholders of that
Series.
Section 7.6
Reports by Trustee to
Holders.
Within
60 days after May 15 in each year, the Trustee shall transmit by mail
to all Securityholders, as their names and addresses appear on the register kept
by the Registrar, a brief report dated as of such May 15, in accordance
with, and to the extent required under, TIA Section 313.
A
copy of each report at the time of its mailing to Securityholders of any Series
shall be filed with the SEC and each stock exchange on which the Securities of
that Series are listed. The Company shall promptly notify the Trustee when
Securities of any Series are listed on any stock exchange.
Section 7.7
Compensation and
Indemnity.
The
Company shall pay to the Trustee from time to time reasonable compensation for
its services. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and expenses of the
Trustee’s agents and counsel.
The
Company shall indemnify the Trustee (including the cost of defending itself)
against any loss, liability or expense incurred by it except as set forth in the
next paragraph in the performance of its duties under this Indenture as Trustee
or Agent. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld. This indemnification shall apply to officers, directors,
employees, shareholders and agents of the Trustee.
The
Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad
faith.
To
secure the Company’s payment obligations in this Section, the Trustee shall have
a lien prior to the Securities of any Series on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities of that Series.
When
the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8
Replacement of
Trustee.
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section.
The
Trustee may resign with respect to the Securities of one or more Series by so
notifying the Company. The Holders of a majority in principal amount of the
Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company. The Company may remove the Trustee
with respect to Securities of one or more Series if:
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(a)
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the Trustee fails to comply with
Section 7.10;
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(b)
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the Trustee is adjudged a
bankrupt or an insolvent or an order for relief is entered with respect to
the Trustee under any Bankruptcy
Law;
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(c)
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a Custodian or public officer
takes charge of the Trustee or its property;
or
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(d)
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the Trustee becomes incapable of
acting.
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If
the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the
Company.
If
a successor Trustee with respect to the Securities of any one or more Series
does not take office within 60 days after the retiring Trustee resigns or
is removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor
Trustee.
If
the Trustee with respect to the Securities of any one or more Series fails to
comply with Section 7.10, any Securityholder of the applicable Series may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee subject to the lien provided for in Section 7.7, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee with respect
to each Series of Securities for which it is acting as Trustee under this
Indenture. A successor Trustee shall mail a notice of its succession to each
Securityholder of each such Series. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company’s obligations under
Section 7.7 hereof shall continue for the benefit of the retiring trustee
with respect to expenses and liabilities incurred by it prior to such
replacement.
Section 7.9
Successor Trustee by
Merger, etc.
If
the Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor
Trustee.
Section 7.10
Eligibility;
Disqualification.
This
Indenture shall always have a Trustee who satisfies the requirements of TIA
Section 310(a) (1), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b).
Section 7.11
Preferential
Collection of Claims Against Company.
The
Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE
VIII.
SATISFACTION
AND DISCHARGE; DEFEASANCE
Section 8.1
Satisfaction and
Discharge of Indenture.
This
Indenture shall upon Company Order cease to be of further effect (except as
hereinafter provided in this Section 8.1), and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
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(i)
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all Securities theretofore
authenticated and delivered (other than Securities that have been
destroyed, lost or stolen and that have been replaced or paid) have been
delivered to the Trustee for cancellation;
or
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(ii)
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all such Securities not
theretofore delivered to the Trustee for
cancellation
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(1)
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have become due and
payable, or
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(2)
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will become due and payable at
their Stated Maturity within one year,
or
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(3)
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are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
or
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(4)
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are deemed paid and discharged
pursuant to Section 8.3, as applicable; and the Company, in the case
of (1), (2) or (3) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of
Securities which have become due and payable on or prior to the date of
such deposit) or to the Stated Maturity or redemption date, as the case
may be;
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(b)
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the Company has paid or caused to
be paid all other sums payable hereunder by the Company;
and
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(c)
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the Company has delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
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Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 7.7, and, if money shall have been deposited
with the Trustee pursuant to clause (a) of this Section, the provisions of
Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall survive.
Section 8.2
Application of Trust
Funds; Indemnification .
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(a)
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Subject to the provisions of
Section 8.5, all money deposited with the Trustee pursuant to
Section 8.1, all money and U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to
Section 8.3 or 8.4 and all money received by the Trustee in respect
of U.S. Government Obligations or Foreign Government Obligations deposited
with the Trustee pursuant to Section 8.3 or 8.4, shall be held in
trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the persons entitled thereto, of the
principal and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments
or analogous payments as contemplated by Sections 8.3 or
8.4.
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(b)
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The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest
and principal received in respect of such obligations other than any
payable by or on behalf of
Holders.
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(c)
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The Trustee shall deliver or pay
to the Company from time to time upon Company Request any U.S. Government
Obligations or Foreign Government Obligations or money held by it as
provided in Sections 8.3 or 8.4 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited
for the purpose for which such U.S. Government Obligations or Foreign
Government Obligations or money were deposited or received. This provision
shall not authorize the sale by the Trustee of any U.S. Government
Obligations or Foreign Government Obligations held under this
Indenture.
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Section 8.3
Legal Defeasance of
Securities of any Series.
Unless
this Section 8.3 is otherwise specified, pursuant to Section 2.2.21,
to be inapplicable to Securities of any Series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the outstanding
Securities of such Series on the 91st day after the date of the deposit referred
to in subparagraph (c)(i) hereof, and the provisions of this Indenture, as
it relates to such outstanding Securities of such Series, shall no longer be in
effect (and the Trustee, at the expense of the Company, shall, at Company
Request, execute proper instruments acknowledging the same), except as
to:
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(a)
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the rights of Holders of
Securities of such Series to receive, from the trust funds described in
subparagraph (d) hereof, (i) payment of the principal of and
each installment of principal of and interest on the outstanding
Securities of such Series on the Stated Maturity of such principal or
installment of principal or interest and (ii) the benefit of any
mandatory sinking fund payments applicable to the Securities of such
Series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such
Series;
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(b)
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the provisions of
Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5;
and
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(c)
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the rights, powers, trust and
immunities of the Trustee hereunder; provided that, the following
conditions shall have been
satisfied:
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(i)
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the Company shall have deposited
or caused to be deposited irrevocably with the Trustee as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for and dedicated solely to the benefit of the Holders
of such Securities (A) in the case of Securities of such Series
denominated in Dollars, cash in Dollars (or such other money or currencies
as shall then be legal tender in the United States) and/or U.S. Government
Obligations, or (B) in the case of Securities of such Series
denominated in a Foreign Currency (other than a composite currency), money
and/or Foreign Government Obligations, which through the payment of
interest and principal in respect thereof, in accordance with their terms,
will provide (and without reinvestment and assuming no tax liability will
be imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge each installment of principal (including mandatory sinking fund
or analogous payments) of and interest, if any, on all the Securities of
such Series on the dates such installments of interest or principal are
due;
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(ii)
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such deposit will not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound;
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(iii)
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no Default or Event of Default
with respect to the Securities of such Series shall have occurred and be
continuing on the date of such deposit or during the period ending on the
91st day after such date;
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(iv)
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the Company shall have delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel to the
effect 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 execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of
the Securities of such Series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not
occurred;
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(v)
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the Company shall have delivered
to the Trustee an Officers’ Certificate stating that the deposit was not
made by the Company with the intent of preferring the Holders of the
Securities of such Series over any other creditors of the company or with
the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company;
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(vi)
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such deposit shall not result in
the trust arising from such deposit constituting an investment company (as
defined in the Investment Company Act of 1940, as amended), or such trust
shall be qualified under such Act or exempt from regulation thereunder;
and
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(vi)
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the Company shall have delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating to the
defeasance contemplated by this Section have been complied
with.
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Section 8.4
Covenant
Defeasance.
Unless
this Section 8.4 is otherwise specified pursuant to Section 2.2.21 to
be inapplicable to Securities of any Series, on and after the 91st day after the
date of the deposit referred to in subparagraph (a) hereof, the Company may
omit to comply with any term, provision or condition set forth under
Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional
covenants contained in a supplemental indenture hereto for a particular Series
of Securities or a Board Resolution or an Officers’ Certificate delivered
pursuant to Section 2.2.21 (and the failure to comply with any such covenants shall
not constitute a Default or Event of Default under Section 6.1) and the
occurrence of any event described in clause (e) of Section 6.1 shall
not constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series, provided that the following conditions shall have
been satisfied:
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(a)
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With reference to this
Section 8.4, the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 8.2(c) ) with the Trustee as
trust funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities (i) in the
case of Securities of such Series denominated in Dollars, cash in Dollars
(or such other money or currencies as shall then be legal tender in the
United States) and/or U.S. Government Obligations, or (ii) in the
case of Securities of such Series denominated in a Foreign Currency (other
than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay principal and interest, if any, on and
any mandatory sinking fund in respect of the Securities of such Series on
the dates such installments of interest or principal are
due;
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(b)
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Such deposit will not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound;
|
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(c)
|
No Default or Event of Default
with respect to the Securities of such Series shall have occurred and be
continuing on the date of such deposit or during the period ending on the
91st day after such date;
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(d)
|
the Company shall have delivered
to the Trustee an Opinion of Counsel confirming that Holders of the
Securities of such Series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit
and defeasance had not
occurred;
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(e)
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the Company shall have delivered
to the Trustee an Officers’ Certificate stating the deposit was not made
by the Company with the intent of preferring the Holders of the Securities
of such Series over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other creditors of the
Company; and
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(f)
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The Company shall have delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the
defeasance contemplated by this Section have been complied
with.
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Section 8.5
Repayment to
Company.
The
Trustee and the Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal and interest that remains unclaimed
for two years. After that, Securityholders entitled to the money must look to
the Company for payment as general creditors unless an applicable abandoned
property law designates another person.
Section 8.6
Reinstatement.
If
the Trustee or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with Sections 8.1, 8.3 or 8.4, as the case may
be, by reason of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.1, 8.3 or 8.4, as the case may be, until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 8.1, 8.3 or 8.4, as the case may be;
provided, however, that if the Company makes any payment of principal of,
premium, if any, or interest on any Securities because of reinstatement of its
obligations, the Company shall be subrogated to the rights of the holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE
IX.
AMENDMENTS
AND WAIVERS
Section 9.1
Without Consent of
Holders.
The
Company and the Trustee may amend or supplement this Indenture or the Securities
of one or more Series without the consent of any Securityholder:
|
(a)
|
to cure any ambiguity, defect or
inconsistency;
|
|
(b)
|
to comply with
Article V;
|
|
(c)
|
to provide for uncertificated
Securities in addition to or in place of certificated
Securities;
|
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(d)
|
to make any change that does not
adversely affect the rights of any
Securityholder;
|
|
(e)
|
to provide for the issuance of
and establish the form and terms and conditions of Securities of any
Series as permitted by this
Indenture;
|
|
(f)
|
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; or
|
|
(g)
|
to comply with requirements of
the SEC in order to effect or maintain the qualification of this Indenture
under the TIA.
|
Section 9.2
With Consent of
Holders.
The
Company and the Trustee may enter into a supplemental indenture with the written
consent of the Holders of at least a majority in 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 offer
for the Securities of such Series), for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner the rights of the
Securityholders of each such Series. Except as provided in Section 6.13,
the Holders of at least a majority in principal amount of the outstanding
Securities of each Series affected by such waiver by notice to the Trustee
(including consents obtained in connection with a tender offer or exchange offer
for the Securities of such Series) may waive compliance by the Company with any
provision of this Indenture or the Securities with respect to such
Series.
It
shall not be necessary for the consent of the Holders of Securities under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the
substance thereof. After a supplemental indenture or waiver under this Section
becomes effective, the Company shall mail to the Holders of Securities affected
thereby a notice briefly describing the supplemental indenture or waiver. Any
failure by the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
Section 9.3
Limitations.
Without
the consent of each Securityholder affected, an amendment or waiver may
not:
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(a)
|
change the amount of Securities
whose Holders must consent to an amendment, supplement or
waiver;
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(b)
|
reduce the rate of or extend the
time for payment of interest (including default interest) on any
Security;
|
|
(c)
|
reduce the principal or change
the Stated Maturity of any Security or reduce the amount of, or postpone
the date fixed for, the payment of any sinking fund or analogous
obligation;
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(d)
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reduce the principal amount of
Discount Securities payable upon acceleration of the maturity
thereof;
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(e)
|
waive a Default or Event of
Default in the payment of the principal of or interest, if any, on any
Security (except a rescission of acceleration of the Securities of any
Series by the Holders of at least a majority in principal amount of the
outstanding Securities of such Series and a waiver of the payment default
that resulted from such
acceleration);
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(f)
|
make the principal of or
interest, if any, on any Security payable in any currency other than that
stated in the Security;
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(g)
|
make any change in
Sections 6.8, 6.13, 9.3 (this sentence), 10.15 or 10.16;
or
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(h)
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waive a redemption payment with
respect to any Security or change any of the provisions with respect to
the redemption of any
Securities.
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Section 9.4
Compliance with Trust
Indenture Act.
Every
amendment to this Indenture or the Securities of one or more Series shall be set
forth in a supplemental indenture hereto that complies with the TIA as then in
effect.
Section 9.5
Revocation and Effect
of Consents.
Until
an amendment or waiver becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes
effective.
Any
amendment or waiver once effective shall bind every Securityholder of each
Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (g) of Section 9.3. In that case,
the amendment or waiver shall bind each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security.
Section 9.6
Notation on or
Exchange of Securities.
The
Trustee may place an appropriate notation about an amendment or waiver on any
Security of any Series thereafter authenticated. The Company in exchange for
Securities of that Series may issue and the Trustee shall authenticate upon
request new Securities of that Series that reflect the amendment or
waiver.
Section 9.7
Trustee
Protected.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
ARTICLE
X.
MISCELLANEOUS
Section 10.1
Trust Indenture Act
Controls.
If
any provision of this Indenture limits, qualifies, or conflicts with another
provision which is required or deemed to be included in this Indenture by the
TIA, such required or deemed provision shall control.
Section 10.2
Notices.
Any
notice or communication by the Company or the Trustee to the other is duly given
if in writing and delivered in person or mailed by first-class
if
to the Company:
ZIOPHARM
Oncology, Inc.
1180
Avenue of the Americas, 19th
Floor
New York,
NY 10036
Attention:
Chief Executive Officer
if
to the Trustee:
[Name of
Trustee]
[Address]
Attention:
The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any
notice or communication to a Securityholder shall be mailed by first-class mail
to his address shown on the register kept by the Registrar. Failure to mail a
notice or communication to a Securityholder of any Series or any defect in it
shall not affect its sufficiency with respect to other Securityholders of that
or any other Series.
If
a notice or communication is mailed in the manner provided above, within the
time prescribed, it is duly given, whether or not the Securityholder receives
it.
If
the Company mails a notice or communication to Securityholders, it shall mail a
copy to the Trustee and each Agent at the same time.
Section 10.3
Communication by
Holders with Other Holders.
Securityholders
of any Series may communicate pursuant to TIA Section 312(b) with other
Securityholders of that Series or any other Series with respect to their rights
under this Indenture or the Securities of that Series or all Series. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 10.4
Certificate and
Opinion as to Conditions Precedent.
Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
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(a)
|
an Officers’ Certificate stating
that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and
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(b)
|
an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied
with.
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Section 10.5
Statements Required in
Certificate or Opinion.
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA Section 314(a) (4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
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(a)
|
a statement that the person
making such certificate or opinion has read such covenant or
condition;
|
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(b)
|
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;
|
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(c)
|
a statement that, in the opinion
of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with;
and
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(d)
|
a statement as to whether or not,
in the opinion of such person, such condition or covenant has been
complied with.
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Section 10.6
Rules by Trustee and
Agents.
The
Trustee may make reasonable rules for action by or a meeting of Securityholders
of one or more Series. Any Agent may make reasonable rules and set reasonable
requirements for its functions.
Section 10.7
Legal
Holidays.
Unless
otherwise provided by Board Resolution, Officers’ Certificate or supplemental
indenture for a particular Series, a “Legal Holiday” is any day that is not a
Business Day. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 10.8
No Recourse Against
Others.
A
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
Section 10.9
Counterparts.
This
Indenture may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.
Section 10.10
Governing
Laws.
THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11
No Adverse
Interpretation of Other Agreements.
This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
Section 10.12
Successors.
All
agreements of the Company in this Indenture and the Securities shall bind its
successor. All agreements of the Trustee in this Indenture shall bind its
successor.
Section 10.13
Severability.
In
case any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section 10.14
Table of Contents,
Headings, Etc.
The
Table of Contents, Cross Reference Table, and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 10.15
Securities in a
Foreign Currency or in ECU.
Unless
otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate delivered pursuant to Section 2.2 of this Indenture
with respect to a particular Series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified percentage in
aggregate principal amount of Securities of all Series or all Series affected by
a particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a coin or currency
other than Dollars (including ECUs), then the principal amount of Securities of
such Series which shall be deemed to be outstanding for the purpose of taking
such action shall be that amount of Dollars that could be obtained for such
amount at the Market Exchange Rate at such time. For purposes of this
Section 10.15, “Market Exchange Rate” shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Union (or any successor thereto) as published in the Official
Journal of the European Union (such publication or any successor publication,
the “Journal”). If such Market Exchange Rate is not available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question or, in the case of ECUs, in
Luxembourg or such other quotations or, in the case of ECUs, rates of exchange
as the Trustee, upon consultation with the Company, shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture.
All
decisions and determinations of the Trustee regarding the Market Exchange Rate
or any alternative determination provided for in the preceding paragraph shall
be in its sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Company and all Holders.
Section 10.16
Judgment
Currency.
The
Company agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or
interest or other amount on the Securities of any Series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking Day,
then, the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which final unappealable judgment is entered and
(b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, any
recovery pursuant to any judgment (whether or not entered in accordance with
Subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable, and
(iii) shall not be affected by judgment being obtained for any other sum
due under this Indenture. For purposes of the foregoing, “New York Banking Day”
means any day except a Saturday, Sunday or a legal holiday in The City of New
York on which banking institutions are authorized or required by law, regulation
or executive order to close.
ARTICLE
XI.
SINKING
FUNDS
Section 11.1
Applicability of
Article.
The
provisions of this Article shall be applicable to any sinking fund for the
retirement of the Securities of a Series, except as otherwise permitted or
required by any form of Security of such Series issued pursuant to this
Indenture.
The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any Series is herein referred to as a “mandatory sinking fund
payment” and any other amount provided for by the terms of Securities of such
Series is herein referred to as an “optional sinking fund payment.” If provided
for by the terms of Securities of any Series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 11.2. Each
sinking fund payment shall be applied to the redemption of Securities of any
Series as provided for by the terms of the Securities of such
Series.
Section 11.2
Satisfaction of
Sinking Fund Payments with Securities.
The
Company may, in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of any Series to be made pursuant to the terms of such
Securities (1) deliver outstanding Securities of such Series to which such
sinking fund payment is applicable (other than any of such Securities previously
called for mandatory sinking fund redemption) and (2) apply as credit
Securities of such Series to which such sinking fund payment is applicable and
which have been redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any mandatory sinking
fund) or through the application of permitted optional sinking fund payments or
other optional redemptions pursuant to the terms of such Securities, provided
that such Securities have not been previously so credited. Such Securities shall
be received by the Trustee, together with an Officers’ Certificate with respect
thereto, not later than 15 days prior to the date on which the Trustee
begins the process of selecting Securities for redemption, and shall be credited
for such purpose by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Securities in lieu of cash payments pursuant to this
Section 11.2, the principal amount of Securities of such Series to be
redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000, the Trustee need not call Securities of such Series
for redemption, except upon receipt of a Company Order that such action be
taken, and such cash payment shall be held by the Trustee or a Paying Agent and
applied to the next succeeding sinking fund payment, provided, however, that the
Trustee or such Paying Agent shall from time to time upon receipt of a Company
Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that Series purchased by the Company having an unpaid principal
amount equal to the cash payment required to be released to the
Company.
Section 11.3
Redemption of
Securities for Sinking Fund.
Not
less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate in respect of a
particular Series of Securities) prior to each sinking fund payment date for any
Series of Securities, the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, 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 of
Securities of that Series pursuant to Section 11.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 30 days (unless otherwise indicated in the Board
Resolution, Officers’ Certificate or supplemental indenture in respect of a
particular Series of Securities) before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.2 and 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 3.3. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
[INCLUDE
ARTICLE XII FOR SUBORDINATED SECURITIES:
ARTICLE
XII.
SUBORDINATION
OF SECURITIES
Section 12.1
Agreement of
Subordination.
The
Company covenants and agrees, and each Holder of Securities issued hereunder by
his acceptance thereof likewise covenants and agrees, that all Securities shall
be issued subject to the provisions of this Article XII; and each Person
holding any Security, whether upon original issue or upon transfer, assignment
or exchange thereof, accepts and agrees to be bound by such
provisions.
The
payment of the principal of, premium, if any, and interest on all Securities
(including, but not limited to, the redemption price with respect to the
Securities called for redemption in accordance with Article 3 as provided
in the Indenture) issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.
No
provision of this Article XII shall prevent the occurrence of any default
or Event of Default hereunder.
Section 12.2
Payments to
Holders.
No
payment shall be made with respect to the principal of, or premium, if any, or
interest on the Securities (including, but not limited to, the redemption price
with respect to the Securities to be called for redemption in accordance with
Article III as provided in the Indenture), except payments and
distributions made by the Trustee as permitted by the first or second paragraph
of Section 12.5, if:
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(i)
|
a default in the payment of
principal, premium, interest, rent or other obligations due on any Senior
Indebtedness occurs and is continuing (or, in the case of Senior
Indebtedness for which there is a period of grace, in the event of such a
default that continues beyond the period of grace, if any, specified in
the instrument or lease evidencing such Senior Indebtedness), unless and
until such default shall have been cured or waived or shall have ceased to
exist; or
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(ii)
|
a default, other than a payment
default, on a Designated Senior Indebtedness occurs and is continuing that
then permits holders of such Designated Senior Indebtedness to accelerate
its maturity and the Trustee receives a notice of the default (a “Payment
Blockage Notice”) from a Representative or the
Company.
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Upon
any payment by the Company, or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due or to become due upon all Senior Indebtedness
shall first be paid in full in cash or other payment satisfactory to the holders
of such Senior Indebtedness, or payment thereof in accordance with its terms
provided for in cash or other payment satisfactory to the holders of such Senior
Indebtedness, before any payment is made on account of the principal of,
premium, if any, or interest on the Securities (except payments made pursuant to
Article VI from monies deposited with the Trustee pursuant thereto prior to
commencement of proceedings for such dissolution, winding-up, liquidation or
reorganization); and upon any such dissolution or winding-up or liquidation or
reorganization of the Company or bankruptcy, insolvency, receivership or other
proceeding, any payment by the Company, or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee would be entitled, except for the
provision of this Article XII, shall (except as aforesaid) be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, or
as otherwise required by law or a court order) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay all
Senior Indebtedness in full, in cash or other payment satisfactory to the
holders of such Senior Indebtedness, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness, before any
payment or distribution or provision therefor is made to the Holders of the
Securities or to the Trustee.
For
purposes of this Article XII, the words, “cash, property or securities”
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XII with
respect to the Securities to the payment of all Senior Indebtedness which may at
the time be outstanding; provided that (i) the Senior Indebtedness is
assumed by the new corporation, if any, resulting from any reorganization or
readjustment, and (ii) the rights of the holders of Senior Indebtedness
(other than leases which are not assumed by the Company or the new corporation,
as the case may be) are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article V shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 12.2 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article V.
In
the event of the acceleration of the Securities because of an Event of Default,
no payment or distribution shall be made to the Trustee or any Holder of
Securities in respect of the principal of, premium, if any, or interest on the
Securities (including, but not limited to, the redemption price with respect to
the Securities called for redemption in accordance with Article 3 as
provided in the Indenture), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 12.5,
until all Senior Indebtedness has been paid in full in cash or other payment
satisfactory to the holders of Senior Indebtedness or such acceleration is
rescinded in accordance with the terms of this Indenture. If payment of the
Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Indebtedness of the acceleration at the
address set forth in the notice from the Agent (or successor agent) to the
Trustee as being the address to which the Trustee should send its notice
pursuant to this Section 12.2, unless there are no payment obligations of
the Company thereunder and all obligations thereunder to extend credit have been
terminated or expired.
In
the event that, notwithstanding the foregoing provisions, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities (including, without limitation, by way of setoff or
otherwise), prohibited by the foregoing, shall be received by the Trustee or the
Holders of the Securities before all Senior Indebtedness is paid in full in cash
or other payment satisfactory to the holders of such Senior Indebtedness, or
provision is made for such payment thereof in accordance with its terms in cash
or other payment satisfactory to the holders of such Senior Indebtedness, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Company, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in cash or
other payment satisfactory to the holders of such Senior Indebtedness, after
giving effect to any concurrent payment or distribution to or for the holders of
such Senior Indebtedness.
Nothing
in this Section 12.2 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 7.7. This Section 12.2 shall be subject
to the further provisions of Section 12.5.
Section 12.3
Subrogation of
Securities.
Subject
to the payment in full of all Senior Indebtedness, the rights of the Holders of
the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article XII (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to other
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal, premium, if any, and interest on the Securities shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XII, and no payment over
pursuant to the provisions of this Article XII, to or for the benefit of
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness; and no payments or
distributions of cash, property or securities to or for the benefit of the
Holders of the Securities pursuant to the subrogation provisions of this Article
XII, which would otherwise have been paid to the holders of Senior Indebtedness
shall be deemed to be a payment by the Company to or for the account of the
Securities. It is understood that the provisions of this Article XII are and are
intended solely for the purposes of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of the Senior Indebtedness,
on the other hand.
Nothing
contained in this Article XII or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article XII of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon
any payment or distribution of assets of the Company referred to in this
Article XII, the Trustee, subject to the provisions of Section 7.1,
and the Holders of the Securities shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon and all other facts pertinent thereto or to this
Article XII.
Section 12.4
Authorization to
Effect Subordination.
Each
Holder of a Security by the holder’s acceptance thereof authorizes and directs
the Trustee on the holder’s behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XII
and appoints the Trustee to act as the holder’s attorney-in-fact for any and all
such purposes. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 6.3
hereof at least 30 days before the expiration of the time to file such
claim, the holders of any Senior Indebtedness or their representatives are
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Securities.
Section 12.5
Notice to
Trustee.
The
Company shall give prompt written notice in the form of an Officers’ Certificate
to a Responsible Officer of the Trustee and to any paying agent of any fact
known to the Company which would prohibit the making of any payment of monies to
or by the Trustee or any paying agent in respect of the Securities pursuant to
the provisions of this Article XII. Notwithstanding the provisions of this
Article XII or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article XII, unless and until
a Responsible Officer of the Trustee shall have received written notice thereof
at the Corporate Trust Office from the Company (in the form of an Officers’
Certificate) or a Representative or a holder or holders of Senior Indebtedness
or from any trustee thereof; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Section 7.1, shall be entitled in
all respects to assume that no such facts exist; provided that if on a date not
fewer than two Business Days prior to the date upon which by the terms hereof
any such monies may become payable for any purpose (including, without
limitation, the payment of the principal of, or premium, if any, or interest on
any Security) the Trustee shall not have received, with respect to such monies,
the notice provided for in this Section 12.5, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such prior date.
Notwithstanding
anything in this Article XII to the contrary, nothing shall prevent any
payment by the Trustee to the Holders of monies deposited with it pursuant to
Section 8.1, and any such payment shall not be subject to the provisions of
Section 12.1 or 12.2.
The
Trustee, subject to the provisions of Section 7.1, shall be entitled to
rely on the delivery to it of a written notice by a Representative or a person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a
Representative or a holder of Senior Indebtedness or a trustee on behalf of any
such holder or holders. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XII, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such person, the extent to which such person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article XII, and if such
evidence is not furnished the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
Section 12.6
Trustee’s Relation to
Senior Indebtedness.
The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article XII in respect of any Senior Indebtedness at any time held
by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in Section 7.11 or elsewhere in this Indenture shall deprive the
Trustee of any of its rights as such holder.
With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically set
forth in this Article XII, and no implied covenants or obligations with respect
to the holders of Senior Indebtedness shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and, subject to the provisions of
Section 7.1, the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall pay over or deliver to Holders of Securities, the
Company or any other person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article XII or
otherwise.
Section 12.7
No Impairment of
Subordination.
No
right of any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Section 12.8
Article Applicable to
Paying Agents.
If
at any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term “Trustee” as used in this
Article shall (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee; provided, however, that the first paragraph of
Section 12.5 shall not apply to the Company or any Affiliate of the Company
if it or such Affiliate acts as Paying Agent.
Section 12.9
Senior Indebtedness
Entitled to Rely.
The
holders of Senior Indebtedness (including, without limitation, Designated Senior
Indebtedness) shall have the right to rely upon this Article XII, and no
amendment or modification of the provisions contained herein shall diminish the
rights of such holders unless such holders shall have agreed in writing
thereto.
END
ARTICLE XII, INCLUDED FOR SUBORDINATED SECURITIES.]
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
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ZIOPHARM ONCOLOGY, INC.
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By:
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Name:
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Its:
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[Name of Trustee]
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By:
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Name:
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Its:
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Unassociated Document
Exhibit
5.1
April 30,
2010
ZIOPHARM
Oncology, Inc.
1180
Avenue of the Americas, 19th Floor
New York,
New York 10036
Re:
Registration Statement on Form S-3 (the “Registration
Statement”)
Ladies
and Gentlemen:
We have
acted as counsel to ZIOPHARM Oncology, Inc., a Delaware corporation (the “Company”), in connection with
their filing on April 30, 2010 with the Securities and Exchange Commission (the
“Commission”) of a
registration statement on Form S-3 (as amended, the “Registration Statement”) under
the Securities Act of 1933, as amended (the “Securities Act”), pertaining
to the registration of securities for sale from time to time. This opinion is
being furnished in accordance with the requirements of Item 601(b)(5) of
Regulation S-K under the Securities Act, and no opinion is expressed herein as
to any matter pertaining to the contents of the Registration Statement, the
Prospectus or any Prospectus Supplement (both as herein defined) other than as
to (i) the enforceability of the Agreements, the Debt Securities and the
Warrants (each as herein defined) and (ii) the validity of the shares of the
Common Stock and the Preferred Stock (both as herein defined).
You have
provided us with a draft of the Registration Statement in the form in which it
will be filed, which includes the prospectus (the “Prospectus”). The Prospectus
provides that it will be supplemented in the future by one or more supplements
to the Prospectus (each, a “Prospectus Supplement”). The
Prospectus, as supplemented by various Prospectus Supplements, will provide for
the registration by the Company of (i) one or more series of debt securities
(the “Debt Securities”),
(ii) shares of preferred stock, par value $0.001 per share (the “Preferred Stock”), (iii)
shares of common stock, par value $0.001 per share (the “Common Stock”) and (iv)
warrants to purchase Common Stock, Preferred Stock or Debt Securities (the
“Warrants”), or any
combination of the foregoing (collectively, the “Securities”), for an aggregate
initial offering price of up to $100,000,000. Any Debt Securities may be
exchangeable for and/or convertible into shares of Common Stock or Preferred
Stock or into other securities. The Preferred Stock may also be convertible into
shares of Common Stock or another series of Preferred Stock or into other
securities. The Debt Securities may be issued pursuant to an indenture by and
between the Company and a financial institution to be identified therein as
trustee (the “Trustee”)
in the form filed as Exhibit 4.8 to the Registration Statement, as such
indenture may be supplemented from time to time (the “Indenture”). The Warrants may
be issued under one or more warrants and warrant agreements in the forms to be
incorporated by reference as Exhibits 4.9 and 4.10 to the Registration Statement
(each, a “Warrant
Agreement”) between the Company and, if applicable, a bank or trust
company to be identified therein as warrant agent (each, a “Warrant Agent”). The Indenture
and the Warrant Agreements are herein collectively called the “Agreements.”
For the
purposes of this opinion, we have assumed that such proceedings to be taken in
the future will be timely completed in the manner presently proposed and that
the terms of each issuance will otherwise be in compliance with law. As counsel
to the Company, we have examined such matters of fact and questions of law as we
have considered appropriate for purposes of this letter. With your consent, we
have relied upon the foregoing and upon certificates and other assurances of
officers of the Company and others as to factual matters without having
independently verified such factual matters.
ZIOPHARM
Oncology, Inc.
April 30,
2010
Page
2
Subject
to the foregoing and the other matters set forth herein, it is our opinion that
as of the date hereof:
1. When
(i) the Indenture has been duly authorized, executed and delivered by the
Company and the Trustee, (ii) the Debt Securities have been duly authorized and
duly established in accordance with the Indenture and applicable law (including,
without limitation, by the adoption by the Board of Directors of the Company of
a resolution duly authorizing the issuance and delivery of the Debt Securities)
(the “Debt Securities
Authorization”), duly authenticated by the Trustee and duly executed and
delivered on behalf of the Company against payment therefor in accordance with
the terms and provisions of the Indenture and as contemplated by the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
and the Debt Securities Authorization, and assuming that (a) the terms of the
Debt Securities as executed and delivered are as described in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), and the Debt
Securities Authorization, (b) the Debt Securities as executed and delivered do
not violate any law applicable to the Company or result in a default under or
breach of any agreement or instrument binding upon the Company, (c) the Debt
Securities as executed and delivered comply with all requirements and
restrictions, if any, applicable to the Company, whether imposed by any court or
governmental or regulatory body having jurisdiction over the Company or
otherwise, and (d) the Debt Securities are then issued and sold as contemplated
in the Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and the Debt Securities Authorization, the Debt Securities
(including any Debt Securities duly issued (i) upon the exchange or conversion
of any Debt Securities that are exchangeable or convertible into another series
of Debt Securities or (ii) upon the exercise of any Warrants pursuant to the
terms thereof that are exercisable for the purchase of Debt Securities) will
constitute legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
2. When
(i) a form of certificate representing the shares of Preferred Stock has been
duly adopted by resolution of the Board of Directors and certificates in such
form have been executed, countersigned, registered and delivered, (ii) a series
of Preferred Stock has been duly established in accordance with the terms of the
Company’s certificate of incorporation (the “ Certificate of Incorporation
”), and applicable law, and upon adoption by the Board of Directors of the
Company of a resolution in form and content as required by applicable law
authorizing the issuance of such shares and upon issuance and delivery of and
payment of legal consideration not less than the par value thereof, and assuming
that (a) the terms of such shares as issued and delivered are as described in
the Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and such resolution, (b) at the time of issuance of such shares,
the Company has a sufficient number of authorized but unissued shares under the
Certificate of Incorporation, (c) such shares as issued and delivered comply
with all requirements and restrictions, if any, applicable to the Company,
whether imposed by any court or governmental or regulatory body having
jurisdiction over the Company or otherwise and (d) such shares are then issued
and sold as contemplated in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), and such resolution, such shares of such
series of Preferred Stock (including any Preferred Stock duly issued (i) upon
the exchange or conversion of any shares of Preferred Stock that are
exchangeable or convertible into another series of Preferred Stock, (ii) upon
the exercise of any Warrants pursuant to the terms thereof that are exercisable
for the purchase of Preferred Stock or (iii) upon the exchange or conversion of
Debt Securities that are exchangeable or convertible into Preferred Stock) will
be validly issued, fully-paid and nonassessable.
ZIOPHARM
Oncology, Inc.
April 30,
2010
Page
3
3. Upon
adoption by the Board of Directors of the Company of a resolution in form and
content as required by applicable law authorizing the issuance of shares of
Common Stock and upon issuance and delivery of and payment of legal
consideration not less than the par value thereof for certificates representing
the shares of Common Stock in the form of the specimen certificate incorporated
by reference as Exhibit 4.5 to the Registration Statement being duly executed,
countersigned, registered and delivered, and assuming that (i) at the time of
issuance of such shares, the Company has a sufficient number of authorized but
unissued shares under the Certificate of Incorporation, (ii) such shares as
issued and delivered comply with all requirements and restrictions, if any,
applicable to the Company, whether imposed by any court or governmental or
regulatory body having jurisdiction over the Company or otherwise and (iii) such
shares are then issued and sold as contemplated in the Registration Statement,
the Prospectus, the related Prospectus Supplement(s) and such resolution, such
shares of Common Stock (including any Common Stock duly issued (a) upon the
exchange or conversion of any shares of Preferred Stock that are exchangeable or
convertible into Common Stock, (b) upon the exercise of any Warrants pursuant to
the terms thereof that are exercisable for the purchase of Common Stock or (c)
upon the exchange or conversion of Debt Securities that are exchangeable or
convertible into Common Stock) will be validly issued, fully paid and
nonassessable.
4. When
(i) the applicable Warrant Agreement has been duly authorized, executed and
delivered by the Company and the Warrant Agent, (ii) the Warrants have been duly
authorized and duly established in accordance with the terms of the Warrant
Agreement and applicable law (including, without limitation, by the adoption by
the Board of Directors of the Company of a resolution duly authorizing the
issuance and delivery of the Warrants) (the “ Warrant Authorization ”) and
(iii) the Warrants have been duly executed, authenticated and/or countersigned
in accordance with the Warrant Agreement relating to such Warrants and delivered
on behalf of the Company against payment therefor (which, in the case of
Warrants for Common Stock or Preferred Stock, shall consist of legal
consideration not less than the par value of such shares) as contemplated by the
Registration Statement, the Prospectus, the related Prospectus Supplement(s) and
the Warrant Authorization, and assuming that (a) the terms of the Warrants as
executed and delivered are as described in the Registration Statement, the
Prospectus, the related Prospectus Supplement(s) and the Warrant Authorization,
(b) the Warrants as executed and delivered do not violate any law applicable to
the Company or result in a default under or breach of any agreement or
instrument binding upon the Company, (c) the Warrants as executed and delivered
comply with all requirements and restrictions, if any, applicable to the
Company, whether imposed by any court or governmental or regulatory body having
jurisdiction over the Company or otherwise and (d) the Warrants are then issued
and sold as contemplated by the Registration Statement, the Prospectus, the
related Prospectus Supplement(s) and the Warrant Authorization, the Warrant
Agreement and the Warrants will constitute legally valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms.
ZIOPHARM
Oncology, Inc.
April 30,
2010
Page
4
5. When
the Indenture has been duly authorized, executed and delivered by the Company
and the Trustee, and assuming that (i) the Indenture does not violate any law
applicable to the Company or result in a default under or breach of any
agreement or instrument binding upon the Company, and (ii) the Indenture
complies with all requirements and restrictions, if any, applicable to the
Company, whether imposed by any court or governmental or regulatory body having
jurisdiction over the Company or otherwise, the Indenture will constitute the
legally valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
Our opinions are
subject to: (i) the effect
of bankruptcy, insolvency, reorganization, preference, fraudulent transfer,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors; (ii) the effects of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law (including the
possible unavailability of specific performance or injunctive relief), concepts
of materiality, reasonableness, good faith and fair dealing, and the discretion
of the court before which a proceeding is brought; and (iii) the invalidity
under certain circumstances under law or court decisions of provisions for the
indemnification of or contribution to a party with respect to a liability where
such indemnification or contribution is contrary to public policy; and we
express no opinion with respect to (a) consents to, or restrictions upon,
governing law, jurisdiction, venue, arbitration, remedies or judicial relief;
(b) advance waivers of claims, defenses, rights granted by law, or notice,
opportunity for hearing, evidentiary requirements, statutes of limitation, trial
by jury or at law, or other procedural rights; (c) waivers of broadly or vaguely
stated rights; (d) covenants not to compete; (e) provisions for exclusivity,
election or cumulation of rights or remedies; (f) provisions authorizing or
validating conclusive or discretionary determinations; (g) grants of setoff
rights; (h) provisions to the effect that a guarantor is liable as a primary
obligor, and not as a surety; (i) provisions for the payment of attorneys’ fees
where such payment is contrary to law or public policy; (j) proxies, powers and
trusts; (k) provisions prohibiting, restricting, or requiring consent to
assignment or transfer of any right or property; (l) provisions for liquidated
damages, default interest, late charges, monetary penalties, make-whole premiums
or other economic remedies to the extent such provisions are deemed to
constitute a penalty; and (m) the severability, if invalid, of provisions to the
foregoing effect.
In
addition, we express no opinion with respect to (i) whether acceleration of the
Debt Securities may affect the collectibility of that portion of the stated
principal amount thereof that might be determined to constitute unearned
interest thereon, (ii) compliance with laws relating to permissible rates of
interest, (iii) the creation, validity, perfection or priority of any security
interest, mortgage, or lien, or (iv) any provision to the extent it requires any
party to indemnify any other person against loss in obtaining the currency due
following a court judgment in another currency.
We have
not been requested to express and, with your consent, do not render any opinion
as to the applicability to the obligations of the Company under the Indenture or
the Debt Securities of Sections 547 and 548 of the United States Bankruptcy Code
or applicable state law relating to preferences and fraudulent transfers and
obligations.
With your
consent, we have assumed for purposes of this opinion that (i) each of the
parties to the Agreements, the Debt Securities and the Warrants other than the
Company (a) is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; (b) has the requisite power and
authority to execute and deliver and to perform its obligations under each of
the Agreements, the Debt Securities and the Warrants to which it is a party; and
(c) has duly authorized, executed and delivered each such Agreement, Debt
Security and Warrant; (ii) that the Agreements, the Debt Securities and the
Warrants will have been duly authorized, executed and delivered by, and
constitute legally valid and binding obligations of, the parties thereto and
will be, other than as to the Company, enforceable against it in accordance with
their respective terms; and (iii) that the status of the Agreements, the Debt
Securities and the Warrants as legally valid and binding obligations of the
respective parties thereto will not be affected by any (a) breaches of, or
defaults under, agreements or instruments, (b) violations of statutes, rules,
regulations or court or governmental orders, or (c) failures to obtain required
consents, approvals or authorizations from, or make required registrations,
declarations or filings with, governmental authorities.
ZIOPHARM
Oncology, Inc.
April 30,
2010
Page
5
We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name in the Prospectus forming a part of the
Registration Statement under the caption “Legal Matters.” In giving this
consent, we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act and the rules and
regulations thereunder.
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Very
truly yours,
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/s/
Maslon Edelman Borman & Brand,
LLP
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Exhibit
12.1
ZIOPHARM
Oncology, Inc.
Computation
of Ratio of Earnings to Fixed Charges
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Fiscal Year Ended December 31,
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Three Months
Ended
March 31,
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$ In Thousands, Except Ratio
|
|
2005
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
2010
|
|
Fixed
charges:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
Expense
|
|
$ |
- |
|
|
$ |
- |
|
|
$ |
- |
|
|
$ |
- |
|
|
$ |
- |
|
|
$ |
- |
|
Amortized
premiums discounts and capitalized expenses related to
indebtedness
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
$ |
- |
|
|
$ |
- |
|
|
$ |
- |
|
|
$ |
- |
|
|
$ |
- |
|
|
$ |
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings
(loss):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
income (loss) before tax benefit (provision)
|
|
$ |
(9,517 |
) |
|
$ |
(17,857 |
) |
|
$ |
(26,608 |
) |
|
$ |
(25,231 |
) |
|
$ |
(7,649 |
) |
|
$ |
(17,653 |
) |
Add
fixed charges
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
$ |
(9,517 |
) |
|
$ |
(17,857 |
) |
|
$ |
(26,608 |
) |
|
$ |
(25,231 |
) |
|
$ |
(7,649 |
) |
|
$ |
(17,653 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio
of earnings to fixed charges
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deficiency
of earnings to fixed charges
|
|
$ |
(9,517 |
) |
|
$ |
(17,857 |
) |
|
$ |
(26,608 |
) |
|
$ |
(25,231 |
) |
|
$ |
(7,649 |
) |
|
$ |
(17,653 |
) |
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
As
independent registered public accountants, we hereby consent to the use of the
report of Caturano and Company, P.C dated March 17, 2010 relating to the
financial statements of ZIOPHARM Oncology, Inc. as of December 31, 2009 and
2008, and for each of the three years in the three-year period ended December
31, 2009 and from September 9, 2003 (date of inception) through December 31,
2009 (which report expresses an unqualified opinion and includes an explanatory
paragraph relating to the change in the manner in which the Company accounts for
certain warrants), and to all references to our Firm included in or made part of
this Registration Statement on Form S-3.
/s/
Caturano and Company, P.C.
April 29,
2010