sv3
As filed with the Securities and Exchange Commission on
September 23, 2008
Registration
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Smith & Wesson Holding
Corporation
(Exact Name of Registrant as
Specified in its Charter)
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Nevada
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87-0543688
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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2100 Roosevelt Avenue
Springfield, Massachusetts 01104
(800) 331-0852
(Address, including
zip code, and telephone number, including area code, of
Registrants principal executive offices)
Michael F. Golden
President and Chief Executive Officer
2100 Roosevelt Avenue
Springfield, Massachusetts 01104
(800) 331-0852
(Name, address,
including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Robert S.
Kant, Esq.
Brian H. Blaney, Esq.
Greenberg Traurig, LLP
2375 East Camelback Road, Suite 700
Phoenix, Arizona 85016
(602) 445-8000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of the 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. o
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. o
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. o
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. o
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. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated
filer o
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Accelerated
filer þ
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Non-accelerated
filer o
(Do not check if a smaller reporting company)
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Smaller reporting
company o
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CALCULATION OF REGISTRATION
FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Offering
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Aggregate
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Registration
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Securities to be Registered(1)
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Registered(1)(2)
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Price per Unit(2)(3)
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Offering Price(2)(3)
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Fee(2)(4)
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Common Stock, par value $0.001 per share
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Preferred Stock, par value $0.001 per share
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Debt Securities
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Depositary Shares
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Warrants
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Purchase Contracts
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Units
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Total:
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$250,000,000
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$9,825
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(1)
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There are being registered under
this registration statement such indeterminate number of shares
of common stock and preferred stock; such indeterminate
principal amount of debt securities; such indeterminate number
of depositary shares; such indeterminate number of warrants to
purchase common stock, preferred stock, debt securities, and/or
depositary shares; such indeterminate number of purchase
contacts to purchase common stock, preferred stock, debt
securities, depositary shares, or warrants; and such
indeterminate number of units as may be sold by the registrant
from time to time, which together shall have an aggregate
initial offering price not to exceed $250,000,000. 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 at maturity as shall result in an aggregate
initial offering price not to exceed $250,000,000, 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 hereunder also include such
indeterminate number of shares of common stock and preferred
stock, depositary shares, amount of debt securities, and
warrants as may be issued upon conversion of or exchange for
preferred stock, debt securities, or depositary shares that
provide for conversion or exchange; upon exercise of purchase
contracts or warrants; or pursuant to the anti-dilution
provisions of any such securities. In addition, pursuant to
Rule 416 under the Securities Act of 1933, as amended, the
shares being registered hereunder include such indeterminate
number of shares of common stock and preferred stock as may be
issuable with respect to the shares being registered hereunder
as a result of stock splits, stock dividends, or similar
transactions.
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(2)
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In United States dollars or the
equivalent thereof in any other currency, currency unit or
units, or composite currency or currencies.
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(3)
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The proposed maximum per unit and
aggregate offering prices per class of securities will be
determined from time to time by the registrant in connection
with the issuance by the registrant of the securities registered
under this registration statement and is not specified as to
each class of security pursuant to General Instruction II.D of
Form S-3 under the Securities Act.
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(4)
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Calculated pursuant to
Rule 457(o) under the Securities Act.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities, and it is not soliciting an offer to buy these
securities, in any state where the offer or sale is not
permitted.
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SUBJECT TO COMPLETION, DATED
SEPTEMBER 23, 2008
PROSPECTUS
$250,000,000
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Purchase Contracts
Units
We may offer and sell from time to time, in one or more series
or issuances and on terms that we will determine at the time of
the offering, any combination of the securities described in
this prospectus, up to an aggregate amount of $250,000,000.
We will provide specific terms of any offering in a supplement
to this prospectus. Any prospectus supplement may also add,
update, or change information contained in this prospectus. You
should carefully read this prospectus and the applicable
prospectus supplement as well as the documents incorporated or
deemed to be incorporated by reference in this prospectus before
you purchase any of the securities offered hereby.
These securities may be offered and sold in the same offering or
in separate offerings; to or through underwriters, dealers, and
agents; or directly to purchasers. The names of any
underwriters, dealers, or agents involved in the sale of our
securities and their compensation will be described in the
applicable prospectus supplement.
Our common stock is listed on the Nasdaq Global Select Market
under the symbol SWHC. We will make application to
list any shares of common stock sold by us under this prospectus
and any prospectus supplement on the Nasdaq Global Select
Market. We will provide information in any applicable prospectus
supplement regarding any listing of securities other than shares
of our common stock on any securities exchange.
This prospectus may not be used to consummate a sale of our
securities unless accompanied by the applicable prospectus
supplement.
You should consider the risks that we have described in this
prospectus and in the accompanying prospectus supplement before
you invest. See Risk Factors on page 2.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus
is ,
2008
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or the SEC,
utilizing a shelf registration process. Under this
shelf registration process, we may sell any combination of the
securities registered in one or more offerings, up to a total
dollar amount of $250,000,000. This prospectus provides you with
general information. We will provide a prospectus supplement
that contains specific information about any offering by us.
The prospectus supplement also may add, update, or change
information contained in the prospectus. You should read both
this prospectus and the prospectus supplement related to any
offering as well as additional information described under the
heading Where You Can Find More Information.
We have not authorized anyone to provide you with information
different from that contained or incorporated by reference in
this prospectus or any accompanying prospectus supplement or any
free writing prospectus. We are offering to sell,
and seeking offers to buy, securities only in jurisdictions in
which offers and sales are permitted. The information contained
in this prospectus and in any accompanying prospectus supplement
is accurate only as of the date of their covers, regardless of
the time of delivery of this prospectus or any prospectus
supplement or of any sale of our securities. Our business,
financial condition, results of operations, and prospects may
have changed since those dates. You should rely only on the
information contained or incorporated by reference in this
prospectus or any accompanying prospectus supplement. 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 into this
prospectus or any prospectus supplement the
statement in the document having the later date modifies or
supersedes the earlier statement.
In this prospectus, the terms we, our,
and us refer to Smith & Wesson Holding
Corporation and its subsidiaries, unless otherwise specified.
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PROSPECTUS
SUMMARY
The following summary does not contain all of the information
that may be important to purchasers of our securities.
Prospective purchasers of securities should carefully review the
detailed information and financial statements, including the
notes thereto, appearing elsewhere in or incorporated by
reference into this prospectus.
Our
Company
We are one of the worlds leading manufacturers of
firearms. We manufacture a wide array of pistols, revolvers,
tactical rifles, hunting rifles, black powder firearms,
handcuffs, and firearm-related products and accessories for sale
to a wide variety of customers, including gun enthusiasts,
collectors, hunters, sportsmen, competitive shooters, protection
focused individuals, law enforcement agencies and officers, and
military agencies in the United States and throughout the world.
We are the largest manufacturer of handguns and handcuffs in the
United States, the largest U.S. exporter of handguns, and a
growing participant in the tactical and hunting rifle markets
that we recently entered. We manufacture these products at our
facilities in Springfield, Massachusetts; Houlton, Maine; and
Rochester, New Hampshire. We also market shotguns, which are
manufactured to our specifications in dedicated facilities
through a strategic alliance. In addition, we pursue
opportunities to license our name and trademarks to third
parties for use in association with their products and services.
We plan to increase substantially our product offerings and our
licensing program to leverage the 150-plus year old
Smith & Wesson brand and capitalize on the
goodwill developed through our historic American tradition by
expanding consumer awareness of products we produce or license
in the safety, security, protection, and sport markets.
Our
Strategy
Our objective is to be a global leader in the safety, security,
protection, and sport businesses. Key elements of our strategy
to achieve this objective are as follows:
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enhancing existing and introducing new products;
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entering new markets and enhancing our presence in existing
markets;
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enhancing our manufacturing productivity and capacity;
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capitalizing on our widely known brand name;
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emphasizing customer satisfaction and loyalty; and
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pursuing strategic relationships and acquisitions.
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Our
History
Our wholly owned subsidiary, Smith & Wesson Corp., was
founded in 1852 by Horace Smith and Daniel B. Wesson.
Mr. Wesson purchased Mr. Smiths interest in
1873. The Wesson family sold Smith & Wesson Corp. to
Bangor Punta Corp. in 1965. Lear Siegler Corporation purchased
Bangor Punta in 1984, thereby gaining ownership of
Smith & Wesson Corp. Forstmann Little & Co.
purchased Lear Siegler in 1986 and sold Smith & Wesson
Corp. shortly thereafter to Tomkins Corporation, an affiliate of
UK-based Tomkins PLC. We purchased Smith & Wesson
Corp. from Tomkins in May 2001 and changed our name to
Smith & Wesson Holding Corporation in February 2002.
On January 3, 2007, we completed the acquisition of all of
the outstanding capital stock of Bear Lake Acquisition Corp. and
its subsidiaries, including Thompson/Center Arms Company, Inc.
Our
Offices
We maintain our principal executive offices at 2100 Roosevelt
Avenue, Springfield, Massachusetts 01104. Our telephone number
is
(800) 331-0852.
Our website is located at www.smith-wesson.com. Other than as
described in Where You Can Find More Information
below, the information on, or that can be accessed through, our
web site is not incorporated by reference in this prospectus or
any prospectus supplement, and you should not consider it to be
a part of this prospectus or any prospectus supplement. Our web
site address is included as an inactive textual reference only.
1
RISK
FACTORS
Investing in our securities involves a high degree of risk.
Please see the risk factors described under the caption
Risk Factors in our Annual Report on
Form 10-K
for the fiscal year ended April 30, 2008 on file with the
SEC, which is incorporated by reference in this prospectus and
in any accompanying prospectus supplement. Before making an
investment decision, you should carefully consider these risks
as well as information we include or incorporate by reference in
this prospectus and in any accompanying prospectus supplement.
The risks and uncertainties we have described are not the only
ones facing our company. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may
also affect our business operations.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy
statements, and other information with the SEC under the
Securities Exchange Act of 1934, as amended, or the Exchange
Act. Through our website at www.smith-wesson.com, you may
access, free of charge, our filings, as soon as reasonably
practical after we electronically file them with or furnish them
to the SEC. Other information contained in our website is not
incorporated by reference in, and should not be considered a
part of, this prospectus or any accompanying prospectus
supplement. You also may read and copy any document we file at
the SECs public reference room at 100 F Street,
N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the public reference room. Our SEC
filings are also available to the public from the SECs
website at www.sec.gov.
This prospectus is part of a registration statement on
Form S-3
that we filed with the SEC to register the securities offered
hereby under the Securities Act of 1933, as amended, or the
Securities Act. This prospectus does not contain all of the
information included in the registration statement, including
certain exhibits and schedules. You may obtain the registration
statement and exhibits to the registration statement from the
SEC at the address listed above or from the SECs internet
site.
FORWARD-LOOKING
STATEMENTS
This prospectus and each prospectus supplement includes and
incorporates forward-looking statements within the meaning of
Section 27A of the Securities Act and Section 21E of
the Exchange Act. All statements, other than statements of
historical facts, included or incorporated in this prospectus or
any prospectus supplement regarding our strategy, prospects,
plans, objectives, future operations, future revenue and
earnings, projected margins and expenses, technological
innovations, future products or product development, product
development strategies, potential acquisitions or strategic
alliances, the success of particular product or marketing
programs, the amount of revenue generated as a result of sales
to significant customers, financial position, and liquidity and
anticipated cash needs and availability are forward-looking
statements. The words anticipates,
believes, estimates,
expects, intends, may,
plans, projects, will,
would, and similar expressions are intended to
identify forward-looking statements.
Actual results or events could differ materially from the
forward-looking statements we make. Among the factors that could
cause actual results to differ materially are the factors
discussed under Risk Factors in our
Form 10-K
for the fiscal year ended April 30, 2008. We also will
include or incorporate by reference in each prospectus
supplement important factors that we believe could cause actual
results or events to differ materially from the forward-looking
statements that we make. Should one or more known or unknown
risks or uncertainties materialize, or should underlying
assumptions prove inaccurate, actual results could differ
materially from past results and those anticipated, estimated,
projected, or implied by these forward-looking statements. You
should consider these factors and the other cautionary
statements made in this prospectus, any prospectus supplement,
or the documents we incorporate by reference in this prospectus
as being applicable to all related forward-looking statements
wherever they appear in this prospectus, any prospectus
supplement, or the documents incorporated by reference. While we
may elect to update forward-looking statements wherever they
appear in this prospectus, any prospectus supplement, or the
documents incorporated by reference, we do not assume, and
specifically disclaim, any obligation to do so, whether as a
result of new information, future events, or otherwise. Our
forward-looking
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statements do not reflect the potential impact of any future
acquisitions, mergers, dispositions, joint ventures, or
investments we may make.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information we
file with the SEC, which means that we can disclose important
information to you by referring you to those documents. The
information that we incorporate by reference is considered to be
part of this prospectus. Information that we file with the SEC
in the future and incorporate by reference in this prospectus
automatically updates and supersedes previously filed
information as applicable.
We incorporate by reference into this prospectus the following
documents filed by us with the SEC, other than any portion of
any such documents that are not deemed filed under
the Exchange Act in accordance with the Exchange Act and
applicable SEC rules:
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Annual Report on
Form 10-K
for the fiscal year ended April 30, 2008.
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Quarterly Report on
Form 10-Q
for the quarter ended July 31, 2008.
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Current Report on
Form 8-K
filed with the SEC on May 12, 2008.
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Current Report on
Form 8-K
filed with the SEC on May 23, 2008.
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Current Report on
Form 8-K
filed with the SEC on July 3, 2008.
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The information specifically incorporated by reference into our
Annual Report on
Form 10-K
for the fiscal year ended April 30, 2008 from our
definitive proxy statement on Schedule 14A filed with the
SEC on August 5, 2008.
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The description of our common stock contained in the
Registration Statement on
Form 8-A
filed with the SEC on July 19, 2006, including any
amendments or reports filed for the purpose of updating such
description.
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We also incorporate by reference into this prospectus all
documents (other than any portions of any such documents that
are not deemed filed under the Exchange Act in
accordance with the Exchange Act and applicable SEC rules) filed
by us under Section 13(a), 13(c), 14, or 15(d) of the
Exchange Act after the date of the initial registration
statement and before effectiveness of the registration
statement, and after the date of this prospectus.
You may request a copy of these filings at no cost, by writing
or telephoning us as follows:
Smith &
Wesson Holding Corporation
Attention: Corporate Secretary
2100 Roosevelt Avenue
Springfield, Massachusetts 01104
(800) 331-0852
Any statement contained in a document that is incorporated by
reference will be modified or superseded for all purposes to the
extent that a statement contained in this prospectus or any
accompanying prospectus supplement, or in any other document
that is subsequently filed with the SEC and incorporated by
reference, modifies or is contrary to that previous statement.
Any statement so modified or superseded will not be deemed a
part of this prospectus or any accompanying prospectus
supplement, except as so modified or superseded. Since
information that we later file with the SEC will update and
supersede previously incorporated information, you should look
at all of the SEC filings that we incorporate by reference to
determine if any of the statements in this prospectus or any
accompanying prospectus supplement or in any documents
previously incorporated by reference have been modified or
superseded.
3
PROSPECTUS
SUPPLEMENTS
This prospectus provides you with a general description of the
proposed offering of our securities. Each time that we sell
securities under this prospectus, we will provide a prospectus
supplement that will contain specific information about the
terms of that offering. The prospectus supplement may add to,
update, or change information contained in this prospectus and
should be read as superseding this prospectus. You should read
both this prospectus and any prospectus supplement together with
additional information described under the heading Where
You Can Find More Information.
The prospectus supplement will describe the terms of any
offering of securities, including the offering price to the
public in that offering, the purchase price and net proceeds of
that offering, and the other specific terms related to that
offering of securities.
RATIO OF
EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the five most
recently completed fiscal years and any required interim periods
will each be specified in a prospectus supplement or in a
document that we file with the SEC and incorporate by reference
pertaining to the issuance, if any, by us of debt securities in
the future.
SECURITIES
WE MAY OFFER
The descriptions of the securities contained in this prospectus,
together with the applicable prospectus supplements, summarize
the material terms and provisions of the various types of
securities that we may offer. We will describe in the applicable
prospectus supplement relating to any securities the particular
terms of the securities offered by that prospectus supplement.
If we indicate in the applicable prospectus supplement, the
terms of the securities may differ from the terms we have
summarized below. We will also include in the prospectus
supplement information, when applicable, about material
U.S. federal income tax considerations relating to the
securities, and the securities exchange, if any, on which the
securities will be listed.
We may sell from time to time, in one or more offerings, any one
or more of the following:
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common stock, including the associated rights;
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preferred stock;
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debt securities;
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depositary shares;
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warrants to purchase common stock, preferred stock, debt
securities,
and/or
depositary shares;
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purchase contracts;
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units consisting of common stock, preferred stock, debt
securities, depositary shares,
and/or
warrants in any combination; or
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any combination of the foregoing securities.
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In this prospectus, we refer to the common stock (including the
associated rights), preferred stock, debt securities, depositary
shares, warrants, purchase contracts, and units collectively as
securities. The total dollar amount of all
securities that we may issue under this prospectus will not
exceed $250,000,000.
If we issue debt securities at a discount from their original
stated principal amount, then, for purposes of calculating the
total dollar amount of all securities issued under this
prospectus, we will treat the initial offering price of the debt
securities as the total original principal amount of the debt
securities.
This prospectus may not be used to consummate a sale of
securities unless it is accompanied by a prospectus supplement.
4
USE OF
PROCEEDS
Except as may be otherwise set forth in any prospectus
supplement accompanying this prospectus, we will use the net
proceeds we receive from sales of securities offered hereby for
general corporate purposes, which may include the repayment of
indebtedness outstanding from time to time and for working
capital, capital expenditures, acquisitions, and repurchases of
our common stock or other securities. Pending these uses, the
net proceeds may also be temporarily invested in short-term
securities.
DESCRIPTION
OF COMMON STOCK
This section describes the general terms of our common stock. A
prospectus supplement may provide information that is different
from this prospectus. If the information in the prospectus
supplement with respect to our common stock being offered
differs from this prospectus, you should rely on the information
in the prospectus supplement. A copy of our amended and restated
articles of incorporation has been incorporated by reference
from our filings with the SEC as an exhibit to the registration
statement. Our common stock and the rights of the holders of our
common stock are subject to the applicable provisions of the
Nevada General Corporation Law, which we refer to as
Nevada law, our amended and restated articles of
incorporation, our amended and restated bylaws, the rights of
the holders of our preferred stock, if any, as well as some of
the terms of our credit agreement and any other outstanding
indebtedness.
As of September 15, 2008 under our amended and restated
articles of incorporation, we had the authority to issue
100,000,000 shares of common stock, par value $0.001 per
share, of which 47,061,012 shares of our common stock were
outstanding as of that date.
The following description of our common stock, and any
description of our common stock in a prospectus supplement may
not be complete and is subject to, and qualified in its entirety
by reference to, Nevada law and the actual terms and provisions
contained in our amended and restated articles of incorporation
and amended and restated bylaws, each as amended from time to
time.
Voting
Rights
Each outstanding share of our common stock is entitled to one
vote per share of record on all matters submitted to a vote of
stockholders and to vote together as a single class for the
election of directors and in respect of other corporate matters.
At a meeting of stockholders at which a quorum is present, for
all matters other than the election of directors, all questions
shall be decided by the vote of the holders of a majority of the
outstanding shares of stock entitled to vote thereon present in
person or by proxy at the meeting, unless the matter is one upon
which a different vote is required by express provision of law
or our amended and restated articles of incorporation or amended
and restated bylaws. Directors will be elected by a plurality of
the votes of the shares present at a meeting. Holders of shares
of common stock do not have cumulative voting rights with
respect to the election of directors or any other matter.
Dividends
Holders of our common stock are entitled to receive dividends or
other distributions when, as, and if declared by our board of
directors. The right of our board of directors to declare
dividends, however, is subject to any rights of the holders of
other classes of our capital stock, any indebtedness outstanding
from time to time, and the availability of sufficient funds
under Nevada law to pay dividends.
Preemptive
Rights
The holders of our common stock do not have preemptive rights to
purchase or subscribe for any of our capital stock or other
securities.
Redemption
The shares of our common stock are not subject to redemption by
operation of a sinking fund or otherwise.
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Liquidation
Rights
In the event of any liquidation, dissolution, or winding up of
our company, subject to the rights, if any, of the holders of
other classes of our capital stock, the holders of shares of our
common stock are entitled to receive any of our assets available
for distribution to our stockholders ratably in proportion to
the number of shares held by them.
Options,
Warrants, Restricted Stock Units, and Senior Convertible
Notes
From time to time, we have issued and expect to continue to
issue options, warrants, and restricted stock units (RSUs) to
various lenders, investors, advisors, consultants, employees,
and officers of our company. As of September 15, 2008, we
had outstanding (i) stock options to purchase
2,820,595 shares of our common stock, of which
1,806,595 shares of common stock were issuable upon
exercise of vested stock options as of that date;
(ii) 401,112 undelivered RSUs; and (iii) warrants to
purchase 70,000 shares of our common stock, all of which
were exercisable. In addition, as of September 15, 2008,
6,485,084 shares of our common stock were reserved for
issuance upon conversion of our senior convertible notes.
Listing
Our common stock is listed on the Nasdaq Global Select Market
under the symbol SWHC.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is
Interwest Transfer Company, Inc., 1981 East Murray Holladay
Road, Suite 100, Salt Lake City, Utah 84117.
DESCRIPTION
OF PREFERRED STOCK
This section describes the general terms of our preferred stock
to which any prospectus supplement may relate. A prospectus
supplement will describe the terms relating to any preferred
stock to be offered by us in greater detail and may provide
information that is different from terms described in this
prospectus. If the information in the prospectus supplement with
respect to the particular preferred stock being offered differs
from this prospectus, you should rely on the information in the
prospectus supplement. A copy of our amended and restated
articles of incorporation has been incorporated by reference
from our filings with the SEC as an exhibit to the registration
statement. A certificate of designation or amendment to our
amended and restated articles of incorporation will specify the
terms of the preferred stock being offered, and will be filed or
incorporated by reference as an exhibit to the registration
statement before the preferred stock is issued. The following
description of our preferred stock, and any description of the
preferred stock in a prospectus supplement, may not be complete
and is subject to, and qualified in its entirety by reference
to, Nevada law and the actual terms and provisions contained in
our amended and restated articles of incorporation and amended
and restated bylaws, each as amended from time to time.
As of September 15, 2008, under our amended and restated
articles of incorporation, we had the authority to issue
20,000,000 shares of preferred stock, par value $0.001 per
share, which are issuable in series on terms to be determined by
our board of directors. Accordingly, our board of directors is
authorized, without action by the stockholders, to issue
preferred stock from time to time with such dividend,
liquidation, conversion, voting, and other rights and
restrictions as it may determine. All shares of any one series
of our preferred stock will be identical, except that shares of
any one series issued at different times may differ as to the
dates from which dividends may be cumulative. All series shall
rank equally and shall provide for other terms as described in
the applicable prospectus supplement. As of September 15,
2008, there were no outstanding shares of our preferred stock.
In connection with the adoption of our stockholders rights
plan described below, our board of directors designated
100,000 shares of our preferred stock as Series A
Junior Participating Preferred Stock.
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Terms of
Preferred Stock
Unless provided in a prospectus supplement, the shares of our
preferred stock to be issued will have no preemptive rights. Any
prospectus supplement offering our preferred stock will furnish
the following information with respect to the preferred stock
offered by that prospectus supplement:
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the title and stated value of the preferred stock;
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the number of shares of preferred stock to be issued and the
offering price of the preferred stock;
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any dividend rights;
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any dividend rates, periods, or payment dates, or methods of
calculation of dividends applicable to the preferred stock;
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the date from which distributions on the preferred stock shall
accumulate, if applicable;
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the terms and conditions, if applicable, upon which the
preferred stock will be convertible into our common stock,
including the conversion price (or manner of calculation
thereof);
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any right to convert the preferred stock into a different type
of security;
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any voting rights attributable to the preferred stock;
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any rights and preferences upon our liquidation or winding up of
our affairs;
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any terms of redemption;
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the procedures for any auction and remarketing, if any, for the
preferred stock;
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the provisions for a sinking fund, if any, for the preferred
stock;
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any listing of the preferred stock on any securities exchange;
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a discussion of federal income tax considerations applicable to
the preferred stock;
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the relative ranking and preferences of the preferred stock as
to distribution rights (including whether any liquidation
preference as to the preferred stock will be treated as a
liability for purposes of determining the availability of assets
for distributions to holders of stock ranking junior to the
shares of preferred stock as to distribution rights);
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any limitations on issuance of any series of preferred stock
ranking senior to or on a parity with the series of preferred
stock being offered as to distribution rights and rights upon
the liquidation, dissolution, or winding up or our
affairs; and
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any other specific terms, preferences, rights, limitations, or
restrictions of the preferred stock.
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Rank
Unless otherwise indicated in the applicable prospectus
supplement, shares of our preferred stock will rank, with
respect to payment of distributions and rights upon our
liquidation, dissolution, or winding up, and allocation of our
earnings and losses:
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senior to all classes or series of our common stock and to all
of our equity securities ranking junior to the preferred stock;
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on a parity with all equity securities issued by us, the terms
of which specifically provide that these equity securities rank
on a parity with the preferred stock; and
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junior to all equity securities issued by us, the terms of which
specifically provide that these equity securities rank senior to
the preferred stock.
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Distributions
Subject to any preferential rights of any outstanding stock or
series of stock, our preferred stockholders are entitled to
receive distributions when, as, and if declared by our board of
directors, out of legally available funds and to share pro rata
based on the number of preferred shares, common stock, and other
parity equity securities outstanding. The rates and dates of
payment of dividends will be set forth in the prospectus
supplement relating to the applicable series of preferred stock.
Dividends will be payable to holders of record of preferred
stock as they appear on our books or, if applicable, the records
of the depositary referred to below on the record dates fixed by
the board of directors. Dividends on a series of preferred stock
may be cumulative or noncumulative.
We may not declare, pay, or set apart for payment dividends on
the preferred stock unless full dividends on other series of
preferred stock that rank on an equal or senior basis have been
paid or sufficient funds have been set apart for payment for:
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all prior dividend periods of other series of preferred stock
that pay dividends on a cumulative basis; or
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the immediately preceding dividend period of other series of
preferred stock that pay dividends on a noncumulative basis.
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Partial dividends declared on shares of preferred stock and each
other series of preferred stock ranking on an equal basis as to
dividends will be declared pro rata. A pro rata declaration
means that the ratio of dividends declared per share to accrued
dividends per share will be the same for each series of
preferred stock. Similarly, we may not declare, pay, or set
apart for payment non-stock dividends or make other payments on
the common stock or any other of our stock ranking junior to the
preferred stock until full dividends on the preferred stock have
been paid or set apart for payment for
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all prior dividend periods if the preferred stock pays dividends
on a cumulative basis; or
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the immediately preceding dividend period if the preferred stock
pays dividends on a noncumulative basis.
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Voting
Rights
Unless otherwise indicated in the applicable prospectus
supplement, holders of our preferred stock will not have any
voting rights.
Liquidation
Preference
Upon the voluntary or involuntary liquidation, dissolution, or
winding up of our affairs, then, before any distribution or
payment shall be made to the holders of any common stock or any
other class or series of stock ranking junior to the preferred
stock in our distribution of assets upon any liquidation,
dissolution, or winding up, the holders of each series of our
preferred stock will be entitled to receive, after payment or
provision for payment of our debts and other liabilities, out of
our assets legally available for distribution to stockholders,
liquidating distributions in the amount of the liquidation
preference per share (set forth in the applicable prospectus
supplement), plus an amount, if applicable, equal to all
distributions accrued and unpaid thereon (which shall not
include any accumulation in respect of unpaid distributions for
prior distribution periods if the preferred stock does not have
a cumulative distribution). Unless otherwise specified in the
applicable prospectus supplement, after payment of the full
amount of the liquidating distributions to which they are
entitled, the holders of preferred stock will have no right or
claim to any of our remaining assets. In the event that, upon
our voluntary or involuntary liquidation, dissolution, or
winding up, the legally available assets are insufficient to pay
the amount of the liquidating distributions on all of our
outstanding preferred stock and the corresponding amounts
payable on all of our other classes or series of equity
securities ranking on a parity with the preferred stock in the
distribution of assets upon liquidation, dissolution, or winding
up, then the holders of our preferred stock and all other such
classes or series of equity securities will share ratably in the
distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively
entitled.
If the liquidating distributions are made in full to all holders
of preferred stock, our remaining assets will be distributed
among the holders of any other classes or series of equity
security ranking junior to the preferred stock
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upon our liquidation, dissolution, or winding up, according to
their respective rights and preferences and in each case
according to their respective number of shares of stock.
Conversion
Rights
The terms and conditions, if any, upon which shares of any
series of preferred stock are convertible into other securities
will be set forth in the applicable prospectus supplement. These
terms will include the amount and type of security into which
the shares of preferred stock are convertible, the conversion
price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the
holders of the preferred stock or us, the events requiring an
adjustment of the conversion price, and provisions affecting
conversion in the event of the redemption of that preferred
stock.
Redemption
If so provided in the applicable prospectus supplement, our
preferred stock will be subject to mandatory redemption or
redemption at our option, in whole or in part, in each case upon
the terms, at the times, and at the redemption prices set forth
in such prospectus supplement. Unless we default in the payment
of the redemption price, dividends will cease to accrue after
the redemption date on shares of preferred stock called for
redemption and all rights of holders of such shares will
terminate, except for the right to receive the redemption price.
No series of preferred stock will receive the benefit of a
sinking fund except as set forth in the applicable prospectus
supplement.
Registrar
and Transfer Agent
The registrar and transfer agent for our preferred stock will be
set forth in the applicable prospectus supplement.
If our board of directors decides to issue any preferred stock,
it may discourage or make more difficult a merger, tender offer,
business combination, or proxy contest, assumption of control by
a holder of a large block of our securities, or the removal of
incumbent management, even if these events were favorable to the
interests of stockholders. Our board of directors, without
stockholder approval, may issue preferred stock with voting and
conversion rights and dividend and liquidation preferences that
may adversely affect the holders of our other equity or debt
securities.
DESCRIPTION
OF DEBT SECURITIES
This prospectus describes certain general terms and provisions
of the debt securities we may offer under this prospectus and
one or more prospectus supplements. When we offer to sell a
particular series of debt securities, we will describe the
specific terms of the series in a prospectus supplement. The
following description of debt securities will apply to the debt
securities offered by this prospectus unless we provide
otherwise in the applicable prospectus supplement. The
applicable prospectus supplement for a particular series of debt
securities may specify different or additional terms.
We may issue senior, senior
subordinated, or subordinated, debt
securities. Senior securities will be direct
obligations of ours and will rank equally and ratably in right
of payment with other indebtedness of ours that is not
subordinated. Senior subordinated securities will be
subordinated in right of payment to the prior payment in full of
senior indebtedness, as defined in the applicable prospectus
supplement, and may rank equally and ratably with the senior
subordinated notes and any other senior subordinated
indebtedness. Subordinated securities will be
subordinated in right of payment to senior subordinated
securities.
We need not issue all debt securities of one series at the same
time. Unless we provide otherwise, we may reopen a series,
without the consent of the holders of such series, for issuances
of additional securities of that series.
We will issue the senior debt securities and senior subordinated
debt securities under a senior indenture, which we will enter
into with the trustee to be named in the senior indenture, and
we will issue the subordinated debt securities under a
subordinated indenture, which we will enter into with the
trustee to be named in the subordinated indenture. We use the
term indenture or indentures to refer to
both the senior indenture and the subordinated
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indenture. Each indenture will be subject to and governed by the
Trust Indenture Act of 1939, as amended, or the
Trust Indenture Act, and we may supplement the indenture
from time to time. Any trustee under any indenture may resign or
be removed with respect to one or more series of debt
securities, and we may appoint a successor trustee to act with
respect to that series. We have filed a form of indenture
between us as the issuer, and American Stock Transfer and
Trust Company as the indenture trustee, as an exhibit to
this registration statement, of which this prospectus forms a
part. The terms of the senior indenture and subordinated
indenture will be substantially similar, except that the
subordinated indenture will include provisions pertaining to the
subordination of the subordinated debt securities and senior
subordinated debt securities to the senior debt securities and
any other of our senior securities. The following statements
relating to the debt securities and the indenture are summaries
only, are subject to change, and are qualified in their entirety
to the detailed provisions of the indenture, any supplemental
indenture, and the discussion contained in any prospectus
supplements.
General
The debt securities will be our direct obligations. We may issue
debt securities from time to time and in one or more series as
our board of directors may establish by resolution or as we may
establish in one or more supplemental indentures. The particular
terms of each series of debt securities will be described in a
prospectus supplement relating to the series. We may issue debt
securities with terms different from those of debt securities
that we previously issued.
We may issue debt securities from time to time and in one or
more series with the same or various maturities, at par, at a
premium, or at a discount. We will set forth in a prospectus
supplement, relating to any series of debt securities being
offered, the initial offering price and the following terms of
the debt securities:
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the title of the debt securities;
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the series designation and whether they are senior securities,
senior subordinated securities, or subordinated securities;
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the aggregate principal amount of the debt securities and any
limit on the aggregate amount of the series of debt securities;
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the price or prices (expressed as a percentage of the aggregate
principal amount) at which we will issue the debt securities
and, if other than the principal amount of the debt securities,
the portion of the principal amount of the debt securities
payable upon the maturity of the debt securities;
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the date or dates on which we will pay the principal on the debt
securities;
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the rate or rates (which may be fixed or variable) per annum or
the method used to determine the rate or rates (including any
commodity, commodity index, stock exchange index, or financial
index) at which the debt securities will bear interest, the date
or dates from which interest will accrue, the date or dates on
which interest will commence and be payable, and any regular
record date for the interest payable on any interest payment
date;
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the place where principal, interest, and any additional amounts
will be payable and where the debt securities can be surrendered
for transfer, exchange, or conversion;
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the terms, if any, by which holders of the debt securities may
convert or exchange the debt securities for our common stock,
preferred stock, or any other security or property;
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if convertible, the initial conversion price, the conversion
period, and any other terms governing such conversion;
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any subordination provisions or limitations relating to the debt
securities;
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any sinking fund requirements;
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any obligation we have to redeem or purchase the debt securities
pursuant to any sinking fund or analogous provisions or at the
option of a holder of debt securities;
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the dates on which and the price or prices at which we will
repurchase the debt securities at the option of the holders of
debt securities and other detailed terms and provisions of these
repurchase obligations;
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the denominations in which the debt securities will be issued,
if other than denominations of $1,000 and any integral multiple
thereof;
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the portion of principal amount of the debt securities payable
upon declaration of acceleration of the maturity date, if other
than the principal amount;
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whether we will issue the debt securities in certificated or
book-entry form;
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whether the debt securities will be in registered or bearer form
and, if in registered form, the denominations if other than in
even multiples of $1,000 and, if in bearer form, the
denominations and terms and conditions relating thereto;
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the designation of the currency, currencies, or currency units
in which payment of principal of, premium, and interest on the
debt securities will be made;
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if payments of principal of, and interest and any additional
amounts on, the debt securities will be made in one or more
currencies or currency units other than that or those in which
the debt securities are denominated, the manner in which the
exchange rate with respect to these payments will be determined;
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the manner in which the amounts of payment of principal of, and
interest and any additional amounts on, the debt securities will
be determined, if these amounts may be determined by reference
to an index based on a currency or currencies other than that in
which the debt securities are denominated or designated to be
payable or by reference to a commodity, commodity index, stock
exchange index, or financial index;
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any applicability of the defeasance provisions described in this
prospectus or any prospectus supplement;
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whether and under what circumstances, if any, we will pay
additional amounts on any debt securities in respect of any tax,
assessment, or governmental charge and, if so, whether we will
have the option to redeem the debt securities instead of making
this payment;
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any addition to or change in the events of default described in
this prospectus or in the indenture with respect to the debt
securities and any change in the acceleration provisions
described in this prospectus or in the indenture with respect to
the debt securities;
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any addition to or change in the covenants described in this
prospectus or in the indenture with respect to the debt
securities;
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if the debt securities are to be issued upon the exercise of
debt warrants, the time, manner, and place for them to be
authenticated and delivered;
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any securities exchange on which we will list the debt
securities;
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any restrictions on transfer, sale, or other assignment;
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any provisions relating to any security provided for the debt
securities;
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any provisions relating to any guarantee of the debt securities;
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any other terms of the debt securities, which may modify or
delete any provision of the indenture as it applies to that
series; and
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any depositaries, interest rate calculation agents, exchange
rate calculation agents, or other agents with respect to the
debt securities.
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We may issue debt securities that are exchangeable for or
convertible into shares of our common stock or other securities
or property. The terms, if any, on which the debt securities may
be exchanged for or converted into shares of our common stock or
other securities or property will be set forth in the applicable
prospectus supplement. Such terms may include provisions for
conversion, either mandatory, at the option of the holder, or at
our option, in which
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case the number of shares of common stock or other securities or
property to be received by the holders of debt securities would
be calculated as of a time and in the manner stated in the
prospectus supplement.
We may issue debt securities at less than the principal amount
payable upon maturity. We refer to these securities as
original issue discount securities. If material or
applicable, we will describe in the applicable prospectus
supplement special U.S. federal income tax, accounting, and
other considerations applicable to original issue discount
securities.
If we denominate the purchase price of any of the debt
securities in a foreign currency or currencies or a foreign
currency unit or units, or if the principal of, and interest and
any additional amounts on, any series of debt securities is
payable in a foreign currency or currencies or a foreign
currency unit or units, we will provide you with information on
the restrictions, elections, general tax considerations,
specific terms, and other information with respect to that issue
of debt securities and such foreign currency or currencies or
foreign currency unit or units in the applicable prospectus
supplement.
Except as may be set forth in any prospectus supplement relating
to the debt securities, an indenture will not contain any other
provisions that would limit our ability to incur indebtedness or
that would afford holders of the debt securities protection in
the event of a highly leveraged or similar transaction involving
us or in the event of a change in control. You should review
carefully the applicable prospectus supplement for information
with respect to events of default and any covenants applicable
to the debt securities being offered.
Payments
and Paying Agents
Unless we otherwise indicate in the applicable prospectus
supplement, we will make payment of the interest on any debt
securities on any interest payment date to the person in whose
name the debt securities, or one or more predecessor securities,
are registered at the close of business on the regular record
date for the interest.
We will pay principal of, and interest and any additional
amounts on, the debt securities of a particular series at the
office of the paying agents designated by us, except that,
unless we otherwise indicate in the applicable prospectus
supplement, we may make interest payments by check, which we
will mail to the holder, or by wire transfer to certain holders.
Unless we otherwise indicate in a prospectus supplement, we will
designate the corporate trust office of the trustee as our sole
paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus
supplement any other paying agents that we initially designate
for the debt securities of a particular series.
Form,
Transfer, and Exchange
Each debt security will be represented by either one or more
global securities registered in the name of The Depository
Trust Company, as depositary, or a nominee of the
depositary (as a book-entry debt security), or a
certificate issued in definitive registered form (as a
certificated debt security), as described in the
applicable prospectus supplement. Except as described under
Global Debt Securities and Book-Entry System below,
book-entry debt securities will not be issuable in certificated
form.
Certificated
Debt Securities
You may transfer or exchange certificated debt securities at the
trustees office or paying agencies in accordance with the
terms of the indenture. No service charge will be made for any
transfer or exchange of certificated debt securities, but we may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with a transfer or
exchange.
You may transfer certificated debt securities and the right to
receive the principal of, and interest and any additional
amounts on, certificated debt securities only by surrendering
the old certificate representing those certificated debt
securities and either we or the trustee will reissue the old
certificate to the new holder, or we or the trustee will issue a
new certificate to the new holder.
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Global
Debt Securities and Book-Entry System
Each global debt security representing book-entry debt
securities will be deposited with, or on behalf of, the
depositary, and registered in the name of the depositary or a
nominee of the depositary. Ownership of beneficial interests in
book-entry debt securities will be limited to persons that have
accounts with the depositary for the related global debt
security, whom we refer to as participants, or persons that may
hold interests through participants.
Except as described in this prospectus or any applicable
prospectus supplement, beneficial owners of book-entry debt
securities will not be entitled to have securities registered in
their names, will not receive or be entitled to receive physical
delivery of a certificate in definitive form representing
securities, and will not be considered the owners or holders of
those securities under the indenture. Accordingly, to exercise
any rights of a holder under the indenture, each person
beneficially owning book-entry debt securities must rely on the
procedures of the depositary for the related global debt
security and, if that person is not a participant, on the
procedures of the participant through which that person owns its
interest.
We understand, however, that under existing industry practice,
the depositary will authorize the persons on whose behalf it
holds a global debt security to exercise certain rights of
holders of debt securities, and the indenture provides that we,
the trustee, and our respective agents will treat as the holder
of a debt security the persons specified in a written statement
of the depositary with respect to that global debt security for
purposes of obtaining any consents or directions required to be
given by holders of the debt securities pursuant to the
indenture.
We will make payments of principal of, and interest and any
additional amounts on, book-entry debt securities to the
depositary or its nominee, as the case may be, as the registered
holder of the related global debt security. We, the trustee, and
any other agent of ours or agent of the trustee will not have
any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in a global debt security or for maintaining,
supervising, or reviewing any records relating to such
beneficial ownership interests.
Any certificated debt securities issued in exchange for a global
debt security will be registered in such name or names as the
depositary shall instruct the trustee. We expect that such
instructions will be based upon directions received by the
depositary from participants with respect to ownership of
book-entry debt securities relating to such global debt security.
For additional discussion of book entry and certificated
securities, see the section entitled Legal Ownership of
Securities included in this prospectus. We have obtained
the foregoing information in this section and the Legal
Ownership of Securities section concerning the depositary
and the depositarys book-entry system from sources we
believe to be reliable. We take no responsibility for the
depositarys performance of its obligations under the rules
and regulations governing its operations.
No
Protection in the Event of a Change in Control
Unless we provide otherwise in the applicable prospectus
supplement, the debt securities will not contain any provisions
that may afford holders of the debt securities protection in the
event we have a change in control or in the event of a highly
leveraged transaction (whether or not such transaction results
in a change in control).
Covenants
Unless we provide otherwise in the applicable prospectus
supplement, the debt securities will not contain any restrictive
covenants, including covenants restricting us or any of our
subsidiaries from incurring, issuing, assuming, or guaranteeing
any indebtedness secured by a lien on any of our or our
subsidiaries property or capital stock or restricting us
or any of our subsidiaries from entering into any sale and
leaseback transactions.
Merger,
Consolidation, and Sale of Assets
Unless we provide otherwise in the applicable prospectus
supplement, we may not merge with or into or consolidate with,
or convey, transfer, or lease all or substantially all of our
properties and assets to, any person (a
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successor person), and we may not permit any person
to merge into, or convey, transfer, or lease its properties and
assets substantially as an entirety to us, unless the following
applies:
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either (a) the company is the surviving entity or
(b) the successor person is a corporation, partnership,
trust, or other entity organized and validly existing under the
laws of any United States domestic jurisdiction and expressly
assumes our obligations on the debt securities and under the
indenture;
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immediately after giving effect to the transaction, no event of
default, and no event that, after notice or lapse of time, or
both, would become an event of default, shall have occurred and
be continuing under the indenture; and
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certain other conditions that may be set forth in the applicable
prospectus supplement are met.
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This covenant would not apply to any recapitalization
transaction, a change in control of us, or a transaction in
which we incur a large amount of additional debt unless the
transactions or change in control included a merger,
consolidation, or transfer or lease of substantially all of our
assets. Except as may be described in the applicable prospectus
supplement, there are no covenants or other provisions in the
indenture providing for a put right or increased
interest or that would otherwise afford holders of debt
securities additional protection in the event of a
recapitalization transaction, a change in control of us, or a
transaction in which we incur a large amount of additional debt.
Events of
Default Under the Indenture
Unless we provide otherwise in the applicable prospectus
supplement, an event of default will mean, with
respect to any series of debt securities, any of the following:
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default in the payment of any interest upon any debt security of
that series when it becomes due and payable and continuance of
that default for a period of 30 days (unless the entire
amount of such payment is deposited by us with the trustee or
with a paying agent before the expiration of the
30-day
period);
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default in the payment of principal of, and any other amounts
due on, any debt security of that series when due and payable
either at maturity, redemption, or otherwise;
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default in the deposit of any sinking fund payment, when and as
due in respect of any debt security of that series;
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default in the performance or breach of any other covenant or
warranty by us in the indenture (other than a covenant or
warranty that has been included in the indenture solely for the
benefit of a series of debt securities other than that series)
or in the debt security, which default continues uncured for a
period of 60 days after we receive written notice from the
trustee or we and the trustee receive written notice from the
holders of not less than a majority in principal amount of the
outstanding debt securities of that series as provided in the
indenture;
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we, pursuant to or within the meaning of any applicable
bankruptcy law, commence a voluntary case, consent to the entry
of an order for relief against us in an involuntary case,
consent to the appointment of a custodian for all or
substantially all of our property, make a general assignment for
the benefit of our creditors, or admit in writing our inability
generally to pay our debts as they become due; or, similarly, a
court enters an order or decree under any applicable bankruptcy
law that provides for relief against us in an involuntary case,
appoints a custodian for all or substantially all of our
properties, or orders our liquidation (and the order remains in
effect for 60 days); and
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any other event of default provided with respect to debt
securities of that series that is included in any supplemental
indenture or is described in the applicable prospectus
supplement accompanying this prospectus.
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No event of default with respect to a particular series of debt
securities (except as to certain events of bankruptcy,
insolvency, or reorganization) necessarily constitutes an event
of default with respect to any other series of debt securities.
An event of default may also be an event of default under our
bank credit agreements or other debt securities in existence
from time to time and under certain guaranties by us of any
subsidiary indebtedness. In
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addition, certain events of default or an acceleration under the
indenture may also be an event of default under some of our
other indebtedness outstanding from time to time.
Unless we provide otherwise in the applicable prospectus
supplement, if an event of default with respect to debt
securities of any series at the time outstanding occurs and is
continuing (other than certain events of our bankruptcy,
insolvency, or reorganization), then the trustee or the holders
of not less than a majority in principal amount of the
outstanding debt securities of that series may, by written
notice to us (and to the trustee if given by the holders),
declare to be due and payable immediately the principal (or, if
the debt securities of that series are discount securities, that
portion of the principal amount as may be specified in the terms
of that series) of and accrued and unpaid interest, if any, of
all debt securities of that series. In the case of an event of
default resulting from certain events of bankruptcy, insolvency,
or reorganization, the principal (or such specified amount) of
and accrued and unpaid interest, if any, of all outstanding debt
securities will become and be immediately due and payable
without any declaration or other act by the trustee or any
holder of outstanding debt securities.
At any time after an acceleration with respect to debt
securities of a series has been made, but before a judgment or
decree for payment of the money due has been obtained by the
trustee, the holders of not less than a majority in principal
amount of the outstanding debt securities of that series may
cancel the acceleration and annul its consequences if the
rescission would not conflict with any judgment or decree and if
all existing events of default with respect to that series have
been cured or waived except nonpayment of principal (or such
lesser amount) or interest that has become due solely because of
the acceleration.
The indenture also provides that the holders of not less than a
majority in principal amount of the outstanding debt securities
of any series may waive any past default with respect to that
series and its consequences, except a default involving the
following:
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our failure to pay the principal of, and interest and any
additional amounts on, any debt security; or
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a covenant or provision contained in the indenture that cannot
be modified or amended without the consent of the holders of
each outstanding debt security affected by the default.
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The trustee is generally required to give notice to the holders
of debt securities of each affected series within 90 days
of a default actually known to a responsible officer of the
trustee unless the default has been cured or waived. The
indenture provides that the trustee may withhold notice to the
holders of debt securities of any series of any default or event
of default (except in payment on any debt securities of that
series) with respect to debt securities of that series if it in
good faith determines that withholding notice is in the interest
of the holders of those debt securities.
Unless we provide otherwise in the applicable prospectus
supplement, the indenture will provide that the trustee will be
under no obligation to exercise any of its rights or powers
under the indenture at the request or discretion of any holder
of any such outstanding debt securities unless the trustee
receives indemnity satisfactory to it against any loss,
liability, or expense. Subject to certain rights of the trustee,
the holders of a majority in 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 with respect to the debt securities of
that series. The trustee may, however, refuse to follow any
discretion that conflicts with the indenture or any law or which
may be unduly prejudicial to the holders of the debt securities
of the applicable series not joining in the discretion.
Unless we provide otherwise in the applicable prospectus
supplement, no holder of any debt security of any series will
have any right to institute any proceeding, judicial or
otherwise, with respect to the indenture or for the appointment
of a receiver or trustee, or for any remedy under the indenture,
unless:
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that holder has previously given to the trustee written notice
of a continuing event of default with respect to debt securities
of that series; and
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the holders of at least 25% in principal amount of the
outstanding debt securities of that series have made written
request, and offered reasonable indemnity, to the trustee to
institute such proceeding as trustee, and the trustee shall not
have received from the holders of a majority in principal amount
of the outstanding debt securities of that series a direction
inconsistent with that request and has failed to institute the
proceeding within 60 days.
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Notwithstanding the foregoing, except as provided in the
subordination provisions, if any, the holder of any debt
security will have an absolute and unconditional right to
receive payment of the principal of, and any interest or
additional amounts on, that debt security on or after the due
dates expressed in that debt security and to institute suit for
the enforcement of payment.
The indenture requires us, within 120 days after the end of
our fiscal year, to furnish to the trustee a certificate as to
compliance with the indenture, or, in the event of
noncompliance, specify the noncompliance and the nature and
status of the noncompliance.
Modification
of Indenture and Waiver
Except as specified below, modifications and amendments to the
indenture require the approval of not less than a majority in
principal amount of our outstanding debt securities.
Changes
Requiring the Unanimous Approval
We and the trustee may not make any modification or amendment to
the indenture without the consent of the holder of each affected
debt security then outstanding if that amendment will have any
of the following results:
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reduce the rate of or extend the time for payment of interest,
including default interest, on any debt security;
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reduce the principal of or any additional amounts on or change
the fixed maturity of any debt security or reduce the amount of,
or postpone the date fixed for, the payment of any sinking fund
or analogous obligation with respect to any series of debt
securities;
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reduce the principal amount of discount securities payable upon
acceleration of maturity;
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waive a default in the payment of the principal of, and interest
or any additional amounts on, any debt security, except a
rescission of acceleration of the debt securities of any series
by the holders of at least a majority in aggregate principal
amount of the then outstanding debt securities of that series
and a waiver of the payment default that resulted from that
acceleration;
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make the principal of, or interest or any additional amounts on,
any debt security payable in currency other than that stated in
the debt security;
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change the place of payment on a debt security;
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change the currency or currencies of payment of the principal
of, and any premium, make-whole payment, interest, or additional
amounts on, any debt security;
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impair the right to initiate suit for the enforcement of any
payment on or with respect to any debt security;
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reduce the percentage of holders of debt securities whose
consent is needed to modify or amend an indenture, to waive
compliance with certain provisions of an indenture, or to waive
certain defaults;
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reduce the percentage of the holders of outstanding debt
securities of any series necessary to modify or amend the
indenture, to waive compliance with provisions of the indenture
or defaults and their consequences under the indenture, or to
reduce the quorum or voting requirements contained in the
indenture;
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make any change that adversely affects the right to convert or
exchange any debt security other than as permitted by the
indenture or decrease the conversion or exchange rate or
increase the conversion or exchange price of any such debt
security;
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waive a redemption payment with respect to any debt
security; or
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make any change to certain provisions of the indenture relating
to, among other things, the right of holders of debt securities
to receive payment of the principal of, and interest and any
additional amount on, those debt securities, the right of
holders to institute suit for the enforcement of any payment, or
the right of holders to waive past defaults.
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Changes
Not Requiring Approval of Debt Holders
We and the trustee may modify or amend an indenture, without the
consent of any holder of debt securities, for any of the
following purposes:
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to evidence the succession of another person to us as obligor
under the indenture;
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to add to our existing covenants additional covenants for the
benefit of the holders of all or any series of debt securities,
or to surrender any right or power conferred upon us in the
indenture;
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to add events of default for the benefit of the holders of all
or any series of debt securities;
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to add or change any provisions of the indenture to facilitate
the issuance of, or to liberalize the terms of, debt securities
in bearer form, or to permit or facilitate the issuance of debt
securities in uncertificated form, provided that this action
will not adversely affect the interests of the holders of the
debt securities of any series in any material respect;
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to add, change, or eliminate any provisions of the indenture,
provided that any addition, change, or elimination
(a) shall neither (i) apply to any debt security of
any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the holder of any debt security
with respect to such provision, or (b) shall become
effective only when there are no outstanding debt securities;
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to establish additional series of debt securities;
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to secure previously unsecured debt securities;
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to establish the form or terms of debt securities of any series,
including the provisions and procedures, if applicable, for the
conversion or exchange of the debt securities into our common
stock, preferred stock, or other securities or property;
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to evidence and provide for the acceptance or appointment of a
successor trustee or facilitate the administration of the trusts
under the indenture by more than one trustee;
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to make any provision with respect to the conversion or exchange
of rights of holders pursuant to the requirements of the
indenture;
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to cure any ambiguity, defect, or inconsistency in the
indenture, provided that the action does not adversely affect
the interests of holders of debt securities of any series issued
under the indenture;
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to close the indenture with respect to the authentication and
delivery of additional series of debt securities or to qualify,
or maintain qualification of, the indenture under the
Trust Indenture Act; or
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to supplement any of the provisions of the indenture to the
extent necessary to permit or facilitate defeasance and
discharge of any series of debt securities, provided that the
action shall not adversely affect the interests of the holders
of the debt securities of any series in any material respect.
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A vote by holders of debt securities will not be required for
clarifications and certain other changes that would not
adversely affect holders of the debt securities.
Defeasance
of Debt Securities and Certain Covenants in Certain
Circumstances
Legal
Defeasance
Unless the terms of the applicable series of debt securities
provide otherwise, we may be discharged from any and all
obligations in respect of the debt securities of any series
(except for certain obligations to register the transfer or
exchange of debt securities of the series; to replace stolen,
lost, or mutilated debt securities of the series; and to
maintain paying agencies and certain provisions relating to the
treatment of funds held by paying agents). We will be so
discharged upon the deposit with the trustee, in trust, of money
and/or
U.S. government obligations or, in the case of debt
securities denominated in a single currency other than
U.S. dollars, foreign government obligations (as described
at the end of this section), that, through the payment of
interest and principal in accordance with their
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terms, will provide money in an amount sufficient to pay and
discharge each installment of principal, interest, and any
additional amounts on and any mandatory sinking fund payments in
respect of the debt securities of that series on the stated
maturity of such payments in accordance with the terms of the
indenture and those debt securities.
This discharge may occur only if, among other things, we have
delivered to the trustee an officers certificate and an
opinion of counsel stating that we have received from, or there
has been published by, the U.S. Internal Revenue Service a
ruling or, since the date of execution of the indenture, there
has been a change in the applicable U.S. federal income tax
law, in either case to the effect that holders of the debt
securities of such series will not recognize income, gain, or
loss for U.S. federal income tax purposes as a result of
the deposit, defeasance, and discharge and will be subject to
U.S. federal income tax on the same amount and in the same
manner and at the same times as would have been the case if the
deposit, defeasance, and discharge had not occurred.
Defeasance
of Certain Covenants
Unless the terms of the applicable series of debt securities
provide otherwise, upon compliance with certain conditions, we
may omit to comply with the restrictive covenants contained in
the indenture, as well as any additional covenants contained in
the applicable prospectus supplement.
The conditions include, among others, the following:
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depositing with the trustee money
and/or
U.S. government obligations or, in the case of debt
securities denominated in a single currency other than
U.S. dollars, foreign government obligations, that, through
the payment of interest and principal in accordance with their
terms, will provide money in an amount sufficient, in the
opinion of a nationally recognized firm of independent public
accountants, to pay principal, interest, and any additional
amounts on and any mandatory sinking fund payments in respect of
the debt securities of that series on the stated maturity of
those payments in accordance with the terms of the indenture and
those debt securities; and
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delivering to the trustee an opinion of counsel to the effect
that the holders of the debt securities of that series will not
recognize income, gain, or loss for U.S. federal income tax
purposes as a result of the deposit and related covenant
defeasance and will be subject to U.S. federal income tax
in the same amount and in the same manner and at the same times
as would have been the case if the deposit and related covenant
defeasance had not occurred.
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Covenant
Defeasance and Events of Default
If we exercise our option, as described above, not to comply
with certain covenants of the indenture with respect to any
series of debt securities, and the debt securities of that
series are declared due and payable because of the occurrence of
any event of default, the amount of money
and/or
U.S. government obligations or foreign government
obligations on deposit with the trustee will be sufficient to
pay amounts due on the debt securities of that series at the
time of their stated maturity but may not be sufficient to pay
amounts due on the debt securities of that series at the time of
the acceleration resulting from the event of default. However,
we will remain liable for those payments.
Foreign government obligations means, with
respect to debt securities of any series that are denominated in
a currency other than United States dollars:
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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, which are not callable or
redeemable at the option of the issuer thereof; or
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obligations of a person controlled or supervised by or acting as
an agency or instrumentality of that government, the timely
payment of which is unconditionally guaranteed as a full faith
and credit obligation by that government, which are not callable
or redeemable at the option of the issuer thereof.
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Guarantees
Our payment obligations under any series of debt securities may
be guaranteed by us or one or more of our subsidiaries. The
terms of any such guarantee will be set forth in the applicable
prospectus supplement.
Subordination
We will set forth in the applicable prospectus supplement the
terms and conditions, if any, upon which any series of senior
subordinated securities or subordinated securities is
subordinated to debt securities of another series or to other
indebtedness of ours. The terms will include a description of
the following:
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the indebtedness ranking senior to the debt securities being
offered;
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any restrictions on payments to the holders of the debt
securities being offered while a default with respect to the
senior indebtedness is continuing;
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any restrictions on payments to the holders of the debt
securities being offered following an event of default; and
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provisions requiring holders of the debt securities being
offered to remit some payments to holders of senior indebtedness.
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Conversion
and Exchange Rights
The terms on which debt securities of any series may be
convertible into or exchangeable for our common stock, preferred
stock, or other securities or property of our company will be
described in the applicable prospectus supplement. These terms
will include the following:
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the conversion or exchange price, or the manner of calculating
the price;
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the exchange or conversion period;
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whether the conversion or exchange is mandatory, or voluntary at
the option of the holder, or at our option;
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any restrictions on conversion or exchange in the event of
redemption of the debt securities and any restrictions on
conversion or exchange; and
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the means of calculating the number of shares of our common
stock, preferred stock, or other securities or property of our
company to be received by the holders of debt securities.
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The conversion or exchange price of any debt securities of any
series that are convertible into our common stock or preferred
stock may be adjusted for any stock dividends, stock splits,
reclassification, combinations, or similar transactions, as set
forth in the applicable prospectus supplement.
Redemption
of Debt Securities
The debt securities may be subject to optional or mandatory
redemption on terms and conditions described in the applicable
prospectus supplement. Subject to such terms, we may opt at any
time to partially or entirely redeem the debt securities.
If less than all the debt securities of any series are to be
redeemed or purchased in an offer to purchase at any time, the
trustee will select the debt securities of that series to be
redeemed or purchased as follows: (1) if the securities of
such series are listed on any national securities exchange, in
compliance with the requirements of the principal national
securities exchange on which the debt securities of that series
are listed, or (2) if the debt securities of that series
are not listed on a national securities exchange, on a pro rata
basis, by lot, or by such other method as the trustee deems fair
and appropriate.
Except as otherwise provided as to any particular series of debt
securities, at least 30 days but not more than 60 days
before a redemption date, we or the trustee will mail a notice
of redemption to each holder whose debt securities are to be
redeemed. From and after notice has been given as provided in
the applicable indenture, if funds for the redemption of any
debt securities called for redemption shall have been made
available on the redemption
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date, the debt securities will cease to bear interest on the
date fixed for the redemption specified in the notice, and the
only right of the holders of the debt securities will be to
receive payment of the redemption price.
Governing
Law
The indentures and the debt securities will be governed by and
construed in accordance with the laws of the state of New York,
except to the extent that the Trust Indenture Act is
applicable.
Senior
Convertible Notes due 2026
On December 15, 2006, we issued and sold an aggregate of
$80,000,000 of our 4% senior convertible notes due 2026
(the Notes) to qualified institutional buyers,
pursuant to the terms and conditions of a securities purchase
agreement. The Notes were issued pursuant to the terms and
conditions of an indenture between us and The Bank of New York
Trust Company, N.A., as trustee. The following description
of the Notes, and any description of the Notes in a prospectus
supplement, may not be complete and is subject to, and qualified
in its entirety by reference to, the terms and conditions of the
securities purchase agreement and the indenture.
The Notes are convertible into shares of our common stock,
initially at a conversion price of approximately $12.34 per
share (subject to adjustment in certain events), or
81.0636 shares per $1,000 principal amount of Notes. The
holders of the Notes may elect to convert the Notes at any time.
The Notes pay interest on June 15 and December 15 of each year
at an annual rate of 4% of the unpaid principal amount.
If an event of default on the Notes occurs, the trustee under
the indenture or holders of no less than 25% in principal amount
of the outstanding Notes may accelerate the payment on the
principal amount and any accrued and unpaid interest on the
Notes. Events of default include, among other events, our
failure to convert the Notes in accordance with their terms, a
default in payment on the Notes, and our breach of our covenants
under the indenture.
On or after December 15, 2009 until December 15, 2011,
we may, at our election, redeem all or a portion of the Notes at
a redemption price equal to 100% of the principal amount of the
Notes plus accrued and unpaid interest only if the closing price
of our common stock for no fewer than 20 trading days in any
period of 30 consecutive trading days exceeds 150% of the then
applicable conversion price of the Notes. After
December 15, 2011, we may redeem, at our election, all or a
portion of the Notes at a redemption price of 100% of the
principal amount of the Notes plus accrued and unpaid interest.
Holders of the Notes may require us to repurchase all or part of
their Notes on December 15, 2011, December 15, 2016,
or December 15, 2021, and in the event of a fundamental
change in our company as set forth in the indenture, at a price
of 100% of the principal amount of the Notes plus accrued and
unpaid interest. If not redeemed by us or repaid pursuant to the
holders right to require us to repurchase the Notes, the
Notes mature on December 15, 2026.
The Notes are general unsecured obligations of our company,
ranking senior in right of payment to all of our subordinated
indebtedness and ranking pari passu with all of our other
unsecured and unsubordinated indebtedness. Until such time
following the effectiveness of the registration statement that
we filed covering the resale of the Notes and shares of our
common stock issuable upon conversion of the Notes that the
closing price of our common stock exceeds 200% of the then
applicable conversion price of the Notes for at least 30 trading
days in any period of 40 consecutive trading days, we may not
incur any additional indebtedness in excess of the greater of
(1) $62,000,000 under our credit facility, or
(2) three times LTM EBITDA (as defined in the indenture) at
the time such additional debt is incurred and including any
amounts outstanding under our credit facility and provided that
such additional debt is not convertible into shares of our
common stock.
The provisions of the Notes, the securities purchase agreement,
and the indenture may limit the amount and terms of any
indebtedness that we may offer pursuant to this prospectus.
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DESCRIPTION
OF DEPOSITARY SHARES
We may issue receipts for depositary shares representing
fractional shares of preferred stock. The fractional share of
the applicable series of preferred stock represented by each
depositary share will be set forth in the applicable prospectus
supplement.
The shares of any series of preferred stock underlying any
depositary shares that we may sell under this prospectus will be
deposited under a deposit agreement between us and a depositary
selected by us. Subject to the terms of the deposit agreement,
each holder of a depositary share will be entitled, in
proportion to the applicable fraction of a share of the
preferred stock underlying the depositary share, to all of the
rights, preferences, and privileges, and will be subject to the
qualifications and restrictions, of the preferred stock
underlying that depositary share.
The depositary shares will be evidenced by depositary receipts
issued under the deposit agreement. Depositary receipts will be
distributed to the holders of the depositary shares that are
sold in the applicable offering. We will incorporate by
reference into the registration statement of which this
prospectus is a part the form of any deposit agreement,
including a form of depositary receipt, that describes the terms
of any depositary shares we are offering before the issuance of
the related depositary shares. The following summaries of
material provisions of the deposit agreement, the depositary
shares, and the depositary receipts are subject to, and
qualified in their entirety by reference to, all of the
provisions of the deposit agreement applicable to a particular
offering of depositary shares. We urge you to read the
prospectus supplements relating to any depositary shares that
are sold under this prospectus, as well as the complete deposit
agreement and depositary receipt.
Form
Pending the preparation of definitive depositary receipts, the
depositary may, upon our written order, issue temporary
depositary receipts substantially identical to the definitive
depositary receipts but not in definitive form. These temporary
depositary receipts will entitle their holders to all of the
rights of definitive depositary receipts. Temporary depositary
receipts will then be exchangeable for definitive depositary
receipts at our expense.
Dividends
and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received with respect to the underlying preferred
stock to the record holders of depositary shares in proportion
to the number of depositary shares owned by those holders.
If there is a distribution other than in cash, the depositary
will distribute property received by it to the record holders of
depositary shares in proportion to the number of depositary
shares owned by those holders, unless the depositary determines
that it is not feasible to do so. If this occurs, the depositary
may, with our approval, sell the property and distribute the net
proceeds from the sale to those holders in proportion to the
number of depositary shares owned by them.
The amount distributed to holders of depositary shares will be
reduced by any amounts required to be withheld by us or the
preferred stock depositary on account of taxes or other
governmental charges.
Liquidation
Preference
If a series of preferred stock underlying the depositary shares
has a liquidation preference, in the event of our voluntary or
involuntary liquidation, dissolution, or winding up, holders of
depositary shares will be entitled to receive the fraction of
the liquidation preference accorded each share of the applicable
series of preferred stock, as set forth in the applicable
prospectus supplement.
Withdrawal
of Underlying Preferred Stock
Except as otherwise provided in a prospectus supplement, holders
may surrender depositary receipts at the principal office of the
depositary and, upon payment of any unpaid amount due to the
depositary, be entitled to receive the number of whole shares of
underlying preferred stock and all money and other property
represented by
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the related depositary shares. We will not issue any partial
shares of preferred stock. If the holder delivers depositary
receipts evidencing a number of depositary shares that represent
more than a whole number of shares of preferred stock, the
depositary will issue a new depositary receipt evidencing the
excess number of depositary shares to the holder.
Redemption
of Depositary Shares
If the preferred stock underlying any depositary shares we may
sell under this prospectus is subject to redemption, the
depositary shares will be redeemed from the proceeds received by
the depositary resulting from any such redemption, in whole or
in part, of that underlying preferred stock. The redemption
price per depositary share will be equal to the applicable
fraction of the redemption price per share payable with respect
to the underlying preferred stock. Whenever we redeem shares of
underlying preferred stock that are held by the depositary, the
depositary will redeem, as of the same redemption date, the
number of depositary shares representing the shares of
underlying preferred stock so redeemed. If fewer than all of the
depositary shares are to be redeemed, the depositary shares to
be redeemed will be selected by lot or proportionately, as may
be determined by the depositary.
After the date fixed for redemption, the depositary shares
called for redemption will no longer be deemed to be
outstanding, and all rights of the holders of the depositary
shares will cease, except the right to receive the monies
payable and any other property to which the holders were
entitled upon the redemption upon surrender to the preferred
stock depositary of the depositary receipts evidencing the
depositary shares. Any funds deposited by us with the preferred
stock depositary for any depositary shares that the holders fail
to redeem will be returned to us after a period of two years
from the date the funds are deposited.
Voting
Upon receipt of notice of any meeting at which holders of the
preferred stock underlying any depositary shares that we may
sell under this prospectus are entitled to vote, the depositary
will mail the information contained in the notice to the record
holders of the depositary shares. Each record holder of the
depositary shares on the record date, which will be the same
date as the record date for the underlying preferred stock, will
be entitled to instruct the depositary as to the exercise of the
voting rights pertaining to the amount of the underlying
preferred stock represented by the holders depositary
shares. The depositary will then try, as far as practicable, to
vote the number of shares of preferred stock underlying those
depositary shares in accordance with those instructions, and we
will agree to take all reasonable actions which may be deemed
necessary by the depositary to enable the depositary to do so.
The depositary will not vote the underlying preferred stock to
the extent it does not receive specific instructions with
respect to the depositary shares representing such preferred
stock.
Conversion
of Preferred Stock
If the prospectus supplement relating to any depositary shares
that we may sell under this prospectus states that the
underlying preferred stock is convertible into our common stock
or other securities, the following will apply. The depositary
shares, as such, will not be convertible into any of our
securities. Rather, any holder of the depositary shares may
surrender the related depositary receipts to the depositary with
written instructions that direct us to cause conversion of the
preferred stock represented by the depositary shares into or for
whole shares of our common stock or other securities, as
applicable. Upon receipt of those instructions and any amounts
payable by the holder in connection with the conversion, we will
cause the conversion using the same procedures as those provided
for conversion of the underlying preferred stock. If only some
of a holders depositary shares are converted, a new
depositary receipt or receipts will be issued to the holder for
any depositary shares not converted.
Amendment
and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares
and any provision of the deposit agreement may at any time be
amended by agreement between us and the depositary. However, any
amendment which materially and adversely alters the rights of
the holders of depositary shares will not be effective until
90 days after notice of that amendment has been given to
the holders. Each holder of depositary shares at the time any
amendment becomes effective shall be deemed to consent and agree
to that amendment and to be bound by the deposit
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agreement as so amended. The deposit agreement may be terminated
by us or by the depositary only if all outstanding depositary
shares have been redeemed or converted into any other securities
into which the underlying preferred stock is convertible or
there has been a final distribution, including to holders of
depositary receipts, of the underlying preferred stock in
connection with our liquidation, dissolution, or winding up.
Charges
of Depositary
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary
arrangement. We will also pay charges of the depositary in
connection with the initial deposit of the preferred stock, the
initial issuance of the depositary shares, any redemption of the
preferred stock, and all withdrawals of preferred stock by
owners of depositary shares. Holders of depositary receipts will
pay transfer, income, and other taxes and governmental charges
and other specified charges as provided in the deposit
arrangement for their accounts. If these charges have not been
paid, the depositary may refuse to transfer depositary shares,
withhold dividends and distributions, and sell the depositary
shares evidenced by the depositary receipt.
Limitation
on Liability
Neither we nor the depositary will be liable if either of us is
prevented or delayed by law or any circumstance beyond our
control in performing our respective obligations under the
deposit agreement. Our obligations and those of the depositary
will be limited to performance of our respective duties under
the deposit agreement without, in our case, negligence or bad
faith or, in the case of the depositary, negligence or willful
misconduct. We and the depositary may rely upon advice of
counsel or accountants, or upon information provided by persons
presenting the underlying preferred stock for deposit, holders
of depositary receipts, or other persons believed by us in good
faith to be competent and on documents believed to be genuine.
Corporate
Trust Office of Preferred Stock Depositary
The preferred stock depositarys corporate trust office
will be set forth in the applicable prospectus supplement
relating to a series of depositary shares. The preferred stock
depositary will act as transfer agent and registrar for
depositary receipts, and, if shares of a series of preferred
stock are redeemable, the preferred stock depositary will act as
redemption agent for the corresponding depositary receipts.
Resignation
and Removal of Depositary
The depositary may resign at any time by delivering notice to us
of its election to resign. We may remove the depositary at any
time. Any resignation or removal will take effect upon the
appointment of a successor depositary and its acceptance of the
appointment. The successor depositary must be appointed within
60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal
office in the United States and having a combined capital
and surplus of at least $50,000,000.
Reports
to Holders
We will deliver all required reports and communications to
holders of the preferred stock to the preferred stock
depositary, and it will forward those reports and communications
to the holders of depositary shares. Upon request, the preferred
stock depositary will provide for inspection to the holders of
depositary shares the transfer books of the depositary and
the list of holders of receipts; provided that any requesting
holder certifies to the preferred stock depositary that such
inspection is for a proper purpose reasonably related to such
persons interest as an owner of depositary shares
evidenced by the receipts.
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DESCRIPTION
OF WARRANTS
General
We may issue warrants to purchase common stock (which we refer
to as common stock warrants), preferred stock (which we refer to
as preferred stock warrants), debt securities (which we refer to
as debt security warrants), or depositary shares (which we refer
to as depositary share warrants). Any of these warrants may be
issued independently or together with any other securities
offered by this prospectus and may be attached to or separate
from those securities.
While the terms we have summarized below will generally apply to
any future warrants we may offer under this prospectus, we will
describe the particular terms of any warrants that we may offer
in more detail in the applicable prospectus supplement. The
terms of any warrants we offer under a prospectus supplement may
differ from the terms we describe below.
We may issue the warrants under a warrant agreement, which we
will enter into with a warrant agent to be selected by us. Each
warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any warrant.
A single bank or trust company may act as warrant agent for more
than one issue of warrants. A warrant agent will have no duty or
responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or
responsibility to initiate any proceedings at law or otherwise,
or to make any demand upon us. Any holder of a warrant may,
without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action its
right to exercise, and receive the securities purchasable upon
exercise of, its warrants.
We will incorporate by reference into the registration statement
of which this prospectus is a part the form of warrant
agreement, including a form of warrant certificate, that
describes the terms of the series of warrants we are offering
before the issuance of the related series of warrants. The
following summaries of material provisions of the warrants and
the warrant agreements are subject to, and qualified in their
entirety by reference to, all the provisions of the warrant
agreement applicable to a particular series of warrants. We urge
you to read the applicable prospectus supplements related to the
warrants that we sell under this prospectus, as well as the
complete warrant agreements that contain the terms of the
warrants.
We will set forth in the applicable prospectus supplement the
terms of the warrants in respect of which this prospectus is
being delivered, including, when applicable, the following:
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the title of the warrants;
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the aggregate number of the warrants;
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the price or prices at which the warrants will be issued;
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the designation, number, and terms of the securities purchasable
upon exercise of the warrants;
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the designation and terms of the other securities, if any, with
which the warrants are issued and the number of warrants issued
with each such security;
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the date, if any, on and after which the warrants and the
related underlying securities will be separately transferable;
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the price at which each underlying security purchasable upon
exercise of the warrants may be purchased;
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the date on which the right to exercise the warrants will
commence and the date on which such right will expire;
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the minimum amount of the warrants that may be exercised at any
one time;
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any information with respect to book-entry procedures;
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the effect of any merger, consolidation, sale, or other
disposition of our business on the warrant agreement and the
warrants;
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any other terms of the warrants, including terms, procedures,
and limitations relating to the transferability, exchange, and
exercise of such warrants;
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the terms of any rights to redeem or call, or accelerate the
expiration of, the warrants;
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the date on which the right to exercise the warrants begins and
the date on which that right expires;
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the U.S. federal income tax consequences of holding or
exercising the warrants; and
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any other specific terms, preferences, rights, or limitations
of, or restrictions on, the warrants.
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Unless specified in an applicable prospectus supplement, common
stock warrants, preferred stock warrants, debt security
warrants, or depositary share warrants will be in registered
form only.
A holder of warrant certificates may exchange them for new
certificates of different denominations, present them for
registration of transfer, and exercise them at the corporate
trust office of the warrant agent or any other office indicated
in the applicable prospectus supplement. Until any common stock
warrants, preferred stock warrants, debt security warrants, or
depositary share warrants are exercised, holders of the warrants
will not have any rights of holders of the underlying common
stock, preferred stock, debt securities, or depositary shares,
except to the extent set forth under the heading Warrant
Adjustments below.
Exercise
of Warrants
Each warrant will entitle the holder to purchase for cash shares
of common stock, preferred stock, debt securities, or depositary
shares at the applicable exercise price set forth in, or
determined as described in, the applicable prospectus
supplement. Warrants may be exercised at any time up to the
close of business on the expiration date set forth in the
applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants will become void.
Warrants may be exercised by delivering to the corporation trust
office of the warrant agent or any other officer indicated in
the applicable prospectus supplement (a) the warrant
certificate properly completed and duly executed and
(b) payment of the amount due upon exercise. As soon as
practicable following exercise, we will forward the shares of
common stock or preferred stock, debt securities, or depositary
shares. If less than all of the warrants represented by a
warrant certificate are exercised, a new warrant certificate
will be issued for the remaining warrants. If we so indicate in
the applicable prospectus supplement, holders of the warrants
may surrender securities as all or a part of the exercise price
for the warrants.
Amendments
and Supplements to the Warrant Agreements
We may amend or supplement a warrant agreement without the
consent of the holders of the applicable warrants to cure
ambiguities in the warrant agreement, to cure or correct a
defective provision in the warrant agreement, or to provide for
other matters under the warrant agreement that we and the
warrant agent deem necessary or desirable, so long as, in each
case, such amendments or supplements do not materially adversely
affect the interests of the holders of the warrants.
Warrant
Adjustments
Unless the applicable prospectus supplement states otherwise,
the exercise price of, and the number of securities covered by,
a common stock warrant, preferred stock warrant, debt security
warrant, or depositary share warrant will be adjusted
proportionately if we subdivide or combine our common stock,
preferred stock, or depositary shares, as applicable. In
addition, unless the prospectus supplement states otherwise, if
we, without payment:
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issue capital stock or other securities convertible into or
exchangeable for common stock or preferred stock, or any rights
to subscribe for, purchase, or otherwise acquire any of the
foregoing, as a dividend or distribution to holders of our
common stock or preferred stock;
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pay any cash to holders of our common stock or preferred stock
other than a cash dividend paid out of our current or retained
earnings or other than in accordance with the terms of the
preferred stock;
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issue any evidence of our indebtedness or rights to subscribe
for or purchase our indebtedness to holders of our common stock
or preferred stock; or
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issue common stock or preferred stock or additional stock or
other securities or property to holders of our common stock or
preferred stock by way of spinoff,
split-up,
reclassification, combination of shares, or similar corporate
rearrangement,
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then the holders of common stock warrants, preferred stock
warrants, debt security warrants, and depositary share warrants,
as applicable, will be entitled to receive upon exercise of the
warrants, in addition to the securities otherwise receivable
upon exercise of the warrants and without paying any additional
consideration, the amount of stock and other securities and
property such holders would have been entitled to receive had
they held the common stock, preferred stock, debt securities, or
depositary shares, as applicable, issuable under the warrants on
the dates on which holders of those securities received or
became entitled to receive such additional stock and other
securities and property.
Except as stated above, the exercise price and number of
securities covered by a common stock warrant, preferred stock
warrant, debt security warrant, and depositary share warrant,
and the amounts of other securities or property to be received,
if any, upon exercise of those warrants, will not be adjusted or
provided for if we issue those securities or any securities
convertible into or exchangeable for those securities, or
securities carrying the right to purchase those securities or
securities convertible into or exchangeable for those securities.
Holders of common stock warrants, preferred stock warrants, debt
security warrants, and depositary share warrants may have
additional rights under the following circumstances:
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certain reclassifications, capital reorganizations, or changes
of the common stock, preferred stock, or depositary shares, as
applicable;
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certain share exchanges, mergers, or similar transactions
involving us and which result in changes of the common stock,
preferred stock, or depositary shares, as applicable; or
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certain sales or dispositions to another entity of all or
substantially all of our property and assets.
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If one of the above transactions occurs and holders of our
common stock, preferred stock, debt securities, or depositary
shares are entitled to receive stock, securities, or other
property with respect to or in exchange for their securities,
the holders of the common stock warrants, preferred stock
warrants, debt security warrants, and depositary share warrants
then outstanding, as applicable, will be entitled to receive
upon exercise of their warrants the kind and amount of shares of
stock and other securities or property that they would have
received upon the applicable transaction if they had exercised
their warrants immediately before the transaction.
DESCRIPTION
OF PURCHASE CONTRACTS
We may issue purchase contracts, including contracts obligating
holders to purchase from us, and for us to sell to holders, a
specific or varying number of debt securities, shares of common
stock or preferred stock, depositary shares, warrants, or any
combination of the above, at a future date or dates.
Alternatively, the purchase contracts may obligate us to
purchase from holders, and obligate holders to sell to us, a
specific or varying number of debt securities, shares of common
stock or preferred stock, depositary shares, warrants, or any
combination of the above. The price of the securities subject to
the purchase contracts may be fixed at the time the purchase
contracts are issued or may be determined by reference to a
specific formula described in the purchase contracts. We may
issue purchase contracts separately or as a part of units each
consisting of a purchase contract and one or more of the other
securities described in this prospectus or securities of third
parties, including U.S. Treasury securities, securing the
holders obligations under the purchase contract. If we
issue a purchase contract as part of a unit, the applicable
prospectus supplement will state whether the purchase contract
will be separable from the other securities in the unit before
the purchase contract settlement date. The purchase contracts
may require us to make periodic payments to holders or vice
versa and the payments may be unsecured or pre-funded on some
basis. The purchase contracts may require holders to secure the
holders obligations in a manner specified in the
applicable prospectus supplement, and in certain circumstances
we may deliver newly issued prepaid purchase contracts, often
known as prepaid securities, upon release to a holder of any
collateral securing such holders obligations under the
original purchase contract.
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The applicable prospectus supplement will describe the terms of
any purchase contracts in respect of which this prospectus is
being delivered, including, to the extent applicable, the
following:
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whether the purchase contracts obligate the holder or us to
purchase or sell, or both purchase and sell, the securities
subject to purchase under the purchase contract, and the nature
and amount of each of those securities, or the method of
determining those amounts;
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whether the purchase contracts are to be prepaid or not;
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whether the purchase contracts will be issued as part of a unit
and, if so, the other securities comprising the unit;
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whether the purchase contracts are to be settled by delivery, or
by reference or linkage to the value, performance, or level of
the securities subject to purchase under the purchase contract;
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any acceleration, cancellation, termination, or other provisions
relating to the settlement of the purchase contracts; and
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whether the purchase contracts will be issued in fully
registered or global form.
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Material U.S. federal income tax consideration applicable
to the stock purchase contracts and the stock purchase units
will also be discussed in the applicable prospectus supplement.
DESCRIPTION
OF UNITS
The following description, together with the additional
information we include in any applicable prospectus supplement,
summarizes the material terms and provisions of the units that
we may offer under this prospectus. Units may be offered
independently or together with common stock, preferred stock,
debt securities, depositary shares, and warrants offered by any
prospectus supplement, and may be attached to or separate from
those securities. While the terms we have summarized below will
generally apply to any future units that we may offer under this
prospectus, we will describe the particular terms of any series
of units that we may offer in more detail in the applicable
prospectus supplement. The terms of any units offered under a
prospectus supplement may differ from the terms described below.
We will incorporate by reference into the registration statement
of which this prospectus is a part the form of unit agreement,
including a form of unit certificate, if any, that describes the
terms of the series of units we are offering before the issuance
of the related series of units. The following summaries of
material provisions of the units and the unit agreements are
subject to, and qualified in their entirety by reference to, all
the provisions of the unit agreement applicable to a particular
series of units. We urge you to read the applicable prospectus
supplements related to the units that we sell under this
prospectus, as well as the complete unit agreements that contain
the terms of the units.
General
We may issue units consisting of common stock, preferred stock,
debt securities, depositary shares,
and/or
warrants in any combination. Each unit will be issued so that
the holder of the unit is also the holder of each security
included in the unit. Thus, the holder of a unit will have the
rights and obligations of a holder of each included security.
The unit agreement under which a unit is issued may provide that
the securities included in the unit may not be held or
transferred separately, at any time, or at any time before a
specified date.
We will describe in the applicable prospectus supplement the
terms of the series of units, including the following:
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the designation and terms of the units and of the securities
comprising the units, including whether and under what
circumstances those securities may be held or transferred
separately;
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any provisions of the governing unit agreement that differ from
those described below; and
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any provisions for the issuance, payment, settlement, transfer,
or exchange of the units or of the securities comprising the
units.
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The provisions described in this section, as well as those
described under Description of Common Stock,
Description of Preferred Stock, Description of
Debt Securities, Description of Depositary
Shares, and Description of Warrants, will
apply to each unit and to any common stock, preferred stock,
debt security, depositary share, or warrant included in each
unit, respectively.
Issuance
in Series
We may issue units in such amounts and in such numerous distinct
series as we determine.
Enforceability
of Rights by Holders of Units
Each unit agent will act solely as our agent under the
applicable unit agreement and will not assume any obligation or
relationship of agency or trust with any holder of any unit. A
single bank or trust company may act as unit agent for more than
one series of units. A unit agent will have no duty or
responsibility in case of any default by us under the applicable
unit agreement or unit, including any duty or responsibility to
initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a unit may, without the consent of
the related unit agent or the holder of any other unit, enforce
by appropriate legal action its rights as holder under any
security included in the unit.
Title
We, the unit agent, and any of their agents may treat the
registered holder of any unit certificate as an absolute owner
of the units evidenced by that certificate for any purposes and
as the person entitled to exercise the rights attaching to the
units so requested, despite any notice to the contrary.
CERTAIN
PROVISIONS OF NEVADA LAW AND
THE COMPANYS CHARTER AND BYLAWS
The following paragraphs summarize certain provisions of Nevada
law and our amended and restated articles of incorporation and
amended and restated bylaws. The summary does not purport to be
complete and is subject to and qualified in its entirety by
reference to Nevada law and to our amended and restated articles
of incorporation and amended and restated bylaws, copies of
which are on file with the SEC as exhibits to reports previously
filed by us. See Where You Can Find More Information.
General
Certain provisions of our amended and restated articles of
incorporation and amended and restated bylaws and Nevada law
could make our acquisition by a third party, a change in our
incumbent management, or a similar change in control more
difficult, including:
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an acquisition of us by means of a tender or exchange offer;
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an acquisition of us by means of a proxy contest or
otherwise; or
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the removal of a majority or all of our incumbent officers and
directors.
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These provisions, which are summarized below, are likely to
discourage certain types of coercive takeover practices and
inadequate takeover bids. These provisions are also designed to
encourage persons seeking to acquire control of us to first
negotiate with our board of directors. We believe that these
provisions help to protect our potential ability to negotiate
with the proponent of an unfriendly or unsolicited proposal to
acquire or restructure us, and that this benefit outweighs the
potential disadvantages of discouraging such a proposal because
our ability to negotiate with the proponent could result in an
improvement of the terms of the proposal. The existence of these
provisions which are described below could limit the price that
investors might otherwise pay in the future for our securities.
This description is intended as a summary only and is qualified
in its entirety by reference to our amended and restated
articles of incorporation and amended and restated bylaws, as
well as Nevada law.
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Articles
of Incorporation and Bylaws
Authorized But Unissued Capital Stock. We have
shares of common stock and preferred stock available for future
issuance without stockholder approval, subject to any
limitations imposed by the listing standards of the Nasdaq
Global Select Market. We may utilize these additional shares for
a variety of corporate purposes, including for future public
offerings to raise additional capital or facilitate corporate
acquisitions or for payment as a dividend on our capital stock.
The existence of unissued and unreserved common stock and
preferred stock may enable our board of directors to issue
shares to persons friendly to current management or to issue
preferred stock with terms that could have the effect of making
it more difficult for a third party to acquire, or could
discourage a third party from seeking to acquire, a controlling
interest in our company by means of a merger, tender offer,
proxy contest, or otherwise. In addition, if we issue preferred
stock, the issuance could adversely affect the voting power of
holders of common stock and the likelihood that such holders
will receive dividend payments and payments upon liquidation.
Blank Check Preferred Stock. Our board of
directors, without stockholder approval, has the authority under
our amended and restated articles of incorporation to issue
preferred stock with rights superior to the rights of the
holders of common stock. As a result, preferred stock could be
issued quickly and easily, could impair the rights of holders of
common stock, and could be issued with terms calculated to delay
or prevent a change in control or make removal of management
more difficult.
Number of Directors; Removal; Filling
Vacancies. Our amended and restated articles of
incorporation and amended and restated bylaws provide that the
number of directors shall be fixed by resolution of our board of
directors from time to time. Our amended and restated bylaws
provide that directors may be removed with or without cause by
the affirmative vote of stockholders holding of record in the
aggregate at least two-thirds of the outstanding shares of stock
of our company at a meeting of stockholders called for that
purpose. Our amended and restated articles of incorporation and
amended and restated bylaws provide that vacancies on our board
of directors may be filled solely by a majority vote of the
remaining directors, even though less than a quorum (unless the
vacancy is created by the removal of a director by the
stockholders, which shall be filled by the stockholders at the
meeting at which the removal was effected).
Stockholder Action. Our amended and restated
bylaws provide that stockholders may only act at meetings of
stockholders and not by written consent in lieu of a
stockholders meeting.
Stockholder Meetings. Our amended and restated
bylaws provide that stockholders may not call a special meeting
of stockholders. Rather, only the majority of our board of
directors, the chairman of our board of directors, or our
president may call special meetings of stockholders. Our amended
and restated bylaws also provide that the business of special
meetings of stockholders shall be confined to the purposes
stated in the notice of the meeting. These provisions may
discourage another person or entity from making a tender offer,
even if it acquired a majority of our outstanding voting stock,
because the person or entity could only take action at a duly
called stockholders meeting relating to the business
specified in the notice of meeting and not by written consent.
Requirements for Advance Notification of Stockholder
Nominations and Proposals. Our amended and
restated bylaws provide that a stockholder seeking to bring
business before an annual meeting of stockholders, or to
nominate candidates for election as directors at an annual
meeting of stockholders, must provide timely notice of this
intention in writing. To be timely, a stockholder must deliver
or mail the notice and we must receive the notice at our
principal executive offices not later than 60 and not earlier
than 90 days prior to the first anniversary of the
preceding years annual meeting, subject to certain
exceptions. Our amended and restated bylaws also specify
requirements as to the form and content of the
stockholders notice. These provisions could delay
stockholder actions that are favored by the holders of a
majority of our outstanding stock until the next
stockholders meeting.
Nevada
Anti-Takeover Provisions
Nevada law contains both (i) a control share statute, which
generally denies voting rights to the shares of any person who
acquires a controlling interest in certain Nevada corporations
unless the voting rights of such shares are approved by a
majority of the disinterested voting power of the corporation;
and (ii) an affiliate transaction statute, which generally
prevents certain business combinations between a Nevada
corporation and the beneficial owners of 10% or more of the
voting shares of such corporation. Nevada law permits a
corporation to opt out of the application
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of the control share statute and the affiliate transaction
statute under certain circumstances. Our amended and restated
articles of incorporation currently opt out of the application
of Nevadas control share statute and affiliate transaction
statute to our company. This provision of our amended and
restated articles of incorporation may be amended only by a vote
of not less than 90% of the then issued and outstanding shares
of our company at a meeting properly called at which at least
95% of the issued and outstanding shares are present.
Limitation
of Liability and Indemnification
Nevada law authorizes a Nevada corporation to limit the personal
liability of directors and officers to the corporation, its
stockholders, or its creditors for damages for certain actions
or failures to act in their capacity as a director of officer.
We believe that such a provision is beneficial in attracting and
retaining qualified officers and directors, and accordingly, our
amended and restated articles of incorporation include
provisions limiting the liability of our officers and directors
to the fullest extent permitted by Nevada law. In addition, our
amended and restated bylaws provide that we will indemnify our
officers and directors to the fullest extent permitted by Nevada
law.
Stockholders
Rights Plan
Our stockholder rights plan may have the effect of deterring,
delaying, or preventing a change in control of our company that
might otherwise be in the best interests of our stockholders. On
August 9, 2005, our board of directors declared a dividend
of one preferred share purchase right (a Right) for
each outstanding share of our common stock. The dividend was
payable to stockholders of record at the close of business on
August 26, 2005 (the Record Date). Each Right
entitles the registered holder to purchase from us one
one-thousandth of a share of our Series A Junior
Participating Preferred Stock (the Series A Preferred
Stock) at a price of $36.00 per one one-thousandth of a
share of Series A Preferred Stock (the Purchase
Price), subject to adjustment. The description and terms
of the Rights are set forth in a Rights Agreement dated as of
August 25, 2005, as the same may be amended from time to
time (the Rights Agreement), between us and
Interwest Transfer Company, Inc., as Rights Agent (the
Rights Agent). The plan was not adopted in response
to any specific takeover threat. The plan, however, was designed
to assure that all of our stockholders receive fair and equal
treatment in the event of any proposed takeover of our company
and to guard against coercive or unfair tactics to gain control
of our company without paying all stockholders a premium for
that control.
In general, until the earlier to occur of (i) 10 days
following a public announcement that a person or group of
affiliated or associated persons (with certain exceptions, an
Acquiring Person) has acquired beneficial ownership
of 15% or more of the outstanding shares of our common stock or
(ii) 10 business days (or such later date as may be
determined by action of our board of directors prior to such
time as any person or group of affiliated persons becomes an
Acquiring Person) following the commencement of, or announcement
of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership
by a person or group of 15% or more of the then outstanding
shares of our common stock (the earlier of such dates being
called the Distribution Date), the Rights will be
evidenced, with respect to any of the common stock certificates
outstanding as of the Record Date, by such common stock
certificate together with a copy of a summary describing the
Rights (the Summary of Rights).
Except in certain situations specified in the Rights Agreement,
any person or group of affiliated or associated persons who
becomes the beneficial owner of 15% or more of the our
outstanding shares of common stock is an Acquiring
Person under the Rights Agreement. In addition to other
limited exceptions, any existing member of our board of
directors or other stockholder of the company (as of
August 9, 2005) owning 15% or more of the outstanding
shares of our common stock is grandfathered (and
thus not deemed to be an Acquiring Person), and is
permitted to acquire up to an additional 1% of the outstanding
shares of our common stock before becoming an Acquiring
Person, as provided (and subject to the conditions) in the
Rights Agreement. In addition, any person who
(i) inadvertently crosses the 15% ownership threshold, and
(ii) promptly divests itself of our common stock so that it
owns less than 15% of our outstanding common stock, would not be
deemed an Acquiring Person under the Rights
Agreement if our board of directors so determines.
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The Rights Agreement provides that, until the Distribution Date
(or earlier expiration of the Rights), the Rights will be
transferred with and only with our common stock. Until the
Distribution Date (or earlier expiration of the Rights), new
common stock certificates issued after the Record Date upon
transfer or new issuances of our common stock will contain a
notation incorporating the Rights Agreement by reference. Until
the Distribution Date (or earlier expiration of the Rights), the
surrender for transfer of any certificates for shares of our
common stock outstanding as of the Record Date, even without
such notation or a copy of the Summary of Rights, will also
constitute the surrender for transfer of the Rights associated
with the shares of our common stock represented by such
certificate. As soon as practicable following the Distribution
Date, separate certificates evidencing the Rights (Right
Certificates) will be mailed to holders of record of our
common stock as of the close of business on the Distribution
Date and such separate Right Certificates alone will evidence
the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on August 25, 2015 (the Final
Expiration Date), unless the Final Expiration Date is
advanced or extended or unless the Rights are earlier redeemed
or exchanged by us, in each case as described below.
The Purchase Price payable, and the number of shares of
Series A Preferred Stock or other securities or property
issuable upon exercise of the Rights is subject to adjustment
from time to time to prevent dilution (1) in the event of a
stock dividend on, or a subdivision, combination, or
reclassification of, the Series A Preferred Stock,
(2) upon the grant to holders of Series A Preferred
Stock of certain rights or warrants to subscribe for or purchase
Series A Preferred Stock at a price, or securities
convertible into Series A Preferred Stock with a conversion
price, less than the then-current market price of the
Series A Preferred Stock, or (3) upon the distribution
to holders of Series A Preferred Stock of evidences of
indebtedness or assets (excluding regular periodic cash
dividends or dividends payable in Series A Preferred Stock)
or of subscription rights or warrants (other than those referred
to above).
The number of outstanding Rights is subject to adjustment in the
event of a stock dividend on our common stock payable in shares
of our common stock or subdivisions, consolidations, or
combinations of our common stock occurring, in any such case,
prior to the Distribution Date.
Shares of Series A Preferred Stock purchasable upon
exercise of the Rights will not be redeemable. Each share of
Series A Preferred Stock will be entitled, when, as, and if
declared, to a minimum preferential quarterly dividend payment
of $1.00 per share but will be entitled to an aggregate dividend
of 1,000 times the dividend declared per share of our common
stock. In the event of liquidation, dissolution, or winding up
of our company, the holders of Series A Preferred Stock
will be entitled to a minimum preferential payment of the
greater of (a) $1.00 per share (plus any accrued but unpaid
dividends), and (b) an amount equal to 1,000 times the
payment made per share of our common stock. Each share of
Series A Preferred Stock will have 1,000 votes, voting
together with our common stock. Finally, in the event of any
merger, consolidation, or other transaction in which outstanding
shares of our common stock are converted or exchanged, each
share of Series A Preferred Stock will be entitled to
receive 1,000 times the amount received per share of our
common stock. These rights are protected by customary
antidilution provisions.
Because of the nature of the Series A Preferred
Stocks dividend, liquidation, and voting rights, the value
of the one one-thousandth interest in a share of Series A
Preferred Stock purchasable upon exercise of each Right should
approximate the value of one share of our common stock.
In the event that any person or group of affiliated or
associated persons becomes an Acquiring Person, each holder of a
Right, other than Rights beneficially owned by the Acquiring
Person (which will thereupon become void), will thereafter have
the right to receive upon exercise of a Right that number of
shares of our common stock having a market value of two times
the exercise price of the Right.
In the event that, after a person or group has become an
Acquiring Person, we are acquired in a merger or other business
combination transaction or 50% or more of our consolidated
assets or earning power are sold, proper provisions will be made
so that each holder of a Right (other than Rights beneficially
owned by an Acquiring Person, which will have become void) will
thereafter have the right to receive upon exercise of a Right
that number of shares of common stock of the person with whom we
have engaged in the foregoing transaction (or its parent) that
at the time of such transaction have a market value of two times
the exercise price of the Right.
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At any time after any person or group becomes an Acquiring
Person and prior to the earlier of one of the events described
in the previous paragraph or the acquisition by the Acquiring
Person of 50% or more of the outstanding shares of our common
stock, our board of directors may exchange the Rights (other
than Rights owned by such Acquiring Person, which will have
become void), in whole or in part, for shares of our common
stock or Series A Preferred Stock (or a series of our
preferred stock having equivalent rights, preferences, and
privileges), at an exchange ratio of one share of our common
stock, or a fractional share of Series A Preferred Stock
(or other preferred stock) equivalent in value thereto, per
Right.
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
shares of Series A Preferred Stock or our common stock will
be issued (other than fractions of Series A Preferred Stock
which are integral multiples of one one-thousandth of a share of
Series A Preferred Stock, which may, at our election, be
evidenced by depository receipts), and in lieu thereof an
adjustment in cash will be made based on the current market
price of the Series A Preferred Stock or our common stock.
At any time prior to the time a person or group becomes an
Acquiring Person, our board of directors may redeem the Rights
in whole, but not in part, at a price of $.01 per Right (the
Redemption Price) payable, at our option, in
cash, shares of our common stock, or such other form of
consideration as our board of directors shall determine. The
redemption of the Rights may be made effective at such time, on
such basis, and with such conditions as our board of directors
in its sole discretion may establish. Immediately upon any
redemption of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
For so long as the Rights are then redeemable, we may, except
with respect to the Redemption Price, amend the Rights
Agreement in any manner. After the Rights are no longer
redeemable, we may, except with respect to the
Redemption Price, amend the Rights Agreement in any manner
that does not adversely affect the interests of holders of the
Rights.
Until a Right is exercised or exchanged, the holder thereof, as
such, will have no rights as a stockholder of our company,
including, without limitation, the right to vote or to receive
dividends.
LEGAL
OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one
or more global securities. We refer to those persons who have
securities registered in their own names on the books that we or
any applicable trustee, depositary, or warrant agent maintain
for this purpose as the holders of those securities.
These persons are the legal holders of the securities. We refer
to those persons who, indirectly through others, own beneficial
interests in securities that are not registered in their own
names as indirect holders of those securities. As we
discuss below, indirect holders are not legal holders, and
investors in securities issued in book-entry form or in street
name will be indirect holders.
See also the section entitled Description of Debt
Securities Form, Transfer, and Exchange above
for additional discussion of book entry and certificated form of
ownership as such forms of ownership impact the rights and
obligations of purchasers of debt securities to be issued under
this prospectus.
Book-Entry
Holders
We may issue securities in book-entry form only, as we will
specify in the applicable prospectus supplement. This means
securities may be represented by one or more global securities
registered in the name of a financial institution that holds
them as depositary on behalf of other financial institutions
that participate in the depositarys book-entry system.
These participating institutions, which are referred to as
participants, in turn, hold beneficial interests in the
securities on behalf of themselves or their customers. Upon the
issuance of a global security, the depositary will credit, on
its book-entry registration and transfer system, the
participants accounts with the respective principal
amounts of the book-entry securities represented by the global
security beneficially owned by such participants. The accounts
to be credited will be designated by any dealers, underwriters,
or agents participating in the distribution of the book-entry
securities. Ownership of book-entry securities will be shown on,
and the transfer of the ownership interests will be effected
only through, records maintained by the depositary
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for the related global security (with respect to interests of
participants) and on the records of participants (with respect
to interests of persons holding through participants). The laws
of some states may require that certain purchasers of securities
take physical delivery of such securities in definitive form.
These laws may impair the ability to own, transfer, or pledge
beneficial interests in book-entry securities.
Only the person in whose name a security is registered is
recognized as the holder of that security. Securities issued in
global form will be registered in the name of the depositary or
its participants. Consequently, for securities issued in global
form, we will recognize only the depositary as the holder of the
securities, and we will make all payments on the securities to
the depositary. The depositary passes along the payments it
receives to its participants, which in turn pass the payments
along to their customers who are the beneficial owners. The
depositary and its participants do so under agreements they have
made with one another or with their customers; they are not
obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own
securities directly. Instead, they will own beneficial interests
in a global security, through a bank, broker, or other financial
institution that participates in the depositarys
book-entry system or holds an interest through a participant. As
long as the securities are issued in global form, investors will
be indirect holders, and not holders, of the securities.
Street
Name Holders
We may terminate a global security or issue securities in
non-global form. In these cases, investors may choose to hold
their securities in their own names or in street
name. Securities held by an investor in street name would
be registered in the name of a bank, broker, or other financial
institution that the investor chooses, and the investor would
hold only a beneficial interest in those securities through an
account he, she, or it maintains at that institution.
For securities held in street name, we will recognize only the
intermediary banks, brokers, and other financial institutions in
whose names the securities are registered as the holders of
those securities, and we will make all payments on those
securities to them. These institutions pass along the payments
they receive to their customers who are the beneficial owners,
but only because they agree to do so in their customer
agreements or because they are legally required to do so.
Investors who hold securities in street name will be indirect
holders, not holders, of those securities.
Legal
Holders
Our obligations, as well as the obligations of any applicable
trustee and of any third parties employed by us or a trustee,
run only to the legal holders of the securities. We do not have
obligations to investors who hold beneficial interests in global
securities, in street name, or by any other indirect means. This
will be the case whether an investor chooses to be an indirect
holder of a security or has no choice because we are issuing the
securities only in global form.
For example, once we make a payment or give a notice to the
holder, we have no further responsibility for the payment or
notice even if that holder is required, under agreements with
depositary participants or customers or by law, to pass it along
to the indirect holders but does not do so. Whether and how the
holders contact the indirect holders is up to the holders.
Special
Considerations For Indirect Holders
If you hold securities through a bank, broker, or other
financial institution, either in book-entry form or in street
name, you should check with your own institution to determine
the following:
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how it handles securities payments and notices;
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whether it imposes fees or charges;
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how it would handle a request for the holders consent, if
ever required;
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whether and how you can instruct it to send you securities
registered in your own name so you can be a holder, if that is
permitted in the future;
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how it would exercise rights under the securities if there were
a default or other event triggering the need for holders to act
to protect their interests; and
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if the securities are in book-entry form, how the
depositarys rules and procedures will affect these matters.
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Global
Securities
A global security is a security that represents one or any other
number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will
have the same terms. Each security issued in book-entry form
will be represented by a global security that we deposit with
and register in the name of a financial institution or its
nominee that we select. The financial institution that we select
for this purpose is called the depositary. Unless we specify
otherwise in the applicable prospectus supplement, The
Depository Trust Company, New York, New York, known as DTC,
will be the depositary for all securities issued in book-entry
form.
A global security may not be transferred to or registered in the
name of anyone other than the depositary, its nominee, or a
successor depositary, unless special termination situations
arise. We describe those situations below under Special
Situations When a Global Security Will Be Terminated. As a
result of these arrangements, the depositary, or its nominee,
will be the sole registered owner and holder of all securities
represented by a global security, and investors will be
permitted to own only beneficial interests in a global security.
Beneficial interests must be held by means of an account with a
broker, bank, or other financial institution that in turn has an
account with the depositary or with another institution that
does. Thus, an investor whose security is represented by a
global security will not be a holder of the security, but only
an indirect holder of a beneficial interest in the global
security.
If the prospectus supplement for a particular security indicates
that the security will be issued in global form only, then the
security will be represented by a global security at all times
unless and until the global security is terminated. If
termination occurs, we may issue the securities through another
book-entry clearing system or decide that the securities may no
longer be held through any book-entry clearing system.
We may at any time and in our sole discretion determine not to
have any of the book-entry securities of any series represented
by one or more global securities and, in that event, we will
issue certificated securities in exchange for the global
securities of that series.
Special
Considerations For Global Securities
The rights of an indirect holder relating to a global security
will be governed by the account rules of the investors
financial institution and of the depositary, as well as general
laws relating to securities transfers. We do not recognize an
indirect holder as a holder of securities and instead deal only
with the depositary that holds the global security.
If securities are issued only in the form of a global security,
an investor should be aware of the following:
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an investor cannot cause the securities to be registered in his,
her, or its name, and cannot obtain non-global certificates for
his, her, or its interest in the securities, except in the
special situations we describe below;
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an investor will be an indirect holder and must look to his,
her, or its own bank or broker for payments on the securities
and protection of his, her, or its legal rights relating to the
securities, as we describe above;
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an investor may not be able to sell interests in the securities
to some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry form;
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an investor may not be able to pledge his, her, or its interest
in a global security in circumstances where certificates
representing the securities must be delivered to the lender or
other beneficiary of the pledge in order for the pledge to be
effective;
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the depositarys policies, which may change from time to
time, will govern payments, transfers, exchanges, and other
matters relating to an investors interest in a global
security;
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we and any applicable trustee have no responsibility for any
aspect of the depositarys actions or for its records of
ownership interests in a global security, nor do we or any
applicable trustee supervise the depositary in any way;
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the depositary may, and we understand that DTC will, require
that those who purchase and sell interests in a global security
within its book-entry system use immediately available funds,
and your broker or bank may require you to do so as
well; and
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financial institutions that participate in the depositarys
book-entry system, and through which an investor holds its
interest in a global security, may also have their own policies
affecting payments, notices, and other matters relating to the
securities.
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There may be more than one financial intermediary in the chain
of ownership for an investor. We do not monitor and are not
responsible for the actions of any of those intermediaries.
Special
Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security
will terminate and interests in it will be exchanged for
physical certificates representing those interests. After that
exchange, the choice of whether to hold securities directly or
in street name will be up to the investor. Investors must
consult their own banks or brokers to find out how to have their
interests in securities transferred to their own name, so that
they will be direct holders. We have described the rights of
holders and street name investors above.
Unless we provide otherwise in the applicable prospectus
supplement, the global security will terminate when the
following special situations occur:
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if the depositary notifies us that it is unwilling, unable, or
no longer qualified under the Exchange Act to continue as
depositary for that global security and we do not appoint
another institution to act as depositary within 90 days;
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if we notify any applicable trustee that we wish to terminate
that global security; or
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if an event of default has occurred with regard to securities
represented by that global security and has not been cured or
waived.
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The prospectus supplement may also list additional situations
for terminating a global security that would apply only to the
particular types and series of securities covered by the
applicable prospectus supplement. When a global security
terminates, the depositary, and not we or any applicable
trustee, is responsible for deciding the names of the
institutions that will be the initial direct holders.
PLAN OF
DISTRIBUTION
We may sell the securities described in this prospectus from
time to time in one or more of the following ways:
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to or through underwriters or dealers;
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directly to one or more purchasers;
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through agents; or
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through a combination of any of those methods of sale.
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The prospectus supplement with respect to the offered securities
will describe the terms of the offering, including the following:
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the name or names of any underwriters or agents;
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any public offering price;
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the proceeds from such sale;
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any underwriting discounts or agency fees and other items
constituting underwriters or agents compensation;
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any over-allotment options under which underwriters may purchase
additional securities from us;
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any discounts or concessions allowed or reallowed or paid to
dealers; and
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any securities exchanges on which the securities may be listed.
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We may distribute the securities from time to time in one or
more of the following ways:
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at a fixed public offering price or prices, which may be changed;
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at prices relating to prevailing market prices at the time of
sale;
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at varying prices determined at the time of sale; or
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at negotiated prices.
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Unless otherwise indicated in the applicable prospectus
supplement, if we use underwriters for a sale of securities, the
underwriters will acquire the securities for their own account.
The underwriters may resell the securities in one or more
transactions, including negotiated transactions, at a fixed
public offering price, or at varying prices determined at the
time of sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set forth in
the applicable underwriting agreement. Unless otherwise
indicated in a prospectus supplement, the underwriters will be
obligated to purchase all the securities of the series offered
if they purchase any of the securities of that series. We may
change from time to time any initial public offering price and
any discounts or concessions the underwriters allow or reallow
or pay to dealers. We may use underwriters with whom we have a
material relationship. We will describe in the prospectus
supplement naming the underwriter the nature of any such
relationship. We may designate agents who agree to use their
reasonable efforts to solicit purchases for the period of their
appointment or to sell securities on a continuing basis. We may
also sell securities directly to one or more purchasers without
using underwriters or agents.
Underwriters, dealers, or agents may receive compensation in the
form of discounts, concessions, or commissions from us or from
purchasers of the securities as their agents in connection with
the sale of the securities. 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 underwriters, dealers, or agents may be treated as
underwriting discounts and commissions. Each prospectus
supplement will identify any 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 reallowed or paid to dealers may be changed from time to time.
Unless otherwise specified in the applicable prospectus
supplement, each class or series of securities will be a new
issue with no established trading market, other than our common
stock, which is listed on the Nasdaq Global Select Market. We
may elect to list any other class or series of securities on any
exchange, but we are not obligated to do so. It is possible that
one or more underwriters may make a market in a class or series
of securities, but the underwriters will not be obligated to do
so and may discontinue any market making at any time without
notice. We cannot give any assurance as to the liquidity of the
trading market for any of the securities.
In connection with any offering, the underwriters may engage in
stabilizing transactions, over-allotment transactions, syndicate
covering transactions, and penalty bids in accordance with
Regulation M under the Exchange Act.
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Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a
specified maximum.
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Over-allotment involves sales by the underwriters of shares of
our common stock in excess of the number of shares the
underwriters are obligated to purchase, which creates a
syndicate short position. The short position may be either a
covered short position or a naked short position. In a covered
short position, the number of shares of our common stock
over-allotted by the underwriters is not greater than the number
of shares that they may purchase in the over-allotment option.
In a naked short position, the number of shares of our common
stock involved is greater than the number of shares in the
over-allotment option. The
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underwriters may close out any covered short position by either
exercising their over-allotment option or purchasing shares of
our common stock in the open market.
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Syndicate covering transactions involve purchases of our common
stock in the open market after the distribution has been
completed in order to cover syndicate short positions. In
determining the source of shares to close out the short
position, the underwriters will consider, among other things,
the price of shares of our common stock available for purchase
in the open market as compared to the price at which they may
purchase shares through the over-allotment option so that if
there is a naked short position, the position can only be closed
out by buying shares in the open market. A naked short position
is more likely to be created if the underwriters are concerned
that there could be downward pressure on the price of the shares
of our common stock in the open market after the pricing of any
offering that could adversely affect investors who purchase in
that offering.
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Penalty bids permit the representatives of the underwriters to
reclaim a selling concession from a syndicate member when the
common stock originally sold by the syndicate member is
purchased in a stabilizing or syndicate covering transaction to
cover syndicate short positions.
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These stabilizing transactions, syndicate covering transactions,
and penalty bids may have the effect of raising or maintaining
the market price of our common stock or preventing or retarding
a decline in the market price of our common stock. As a result,
the price of our common stock may be higher than the price that
might otherwise exist in the open market. These transactions may
be effected on the Nasdaq Global Select Market or otherwise and,
if commenced, may be discontinued at any time.
Underwriters, dealers, and agents may be entitled under
agreements entered into with us to indemnification against
certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments they
may be required to make in respect of these liabilities thereof.
Underwriters, dealers, and agents and their affiliates may be
customers of, may engage in transactions with, or perform
services for us in the ordinary course of business for which
they receive compensation.
LEGAL
MATTERS
The validity of the securities offered hereby will be passed
upon by Greenberg Traurig, LLP, Phoenix, Arizona. Certain
members of such firm beneficially owned 60,000 shares of
our common stock as of the date of this prospectus.
EXPERTS
The consolidated financial statements of Smith &
Wesson Holding Corporation as of April 30, 2008 and 2007
and for each of the three years in the period ended
April 30, 2008 and managements assessment of the
effectiveness of Smith & Wesson Holding
Corporations internal control over financial reporting as
of April 30, 2008 incorporated herein by reference have
been so incorporated in reliance on the reports of BDO Seidman,
LLP, an independent registered public accounting firm,
incorporated herein by reference, given on the authority of said
firm as experts in accounting and auditing.
37
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution.
|
The following table sets forth the fees and expenses payable by
the registrant in connection with the offering described in the
registration statement. All of the amounts shown are estimates,
except for the SEC registration fee:
|
|
|
|
|
|
|
Amount
|
|
|
|
to be Paid
|
|
|
SEC Registration Fee
|
|
$
|
9,825
|
|
Accountants Fees and Expenses
|
|
|
25,000
|
|
Legal Fees and Expenses
|
|
|
50,000
|
|
Printing and Engraving Expenses
|
|
|
25,000
|
|
Transfer Agent Fees
|
|
|
5,000
|
|
Trust Fees and Expenses
|
|
|
10,000
|
|
Miscellaneous Fees
|
|
|
10,175
|
|
|
|
|
|
|
Total
|
|
$
|
135,000
|
|
|
|
|
|
|
|
|
Item 15.
|
Indemnification
of Directors and Officers.
|
The amended and restated bylaws of the registrant provide that
(i) the registrant shall indemnify, to the fullest extent
permitted by the Nevada General Corporation Law, or Nevada law,
each person who is or was a director, officer, employee, or
other agent of the registrant; and (ii) the registrant may
so indemnity any such person who serves or served any other
enterprise at the request of the registrant. The
registrants amended and restated bylaws also provide that
expenses incurred in defending any action, suit, or proceeding
by any person who the registrant is required to indemnify shall
be paid or reimbursed promptly upon receipt by the registrant of
an undertaking of such person to repay such expenses if it
should ultimately be determined that such person was not
entitled to be indemnified by the registrant.
The amended and restated bylaws of the registrant also permit
the registrant to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, or other
agent of the registrant against any liability asserted against
or incurred by such person arising out of his or her status as
such, regardless of whether the registrants amended and
restated bylaws would otherwise permit indemnification for that
liability.
Section 78.7502 of the Nevada Revised Statutes permits a
corporation to indemnify a present or former director, officer,
employee, or agent of the corporation, or of another entity for
which such person is or was serving in such capacity at the
request of the corporation, who is or was a party or is
threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, against expenses,
including attorneys fees, judgments, fines, and amounts
paid in settlement actually and reasonably incurred in
connection therewith, arising by reason of service in such
capacity if such person (i) is not liable pursuant to
Section 78.138 of the Nevada Revised Statutes, or
(ii) acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interest
of the corporation and, with respect to a criminal action or
proceeding, had no reasonable cause to believe his or her
conduct was unlawful. In the case of actions brought by or in
the right of corporation, however, no indemnification may be
made for any claim, issue, or matter as to which such person has
been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the
corporation, unless and only to the extent that the court in
which the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems
proper.
Subsection 3 of Section 78.7502 of the Nevada Revised
Statutes further provides that, to the extent a director,
officer, employee, or agent of a corporation has been successful
on the merits or otherwise in defense of any action, suit, or
proceeding referred to in subsections 1 and 2 thereof, or in the
defense of any claim, issue, or matter therein, the corporation
shall indemnity him or her against expenses, including
attorneys fees, actually and reasonably incurred by him or
her in connection with the defense.
II-1
Section 78.751 of the Nevada Revised Statutes provides that
unless discretionary indemnification is ordered by a court, the
determination to provide indemnification must be made by the
stockholders; by a majority vote of a quorum of the board of
directors who were not parties to the action, suit, or
proceeding; or in specified circumstances by independent legal
counsel in a written opinion. In addition, the articles of
incorporation, bylaws, or an agreement made by the corporation
may provide for the payment of the expenses of a director or
officer of defending an action as incurred upon receipt of an
undertaking to repay the amount if it is ultimately determined
by a court of competent jurisdiction that the person is not
entitled to indemnification.
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Exhibit
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement
|
|
3
|
.1
|
|
Amended and Restated Articles of Incorporation(1)
|
|
3
|
.3
|
|
Amended and Restated Bylaws(2)
|
|
3
|
.9
|
|
Certificate of Designation of Series A Junior Participating
Preferred Stock(3)
|
|
4
|
.1
|
|
Form of Common Stock Certificate(4)
|
|
4
|
.5
|
|
Registration Rights Agreement between Saf-T-Hammer Corporation
and Colton Melby dated May 6, 2001(5)
|
|
4
|
.10
|
|
Registration Rights Agreement, dated December 15, 2006,
among the Registrant and the purchasers named therein(6)
|
|
4
|
.11
|
|
Indenture, dated December 15, 2006, between the Registrant
and The Bank of New York Trust Company, N.A.(6)
|
|
4
|
.12
|
|
Rights Agreement, dated as of August 25, 2005, by and
between the Registrant and Interwest Transfer Company, Inc., as
Rights Agent(3)
|
|
4
|
.16*
|
|
Specimen Certificate of Preferred Stock
|
|
4
|
.17*
|
|
Form of Warrant Agreement and Certificate
|
|
4
|
.18*
|
|
Form of Debt Security
|
|
4
|
.19
|
|
Form of Indenture
|
|
4
|
.20*
|
|
Form of Depositary Receipt for Depositary Shares
|
|
4
|
.21*
|
|
Form of Deposit Agreement for Depositary Shares
|
|
4
|
.22*
|
|
Form of Purchase Contract
|
|
4
|
.23*
|
|
Form of Unit Agreement and Unit Certificate
|
|
5
|
.1
|
|
Opinion of Greenberg Traurig, LLP
|
|
12
|
.1*
|
|
Statement of Computation of Ratio of Earnings to Fixed Charges
|
|
23
|
.1
|
|
Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1)
|
|
23
|
.2
|
|
Consent of BDO Seidman, LLP
|
|
24
|
.1
|
|
Power of Attorney of Directors and Executive Officers (included
on the signature page of the Registration Statement)
|
|
25
|
.1
|
|
Statement of Eligibility on
Form T-1
under the Trust Indenture Act of 1939 of the Trustee under
the Indenture
|
|
|
|
* |
|
To be filed by amendment to this registration statement or by a
report filed under the Securities Exchange Act of 1934, as
amended, and incorporated herein by reference. |
|
(1) |
|
Incorporated by reference to the Registrants Proxy
Statement on Schedule 14A filed with the SEC on August 11,
2004. |
|
(2) |
|
Incorporated by reference to the Registrants
Form 8-K
filed with the SEC on December 5, 2007. |
|
(3) |
|
Incorporated by reference to the Registrants
Form 8-A
filed with the SEC on August 25, 2005. |
|
(4) |
|
Incorporated by reference to the Registrants
Form S-3
(No. 333-136842)
filed with the SEC on August 23, 2006. |
|
(5) |
|
Incorporated by reference to the Registrants
Form 8-K
filed with the SEC on May 29, 2001. |
|
(6) |
|
Incorporated by reference to the Registrants
Form 8-K
filed with the SEC on December 18, 2006. |
II-2
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate
offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii),
and (a)(1)(iii) of this section do not apply if the 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 into the registration statement or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(B) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of this
registration statement or 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 date such form of prospectus is
first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and
the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
II-3
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of 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 registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans 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 Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
city of Springfield, Commonwealth of Massachusetts, on the
23rd day of September, 2008.
SMITH & WESSON HOLDING CORPORATION
|
|
|
|
By:
|
/s/ Michael
F. Golden
|
Michael F. Golden
President and Chief Executive Officer
POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints jointly
and severally, Michael F. Golden and Barry M. Monheit and each
one of them, as his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for
him or her and in his or her name, place, and stead, in any and
all capacities, to sign any and all amendments (including
pre-effective and post-effective amendments) to this
registration statement, and to sign any registration statement
and amendments thereto for the same offering pursuant to
Rule 462(b) under the Securities Act of 1933, and to file
the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and
confirming all which said attorneys-in-fact and agents, or any
of them, or their or his or her substitute or substitutes, may
lawfully do, or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
/s/ Barry
M. Monheit
Barry
M. Monheit
|
|
Chairman of the Board
|
|
September 23, 2008
|
|
|
|
|
|
/s/ Michael
F. Golden
Michael
F. Golden
|
|
President, Chief Executive Officer,
and Director
(Principal Executive Officer)
|
|
September 23, 2008
|
|
|
|
|
|
/s/ William
F. Spengler
William
F. Spengler
|
|
Executive Vice President and Chief Financial Officer
(Principal Accounting and
Financial Officer)
|
|
September 23, 2008
|
|
|
|
|
|
/s/ Jeffrey
D. Buchanan
Jeffrey
D. Buchanan
|
|
Director
|
|
September 23, 2008
|
|
|
|
|
|
/s/ John
B. Furman
John
B. Furman
|
|
Director
|
|
September 23, 2008
|
II-5
|
|
|
|
|
|
|
Signature
|
|
Capacity
|
|
Date
|
|
|
|
|
|
Mitchell
A. Saltz
|
|
Director
|
|
|
|
|
|
|
|
/s/ Robert
L. Scott
Robert
L. Scott
|
|
Vice Chairman of the Board
|
|
September 23, 2008
|
|
|
|
|
|
/s/ David
M. Stone
David
M. Stone
|
|
Director
|
|
September 23, 2008
|
|
|
|
|
|
/s/ I.
Marie Wadecki
I.
Marie Wadecki
|
|
Director
|
|
September 23, 2008
|
II-6
EXHIBIT INDEX
|
|
|
|
|
Number
|
|
Exhibit
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement
|
|
3
|
.1
|
|
Amended and Restated Articles of Incorporation(1)
|
|
3
|
.3
|
|
Amended and Restated Bylaws(2)
|
|
3
|
.9
|
|
Certificate of Designation of Series A Junior Participating
Preferred Stock(3)
|
|
4
|
.1
|
|
Form of Common Stock Certificate(4)
|
|
4
|
.5
|
|
Registration Rights Agreement between Saf-T-Hammer Corporation
and Colton Melby dated May 6, 2001(5)
|
|
4
|
.10
|
|
Registration Rights Agreement, dated December 15, 2006,
among the Registrant and the purchasers named therein(6)
|
|
4
|
.11
|
|
Indenture, dated December 15, 2006, between the Registrant
and The Bank of New York Trust Company, N.A.(6)
|
|
4
|
.12
|
|
Rights Agreement, dated as of August 25, 2005, by and
between the Registrant and Interwest Transfer Company, Inc., as
Rights Agent(3)
|
|
4
|
.16*
|
|
Specimen Certificate of Preferred Stock
|
|
4
|
.17*
|
|
Form of Warrant Agreement and Certificate
|
|
4
|
.18*
|
|
Form of Debt Security
|
|
4
|
.19
|
|
Form of Indenture
|
|
4
|
.20*
|
|
Form of Depositary Receipt for Depositary Shares
|
|
4
|
.21*
|
|
Form of Deposit Agreement for Depositary Shares
|
|
4
|
.22*
|
|
Form of Purchase Contract
|
|
4
|
.23*
|
|
Form of Unit Agreement and Unit Certificate
|
|
5
|
.1
|
|
Opinion of Greenberg Traurig, LLP
|
|
12
|
.1*
|
|
Statement of Computation of Ratio of Earnings to Fixed Charges
|
|
23
|
.1
|
|
Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1)
|
|
23
|
.2
|
|
Consent of BDO Seidman, LLP
|
|
24
|
.1
|
|
Power of Attorney of Directors and Executive Officers (included
on the signature page of the Registration Statement)
|
|
25
|
.1
|
|
Statement of Eligibility on
Form T-1
under the Trust Indenture Act of 1939 of the Trustee under
the Indenture
|
|
|
|
* |
|
To be filed by amendment to this registration statement or by a
report filed under the Securities Exchange Act of 1934, as
amended, and incorporated herein by reference. |
|
(1) |
|
Incorporated by reference to the Registrants Proxy
Statement on Schedule 14A filed with the SEC on August 11,
2004. |
|
(2) |
|
Incorporated by reference to the Registrants
Form 8-K
filed with the SEC on December 5, 2007. |
|
(3) |
|
Incorporated by reference to the Registrants
Form 8-A
filed with the SEC on August 25, 2005. |
|
(4) |
|
Incorporated by reference to the Registrants
Form S-3
(No. 333-136842)
filed with the SEC on August 23, 2006. |
|
(5) |
|
Incorporated by reference to the Registrants
Form 8-K
filed with the SEC on May 29, 2001. |
|
(6) |
|
Incorporated by reference to the Registrants
Form 8-K
filed with the SEC on December 18, 2006. |
exv4w19
Exhibit 4.19
SMITH & WESSON HOLDING CORPORATION
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Trustee
Guaranteed to the extent set forth therein by the Guarantors named herein.
INDENTURE
dated as of
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE |
|
|
1 |
|
Section 1.01 Certain Definitions |
|
|
1 |
|
Section 1.02 Other Definitions |
|
|
4 |
|
Section 1.03 Incorporation by Reference of Trust Indenture Act |
|
|
4 |
|
Section 1.04 Rules of Construction |
|
|
4 |
|
|
|
|
|
|
ARTICLE 2 THE SECURITIES |
|
|
5 |
|
Section 2.01 Unlimited In Amount, Issuable In Series, Form, and Dating |
|
|
5 |
|
Section 2.02 Execution and Authentication |
|
|
7 |
|
Section 2.03 Registrar and Paying Agent |
|
|
7 |
|
Section 2.04 Paying Agent to Hold Money in Trust |
|
|
8 |
|
Section 2.05 Securityholder Lists |
|
|
8 |
|
Section 2.06 Transfer and Exchange |
|
|
8 |
|
Section 2.07 Replacement Securities |
|
|
9 |
|
Section 2.08 Outstanding Securities |
|
|
9 |
|
Section 2.09 Temporary Securities |
|
|
9 |
|
Section 2.10 Cancellation |
|
|
9 |
|
Section 2.11 Defaulted Interest |
|
|
10 |
|
Section 2.12 Special Record Dates |
|
|
10 |
|
Section 2.13 Global Securities |
|
|
10 |
|
Section 2.14 CUSIP Numbers |
|
|
11 |
|
|
|
|
|
|
ARTICLE 3 REDEMPTION |
|
|
11 |
|
Section 3.01 Notices to Trustee |
|
|
11 |
|
Section 3.02 Selection of Securities to Be Redeemed |
|
|
12 |
|
Section 3.03 Notice of Redemption |
|
|
12 |
|
Section 3.04 Effect of Notice of Redemption |
|
|
13 |
|
Section 3.05 Deposit of Redemption Price |
|
|
13 |
|
Section 3.06 Securities Redeemed or Purchased in Part |
|
|
13 |
|
|
|
|
|
|
ARTICLE 4 COVENANTS |
|
|
13 |
|
Section 4.01 Payment of Securities |
|
|
13 |
|
Section 4.02 Maintenance of Office or Agency |
|
|
14 |
|
Section 4.03 Reports |
|
|
14 |
|
Section 4.04 Compliance Certificate |
|
|
14 |
|
Section 4.05 Taxes |
|
|
15 |
|
Section 4.06 Stay, Extension, and Usury Laws |
|
|
15 |
|
Section 4.07 Calculation of Original Issue Discount |
|
|
15 |
|
|
|
|
|
|
ARTICLE 5 SUCCESSORS |
|
|
15 |
|
Section 5.01 When Company May Merge, Etc |
|
|
15 |
|
Section 5.02 Successor Person Substituted |
|
|
16 |
|
|
|
|
|
|
ARTICLE 6 DEFAULTS AND REMEDIES |
|
|
16 |
|
Section 6.01 Events of Default |
|
|
16 |
|
Section 6.02 Acceleration |
|
|
17 |
|
Section 6.03 Other Remedies |
|
|
17 |
|
Section 6.04 Waiver of Past Defaults |
|
|
17 |
|
Section 6.05 Control by Majority |
|
|
18 |
|
Section 6.06 Limitation on Suits |
|
|
18 |
|
Section 6.07 Rights of Holders to Receive Payment |
|
|
18 |
|
Section 6.08 Collection Suit by Trustee |
|
|
18 |
|
i
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page |
Section 6.09 Trustee May File Proofs of Claim |
|
|
19 |
|
Section 6.10 Priorities |
|
|
19 |
|
Section 6.11 Undertaking for Costs |
|
|
19 |
|
|
|
|
|
|
ARTICLE 7 TRUSTEE |
|
|
20 |
|
Section 7.01 Duties of Trustee |
|
|
20 |
|
Section 7.02 Rights of Trustee |
|
|
20 |
|
Section 7.03 Individual Rights of Trustee |
|
|
21 |
|
Section 7.04 Trustees Disclaimer |
|
|
21 |
|
Section 7.05 Notice of Defaults |
|
|
21 |
|
Section 7.06 Reports by Trustee to Holders |
|
|
22 |
|
Section 7.07 Compensation and Indemnity |
|
|
22 |
|
Section 7.08 Replacement of Trustee |
|
|
22 |
|
Section 7.09 Successor Trustee by Merger, etc. |
|
|
23 |
|
Section 7.10 Eligibility; Disqualification |
|
|
24 |
|
Section 7.11 Preferential Collection of Claims Against Company |
|
|
24 |
|
|
|
|
|
|
ARTICLE 8 SATISFACTION AND DISCHARGE; DEFEASANCE |
|
|
24 |
|
Section 8.01 Satisfaction and Discharge |
|
|
24 |
|
Section 8.02 Option to Effect Legal Defeasance or Covenant Defeasance |
|
|
25 |
|
Section 8.03 Legal Defeasance and Discharge |
|
|
25 |
|
Section 8.04 Covenant Defeasance |
|
|
25 |
|
Section 8.05 Conditions to Legal or Covenant Defeasance |
|
|
26 |
|
Section 8.06 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions |
|
|
26 |
|
Section 8.07 Repayment to Company |
|
|
27 |
|
Section 8.08 Reinstatement |
|
|
27 |
|
|
|
|
|
|
ARTICLE 9 SUPPLEMENTS, AMENDMENTS, AND WAIVERS |
|
|
27 |
|
Section 9.01 Without Consent of Holders |
|
|
27 |
|
Section 9.02 With Consent of Holders |
|
|
28 |
|
Section 9.03 Revocation and Effect of Consents |
|
|
29 |
|
Section 9.04 Notation on or Exchange of Securities |
|
|
30 |
|
Section 9.05 Trustee to Sign Amendments, etc. |
|
|
30 |
|
|
|
|
|
|
ARTICLE 10 GUARANTEES |
|
|
30 |
|
Section 10.01 Guarantee |
|
|
30 |
|
|
|
|
|
|
ARTICLE 11 MISCELLANEOUS |
|
|
30 |
|
Section 11.01 Indenture Subject to Trust Indenture Act |
|
|
30 |
|
Section 11.02 Notices |
|
|
30 |
|
Section 11.03 Communication By Holders With Other Holders |
|
|
31 |
|
Section 11.04 Certificate and Opinion as to Conditions Precedent |
|
|
31 |
|
Section 11.05 Statements Required in Certificate or Opinion |
|
|
32 |
|
Section 11.06 Rules by Trustee and Agents |
|
|
32 |
|
Section 11.07 Legal Holidays |
|
|
32 |
|
Section 11.08 No Recourse Against Others |
|
|
32 |
|
Section 11.09 Counterparts |
|
|
32 |
|
Section 11.10 Governing Law |
|
|
33 |
|
Section 11.11 Submission to Jurisdiction; Service of Process; Waiver of Jury Trial |
|
33 |
|
Section 11.12 Severability |
|
|
33 |
|
Section 11.13 Effect of Headings, Table of Contents, etc. |
|
|
33 |
|
Section 11.14 Successors and Assigns |
|
|
33 |
|
Section 11.15 No Interpretation of Other Agreements |
|
|
33 |
|
ii
CROSS-REFERENCE TABLE*
|
|
|
Trust Indenture |
|
|
Act Section |
|
Indenture Section |
310(a)(1) |
|
7.10 |
(a)(2) |
|
7.10 |
(a)(3) |
|
N.A. |
(a)(4) |
|
N.A. |
(a)(5) |
|
7.10 |
(b) |
|
7.03, 7.08; 7.10 |
(c) |
|
N.A. |
311(a) |
|
7.11 |
(b) |
|
7.11 |
(c) |
|
N.A. |
312(a) |
|
2.05 |
(b) |
|
11.03 |
(c) |
|
11.03 |
313(a) |
|
7.06 |
(b)(1) |
|
N.A. |
(b)(2) |
|
7.06 |
(c) |
|
7.06; 11.02 |
(d) |
|
7.06 |
314(a) |
|
4.03; 10.02; 11.05 |
(b) |
|
N.A. |
(c)(1) |
|
11.04 |
(c)(2) |
|
11.04 |
(c)(3) |
|
N.A. |
(d) |
|
N.A. |
(e) |
|
11.05 |
(f) |
|
N.A. |
315(a) |
|
7.01(b)(ii), 7.02 |
(b) |
|
7.02, 7.05; 10.02 |
(c) |
|
7.01(a), 7.02 |
(d) |
|
7.01(d), 7.02 |
(e) |
|
6.11 |
316(a)(last sentence) |
|
2.13(f) |
(a)(1)(A) |
|
6.05 |
(a)(1)(B) |
|
6.04 |
(a)(2) |
|
N.A. |
(b) |
|
6.07 |
(c) |
|
2.12; 9.03 |
317(a)(1) |
|
6.08 |
(a)(2) |
|
6.09 |
(b) |
|
2.04 |
318(a) |
|
11.01 |
(b) |
|
N.A. |
(c) |
|
11.01 |
|
|
|
N.A. means not applicable |
|
* |
|
This Cross-Reference Table is not part of the Indenture. |
iii
INDENTURE dated as of by and among SMITH & WESSON HOLDING CORPORATION, a Nevada
corporation (the Company), the guarantors listed on Schedule 1 hereto (herein called the
Guarantors), and AMERICAN STOCK TRANSFER & TRUST COMPANY, as Trustee (the Trustee).
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its debentures, notes, or other evidences of indebtedness to be
issued in one or more series (the Securities), as herein provided, up to such principal amount as
may from time to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of each series of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Certain 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
purposes of this definition, control, 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, by agreement, or
otherwise; provided, however, that beneficial ownership of 10% or more of the Voting Securities of
a Person shall be deemed to be a controlling interest in such Person. For purposes of this
definition, the terms controlling, controlled by, and under common control with have
correlative meanings.
Agent means any Registrar, Paying Agent, authenticating agent, or co-Registrar.
Board of Directors means, with respect to any Person, the board of directors of such Person
(or, if such Person is a limited liability company, the board of managers of such Person) or
similar governing body or any 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 duly 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 such
certification (and delivered to the Trustee, if appropriate).
Business Day means any day other than a Legal Holiday.
Closing Date means the date on which the Securities of a particular series were originally
issued under this Indenture.
Commission means the Securities and Exchange Commission.
Company means the party named as such above until a successor replaces it pursuant to this
Indenture 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 Companys principal executive officer, principal financial officer, or
principal accounting officer, and delivered to the Trustee.
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.
1
Corporate Trust Office shall mean the corporate trust office of the Trustee.
Default means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
Depositary 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 Depositary for
such series by the Company, which Depositary shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such person, Depositary as used with
respect to the Securities of any series shall mean the Depositary with respect to the Securities of
such series.
Exchange Act means the Securities Exchange Act of 1934, as amended.
GAAP means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board, or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the Closing Date.
Global Security shall mean a Security issued to evidence all or a part of any series of
Securities that is executed by the Company and authenticated and delivered by the Trustee to a
Depositary or pursuant to such Depositarys instructions, all in accordance with this Indenture and
pursuant to Section 2.01, which shall be registered as to principal and interest in the name of
such Depositary or its nominee.
Guarantee means a guarantee by any Guarantor of an obligation under this Indenture.
Holder or Securityholder means a Person in whose name a Security is registered in the
register of Securities kept by the Registrar.
Indenture means this Indenture, as amended or supplemented from time to time.
Interest when used with respect to an Original Issue Discount Security that by its terms
bears interest only after Maturity, means interest payable after Maturity.
Maturity when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at Stated Maturity or by declaration of acceleration, call for redemption, or otherwise.
Officer means, with respect to any Person, the Chairman of the Board, a Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, any
Vice-President, the Treasurer, the Controller, the Secretary, any Assistant Treasurer, or any
Assistant Secretary of such Person.
Officers Certificate means a certificate signed by two or more Officers, one of whom must
be the principal executive officer, principal financial officer, or principal accounting officer of
the Company, that meets the requirements of Section 11.05 hereof.
Opinion of Counsel means an opinion from legal counsel who is reasonably acceptable to the
Trustee that meets the requirements of Section 11.05 hereof. The counsel may be an employee of or
counsel to the Company or the Trustee.
Original Issue Discount Security means any Security which provides that an amount less than
its principal amount is due and payable upon acceleration after an Event of Default.
Person means any individual, corporation, partnership, joint venture, association, limited
liability company, joint stock company, trust, unincorporated organization or government, or other
entity.
2
principal of a Security means the principal amount due on the Stated Maturity of the
Security plus the premium, if any, on the Security.
Securities means the Securities authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933, as amended.
Stated Maturity when used with respect to any Security or any installment of interest
thereon, means the date specified in such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable.
Subsidiary means, with respect to any specified Person: (i) any corporation, association, or
other business entity of which more than 50% of the total voting power of shares of capital stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers, or trustees of the corporation, association, or other business entity is at
the time owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and (ii) any partnership (a) the sole
general partner or the managing general partner of which is such Person or a Subsidiary of such
Person, or (b) the only general partners of which are that Person or one or more Subsidiaries of
that Person (or any combination thereof).
TIA means the Trust Indenture Act of 1939 (15 U.S.C. §§77aaa-77bbbb) as in effect on the
date on which this Indenture is qualified under the TIA; provided, however, that in the event the
TIA is amended after such date, TIA means, to the extent required by such amendment, the Trust
Indenture Act, as amended.
Trust Officer when used with respect to the Trustee, means any officer with direct
responsibility for the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
Trustee means the party named as such above until a successor becomes such pursuant to this
Indenture and thereafter means or includes each party who is then a trustee hereunder, and if at
any time there is more than one such party, Trustee as used with respect to the Securities of any
series means the Trustee with respect to Securities of that series. If Trustees with respect to
different series of Securities are trustees under this Indenture, nothing herein shall constitute
the Trustees co-trustees of the same trust, and each Trustee shall be the trustee of a trust
separate and apart from any trust administered by any other Trustee with respect to a different
series of Securities.
U.S. Government Obligations means securities that 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 that is 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.
3
Section 1.02 Other Definitions.
|
|
|
|
|
Term |
|
Defined in Section |
Bankruptcy Law |
|
|
6.01 |
|
Custodian |
|
|
6.01 |
|
Event of Default |
|
|
6.01 |
|
foreign government obligations |
|
|
8.01 |
|
Legal Holiday |
|
|
11.07 |
|
Paying Agent |
|
|
2.03 |
|
Place of Payment |
|
|
2.01 |
|
redemption price |
|
|
3.03 |
|
Registrar |
|
|
2.03 |
|
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
indenture securities means the Securities.
indenture securityholder means a Securityholder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the Securities means the Company and any Guarantor and any successor obligor on
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 Commission rule under the TIA have the meanings so assigned to
them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) or is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act shall be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from time
to time.
4
ARTICLE 2
THE SECURITIES
Section 2.01 Unlimited In Amount, Issuable In Series, Form, and Dating.
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. There shall be
established in or pursuant to a Board Resolution or an Officers Certificate pursuant to authority
granted under a Board Resolution or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish the Securities
of the series from all other Securities);
(b) the series designation and whether they are senior Securities, senior subordinated
Securities, or subordinated Securities;
(c) any limit upon the aggregate principal amount of Securities of the series that may
be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to this Article 2);
(d) the price or prices (expressed as a percentage of the aggregate principal amount)
at which the Securities will be issued and, if other than the principal amount of the
Securities, the portion of the principal amount of the Securities payable upon the maturity
of the debt securities;
(e) the date or dates on which the principal of the Securities of the series is
payable;
(f) the rate or rates that may be fixed or variable at which the Securities of the
series shall bear interest, if any, or the manner in which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, the interest payment
dates on which such interest shall be payable, and the record dates for the determination of
Holders to whom interest is payable;
(g) the place or places where the principal of, premium, if any, and any interest, if
any, on Securities of the series shall be payable or the method of such payment, if by wire
transfer, mail, or by other means, if other than as provided herein, and where the
Securities can be surrendered for transfer, exchange, or conversion;
(h) the price or prices at which (if any), the period or periods within which (if any),
and the terms and conditions upon which (if other than as provided herein) Securities of the
series may be redeemed, in whole or in part, at the option, or as an obligation, of the
Company;
(i) the obligation, if any, of the Company to redeem, purchase, or repay Securities of
the series, in whole or in part, pursuant to any sinking fund or analogous provisions or at
the option of a Holder thereof and the price or prices at which and the period and periods
within which and the terms and conditions upon which Securities of the series shall be
redeemed, purchased, or repaid pursuant to such obligation;
(j) 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;
(k) if convertible, the initial conversion price, the conversion period, and any other
terms governing such conversion;
5
(l) if other than denominations of $1,000 and any multiple thereof, the denominations
in which Securities of the series shall be issuable;
(m) if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 6.02 hereof;
(n) any addition to, change in, or deletion from the covenants set forth in Articles 4
or 5 that applies to Securities of the series;
(o) any addition to, changes in, or deletion from the Events of Default with respect to
the Securities of a particular 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 6.02 hereof;
(p) the Trustee for the series of Securities;
(q) 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, in whole or in part,
as Global Securities);
(r) whether the Securities of the series shall be issued in whole or in part in the
form of a Global Security or Securities; the terms and conditions, if any, upon which such
Global Security or Securities may be exchanged in whole or in part for other individual
Securities, and the Depositary for such Global Security and Securities;
(s) the provisions, if any, relating to any security provided for the Securities of the
series;
(t) any other terms of the series (which terms may modify, supplement, or delete any
provision of this Indenture with respect to such series; provided, however, that no such
term may modify or delete any provision hereof if imposed by the TIA; and provided, further,
that any modification or deletion of the rights, duties, or immunities of the Trustee
hereunder shall have been consented to in writing by the Trustee);
(u) the terms and conditions, if any, upon which the Securities of the series shall be
exchanged for or converted into other securities or property of the Company or securities of
another person;
(v) 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;
(w) whether the Securities rank as senior subordinated Securities or subordinated
Securities or any combination thereof and the terms of any such subordination;
(x) the form and terms of any guarantee of any Securities of the series;
(y) the terms and conditions of any defeasance provisions;
(z) the currency of denomination of the Securities;
(aa) the designation of the currency, currencies, or currency units in which payment of
principal of, premium, and interest on the Securities will be made;
(bb) whether the Securities will be listed on any securities exchange or quotation
system;
(cc) if payments of principal of, premium, or interest on the Securities will be made
in one or more currencies or currency units other than that or those in which the Securities
are denominated, the manner in which the exchange rate with respect to these payments will
be determined;
6
(dd) the manner in which the amounts of payment of principal of, premium, or interest
on the Securities will be determined, if these amounts may be determined by reference to an
index based on a currency or currencies other than that in which the Securities are
denominated or designated to be payable or by reference to a commodity, commodity index,
stock exchange index, or financial index;
(ee) whether and under what circumstances, if any, additional amounts on any Securities
will be paid in respect of any tax, assessment, or governmental charge and, if so, whether
the Company will have the option to redeem the Securities instead of making the payment;
(ff) the terms and conditions pertaining to transfer, sale, or other assignment of the
Securities; and
(gg) if the Securities are to be issued upon the exercise of debt warrants, the time,
manner, and place for the Securities to be authenticated and delivered.
All Securities of any series shall be substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to such Board Resolution or Officers
Certificate or in any such indenture supplemental hereto.
The principal of and any interest on the Securities shall be payable at the office or agency
of the Company designated in the form of Security for the series (each such place herein called the
Place of Payment); provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such address shall appear
in the register of Securities referred to in Section 2.03 hereof.
Each Security shall be in one of the forms approved from time to time by or pursuant to a
Board Resolution or Officers Certificate, or established in one or more indentures supplemental
hereto. Prior to the delivery of a Security to the Trustee for authentication in any form approved
by or pursuant to a Board Resolution or Officers Certificate, the Company shall deliver to the
Trustee the Board Resolution or Officers Certificate by or pursuant to which such form of Security
has been approved, which Board Resolution or Officers Certificate shall have attached thereto a
true and correct copy of the form of Security that has been approved by or pursuant thereto.
The Securities may have notations, legends, or endorsements required by law, stock exchange
rule, or usage. Each Security shall be dated the date of its authentication.
Section 2.02 Execution and Authentication.
One or more 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. The
signature shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue upon receipt of a Company Order.
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 of the Company.
Section 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities of a particular series may be
presented for registration of transfer or for exchange (the Registrar) and an office or agency
where Securities of that series
7
may be presented for payment (a Paying Agent). The Registrar for a particular series of
Securities shall keep a register of the Securities of that series and of their registration of
transfer and exchange. The Company may appoint one or more co-Registrars and one or more
additional paying agents for each series of Securities. The term Paying Agent includes any
additional paying agent. The Company may change any Paying Agent, Registrar, or co-Registrar
without prior notice to any Securityholder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar or Paying Agent for any series of Securities, the
Trustee shall act as such. The Company or any of its Affiliates may act as Paying Agent,
Registrar, or co-Registrar.
The Company hereby appoints the Trustee the initial Registrar and Paying Agent for each series
of Securities unless another Registrar or Paying Agent, as the case may be, is appointed prior to
the time Securities of that series are first issued.
Section 2.04 Paying Agent to Hold Money in Trust.
Whenever the Company has one or more Paying Agents it will, prior to each due date of the
principal of, or interest on, any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
such Paying Agent will hold in trust for the benefit of the Securityholders of the particular
series for which it is acting, or the Trustee, all money held by the Paying Agent for the payment
of principal or interest on the Securities of such series, and that such Paying Agent will notify
the Trustee of any Default by the Company or any other obligor of the series of Securities in
making any such payment and at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent. If the Company or an Affiliate acts as Paying Agent, it shall segregate and hold in
a separate trust fund for the benefit of the Securityholders of the particular series for which it
is acting all money held by it as Paying Agent. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon so doing, the Paying Agent (if other than the
Company or an Affiliate of the Company) shall have no further liability for such money. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying
Agent for the Securities.
Section 2.05 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, separately by series, and shall
otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least seven Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders, separately by series,
relating to such interest payment date or request, as the case may be.
Section 2.06 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 of other authorized denominations, 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 Company shall issue and the Trustee shall authenticate Securities at the
Registrars request.
No service charge shall be made for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any 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 2.09, 2.13, 3.06 or 9.04).
8
The Company need not issue, and the Registrar or co-Registrar need not register the transfer
or exchange of, (i) any Security of a particular series during a period beginning at the opening of
business 15 days before the day of any selection of Securities of that series for redemption under
Section 3.02 and ending at the close of business on the day of selection, or (ii) any Security so
selected for redemption in whole or in part, except the unredeemed portion of any Security of that
series being redeemed in part.
Section 2.07 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder of a Security claims
that the Security has been lost, destroyed, or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security of same series if the Companys and the Trustees
requirements are met. The Trustee or the Company may require an indemnity bond to be furnished
which is sufficient in the judgment of both to protect the Company, the Trustee, and any Agent from
any loss which any of them may suffer if a Security is replaced. The Company or the Trustee may
charge such Holder for its expenses in replacing a Security.
Every replacement Security is an obligation of the Company and shall be entitled to all the
benefit of the Indenture equally and proportionately with any and all other Securities of the same
series.
Section 2.08 Outstanding Securities.
The Securities of any series outstanding at any time are all the Securities of that series
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a protected
purchaser.
If Securities are considered paid under Section 4.01, they cease to be outstanding and
interest on them ceases to accrue.
Except as set forth in Section 2.09 hereof, a Security does not cease to be outstanding
because the Company or an Affiliate holds the Security.
For each series of Original Issue Discount Securities, the principal amount of such Securities
that shall be deemed to be outstanding and used to determine whether the necessary Holders have
given any request, demand, authorization, direction, notice, consent, or waiver shall be the
principal amount of such Securities that could be declared to be due and payable upon acceleration
upon an Event of Default as of the date of such determination. When requested by the Trustee, the
Company shall advise the Trustee of such amount, showing its computations in reasonable detail.
Section 2.09 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 shall authenticate definitive Securities in exchange for temporary
Securities.
Holders of temporary securities shall be entitled to all of the benefits of this Indenture.
Section 2.10 Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and Paying Agent shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange, or payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment,
9
replacement, or cancellation and shall return such canceled Securities to the Company at the
Companys written request. The Company may not issue new Securities to replace Securities that it
has paid or that have been delivered to the Trustee for cancellation.
Section 2.11 Defaulted Interest.
If the Company fails to make a payment of interest on any series of Securities, the Company
shall pay such defaulted interest plus (to the extent lawful) any interest payable on the defaulted
interest, in any lawful manner. It may elect to pay such defaulted interest, plus any such
interest payable on it, to the Persons who are Holders of such Securities on which the interest is
due on a subsequent special record date. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each such Security and the date of the proposed
payment. The Company shall fix or cause to be fixed any such record date and payment date for such
payment, provided that no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before any such record date, the
Company shall mail to Securityholders affected thereby a notice that states the record date,
payment date, and amount of such interest to be paid.
Section 2.12 Special Record Dates.
(a) The Company may, but shall not be obligated to, set a record date for the purpose
of determining the identity of Holders entitled to consent to any supplement, amendment, or
waiver permitted by this Indenture. If a record date is fixed, the Holders of Securities of
that series outstanding on such record date, and no other Holders, shall be entitled to
consent to such supplement, amendment, or waiver or revoke any consent previously given,
whether or not such Holders remain Holders after such record date. No consent shall be
valid or effective for more than 90 days after such record date unless consents from Holders
of the principal amount of Securities of that series required hereunder for such amendment
or waiver to be effective shall have also been given and not revoked within such 90-day
period.
(b) The Company may, but shall not be obligated to, fix any day as a record date for
the purpose of determining the Holders of any series of Securities entitled to join in the
giving or making of any notice of Default, any declaration of acceleration, any request to
institute proceedings, or any other similar direction. If a record date is fixed, the
Holders of Securities of that series outstanding on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request, or direction, whether or not
such Holders remain Holders after such record date; provided, however, that no such action
shall be effective hereunder unless taken on or prior to the date 90 days after such record
date.
Section 2.13 Global Securities.
(a) 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 Depositary for such
Global Security or Securities.
(b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained in
Section 2.06 of this Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.06 of this Indenture for securities registered in the
names of Holders other than the Depositary for such Security or its nominee only if (i) such
Depositary notifies the Company that it is unwilling or unable to continue as Depositary for
such Global Security or if at any time such Depositary ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company fails to appoint a
successor Depositary within 90 days of such event; or (ii) the Company executes and delivers
to the Trustee an Officers Certificate to the effect that such Global Security shall be so
exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depositary 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 paragraph (b) of this Section, a Global Security may not be
transferred except as a whole by the Depositary with respect to such Global Security to a nominee
of such Depositary, by a nominee of
10
such Depositary to such Depositary or another nominee of such Depositary, or by the Depositary
or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
(c) Legend. Any Global Security issued hereunder shall bear a legend in substantially
the following form:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation (DTC), New York,
New York, to the issuer or its agent for registration of transfer, exchange,
or payment and any certificate issued is registered in the name of Cede &
Co. or such other name as may be requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or such other entity as may be
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co. has an interest herein.
Transfer of this Global Security shall be limited to transfers in
whole, but not in part, to nominees of DTC or to a successor thereof or such
successors nominee and limited to transfers made in accordance with the
restrictions set forth in the Indenture referred to herein.
(d) Acts of Holders. The Depositary, 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
this Indenture.
(e) Payments. Notwithstanding the other provisions of this Indenture, unless otherwise
specified as contemplated by Section 2.01 hereof, payment of the principal of and interest,
if any, on any Global Security shall be made to the Person specified therein.
(f) Consents, Declaration, and Directions. Except as provided in paragraph (e) of this
Section, 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, or directions required to be
given by the Holders pursuant to this Indenture.
Section 2.14 CUSIP Numbers.
The Company in issuing any series of Securities may use CUSIP numbers (if then generally in
use), and, if so, the Trustee shall use CUSIP numbers in notices 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 such Securities or as contained in any notice and that reliance
may be placed only on the other identification numbers printed on such Securities, and any such
action relating to such notice shall not be affected by any defect in or omission of such numbers
in such notice. The Company shall promptly notify the Trustee of any change in the CUSIP
numbers.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
If the Company elects to redeem Securities of any series pursuant to any optional redemption
provisions thereof, it shall furnish to the Trustee at least 30 days, but not more than 60 days
before a redemption date, an Officers Certificate which shall specify (i) the provisions of such
Security or this Indenture pursuant to which the redemption shall occur, (ii) the redemption date,
(iii) the principal amount of Securities of that series to be redeemed, and (iv) the redemption
price.
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If the Company elects to reduce the principal amount of Securities of any series to be
redeemed pursuant to mandatory redemption provisions thereof, it shall notify the Trustee of the
amount of, and the basis for, any such reduction. If the Company elects to credit against any such
mandatory redemption Securities it has not previously delivered to the Trustee for cancellation, it
shall deliver such Securities with such notice.
Section 3.02 Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, or purchased in an offer to
purchase at any time, the Trustee shall select the Securities of that series to be redeemed or
purchased as follows: (1) if the Securities of such series are listed on any national securities
exchange, in compliance with the requirements of the principal national securities exchange on
which the Securities of that series are listed, or (2) if the Securities of that series are not
listed on a national securities exchange, on a pro rata basis, by lot or by such other method as
the Trustee deems fair and appropriate. In the event of a partial redemption or purchase by lot,
the particular Securities to be redeemed or purchased will be selected not less than 30 nor more
than 60 days prior to the redemption or purchase date by the Trustee from Securities of that series
outstanding and not previously called for redemption.
The Trustee shall notify the Company promptly in writing of the Securities or portions of
Securities to be called for redemption or purchase and, in the case of any Securities selected for
partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Except
as otherwise provided as to any particular series of Securities, Securities and portions thereof
that the Trustee selects shall be in amounts equal to the minimum authorized denomination for
Securities of the series to be redeemed or purchased or any integral multiple thereof, except that
if all of the Securities of the series are to be redeemed or purchased, the entire outstanding
amount of the Securities of the series held by such Holder, even if not equal to the minimum
authorized denomination for the Securities of that series, shall be redeemed or purchased.
Provisions of this Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
Section 3.03 Notice of Redemption.
Except as otherwise provided as to any particular series of Securities, at least 30 days but
not more than 60 days before a redemption date, the Company shall mail a notice of redemption to
each Holder whose Securities are to be redeemed.
The notice shall identify the Securities of the series to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of the Securities of the
series to be redeemed, plus accrued interest, if any, to the date fixed for redemption (the
redemption price);
(3) if any Security is being redeemed in part, the portion of the principal amount of
such Security to be redeemed and that, after the redemption date, upon surrender of such
Security, a new Security or Securities in principal amount equal to the unredeemed portion
will be issued upon cancellation of the original Securities;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the Paying Agent to
collect the redemption price;
(6) that, unless the Company defaults in payment of the redemption price, interest on
Securities called for redemption ceases to accrue on and after the redemption date;
(7) the CUSIP number, if any, of the Securities to be redeemed;
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(8) the paragraph of the Securities and/or the section of the Indenture pursuant to
which the Securities called for redemption are being redeemed; and
(9) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Securities.
At the Companys request, the Trustee shall give the notice of redemption in the Companys
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 45 days prior to the redemption date, an Officers Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be conclusively
presumed to have been duly given whether or not the Holder receives such notice. In any case,
failure to give such notice by mail or any defect in the notice of the Holder of any Security shall
not affect the validity of the proceeding for the redemption of any other Security.
Section 3.04 Effect of Notice of Redemption.
Except if the giving of a notice of redemption would violate the terms of the Companys credit
agreement, and subject to the subordination provisions of any series of Securities, once notice of
redemption is mailed in accordance with Section 3.03 hereof, Securities called for redemption
become due and payable on the redemption date for the redemption price. Upon surrender to the
Paying Agent, such Securities will be paid at the Redemption Price.
Section 3.05 Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on the redemption or purchase date, the Company
shall deposit with the Trustee or Paying Agent (or, if the Company or any Affiliate is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the redemption or purchase price
of all Securities called for redemption on that date other than Securities that have previously
been delivered by the Company to the Trustee for cancellation. The Paying Agent shall return to
the Company any money not required for that purpose.
If the Company complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest shall cease to accrue on the Securities (or the portions
thereof) called for redemption or purchase. If a Security is redeemed or purchased on or after an
interest record date but on or prior to the related interest payment date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Securities were registered at the
close of business on such record date. If any Securities called for redemption or purchase shall
not be so paid upon surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or
purchase date until such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in accordance with the terms of the
Securities of the series to be redeemed.
Section 3.06 Securities Redeemed or Purchased in Part.
Upon surrender of a Security that is redeemed or purchased in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the expense of the Company a new Security of
same series equal in principal amount to the unredeemed or unpurchased portion of the Security
surrendered.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Securities.
The Company shall pay or cause to be paid the principal of, premium, if any, and interest on
the Securities on the dates and in the manner provided in this Indenture and the Securities.
Principal, premium, if any, and interest shall be considered paid on the date due if the Paying
Agent, if other than the Company or an Affiliate, holds as of
13
10:00 a.m., New York City time, on that date immediately available funds designated for and
sufficient to pay all principal, premium, if any, and interest then due.
To the extent lawful, the Company shall pay interest on overdue principal and overdue
installments of interest at the rate per annum borne by the applicable series of Securities.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee or Registrar) where
Securities may be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices, and demands may be made or served at the Corporate Trust Office
of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03.
Section 4.03 Reports.
The Company shall deliver to the Trustee within 15 days after it files them with the
Commission copies of the annual reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the Commission may by rules and regulations
prescribe) that the Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act; provided, however the Company shall not be required to deliver to the Trustee
any materials for which the Company has sought and received confidential treatment by the
Commission. The Company also shall comply with the other provisions of TIA Section 314(a).
Delivery of such reports, information, and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates).
Section 4.04 Compliance Certificate.
(a) The Company or any Guarantors shall deliver to the Trustee, within 120 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 (one of whom shall be the principal
executive officer, principal financial officer, or principal accounting officer of the
Company) with a view to determining whether the Company has kept, observed, performed, and
fulfilled its obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company has kept,
observed, performed, and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms, provisions, and
conditions of this Indenture (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and that to the
best of his or her knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event
14
has occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.
(b) The Company shall, 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 4.05 Taxes.
The Company shall pay prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith by appropriate proceedings or where the failure
to effect such payment is not adverse in any material respect to the Holders of any Securities.
Section 4.06 Stay, Extension, and Usury Laws.
The Company and any Guarantors covenant (to the extent that it may lawfully do so) that they
shall 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, that may affect the covenants or the performance of this Indenture; and the Company and each
Guarantor (to the extent that they may lawfully do so) hereby expressly waive all benefits or
advantages of any such law, and covenant that they shall not, by resort to any such law, hinder,
delay, or impede the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
Section 4.07 Calculation of Original Issue Discount.
If, as of the end of any fiscal year of the Company, the Company has any outstanding Original
Issue Discount Securities under the Indenture, the Company shall file with the Trustee promptly
following the end of such fiscal year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on such Original Issue Discount
Securities as of the end of such year and (ii) such other specific information relating to such
original issue discount as may then be required under the Internal Revenue Code of 1986, as amended
from time to time.
ARTICLE 5
SUCCESSORS
Section 5.01 When Company May Merge, Etc.
In addition to provisions applicable to a particular series of Securities, the Company shall
not directly or indirectly: (i) consolidate or merge with or into another Person (whether or not
the Company is the surviving Person) or (ii) sell, assign, transfer, lease, convey, or otherwise
dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries
in one or more related transactions to any Person unless:
(1) either (x) the Company is the surviving Person; or (y) the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, lease, conveyance, or other disposition shall have been made is
a Person organized or existing under the laws of the United States, any state thereof, or
the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, lease, conveyance, or
other disposition shall have been made assumes (by supplemental indenture reasonably
satisfactory to the Trustee) all the obligations of the Company under the Securities and
this Indenture; and
(3) immediately after the transaction no Default or Event of Default exists.
15
The Company shall deliver to the Trustee on or 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 5.02 Successor Person Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, conveyance, or other
disposition (other than by lease) of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor Person formed by such consolidation or into
which the Company is merged or to which such sale, assignment, transfer, conveyance, or other
disposition is made shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, conveyance, or other disposition, the provisions of this
Indenture referring to the Company shall refer instead to the successor Person and not to the
Company), and may exercise every right and power of, the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay principal of, and interest
on, any Securities except in the case of a sale, assignment, transfer, conveyance, or other
disposition of all or substantially all of the Companys assets that meets the requirements of
Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An Event of Default occurs with respect to Securities of any particular series if, unless as
otherwise provided in the establishing Board Resolution, Officers Certificate, or supplemental
indenture hereto:
(1) the Company defaults in the payment of interest on any Security of that series when
the same becomes due and payable and the Default continues for a period of 30 days;
(2) the Company defaults in the payment, when due, of the principal of, or premium, if
any, on any Security of that series when the same becomes due and payable at Maturity, upon
redemption (including in connection with any offer to purchase under the terms of such
Securities), or otherwise;
(3) an Event of Default, as defined in the Securities of that series, occurs and is
continuing, or the Company fails to comply with any of its other agreements in the
Securities of that series or in this Indenture with respect to that series and the Default
continues for the period and after the notice specified below;
(4) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an involuntary
case;
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property;
(D) makes a general assignment for the benefit of its creditors; or
(E) admits in writing its inability generally to pay its debts as the same
become due.
(5) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
16
(A) is for relief against the Company in an involuntary case;
(B) appoints a Custodian of the Company or for all or substantially all of its
property; or
(C) orders the liquidation of the Company; and the order or decree remains
unstayed and in effect for 60 days.
(6) any other Event of Default provided with respect to Securities of that series which
is specified in a Board Resolution, Officers Certificate, or supplemental indenture
establishing that series of Securities.
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.
A Default under clause (3) above is not an Event of Default with respect to a particular
series of Securities until the Trustee or the Holders of at least 50% in principal amount of the
then outstanding Securities of that series notify the Company of the Default and the Company does
not cure the Default within 60 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied, and state that the notice is a Notice of Default. Such
notice shall be given by the Trustee if so requested in writing by the Holders of 50% of the
principal amount of the then outstanding Securities of that series.
Section 6.02 Acceleration.
If an Event of Default with respect to Securities of any series (other than an Event of
Default specified in clauses (4) and (5) of Section 6.01) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 50% in principal amount of the then outstanding
Securities of that series by notice to the Company and the Trustee, may, subject to any prior
notice requirements set forth in any supplemental indenture, declare the unpaid principal (or, in
the case of Original Issue Discount Securities, such lesser amount as may be provided for in such
Securities) of and any accrued interest on all the Securities of that series to be due and payable
on the Securities of that series. Upon such declaration the principal (or such lesser amount) and
interest shall be due and payable immediately. If an Event of Default specified in clause (4) or
(5) of Section 6.01 occurs, all of such amount shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder. The Holders of a
majority in principal amount of the then outstanding Securities of that series by notice to the
Trustee may rescind an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default with respect to that series have been
cured or waived except nonpayment of principal (or such lesser amount) or interest that has become
due solely because of the acceleration.
Section 6.03 Other Remedies.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal or interest on the
Securities of that series or to enforce the performance of any provision of the Securities of that
series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Subject to Section 6.02, the Holders of not less than a majority in aggregate principal amount
of the then outstanding Securities of any series, by notice to the Trustee, may on behalf of the
Holders of the Securities of that series, waive an existing Default or Event of Default with
respect to that series and its consequences except a
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continuing Default or Event of Default in the payment of the principal (including any
mandatory sinking fund or like payment) of, premium, if any, or interest on any Security of that
series (including in connection with an offer to purchase); provided, however, that the Holders of
a majority in aggregate 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 and its consequences, including any related payment default that resulted from any
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 6.05 Control by Majority.
The Holders of a majority in principal amount of the then outstanding Securities of any series
may direct the time, method, and place of conducting any proceeding for exercising any remedy with
respect to that series available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of other Holders of Securities
of that series, or that may involve the Trustee in personal liability. The Trustee may take any
other action which it deems proper that is not inconsistent with any such direction.
Notwithstanding any provision to the contrary in this Indenture, the Trustee shall not be obligated
to take any action with respect to the provisions of Section 6.02 unless directed to do so pursuant
to this Section 6.05.
Section 6.06 Limitation on Suits.
A Holder of Securities of any series may not pursue a remedy with respect to this Indenture or
the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing Event of Default
with respect to that series;
(2) the Holders of at least 25% in principal amount of the then outstanding Securities
of that series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer, and, if requested, provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability, or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and
(5) during such 60-day period the Holders of a majority in principal amount of the then
outstanding Securities of that series do not give the Trustee a direction inconsistent with
the request.
No Holder of any series of Securities may use this Indenture to prejudice the rights of
another Holder of Securities of that series or to obtain a preference or priority over another
Holder of Securities of that series.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of principal, premium, if any, and interest on the Security, on or after the
respective due dates expressed in the Security (including in connection with any offer to
purchase), or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not, except as provided in the subordination provisions, if any, applicable to such
Security, be impaired or affected without the consent of the Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing
with respect to Securities of any series, the Trustee may recover judgment in its own name and as
trustee of an express trust against
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the Company for the whole amount of principal (or such portion of the principal as may be
specified as due upon acceleration at that time in the terms of that series of Securities),
premium, if any, and interest, remaining unpaid on the Securities of that series then outstanding,
together with (to the extent lawful) interest on overdue principal and interest, and such further
amount as shall be sufficient to cover the costs and, to the extent lawful, expenses of collection,
including the reasonable compensation, expenses, disbursements, and advances of the Trustee, its
agents, and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents, and counsel, and
any other amounts due to the Trustee under Section 7.07 hereof) and the Securityholders allowed in
any judicial proceedings relative to the Company (or any other obligor on the Securities), its
creditors, or its property and shall be entitled to and empowered to collect, receive, and
distribute any money or other property payable or deliverable on any such claims, and any custodian
in any such judicial proceedings is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agent, and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. Nothing contained herein shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment, or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money with respect to Securities of any series pursuant to this
Article, it shall pay out the money in the following order:
FIRST: to the Trustee, its agents, and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expense, and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;
SECOND: in accordance with the subordination provisions, if any, of the Securities of
such series;
THIRD: to Securityholders for amounts due and unpaid on the Securities of such series
for principal, premium, if any, and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities of such series for
principal, premium, if any, and interest, respectively; and
FOURTH: to the Company or to such party as a court of competent jurisdiction shall
direct.
The Trustee may fix a record date and payment date for any payment to Holders of Securities of
any series pursuant to this Section. The Trustee shall notify the Company in writing reasonably in
advance of any such record date and payment date.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys
fees and expenses, against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defense made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Securities of any series.
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ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture or the TIA and the Trustee need perform only those
duties that are specifically set forth in this Indenture or the TIA and no others,
and no implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case of any
certificates or opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good
faith by a responsible officer of the Trustee, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this
Section.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own
funds or incur any liability. The Trustee may refuse to perform any duty or exercise any
right or power, including without limitation, the provisions of Section 6.05 hereof, unless
it receives security and indemnity satisfactory to it against any loss, liability or
expense.
(f) 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. Absent written instruction from the
Company, the Trustee shall not be required to invest any such money. Money held in trust by
the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee.
Subject to TIA Section 315(a) through (d):
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(a) The Trustee may conclusively rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness, or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.
(b) Before the Trustee acts or refrains from acting, it may require an Officers
Certificate or an Opinion of Counsel, or both. 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.
(c) The Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers under the Indenture,
unless the Trustees conduct constitutes negligence.
(e) Unless otherwise specifically provided in this Indenture, any demand, request,
direction, or notice from the Company shall be sufficient if signed by an Officer of the
Company.
(f) The Trustee may consult with counsel of its selection and may rely upon the advice
of such counsel or any Opinion of Counsel.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice
of any event that is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities generally or the
Securities of a particular series, as the case may be, and this Indenture.
(h) The permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as duties.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to TIA Sections 310(b) and 311.
Section 7.04 Trustees 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 Companys use of the proceeds from the Securities,
and it shall not be responsible for any statement in the Securities other than its certificate of
authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any series occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to all Holders of Securities
of that series a notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment on any such Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good faith determines
that withholding the notice is in the interests of such Securityholders.
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Section 7.06 Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee with respect to any series of Securities
shall mail to Holders of Securities of that series as provided in TIA Section 313(c) a brief report
dated as of such May 15 that complies with TIA Section 313(a) (if such report is required by TIA
Section 313(a)). The Trustee shall also comply with TIA Section 313(b)(2).
A copy of each report at the time of its mailing to Securityholders shall be mailed to the
Company and filed with the Commission and each stock exchange on which any of the Securities are
listed, as required by TIA Section 313(d). The Company shall notify the Trustee when the
Securities are listed on any stock exchange, and of any delisting thereof.
Section 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such compensation as shall be agreed
upon in writing for its services hereunder. The Company shall reimburse the Trustee upon written
request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and out-of-pocket expenses of the Trustees agents and counsel.
The Company shall indemnify each of the Trustee or any predecessor Trustee for any loss,
liability, damage, claims, or expenses, including taxes (other than taxes based upon, measured by,
or determined by, the income of the Trustee) incurred by it, without negligence or bad faith on its
part, in connection with the acceptance or administration of this Indenture and its duties
hereunder. 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.
To secure the Companys payment obligations in this Section, the Trustee shall have a lien
prior to the Securities on all money or property held or collected by the Trustee in its capacity
as Trustee, except money or property held in trust to pay principal and interest on particular
Securities. Such lien will survive the satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(4) or (5) hereof occurs, the expenses and the compensation for the services will be
intended to constitute expenses of administration under any applicable Bankruptcy Law.
This Section 7.07 shall survive the resignation or removal of the Trustee and the termination
of this Indenture.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee with respect to one or more or all series of
Securities and appointment of a successor Trustee shall become effective only upon the successor
Trustees acceptance of appointment as provided in this Section.
The Trustee may resign with respect to one or more or all series of Securities by so notifying
the Company in writing. The Holders of a majority in principal amount of the then outstanding
Securities of any series may remove the Trustee as to that series by so notifying the Trustee in
writing and may appoint a successor Trustee with the Companys consent. The Company may remove the
Trustee with respect to one or more or all series of Securities if:
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(1) |
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the Trustee fails to comply with Section 7.10 hereof; |
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(2) |
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the Trustee is adjudged bankrupt or insolvent; |
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(3) |
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a receiver or other public officer takes charge of the Trustee or its property; or |
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(4) |
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the Trustee becomes incapable of acting. |
If, as to any series of Securities, the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee for
that series. Within one year after the successor Trustee with respect to any series takes office,
the Holders of a majority in principal amount of the then outstanding Securities of that series may
appoint a successor Trustee to replace the successor Trustee appointed by the Company. If a
successor Trustee as to a particular 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 then outstanding Securities of that series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof with respect to any series, any Holder
of Securities of that series who satisfies the requirements of TIA Section 310(b) may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for that series.
A successor Trustee as to any series of Securities shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee
(subject to the lien provided for in Section 7.07 hereof), the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have all the rights,
powers, and duties of the Trustee under this Indenture as to that series. The successor Trustee
shall mail a notice of its succession to the Holders of Securities of that series.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Companys
obligations under Section 7.07 hereof shall continue for the benefit of the retiring trustee.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee, and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and that (1) shall
contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts, and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of such successor
Trustee relates, (2) shall contain such provisions as shall be necessary or desirable to confirm
that all the rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary or desirable to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; provided, however, that nothing herein or in such
supplemental indenture shall constitute such Trustee co-trustees of the same trust and that each
such Trustee shall be trustee of a trust hereunder separate and apart from any trust hereunder
administered by any other such Trustee.
Upon the execution and delivery of such supplemental indenture, the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed, or conveyance, shall become vested with all the rights,
powers, trusts, and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee as to any series of Securities consolidates, 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 as to that series.
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Section 7.10 Eligibility; Disqualification.
Each series of Securities shall always have a Trustee who satisfies the requirements of TIA
Section 310(a)(1), (2), and (5). The Trustee as to any series of Securities shall always have a
combined capital and surplus of at least $25,000,000 as set forth in its most recent published
annual report of condition. The Trustee is subject to TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated therein.
ARTICLE 8
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect with respect to any
series of Securities issued hereunder, when:
(1) either:
(a) all Securities of such series that have been authenticated (except lost, stolen, or
destroyed Securities that have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company) have been
delivered to the Trustee for cancellation; or
(b) all Securities of such series that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the making of a notice of redemption
or otherwise or will become due and payable within one year and the Company or any Guarantor
has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government
Obligations, foreign government obligations, or a combination thereof, in such amounts as
will be sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium, and accrued interest to the date of Maturity or redemption;
(2) no Default or Event of Default with respect to such series of Securities shall have
occurred and be continuing on the date of such deposit or shall occur as a result of such deposit
and such deposit will not result in a breach or violation of, or constitute a default under, any
other material instrument to which the Company or any Guarantor is a party to or by which the
Company or any Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid all sums payable by it under
this Indenture with respect to such series of Securities; and
(4) the Company has delivered irrevocable instructions to the Trustee under this Indenture to
apply the deposited money toward the payment of the Securities of such series at Maturity or the
redemption date, as the case may be. In addition, the Company must deliver an Officers
Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Notwithstanding, the satisfaction and discharge of this Indenture with respect to a series of
Securities, if money shall have been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section, the provisions of Section 8.06 shall survive.
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For purposes of this Indenture, the term foreign government obligations means, with respect
to Securities of any series that are denominated in a currency other than United States dollars,
(a) 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, which are not callable or
redeemable at the option of the issuer thereof; or (b) obligations of a person controlled or
supervised by or acting as an agency or instrumentality of that government, the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by that government, which
are not callable or redeemable at the option of the issuer thereof.
Section 8.02 Option to Effect Legal Defeasance or Covenant Defeasance.
Unless Section 8.03 or 8.04 is otherwise specified to be inapplicable to Securities of a
series, the Company may, at the option of its Board of Directors evidenced by a resolution set
forth in an Officers Certificate, at any time, elect to have either Section 8.03 or 8.04 hereof be
applied to all outstanding Securities of any such series upon compliance with the conditions set
forth below in this Article 8.
Section 8.03 Legal Defeasance and Discharge.
Upon the Companys exercise under Section 8.02 hereof of the option applicable to this Section
8.03, the Company and any Guarantor shall, subject to the satisfaction of the conditions set forth
in Section 8.05 hereof, be deemed to have been discharged from their respective obligations with
respect to all outstanding Securities of any series on the date the conditions set forth below are
satisfied (hereinafter, Legal Defeasance). For this purpose, Legal Defeasance means that the
Company and any Guarantor shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Securities of a series, which shall thereafter be deemed to be
outstanding only for the purposes of Section 8.06 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other obligations under such
Securities and this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in Section 8.05 hereof, and
as more fully set forth in such Section, payments in respect of the principal of, premium, and
interest on such Securities when such payments are due, (b) the Companys obligations with respect
to such Notes under Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties, and
immunities of the Trustee hereunder and the Companys or any Guarantors obligations in connection
therewith, and (d) this Article 8. Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.03 notwithstanding the prior exercise of its option under
Section 8.04 hereof.
Section 8.04 Covenant Defeasance.
Upon the Companys exercise under Section 8.02 hereof of the option applicable to this Section
8.04, the Company or any Guarantors shall, subject to the satisfaction of the conditions set forth
in Section 8.05 hereof, be released from their respective obligations under the covenants contained
in Sections 4.03, 4.04, 4.05, 4.06, and 4.07, and Section 5.01 hereof with respect to the
outstanding Securities of any series on and after the date the conditions set forth in Section 8.05
are satisfied (hereinafter, Covenant Defeasance), and the Securities of such series shall
thereafter be deemed not outstanding for the purposes of any direction, waiver, consent, or
declaration, or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed outstanding for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Securities of any series,
the Company or any Guarantors may omit to comply with and shall have no liability in respect of any
term, condition, or limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
In addition, upon the Companys exercise under Section 8.02 hereof of the option applicable to this
Section 8.04 hereof, subject to the satisfaction of the conditions set forth in Section 8.05
hereof, Sections 6.01(3) through 6.01(6) hereof shall not constitute Events of Default.
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Section 8.05 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.03 or 8.04 hereof
to the outstanding Securities of any series. In order to exercise either Legal Defeasance or
Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in United States dollars, non-callable U.S. Government Obligations,
foreign government obligations, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, and interest on the outstanding Securities on
the stated date for payment thereof or on the applicable redemption date, as the case may
be;
(b) in the case of an election under Section 8.03 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to
the Trustee confirming that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date hereof, 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 outstanding
Securities will not recognize income, gain, or loss for federal income tax purposes as a
result of such Legal 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 Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.04 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to
the Trustee confirming that the Holders of the outstanding Securities will not recognize
income, gain, or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in the same
manner, and at the same times as would have been the case if such Covenant Defeasance had
not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the incurrence of
Indebtedness all or a portion of the proceeds of which will be used to defease the
Securities pursuant to this Article Eight concurrently with such incurrence) or insofar as
Sections 6.01(4) or 6.01(5) hereof is concerned, at any time in the period ending on the
91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;
(f) 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 over
any other creditors of the Company or with the intent of defeating, hindering, delaying, or
defrauding any other creditors of the Company; and
(g) the Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.06 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.
Subject to Section 8.07 hereof, all money and non-callable U.S. Government Obligations or
foreign government obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.06, the Trustee) pursuant
to Section 8.01 or Section 8.05 hereof in respect of the outstanding Securities shall be held in
trust and applied by the Trustee, in accordance with the
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provisions of such Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Securities of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee, or other charge imposed
on or assessed against the cash or non-callable U.S. Government Obligations or foreign government
obligations deposited pursuant to Section 8.05 hereof or the principal and interest received in
respect thereof other than any such tax, fee, or other charge which by law is for the account of
the Holders of the outstanding Securities.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any money or non-callable U.S.
Government Obligations or foreign government obligations held by it as provided in Section 8.05
hereof which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.05(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.07 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on any Securities and
remaining unclaimed for two years after such principal and premium, if any, or interest has become
due and payable shall be paid to the Company on its request or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Securities shall thereafter look only to the
Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in the New York Times and
The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Company.
Section 8.08 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
U.S. Government Securities in accordance with Section 8.03 or 8.04 hereof, as the case may be, by
reason of any order or judgment of any court or governmental authority enjoining, restraining, or
otherwise prohibiting such application, then the Companys obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section
8.03 or 8.04 hereof until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.03 or 8.04 hereof, 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
following the reinstatement of its obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9
SUPPLEMENTS, AMENDMENTS, AND WAIVERS
Section 9.01 Without Consent of Holders.
The Company and the Trustee as to any series of Securities may supplement or amend this
Indenture or the Securities without notice to or the consent of any Securityholder:
(1) to cure any ambiguity, defect, or inconsistency;
(2) to comply with Article 5;
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(3) to comply with any requirements of the Commission in connection with the
qualification of this Indenture under the TIA;
(4) to add or change any provisions of this Indenture to facilitate the issuance of, or
to liberalize the terms of, Securities issued in bearer form, or to permit or facilitate the
issuance of Securities in uncertificated form, provided that this action will not adversely
affect the interests of the Holders of the Securities of any series in any material respect;
(5) to add to, change, or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities; provided, however, that any such addition, change, or
elimination (A) shall neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with respect to such provision; or
(B) shall become effective only when there is no outstanding Security of any series created
prior to the execution of such supplemental indenture and entitled to the benefit of such
provision;
(6) to add to existing covenants additional covenants for the benefit of the Holders of
all or any series of Securities, to surrender any right or power conferred upon the Company
in this Indenture, or to add events of default for the benefit of Holders of all or any
series of Securities;
(7) to secure previously unsecured Securities;
(8) to make any change that does not adversely affect in any material respect the
interests of the Securityholders of any series;
(9) to establish additional series of Securities as permitted by Section 2.01 hereof;
(10) to establish the form or terms of Securities of any series, including the
provisions and procedures, if applicable, for the conversion or exchange of the Securities
into other securities or property;
(11) to evidence and provide for the acceptance or appointment of a successor Trustee
or facilitate the administration of the trusts under this Indenture by more than one
Trustee;
(12) to make any provision with respect to the conversion or exchange of rights of
Holders pursuant to the requirements of this Indenture;
(13) to close this Indenture with respect to the authentication and delivery of
additional series of Securities or to qualify, or maintain qualification of, this Indenture
under the TIA; or
(14) to supplement any of the provisions of this Indenture to the extent necessary to
permit or facilitate defeasance and discharge of any series of Securities, provided that the
action shall not adversely affect the interests of the Holders of Securities of any series
in any material respect.
Section 9.02 With Consent of Holders.
Subject to Section 6.07, the Company and the Trustee as to any series of Securities may amend
this Indenture or the Securities of that series with the written consent of the Holders of a
majority in principal amount of the then outstanding Securities of each series affected by the
amendment, with each such series voting as a separate class. The Holders of a majority in
principal amount of the then outstanding Securities of any series may also waive compliance in a
particular instance by the Company with any provision of this Indenture with respect to that series
or the Securities of that series; provided, however, that without the consent of each
Securityholder affected, an amendment or waiver may not:
(1) reduce the percentage of the principal amount of Securities whose Holders must
consent to an amendment or waiver;
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(2) reduce the amount of, or postpone the date fixed for, the payment of any sinking
fund or analogous provision;
(3) reduce the rate of, or change the time for payment of interest on, any Security;
(4) reduce the principal of or change the fixed Maturity of any Security or waive a
redemption payment or alter the redemption provisions with respect thereto;
(5) make any Security payable in money other than that stated in the Security
(including defaulted interest);
(6) reduce the principal amount of Original Issue Discount Securities payable upon
acceleration of the Maturity thereof;
(7) make any change in Section 6.04, 6.07, or this Section 9.02;
(8) waive a default in the payment of the principal of, or interest on, any Security,
except to the extent otherwise provided for in Section 6.02 hereof;
(9) change the place of payment on a Security;
(10) change the currency or currencies of payment of the principal of, and any premium,
make-whole payment, interest, or additional amounts on, any Security;
(11) reduce the percentage of Holders of Securities whose consent is needed to modify
or amend this Indenture;
(12) reduce the percentage of the Holders of outstanding Securities of any series
necessary to modify or amend this Indenture, to waive compliance with provisions of this
Indenture or defaults and their consequences under this Indenture, or to reduce the quorum
or voting requirements contained in this Indenture;
(13) make any change that adversely affects the right to convert or exchange any
Security other than as permitted by this Indenture or decrease the conversion or exchange
rate or increase the conversion or exchange price of any such Security; or
(14) waive a redemption payment with respect to any Security.
An amendment or waiver under this Section that waives, changes, or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for the benefit of one or
more particular series of Securities, or that modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section to approve the
particular form of any proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
The Company shall mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture or waiver.
Section 9.03 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
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debt as the consenting Holders Security, even if notation of the consent is not made on any
Security; provided, 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 written notice of revocation before
the date on which the amendment, supplement, or waiver becomes effective. An amendment,
supplement, or waiver shall become effective in accordance with its terms and thereafter shall bind
every Holder of Securities of that series.
Section 9.04 Notation on or Exchange of Securities.
If an amendment, supplement, or waiver changes the terms of a Security: (a) the Trustee may
require the Holder of the Security to deliver it to the Trustee, the Trustee may, at the written
direction of the Company and at the Companys expense, place an appropriate notation on the
Security about the changed terms and return it to the Holder, and the Trustee may place an
appropriate notation on any Security thereafter authenticated; or (b) if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not affect the validity
and effect of such amendment, supplement, or waiver.
Section 9.05 Trustee to Sign Amendments, etc.
Subject to the preceding sentence, the Trustee shall sign any amendment or supplemental
indenture if the same does not adversely affect the rights, duties, liabilities, or immunities of
the Trustee. The Trustee may, but shall not be obligated to, execute any such amendment,
supplement, or waiver that affects the Trustees own rights, duties, liabilities, or immunities
under this Indenture or otherwise. The Company may not sign an amendment or supplemental indenture
until the Board of Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully protected in
relying upon, in addition to the documents required by Section 11.04 hereof, an Officers
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE 10
GUARANTEES
Section 10.01 Guarantee.
Any series of Securities may be guaranteed by one or more of the Guarantors. The terms and
the form of any such Guarantee will be established in the manner contemplated by Section 2.01 for
that particular series of Securities.
ARTICLE 11
MISCELLANEOUS
Section 11.01 Indenture Subject to Trust Indenture Act.
This Indenture is subject to the provisions of the TIA that are required to be part of this
Indenture, and shall, to the extent applicable, be governed by such provisions.
Section 11.02 Notices.
Any notice or communication is duly given if in writing and delivered in person or sent by
first-class mail (registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next-day delivery, addressed as follows:
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If to the Company and/or any Guarantor:
Smith & Wesson Holding Corporation
2100 Roosevelt Avenue
Springfield, Massachusetts 01104
Attention: Michael F. Golden
Telephone: (800) 331-0852
Facsimile: (413) 747-3317
with a copy to:
Greenberg Traurig, LLP
2375 E. Camelback Rd, Suite 700
Phoenix, Arizona 85016
Attention: Robert S. Kant, Esq.
Telephone: (602) 445-8301
Facsimile: (602) 445-8100
If to the Trustee:
American Stock Transfer & Trust Company
59 Maiden Lane
New York, New York 10038
Attention: Herbert Lemmer
Telephone: (718) 921-8124
Facsimile: (718) 331-1852
The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next-day delivery.
Any notice or communication to a Securityholder shall be mailed by first-class mail, certified
or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery
to his address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Security holder or any defect in it shall not affect its sufficiency with
respect to other Securityholders. If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee at the same time. Any notice or communication
shall also be mailed to any Person described in TIA Section 313(c), to the extent required by the
TIA.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
Section 11.03 Communication By Holders With Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar, and
anyone else shall have the protection of TIA Section 312(c).
Section 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
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(a) an Officers Certificate, in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 11.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 11.05 hereof) stating that, in the
opinion of such counsel, such action is authorized or permitted by this Indenture and that
all such conditions precedent have been complied with.
Section 11.05 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 the certificate provided pursuant to TIA Section 314(a)(4)) shall
include:
(1) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with; provided, however, that with respect to matters of fact an
Opinion of Counsel may rely on an officers certificate or certificates of public officials.
Section 11.06 Rules by Trustee and Agents.
The Trustee as to Securities of any series may make reasonable rules for action by or at a
meeting of Holders of Securities of that series. The Registrar and any Paying Agent or
Authenticating Agent may make reasonable rules and set reasonable requirements for their functions.
Section 11.07 Legal Holidays.
A Legal Holiday is a Saturday, a Sunday, or a day on which banking institutions in the City
of New York, New York or at a place of payment are authorized by law, regulation, or executive
order to remain closed. 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 11.08 No Recourse Against Others.
No past, present, or future director, officer, employee, manager, securityholder, or
incorporator, as such, of the Company or any successor Person shall have any liability for any
obligations of the Company or any Guarantor under any series of Securities, any guarantees thereof,
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 of issuance of the Securities.
Section 11.09 Counterparts.
This Indenture may be executed 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.
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Section 11.10 Governing Law.
The internal laws of the state of New York shall govern and be used to construe this Indenture
and the Securities (including any guarantees thereof), without giving effect to the applicable
principles of conflicts of laws to the extent that the application of the laws of another
jurisdiction would be required thereby.
Section 11.11 Submission to Jurisdiction; Service of Process; Waiver of Jury Trial.
Each party hereto hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New York State Court sitting in New
York City for purposes of all legal proceedings arising out of or relating to this Indenture, the
Securities (including any guarantee thereof), or the transactions contemplated hereby and thereby.
Each party hereto irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a court has been brought in an
inconvenient forum. Process in any such suit, action, or proceeding may be served on any party
anywhere in the world, whether within or without the state of New York. Without limiting the
foregoing, the parties agree that service of process upon such party at the address referred to in
Section 11.02, together with written notice of such service to such party, shall be deemed
effective service of process upon such party. Each of the parties hereto irrevocably waives any
and all rights to trial by jury in any legal proceeding arising out of or relating to this
Indenture, the Securities (including any guarantee thereof), or the transactions contemplated
hereby and thereby.
Section 11.12 Severability.
In case any provision in this Indenture or in the Securities shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.13 Effect of Headings, Table of Contents, etc.
The Article and Section headings herein and the table of contents are for convenience only and
shall not affect the construction hereof.
Section 11.14 Successors and Assigns.
All covenants and agreements of the Company in this Indenture and the Securities shall bind
its successors and assigns. All agreements of the Trustee in this Indenture shall bind its
successor. All agreements of any Guarantor in this Indenture shall bind its successors, except as
otherwise provided by the terms hereof.
Section 11.15 No Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan, or debt agreement of the
Company or any Subsidiary or of any Person. Any such indenture, loan, or debt agreement may not be
used to interpret this Indenture.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the date first above written.
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SMITH & WESSON HOLDING CORPORATION |
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AMERICAN STOCK TRANSFER & TRUST COMPANY |
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exv5w1
Exhibit 5.1
September 23, 2008
Smith & Wesson Holding Corporation
2100 Roosevelt Avenue
Springfield, Massachusetts 01104
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Smith & Wesson Holding Corporation
- Registration Statement on Form S-3 |
Ladies and Gentlemen:
As legal counsel to Smith & Wesson Holding Corporation, a Nevada corporation (the Company),
we have assisted in the preparation of the Companys Registration Statement on Form S-3 (the
Registration Statement), being filed with the Securities and Exchange Commission (the
Commission) by the Company under the Securities Act of 1933, as amended (the Act), relating to
(i) shares of common stock (Common Stock), par value $0.001 per share, of the Company; (ii) one
or more classes or series of shares of preferred stock (the Preferred Stock), par value $0.001
per share, of the Company; (iii) one or more series of debt securities of the Company
(collectively, the Debt Securities); (iv) depositary shares (Depositary Shares); (v) warrants
to purchase Common Stock, Preferred Stock, Debt Securities, Depositary Shares, or any combination
of those securities (the Warrants); (vi) contracts to purchase Common Stock, Preferred Stock,
Debt Securities, Depositary Shares, Warrants, or any combination of those securities (the Purchase
Contracts); (vii) units consisting of Common Stock, Preferred Stock, Debt Securities, Depositary
Shares, and/or Warrants (the Units); and (viii) the Common Stock, Preferred Stock, Debt
Securities, or Depositary Shares that may be issued upon the exercise of the Warrants or Purchase
Contracts or in connection with Units, whichever is applicable. The Common Stock, Preferred Stock,
Debt Securities, Depositary Shares, Warrants, Purchase Contracts, and Units are hereinafter
referred to collectively as the Securities. The Securities may be issued and sold or delivered
from time to time as set forth in the Registration Statement, any amendment thereto, the prospectus
contained therein (the Prospectus) and supplements to the prospectus (the Prospectus
Supplements), and pursuant to Rule 415 under the Act for an aggregate initial offering price not
to exceed $250,000,000.
The Debt Securities will be issued pursuant to one or more Indentures (each, an Indenture), each to
be between the Company and a financial institution identified therein as the trustee (the Trustee).
GREENBERG TRAURIG, LLP ATTORNEYS AT LAW WWW.GTLAW.COM
2375 East Camelback Road, Suite 700 Phoenix, Arizona 85016 Tel 602.445.8000 Fax 602.445.8100
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ALBANY |
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AMSTERDAM |
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ATLANTA |
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AUSTIN |
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BERLIN* |
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BOSTON |
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BRUSSELS* |
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CHICAGO |
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DALLAS |
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DELAWARE |
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DENVER |
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FORT LAUDERDALE |
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HOUSTON |
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LAS VEGAS |
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LONDON* |
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LOS ANGELES |
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MIAMI |
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MILAN* |
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NEW JERSEY |
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NEW YORK |
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ORANGE COUNTY |
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ORLANDO |
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PALM BEACH COUNTY |
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PHILADELPHIA |
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PHOENIX |
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ROME* |
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SACRAMENTO |
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SHANGHAI |
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SILICON VALLEY |
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TALLAHASSEE |
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TAMPA |
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TOKYO* |
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TYSONS CORNER |
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WASHINGTON, D.C. |
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ZURICH |
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*STRATEGIC ALLIANCE |
Smith & Wesson Holding Corporation
September 23, 2008
Page 2
The Depositary Shares will be in the form of depositary receipts and will be issued under one
or more Deposit Agreements (each, a Deposit Agreement), each Deposit Agreement to be between the
Company and a financial institution identified therein as the depositary (each, a Depositary).
The Warrants will be issued under one or more Warrant Agreements (each, a Warrant
Agreement), each to be between the Company and a counterparty or
counterparties identified therein or a financial institution identified therein as the Warrant
Agent (each, a Counterparty).
The Purchase Contracts will be issued under one or more Purchase Contracts or Purchase
Agreements (each, a Purchase Contract), each to be between the Company and a counterparty or
counterparties identified therein (the Purchase Contract Counterparty).
The Units will be issued under one or more Unit Agreements (each, a Unit Agreement), each to
be between the Company and a counterparty or counterparties identified therein (the Unit
Counterparty).
The facts, as we understand them, are set forth in the Registration Statement.
With respect to the opinions set forth below, we have examined originals, certified copies, or
copies otherwise identified to our satisfaction as being true copies, only of the following:
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A. |
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The Amended and Restated Articles of Incorporation of the
Company, as amended to date; |
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B. |
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The Amended and Restated Bylaws of the Company, as amended to
date; |
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C. |
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The Registration Statement; and |
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D. |
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The resolutions of the Board of Directors of the Company
relating to the approval of the filing of the Registration Statement and
transactions in connection therewith. |
In rendering the opinions set forth below, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us as duplicates or
certified or conformed copies, and the authenticity of originals or such latter documents. We have
also assumed that (i) at the time of execution, authentication, issuance, and delivery of the Debt
Securities, the Indenture will be the valid and legally binding obligation of the Trustee; (ii) at
the time of execution, authentication, issuance, and delivery of Depositary Shares, the Deposit
Agreement will be the valid and
GREENBERG TRAURIG, LLP
Smith & Wesson Holding Corporation
September 23, 2008
Page 3
legally binding obligation of the Depositary; (iii) at the time of
execution, countersignature, issuance, and delivery of any Warrants, the Warrant Agreement will be
the valid and legally binding obligation of each Counterparty thereto; (iv) at the time of
execution, countersignature, issuance, and delivery of any Purchase Contract, the Purchase Contract
will be the valid and legally binding obligation of each Purchase Contract Counterparty thereto;
and (v) at the time of execution, countersignature, issuance, and delivery of any
Units, the Unit Agreement will be the valid and legally binding obligation of each Unit
Counterparty thereto.
As to various questions of fact material to this opinion, we have relied, to the extent we
deemed reasonably appropriate, upon representations or certificates of officers or directors of the
Company, without independently verifying the accuracy of such documents, records, and instruments.
In connection with the issuance of the Debt Securities, we have assumed further that (i) at
the time of execution, authentication, issuance, and delivery of any Debt Securities, the related
Indenture will have been duly authorized, executed, and delivered by the Company; and (ii) the
execution, delivery, and performance by the Company of the Indenture and the Debt Securities will
not violate the laws of any jurisdiction (provided that as to the Nevada General Corporation Law
and the federal laws of the United States we make no such assumption).
In connection with the issuance of Depositary Shares, we have assumed further that (i) at the
time of execution, countersignature, issuance, and delivery of any Depositary Shares, the related
Deposit Agreement will have been duly authorized, executed, and delivered by the Company; and (ii)
the execution, delivery, and performance by the Company of such Deposit Agreement and such
Depositary Shares will not violate the laws of any jurisdiction (provided that as to Nevada General
Corporation Law and the federal laws of the United States we make no such assumption).
In connection with the issuance of Warrants, we have assumed further that (i) at the time of
execution, countersignature, issuance, and delivery of any Warrants, the related Warrant Agreement
will have been duly authorized, executed, and delivered by the Company; and (ii) the execution,
delivery, and performance by the Company of such Warrant Agreement and such Warrants will not
violate the laws of any jurisdiction (provided that as to the Nevada General Corporation Law and
the federal laws of the United States we make no such assumption).
In connection with the issuance of Purchase Contracts, we have assumed further that (i) at the
time of execution, countersignature, issuance, and delivery of any Purchase Contracts, the related
Purchase Contract will have been duly authorized, executed, and delivered by the Company; and (ii)
the execution, delivery, and performance by the Company of such Purchase Contract and such Purchase
Contracts will not violate the laws
GREENBERG TRAURIG, LLP
Smith & Wesson Holding Corporation
September 23, 2008
Page 4
of any jurisdiction (provided that as to the Nevada General
Corporation Law and the federal laws of the United States we make no such assumption).
In connection with the issuance of the Units, we have assumed further that (i) at the time of
execution, countersignature, issuance, and delivery of any Units, the related Unit Agreement will
have been duly authorized, executed, and delivered by the Company; and (ii) the execution,
delivery, and performance by the Company of such Unit Agreement and such Units will not violate the laws of any jurisdiction (provided that as to
the Nevada General Corporation Law and the federal laws of the United States we make no such
assumption).
Based solely upon and subject to the foregoing, and subject to the assumptions, limitations,
and qualifications stated herein, we are of the opinion that:
(1) With respect to the Common Stock, assuming (i) the Registration Statement (including any
amendments thereto) shall become effective under the Act; (ii) the taking by the Board of Directors
of the Company of all necessary corporate action to authorize and approve the issuance of the
Common Stock; and (iii) due issuance and delivery of the Common Stock upon payment therefor in
accordance with the applicable definitive underwriting agreement, if applicable, or Prospectus or
Prospectus Supplement approved by the Board of Directors of the Company, the Common Stock will be
validly issued, fully paid, and nonassessable.
(2) With respect to the Preferred Stock, assuming (i) the Registration Statement (including
any amendments thereto) shall become effective under the Act; (ii) the taking by the Board of
Directors of the Company of all necessary corporate action to authorize and approve the issuance
and terms of the Preferred Stock and the terms of the offering thereof; (iii) due filing of the
Certificate of Designation with the Nevada Secretary of State setting forth the terms of such
Preferred Stock; and (iv) due issuance and delivery of the Preferred Stock upon payment therefor in
accordance with the applicable definitive underwriting agreement, if applicable, or Prospectus or
Prospectus Supplement approved by the Board of Directors of the Company, the Preferred Stock will
be validly issued, fully paid, and nonassessable.
(3) With respect to the Debt Securities, assuming (i) the Registration Statement (including
any amendments thereto) shall become effective under the Act; (ii) the taking of all necessary
corporate action to approve the issuance and terms of the Debt Securities, the terms of the
offering thereof, and related matters by the Board of Directors of the Company; (iii) the due
execution, authentication, issuance, and delivery of such Debt Securities upon payment of the
consideration therefor provided for in a definitive purchase, underwriting, or similar agreement,
as applicable, or Prospectus or Prospectus Supplement approved by the Board of Directors of the
Company, and otherwise in accordance with the provisions of the applicable Indenture and such
definitive purchase, underwriting, or similar agreement, as applicable; and (iv) the conditions in
the applicable Indenture have been
GREENBERG TRAURIG, LLP
Smith & Wesson Holding Corporation
September 23, 2008
Page 5
satisfied, such Debt Securities will constitute valid and
legally binding obligations of the Company enforceable against the Company in accordance with their
terms.
(4) With respect to the Depositary Shares, assuming (i) the Registration Statement (including
any amendments thereto) shall become effective under the Act; (ii) the taking of all necessary
corporate action to authorize and approve the issuance of the Depositary Shares, the final terms
establishing the depositary receipts representing the Depositary Shares (the Depositary Receipts) in the form contemplated and authorized by a
Deposit Agreement, and related matters by the Board of Directors of the Company; (iii) due filing
of the Certificate of Designation with the Nevada Secretary of State setting forth the terms of
such Preferred Stock with respect to which Depositary Shares are issued; (iv) the due execution,
authentication, issuance, and delivery of the Depositary Shares, upon payment of the consideration
therefor provided for in a definitive purchase, underwriting, or similar agreement, as applicable,
or Prospectus or Prospectus Supplement approved by the Board of Directors of the Company, and
otherwise in accordance with the provisions of the applicable Deposit Agreement and such definitive
purchase, underwriting, or similar agreement, as applicable; and (v) the conditions in the
applicable Deposit Agreement have been satisfied, the Depositary Shares will be validly issued and
will entitle the holders thereof to the rights specified in the Depositary Receipts and such
Deposit Agreement for such Depositary Receipts.
(5) With respect to the Warrants, assuming (i) the Registration Statement (including any
amendments thereto) shall become effective under the Act; (ii) the taking of all necessary
corporate action by the Board of Directors of the Company to approve the execution and delivery of
a Warrant Agreement and issuance of the Warrants; and (iii) the due execution, countersignature,
issuance, and delivery of such Warrants upon payment of the consideration therefor provided for in
a definitive purchase, underwriting, or similar agreement, as applicable, or Prospectus or
Prospectus Supplement approved by the Board of Directors of the Company, and otherwise in
accordance with the provisions of the applicable Warrant Agreement and such definitive purchase,
underwriting, or similar agreement, as applicable; and (iv) the conditions in the applicable
Warrant Agreement have been satisfied, such Warrants will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with their terms.
(6) With respect to the Purchase Contracts, assuming (i) the Registration Statement (including
any amendments thereto) shall have become effective under the Act; (ii) the taking of all necessary
corporate action by the Board of Directors of the Company to approve the execution and delivery of
a Purchase Contract; (iii) the due execution, countersignature, issuance, and delivery of such
Purchase Contracts upon payment of the consideration therefor provided for in a definitive
purchase, underwriting, or similar agreement, as applicable, or Prospectus or Prospectus Supplement
approved by the Board of Directors of the Company, and otherwise in accordance with the provisions
of the applicable Purchase Contract and such definitive purchase, underwriting, or similar
agreement, as applicable; (iv) the conditions in the applicable Purchase Contract have been
GREENBERG TRAURIG, LLP
Smith & Wesson Holding Corporation
September 23, 2008
Page 6
satisfied; (v) if such Purchase Contracts relate to the issuance and sale of Common Stock, the
actions described in paragraph 1 above have been taken; (vi) if such Purchase Contracts relate to
the issuance and sale of Preferred Stock, the actions described in paragraph 2 above have been
taken; (vii) if such Purchase Contracts relate to the issuance and sale of Debt Securities, the
actions described in paragraph 3 above have been taken, (viii) if such Purchase Contracts relate to
the issuance and sale of Depositary Shares, the actions described in paragraph 4 above have been
taken; and (ix) if such Purchase Contracts relate
to the issuance and sale of Warrants, the actions described in paragraph 5 above have been
taken, such Purchase Contracts will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms.
(7) With respect to the Units, assuming (i) the Registration Statement (including any
amendments thereto) shall have become effective under the Act; (ii) the taking of all necessary
corporate action by the Board of Directors of the Company to approve the execution and delivery of
a Unit Agreement and issuance of the Units; (iii) the due execution, countersignature, issuance,
and delivery of the Units upon payment of the consideration therefor provided for in a definitive
purchase, underwriting, or similar agreement, as applicable, or Prospectus or Prospectus Supplement
approved by the Board of Directors of the Company, and otherwise in accordance with the provisions
of the applicable Unit Agreement and such definitive purchase, underwriting, or similar agreement,
as applicable; (iv) the conditions in the applicable Unit Agreement have been satisfied; (v) if
such Unit Agreements relate to the issuance and sale of Common Stock, the actions described in
paragraph 1 above have been taken; (vi) if such Unit Agreements relate to the issuance and sale of
Preferred Stock, the actions described in paragraph 2 above have been taken; (vii) if such Unit
Agreements relate to the issuance and sale of Debt Securities, the actions described in paragraph 3
above have been taken; (viii) if such Unit Agreements relate to the issuance and sale of Depositary
Shares, the actions described in paragraph 4 above have been taken; and (ix) if such Unit
Agreements relate to the issuance and sale of Warrants, the actions described in paragraph 5 above
have been taken, such Units will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms.
The opinions set forth in paragraphs 3 through 7 above are subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other similar laws
now or hereafter in effect relating to or affecting creditors rights generally; (ii) the effects
of general equitable principles, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, and the possible unavailability of specific
performance or injunctive relief, whether enforcement is considered in a proceeding in equity or
law; (iii) the discretion of the court before which any proceeding for enforcement may be brought;
and (iv) the unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with respect to a
liability where such indemnification or contribution is contrary to the public policy.
GREENBERG TRAURIG, LLP
Smith & Wesson Holding Corporation
September 23, 2008
Page 7
Although we have acted as counsel to the Company in connection with certain other matters, our
engagement is limited to certain matters about which we have been consulted. Consequently, there
may exist matters of a legal nature involving the Company in connection with which we have not been
consulted and have not represented the Company. This opinion letter is limited to the matters
stated herein and no opinions may be implied or inferred beyond the matters expressly stated
herein. The opinions expressed herein are as of the date hereof, and we assume no obligation to
update or supplement such opinions to reflect any facts or circumstances that may hereafter come to our
attention or any changes in law that may hereafter occur.
This opinion is being furnished to the Company solely for submission to the Commission as an
exhibit to the Registration Statement and, accordingly, may not be reprinted, reproduced, or
distributed to, relied upon by, quoted in any manner to, or delivered to any other person or entity
without, in each instance, our prior written consent, except that we hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm
therein. In giving this consent, we do not admit that we are experts within the meaning of Section
11 of the Act or within the category of persons whose consent is required by Section 7 of the Act.
We are qualified to practice law in the state of Arizona and we do not purport to be experts
on the law of any other jurisdiction other than the federal laws of the United States of America
and the Nevada General Corporation Law. We do not express any opinion herein concerning any law
other than the laws of the state of Arizona, the federal laws of the United States and, to the
extent set forth herein, the Nevada General Corporation Law. We express no opinion and make no
representation with respect to the law of any other jurisdiction.
This opinion is rendered only to the Company and is solely for the benefit of the Company in
connection with the transactions covered hereby. This opinion may not be relied upon by you for
any other purpose, or furnished to, quoted to, or relied upon, by any other person, firm, or
corporation for any purpose, without our prior written consent.
GREENBERG TRAURIG, LLP
Smith & Wesson Holding Corporation
September 23, 2008
Page 8
We hereby expressly consent to (i) any reference to our firm in the Registration Statement, in
any registration statement filed pursuant to Rule 462(b) under the Act for this same offering, and
in any prospectus supplement filed pursuant to Rule 424 under the Act for this same offering; (ii)
the inclusion of this opinion as an exhibit to the Registration Statement and the incorporation by
reference into any such additional registration statement; and (iii) the filing of this opinion
with any other appropriate governmental agency.
Very truly yours,
/s/ Greenberg Traurig, LLP
GREENBERG TRAURIG, LLP
exv23w2
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Prospectus constituting a part of this
Registration Statement of our reports dated June 27, 2008 relating to the consolidated financial
statements and effectiveness of Smith & Wesson Holding Corporations internal control over
financial reporting appearing in the Companys Annual Report on Form 10-K for the fiscal year ended
April 30, 2008.
We also consent to the reference to us under the caption Experts in the Prospectus.
/s/ BDO Seidman, LLP
Boston, Massachusetts
September
23, 2008
exv25w1
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS
TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
(Exact name of trustee as specified in its charter)
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New York
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13-3439945 |
(State of incorporation
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(I.R.S. employer |
if not a U.S. national bank)
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identification No.) |
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59 Maiden Lane
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New York, New York
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10038 |
(Address of trustees |
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(Zip Code) |
principal executive offices) |
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SMITH & WESSON HOLDING CORPORATION
(Exact name of obligor as specified in its charter)
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NEVADA
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87-0543688 |
(State or other jurisdiction of
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(I.R.S. employer |
incorporation or organization)
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identification No.) |
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2100 Roosevelt Avenue |
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Springfield, Massachusetts
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01104 |
(Address of principal executive
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(Zip Code) |
offices) |
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Debt Securities
(Title of the Indenture Securities)
-2-
GENERAL
1. |
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General Information. |
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Furnish the following information as to the trustee: |
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a. |
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Name and address of each examining or supervising authority to which
it is subject. |
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New York State Banking Department, Albany, New York |
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b. |
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Whether it is authorized to exercise corporate trust powers. |
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The Trustee is authorized to exercise corporate trust powers. |
2. |
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Affiliations with Obligor. |
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If the obligor is an affiliate of the trustee, describe each such affiliation. |
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None. |
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3. |
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Voting Securities of the Trustee. |
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Furnish the following information as to each class of voting securities of the
trustee: |
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As of August 31, 2008 |
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COL. A
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COL. B |
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Title of Class
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Amount Outstanding |
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Common Units - par value $1.00 per
unit.
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5,000,000 units |
4. |
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Trusteeships under Other Indentures. |
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None. |
-3-
Trusteeships under Other Indentures (continued)
5. |
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Interlocking Directorates and Similar Relationships with the
Obligor or Underwriters. |
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None. |
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6. |
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Voting Securities of the Trustee Owned by the Obligor or its
Officials. |
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None. |
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7. |
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Voting Securities of the Trustee Owned by Underwriters or their
Officials. |
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None. |
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8. |
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Securities of the Obligor Owned or Held by the Trustee. |
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None. |
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9. |
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Securities of Underwriters Owned or Held by the Trustee. |
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None. |
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10. |
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Ownership or Holdings by the Trustee of Voting Securities of
Certain Affiliates or Security Holders of the Obligor. |
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None. |
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11. |
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Ownership or Holdings by the Trustee of any Securities of
a Person Owning 50 Percent or More of the Voting Securities of the
Obligor. |
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None. |
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12. |
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Indebtedness of the Obligor to the Trustee. |
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None. |
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13. |
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Defaults by the Obligor. |
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None. |
-4-
14. |
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Affiliations with the Underwriters.
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None. |
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15. |
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Foreign Trustee. |
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Not applicable. |
-5-
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T-1.1 -
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A copy of the Articles of Organization of the Trustee, as
amended to date Exhibit 1 |
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T-1.2 -
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A copy of the Certificate of Authority of the Trustee to
commence business Exhibit 2 |
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T-1.4 -
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Limited Liability Trust Company Agreement of the Trustee
Exhibit 3 |
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T-1.6 -
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The consent of the Trustee required by Section 312(b) of the Trust
Indenture Act of 1939 Exhibit 4 |
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T-1.7 -
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A copy of the latest report of condition of the
Trustee published pursuant to law or the requirements of its
supervising or examining authority Exhibit 5 |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, American Stock
Transfer & Trust Company, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility and qualification to be signed on its behalf
by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York,
on the 12th of September, 2008.
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AMERICAN STOCK TRANSFER
& TRUST COMPANY, LLC
Trustee |
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By:
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/s/ Illegible
Vice President
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EXHIBIT
1
ARTICLES OF ORGANIZATION
OF
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
We, the undersigned, all being of full age, four of us being citizens of the United States,
having associated ourselves together for the purposes of forming a limited liability trust company
under and pursuant to the Banking Law of the State of New York, do hereby certify the following:
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First.
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The name by which the limited
liability trust company is to be known is
American Stock Transfer & Trust Company, LLC. |
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Second.
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The place where its principal office is to be located is 59 Maiden Lane, Borough
of Manhattan, City, County, and State of New York. |
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Third.
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The amount of its capital contributions is to be Five Million Dollars ($5,000,000),
and the number of units into which such capital contributions are to be
divided is five million (5,000,000) units with a par value of $1.00 each. |
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Fourth.
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The company will not have classes
or groups of members, therefore there is only
one class of members. Each member shall share the same relative rights,
powers, preferences, limitations, and voting powers. |
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Fifth.
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The name, place of residence, and citizenship of each organizer are as follows: |
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Name |
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Residence |
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Citizenship |
George Karfunkel
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Brooklyn, NY, USA
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USA |
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Michael Karfunkel
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Brooklyn, NY, USA
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USA |
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Cameron Blanks
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Cremorne Point, Australia
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Australia |
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Timothy J. Sims
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Terrey Hills, Australia
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Australia |
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Paul J. McCullagh
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Tamarama, Australia
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Ireland |
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Joseph John OBrien
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Bondi Beach, Australia
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USA |
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Jay F. Krehbiel
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Darling Point, Australia
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USA |
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Sixth.
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The term of existence of the trust company is to be until December 31, 2030,
unless the interest holders agree to extend such date. |
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Seventh.
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The number of managers of the company is to be not less than seven nor more
than fifteen. |
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Eighth.
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The names of the organizers who shall manage the company until the first annual
meeting of members are as follows: George Karfunkel, Michael Karfunkel,
Cameron Blanks, Timothy J. Sims, Paul J. McCullagh, Joseph John OBrien, and
Jay F. Krehbiel. |
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Ninth.
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The limited liability trust company is to exercise the powers conferred by Section
100 of the Banking Law. The limited liability trust company shall neither
accept |
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deposits nor make loans except for deposits and loans arising directly
from the exercise of the fiduciary powers specified in Section 100 of the
Banking Law. |
IN WITNESS WHEREOF, We have made, signed, and acknowledged this certificate in duplicate
this ___ day of March 2008.
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/s/ George Karfunkel
George Karfunkel
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Paul J. McCullagh
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/s/ Michael Karfunkel
Michael Karfunkel
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Joseph John OBrien
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Jay F. Krehbiel
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NOTARY:
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State of NY
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} |
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ss.: |
County of Kings
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} |
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On this 28th day of March, 2008 personally appeared before me
to me known to be the persons described in and who executed the foregoing certificate, and
severally acknowledged that they executed the same.
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/s/ Anthony J. Foti
Anthony
J. Foti Notary Public, State of New York No. of
FO6022425 Qualified in Kings County Commission Expires
March 29, 2011
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deposits nor make loans except for deposits and loans arising directly from
the exercise of the fiduciary powers specified in Section 100 of the Banking
Law. |
IN WITNESS WHEREOF, We have made, signed, and acknowledged this certificate in duplicate
this ___ day of March 2008.
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/s/ Paul J. McCullagh
Paul J. McCullagh
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Joseph John OBrien
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/s/ Cameron Blanks
Cameron Blanks
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/s/ Jay F. Krehbiel
Jay F. Krehbiel
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/s/ Timothy J. Sims
Timothy J. Sims
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NOTARY:
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State of NEW SOUTH WALES
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} |
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ss.: |
County of AUSTRALIA
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On this 27th day of March, 2008 personally appeared before me
to me known to be the persons described in and who executed the foregoing certificate, and
severally acknowledged that they executed the same.
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/s/ Brendan Anthony Bateman
BRENDAN ANTHONY BATEMAN
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deposits nor make loans except for deposits and loans arising directly from
the exercise of the fiduciary powers specified in Section 100 of the
Banking Law. |
IN WITNESS WHEREOF, We have made, signed, and acknowledged this certificate in duplicate
this ___ day of March 2008.
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Paul J. McCullagh
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/s/ Joseph John OBrien
Joseph John OBrien
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Jay F. Krehbiel
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NOTARY: |
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Kingdom of Thailand |
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Bangkok Metropolis |
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Embassy of the United States |
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State of
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of America |
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County of
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On
this _____ day of MAR 27 2008, _______ personally appeared before me
to me
known to be the persons described in and who executed the foregoing certificate, and
severally acknowledged that they executed the same.
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/s/ Chamnannuch Scherer
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Chamnannuch Scherer
Consular Associate of the
United States of America |
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Indefinite |
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EXHIBIT 2
State of New York
Banking Department
Whereas, the Articles of Organization of AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, of New
York, New York, have heretofore been duly approved and said AMERICAN STOCK TRANSFER & TRUST
COMPANY, LLC has complied with the provisions of Chapter 2 of the Consolidated Laws,
Now Therefore I, David S. Fredsall, as Deputy Superintendent of Banks of the State of New York, do
hereby authorize the said AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC to transact the business of
a Limited Liability Trust Company, at 59 Maiden Lane, Borough of Manhattan, City of New
York within this State.
In Witness Whereof, I have hereunto set my hand and affixed the
official seal of the Banking Department, this 30th
day of May in the year two thousand and eight.
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/s/
Illegible
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Deputy Superintendent of
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EXHIBIT 3
LIMITED LIABILITY TRUST COMPANY AGREEMENT
OF
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
THIS LIMITED LIABILITY TRUST COMPANY AGREEMENT (the Agreement) of American Stock
Transfer & Trust Company, LLC (the Company) dated as of this 28th day of
May, 2008, by Armor Holding II LLC, as the sole member of the Company (the Member).
RECITAL
The Member has converted the Company into a limited liability trust company under
the laws of the State of New York and desires to enter into a written agreement, in
accordance with the provisions of the Limited Liability Company Law of the State of New
York and any successor statute, as amended from time to time (the Act) and the
Banking Law of the State of New York and any successor statute, as amended from time to
time (the Banking Law), governing the affairs of the Company and the conduct of its
business.
ARTICLE 1
The Limited Liability Trust Company
a. Formation. The Member has converted the Company into a limited
liability trust company pursuant to the Act and the Banking Law. The conversion of the
Company from a New York trust company into a New York limited liability trust company
was approved by the New York Banking Board on April 17, 2008 in conformity with Section
102-a(3) of the Banking Law. The conversion to a limited liability trust company will
become effective on the date that the New York State Banking Department issues an
Authorization Certificate for the converted entity.
b. Name. The name of the Company shall be American Stock Transfer &
Trust Company, LLC and its business shall be carried on in such name with such
variations and changes as the Board (as hereinafter defined) shall determine or deem
necessary to comply with requirements of the jurisdictions in which the Companys
operations are conducted.
c. Business
Purpose; Powers. The purposes for which the Company is formed
are:
(i) to exercise the powers conferred by Section 100 of the Banking Law, including corporate
trust powers; personal trust powers; pension trust powers for tax qualified, pension trusts and
retirement plans; and common or collective trust powers; provided, however, that the Company shall
neither accept deposits nor make loans except for deposits and loans arising directly from the
exercise of its fiduciary powers as specified in this Section l(c); and
(ii) in furtherance of the foregoing, to engage in any lawful act or activity for which
limited liability trust companies may be formed under the Banking Law.
d. Registered
Office and Agent. The Secretary of State is designated as agent of the
limited liability company upon whom process against it may be served. The post office address
within or without this state to which the Secretary of State shall mail a copy of any process
against the limited liability company served upon him or her is 59 Maiden Lane, Plaza Level, New
York NY 10038.
e. Term. Subject to the provisions of Article 6 below, the Company shall continue
until December 31, 2030, unless the Members agree to extend such date.
ARTICLE 2
The Member
a. The
Member. The name and address of the Member is as follows:
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Name |
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Address |
Armor Holding II LLC
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c/o American Stock Transfer & Trust Company, LLC
59 Maiden Lane, Plaza Level, New York, NY 10038. |
b. Actions
by the Member; Meetings. All actions taken by a member must be duly
authorized by the board of managers of the Member (the Members Board) in accordance with the
Shareholders Agreement (as hereinafter defined). Subject to the foregoing sentence, the Member may
approve a matter or take any action at a meeting or without a meeting by the written consent of the
Member. Meetings of the Member may be called at any time by the Member.
c. Liability
of the Member. All debts, obligations and liabilities of the Company,
whether arising in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and the Member shall not be obligated
personally for any such debt, obligation or liability of the Company solely by reason of being a
member, except as otherwise provided for by law.
d. Power
to Bind the Company. Except as required by the Act or the Banking Law, the
Member (acting in its capacity as such) shall have no authority to bind the Company to any third
party with respect to any matter.
e. Admission
of Members. New members shall be admitted only upon the approval of
the Member and the Board in accordance with Section 3(c)(i)(A).
f. Engagement
of Third Parties. Subject to the provisions of Article 3, the Company,
may, from time to time, employ any Person or engage third parties to render services to the Company
on such terms and for such compensation as the Member may reasonably determine, including,
attorneys, investment consultants, brokers or finders, independent auditors and printers. Such
employees and third parties may be affiliates of any Member. Persons retained, engaged or employed
by the Company may also be engaged, retained or employed by and act on behalf of one or more Member
or any of their respective affiliates.
ARTICLE 3
The Board
a. Management
By Board of Managers.
(i) Subject to Section 3(f) and such matters which are expressly reserved hereunder, under the
Act, under the Banking Law or under that certain Shareholders Agreement, dated as of May 27, 2008,
among the Shareholders of Armor Holdco, Inc. and Armor Holdco, Inc. (the Shareholders Agreement),
to the Member for decision, the business and affairs of the Company shall be managed by a board of
managers (the Board), which shall be responsible for policy setting, approving the overall
direction of the Company and making all decisions affecting the business and affairs of the
Company. The Board shall consist of seven (7) individuals (the Managers). The initial Board shall
consist of seven (7) members, who shall be George Karfunkel, Michael Karfunkel (each of George
Karfunkel and Michael Karfunkel, and any of their respective successors, individually, a Family
Manager), Cameron Blanks, Timothy J. Sims, Paul James McCullagh, Joseph John OBrien, and Jay
Frederick Krehbiel (each of Cameron Blanks, Timothy J. Sims, Paul James McCullagh, Joseph John
OBrien, and Jay Frederick Krehbiel, and any of their respective
successors, individually, a PEP
Manager).
(ii) Each Manager shall be elected by the Member and shall serve until his or her successor has
been duly elected and qualified, or until his or her earlier removal, resignation, death or
disability. Subject to the provisions of clause (iii) below, the Member may remove any Manager from
the Board or from any other capacity with the Company at any time, with or without cause. A Manager
may resign at any time upon written notice to the Member.
(iii) The Member may take all actions necessary to cause the Board to consist of
the same managers that compose the Members Board. Accordingly, if any person who is a
member of the Members Board ceases to be a member of such board for any reason, the
Member may take such action as is necessary to remove such person from the Board and
elect to the Board the person appointed to the Members Board in place of such person.
(iv) Any vacancy occurring on the Board as a result of the resignation, removal,
death or disability of a Manager or an increase in the size of the Board shall be
filled by the Member. A Manager chosen to fill a vacancy resulting from the
resignation, removal, death or disability of a Manager shall serve the unexpired term
of his or her predecessor in office.
b. Action
By the Board.
(i) Meetings of the Board shall be held at least once per quarter. Each Manager
may call a meeting of the Board upon two (2) days prior written notice to each Manager.
The presence of a majority of the Managers then in office shall constitute a quorum at
any meeting of the Board, provided that such majority includes at least two (2) Family
Managers and two (2) PEP Managers. Subject to Section 3(c) below, all actions of the
Board shall require the affirmative vote of a majority of the Managers then in office.
(ii) Meetings of the Board may be conducted in person or by conference telephone
facilities. Any action required or permitted to be taken at any meeting of the Board
may be taken without a meeting if such number of Managers sufficient to approve such
action pursuant to the terms of this Agreement consent thereto in writing. Notice of
any meeting may be waived by any Manager.
c. Notwithstanding anything in this Agreement to the contrary (but subject in all
cases to the provisions of this Section 3(c)), the Company shall not take any
Fundamental Actions, or enter into any arrangement or contract to do any Fundamental
Actions, unless such Fundamental Action shall have received the following approvals:
(1) the approval of Managers holding a majority of the votes entitled to be cast by all
members of the Board of Managers and (2), until the earlier
of the Put Closing (if any) and the date on which the Family Shareholders cease to own Holdco Shares in accordance with the terms of the Shareholders Agreement, the approval of Family Managers
holding a majority of the votes entitled to be cast by the Family Managers. Terms capitalized but
not defined in this Section 3(c) shall have the meaning ascribed to such term in the Shareholders
Agreement.
(i) Until the first to occur of (a) the Put Termination Date (or if such date occurs before
June 30, 2010, then June 30, 2010) and (b) the date on which the Family Shareholders cease to own a
number of Holdco Shares equal to or greater than 10.0% of the Holdco Shares then outstanding
(calculated on a fully-diluted basis), Fundamental Actions shall mean:
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Issuance of Equity. Any issuance, redemption, repurchase or acquisition of
any Equity Securities of the Company or any of its Subsidiaries; |
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Amendment of Securities or Governing Documents. Any (i) repeal or material
amendment or alteration in any manner of the Governing Documents of the Company or any
of its Subsidiaries, including any change in the number of managers; or (ii) except as
expressly required by the terms of this Agreement or the Shareholders Agreement, any
amendment of any rights, powers, preferences, privileges or other terms of any Equity
Securities of the Company or any of its Subsidiaries, or any conversion of any Equity
Securities of the Company or any of its Subsidiaries into, or any exchange of such
Equity Securities for, any other securities or other instruments of any Person to the
extent such event would be adverse to the Family Shareholders; |
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Affiliate Transactions. Any contract, commitment, arrangement or transaction
between any Shareholder or any officer, director, employee, Affiliate or direct or
indirect equityholder of any Shareholder, the Company or any Subsidiary of the
Company, or any individual in such officers, directors, Affiliates or
equityholders immediate family, or any Person controlled by such officer, director,
employee, Affiliate or equityholder or any member of the immediate family (other than
Holdco or any of its Subsidiaries) of any of the foregoing (other than immediate
family members of employees), on the one hand, and the Company or any Subsidiary of
the Company, on the other hand, other than employment agreements or other agreements
or plans regarding compensation or employee benefits, with officers of the Company and
its Subsidiaries who are not part of Senior Management; |
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Bankruptcy. Pursuant to or within the meaning of any
Bankruptcy Law: (1) the commencement of a voluntary case; (2) the consent
to the entry of any order for relief against the Company in an involuntary
case; (3) the consent to the appointment of a custodian of the Company; or
(4) a general assignment for the benefit of the Companys creditors; |
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Mergers, Acquisitions. Subject to the provisions of
Section 6.3 of the Shareholders Agreement, any merger, consolidation,
reconstitution or reorganization of the Company or any of its Subsidiaries
with any other Person (other than Holdco or any of its Subsidiaries), or
any acquisitions of any material business or Person by any manner,
whether in a single transaction or a series of related transactions; |
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Public Offering. Any public offering of Equity
Securities (whether or not involving an issuance of equity or solely a
public offering of outstanding equity) of the Company or any of its
Subsidiaries (or any corporation into which the Company or any of its
Subsidiaries is converted at a future date); or |
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Dispositions. Any transfers or other dispositions by
the Company or any of its Subsidiaries (other than to Holdco or any of its
Subsidiaries) of all or a substantial amount of its properties or assets,
including by way of dividend or distribution other than cash dividends on
a pro rata basis to all Members in accordance with the number of Common
Interests (as hereinafter defined) owned by them. |
(ii) Following the first to occur of (a) the Put Termination Date (or if such date
occurs before June 30, 2010, then June 30, 2010) and (b) the date on which the Family
Shareholders ceases to own a number of Holdco Shares equal to or greater than 10.0% of
the Holdco Shares then outstanding (calculated on a fully-diluted basis), Fundamental
Actions shall mean:
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Issuance of Equity. Any issuance, redemption,
repurchase or acquisition of any Equity Securities of the Company or any
of its Subsidiaries other than with respect to a public offering of the
shares or other equity interests in the Company or any of its Subsidiaries
in which the Family Shareholders are entitled to participate as selling
shareholders in such public offering with cutback obligations that are no
less favorable than on a pro rata basis with any other Shareholder and
with no other Shareholder being provided more favorable registration
rights in connection therewith than those provided to the Family
Shareholders; |
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Governing Documents. Any (i) repeal or material amendment or alteration in any
manner of the Governing Documents of the Company or any of its Subsidiaries, including
any change in the number of managers; or (ii) except as expressly required by the
terms of this Agreement, any amendment of any rights, powers, preferences, privileges
or other terms of any Equity Securities of the Company or any of its Subsidiaries, or
any conversion of any Equity Securities of the Company or any of its Subsidiaries
into, or any exchange of such Equity Securities for, any other securities or other
instruments of any Person to the extent such event would be adverse to the Family
Shareholders; or |
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Affiliate Transactions. Any contract, commitment, arrangement or
transaction between any Shareholder or any officer, director, employee, Affiliate or
direct or indirect equityholder of any Shareholder, the Company or any Subsidiary of
the Company, or any individual in such officers, directors, Affiliates or
equityholders immediate family, or any Person controlled by such officer, director,
employee, Affiliate or equityholder or any member of the immediate family (other than
Holdco or any of its Subsidiaries) of any of the foregoing (other than immediate
family members of employees), on the one hand, and the Company or any Subsidiary of
the Company, on the other hand, other than employment agreements or other agreements
or plans regarding compensation or employee benefits, with officers of the Company
and its Subsidiaries who are not part of Senior Management. |
d. Power to Bind Company. None of the Managers (acting in their capacity as such)
shall have authority to bind the Company to any third party with respect to any matter unless the
Board shall have approved such matter and authorized such Manager(s) to bind the Company with
respect thereto.
e. President. Upon execution of this Agreement, the Member agrees to take such action
and to cause the Board to take such action as is necessary to cause Michael Karfunkel to be
appointed by the Board to serve as Chairman, Chief Executive Officer and President of the Company
(the President) and Herbert Lemmer to be appointed by the Board to serve as Secretary of the
Company.
f. Powers
of President. Terms capitalized but not defined in this
Section 3(f) shall
have the meaning ascribed to such term in the Shareholders Agreement. At the discretion of the
President, provided that such actions are taken in good faith and in the best interests of the
Company and the Shareholders, the Company and its Subsidiaries shall:
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Debt. Incur, assume, guarantee or prepay indebtedness for borrowed money
up to $1,000,000 in the aggregate, during any calendar year; provided that the
Company and its Subsidiaries shall, at all times, be entitled to incur, assume,
guarantee or prepay trade payables arising in the ordinary course of business; |
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Capital Expenditures. Make capital expenditures up to $1,000,000,
in the aggregate, during any calendar year; |
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Information Technology/Intellectual Property Development. Make any
payment for the development, purchase or license of any new information technology or
intellectual property which, together with all other such payments, during the
calendar year of such payment, is up to $1,000,000; |
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Contracts. Enter into any new Contract obligating the Company or any
of its Subsidiaries to make payments of up to $1,000,000 over the contract term; |
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Officers. Appoint or terminate any other officers and employees of
the Company and its Subsidiaries; and |
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Kaufthal. Modify, amend, restate or replace the Employment Agreement
between Amtrust Equity Plan Solutions, Inc. and Uri Kaufthal and the Shareholders
Agreement dated as of February 9, 2006 among Amtrust Equity Plan Solutions, Inc., Uri
Kaufthal, Michael Karfunkel and George Karfunkel in connection with providing equity
interests, equity incentives, options, performance units or other incentive-based
compensation to Mr. Uri Kaufthal by reason of his equity interest in AST Equity Plan
Solutions, Inc., provided that prior to any such modification, amendment, restatement
or replacement, the President shall receive oral or written consent (not to be
unreasonably withheld or delayed) to such modification, amendment, restatement or
replacement from the majority of the PEP Directors regarding the terms of such
modification, amendment, restatement or replacement. |
ARTICLE 4
Capital Structure and Contributions
a. Capital Structure. The capital structure of the Company shall consist of one class
of common interests, par value $1.00 (the Common Interests). Each Common Interest shall entitle
its holder to one vote per Common Interest on each matter on which the Member shall be entitled to
vote. All Common Interests
shall be identical with each other in every respect. The Company shall be authorized to issue
5,000,000 Common Interests. In exchange for all of the outstanding shares of American Stock
Transfer & Trust Company held by the Member, the 5,000,000 Common Interests shall be issued to the
Member. The Member shall own all of the Common Interests issued and outstanding.
b. Capital
Contributions. From time to time, the Board may determine that the Company
requires capital and may request the Member to make capital contribution(s) in an amount determined
by the Board. A capital account shall be maintained for the Member, to which contributions and
profits shall be credited and against which distributions and losses shall be charged.
c. Right
to Issue Certificates. The ownership of a Common Interest by a Member shall
be evidenced by a certificate (a Certificate) issued by the Company.
d. Form
of Certificates. Certificates attesting to the ownership of Common Interests
in the Company shall be in substantially the form set forth in Exhibit A hereto and shall state
that the Company is a limited liability trust company formed under the laws of the State of New
York, the name of the Member to whom such Certificate is issued and that the Certificate represents
limited liability trust company interests within the meaning of the Act and the Banking Law. Each
Certificate shall bear the following legend:
This Certificate evidences a Common Interest in the American Stock Transfer &
Trust Company, LLC (the Company) and shall be a security for purposes of Article
8 of the Uniform Commercial Code. The Common Interest represented by this
Certificate, and any sale, pledge, hypothecation or transfer thereof, are subject
to the provisions of the Limited Liability Trust Company Agreement of the Company
dated as of May 27, 2008 (the LLTC Agreement) and the Shareholders Agreement
dated as of May 27, 2008 among the shareholders of Armor Holdco, Inc. and Armor
Holdco, Inc. (together with the LLTC Agreement, the Agreements) which place
certain restrictions on the transfer of such Common Interest. Any Person accepting
the Common Interest represented by this Certificate shall agree to the provisions
of such Agreements. A copy of such Agreements will be furnished to the record
holder of this Certificate without charge upon written request to the Company at
its principal place of business.
e. Execution. Each Certificate shall be signed by the Chief Executive Officer or the
President of the Company and by the Secretary or an Assistant Secretary of the Company by either
manual or facsimile signature.
f. Registrar. The Company shall maintain an office where Certificates may be presented
for registration of transfer or for exchange. Unless otherwise designated, the Secretary of the
Company shall act as registrar and shall keep a register of the Certificates and of their transfer
and exchange.
g. Issuance. The Certificates of the Company shall be numbered and registered in the
interest register or transfer books of the Company as they are issued.
h. Common
Interest Holder Lists. The Company shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of all
holders of Common Interests.
i. Transfer
and Exchange. When Certificates are presented to the Company with a
request to register a transfer, the Company shall register the transfer or make the exchange on the
register or transfer books of the Company; provided, that any Certificates presented or
surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Company duly executed by the holder
thereof or his attorney duly authorized in writing. Notwithstanding the foregoing, the Company
shall not be required to register the transfer, or exchange, any Certificate if as a result the
transfer of the Common Interest at issue would cause the Company or the Member to violate the
Securities Act, the Exchange Act, the Investment Company Act, or the laws, rules, regulations,
orders and other directives of any Governmental Authority or otherwise violate the terms of this
Agreement or the Shareholders Agreement.
j. Record
Holder. Except to the extent that the Company shall have received written
notice of an assignment of Common Interests and such assignment complies with the requirements of
Section 7(a) of this Agreement, the Company shall be entitled to treat the individual or entity in
whose name any Certificates issued by the Company stand on the books of the Company as the absolute
owner thereof, and shall not be bound to recognize any equitable or other claim to, or interest in,
such Common Interests on the part of any other individual or entity.
k. Replacement
Certificates. If any mutilated Certificate is surrendered to the
Company, or the Company receives evidence to its satisfaction of the destruction, loss or theft of
any Certificate, the Company shall issue a replacement Certificate if the requirements of
Section 8-405 of the Uniform Commercial Code are met. If required by the Company, an indemnity and/or the
deposit of a bond in such form and in such sum, and with such surety or sureties as the Company may
direct, must be supplied by the holder of such lost, destroyed or stolen Certificate that is
sufficient in the judgment of the Company to protect the Company from any loss that it may suffer
if a Certificate is replaced. The Company may charge for its expenses incurred in connection with
replacing a Certificate.
ARTICLE 5
Profits, Losses and Distributions
a.
Profits and Losses. For financial accounting and tax purposes, the Companys net
profits or net losses shall be determined on an annual basis in accordance with the manner
determined by the Board. In each year, profits and losses shall be allocated entirely to the
Member.
b. Distributions. The Board shall determine profits available for distribution and the
amount, if any, to be distributed to the Member, and shall authorize and distribute on the Common
Interests, the determined amount when, as and if declared by the Board. The distributions of the
Company shall be allocated entirely to the Member, provided, however, such distributions are in
accordance with the Banking Law.
ARTICLE 6
Events of Dissolution
The Company shall be dissolved and its affairs wound up only upon the occurrence of any of the
following events (each, an Event of Dissolution):
a. The Board votes for dissolution; or
b. A dissolution of the Company under Section 102-a(2) of the
Banking Law or Section 701 of the Act.
ARTICLE 7
Transfer of Interests in the Company
Except upon the approval of the Members Board in accordance with Section 4.2 of the
Shareholders Agreement, the Member may not sell, assign, transfer, convey, gift, exchange or
otherwise dispose of any or all of its Common Interests; provided, that the Member may
sell, assign (as collateral security or otherwise), transfer or otherwise dispose of such Common
Interests to the secured parties to the extent required by the Debt Facility and Mezzanine Note
Facility (as
defined in the Shareholders Agreement) (including any refinancings, replacements, restatements,
amendments or other modifications to those agreements), and such secured parties may sell, assign,
transfer or otherwise dispose of such Common Interests in connection with the enforcement of such
security interest to the extent provided in the Senior Finance Documents (as defined in the Debt
Facility) and the Mezzanine Note Finance Documents (as defined in the Mezzanine Note Facility), and
the restrictions in Article 3, this Article 7 or any other provision hereunder shall not apply with
respect to any such sale, assignment, transfer or other disposition. Subject to the foregoing
provisions of this Article 7, upon receipt by the Company of a written agreement executed by the
person or entity to whom such Common Interests are to be transferred agreeing to be bound by the
terms of this Agreement, such person shall be admitted as a member, provided, however, that
transfers of interests to a controlling party shall first be approved by the Banking Board as may
be required by section 143-b of the Banking Law.
ARTICLE 8
Exculpation and Indemnification
a.
Exculpation. The Member shall not have any liability for the
obligations or liabilities of the Company except to the extent provided in the Act or
Banking Law. Notwithstanding any other provisions of this Agreement, whether
express or implied, or any obligation or duty at law or in equity, none of the Member,
Managers, or any officers, directors, stockholders, partners, employees, affiliates,
representatives or agents of any of the foregoing, nor any officer, employee,
representative or agent of the Company (individually, a Covered Person and,
collectively, the Covered Persons) shall be liable to the Company or any other
person for any act or omission (in relation to the Company, its property or the
conduct of its business or affairs, this Agreement, any related document or any
transaction or investment contemplated hereby or thereby) taken or omitted by a
Covered Person in the reasonable belief that such act or omission is in or is not
contrary to the best interests of the Company and is within the scope of authority
granted to such Covered Person by the Agreement, provided such act or omission
does not constitute fraud, willful misconduct, bad faith, or gross negligence.
b.
Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless each Covered Person from and against
any and all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, civil, criminal, administrative or investigative (Claims), in
which the Covered Person may be involved, or threatened to be involved, as a party
or otherwise, by reason of its management of the affairs of the Company or which
relates to or arises out of the Company or its property, business or affairs. A
Covered Person shall not be entitled to indemnification under this Section 8 with respect to (i)
any Claim with respect to which such Covered Person has engaged in fraud, willful misconduct, bad
faith or gross negligence or (ii) any Claim initiated by such Covered Person unless such Claim (or
part thereof) (A) was brought to enforce such Covered Persons rights to indemnification hereunder
or (B) was authorized or consented to by the Board. Expenses incurred by a Covered Person in
defending any Claim shall be paid by the Company in advance of the final disposition of such Claim
upon receipt by the Company of an undertaking by or on behalf of such Covered Person to repay such
amount if it shall be ultimately determined that such Covered Person is not entitled to be
indemnified by the Company as authorized by this Article 8.
c.
Insurance. The Board in its discretion shall have the power to cause the
Company to purchase and maintain insurance in accordance with, and subject to, the Act and
Banking Law.
d.
Amendments. Any repeal or modification of this Article 8 by the Member shall not
adversely affect any rights of such Covered Person pursuant to this Article 8, including the right
to indemnification and to the advancement of expenses of a Covered Person existing at the time of
such repeal or modification with respect to any acts or omissions occurring prior to such repeal or
modification.
ARTICLE 9
Miscellaneous
a.
Tax Treatment. Unless otherwise determined by the Member, the
Company shall be a disregarded entity for U.S. federal income tax purposes (as well
as for any analogous state or local tax purposes), and the Member and the Company
shall timely make any and all necessary elections and filings for the Company to be
treated as a disregarded entity for U.S. federal income tax purposes (as well as for
any analogous state or local tax purposes).
b.
Amendments. Subject to approval by the Board in accordance with
Section 3(c), amendments to this Agreement and to the Certificate of Formation
shall be approved in writing by the Member. An amendment shall become effective
as of the date specified in the approval of the Member or if none is specified as of
the date of such approval or as otherwise provided in the Act.
c.
Severability. If any provision of this Agreement is held to be
invalid or unenforceable for any reason, such provision shall be ineffective to the
extent of such invalidity or unenforceability; provided, however, that the remaining
provisions will continue in full force without being impaired or invalidated in any
way unless such invalid or unenforceable provision or clause shall be so significant as to
materially affect the expectations of the Member regarding this Agreement. Otherwise, any invalid
or unenforceable provision shall be replaced by the Member with a valid provision which most
closely approximates the intent and economic effect of the invalid or unenforceable provision.
d.
Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the principles of conflicts of laws thereof.
e.
Limited Liability Trust Company. The Member intends to form a
limited liability trust company and does not intend to form a partnership under the
laws of the State of New York or any other laws.
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the day first above
written.
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ARMOR HOLDING II LLC |
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By:
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/s/ Michael Karfunkel
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Name:
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Michael Karfunkel
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Title:
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President |
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[AST LLTC OPERATING AGREEMENT]
EXHIBIT A
[FORM OF CERTIFICATE]
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Number
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[Common Interest/Units ] |
American Stock Transfer & Trust Company, LLC
a limited liability trust company formed under the laws of the State of
New York
Limited Liability Trust Company Common Interest
[Legend]
THIS CERTIFICATE EVIDENCES A COMMON INTEREST IN THE AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
(THE COMPANY) AND SHALL BE A SECURITY FOR PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE.
THE COMMON INTEREST REPRESENTED BY THIS CERTIFICATE, AND ANY SALE, PLEDGE, HYPOTHECATION OR
TRANSFER THEREOF, ARE SUBJECT TO THE PROVISIONS OF THE LIMITED LIABILITY TRUST COMPANY AGREEMENT OF
THE
COMPANY DATED AS OF [ ] (THE LLTC AGREEMENT) AND THE
SHAREHOLDERS AGREEMENT DATED AS OF [ ], 2008 AMONG THE
SHAREHOLDERS OF ARMOR HOLDCO, INC. AND ARMOR HOLDCO, INC. (TOGETHER WITH THE LLTC AGREEMENT, THE
AGREEMENTS) WHICH PLACE CERTAIN RESTRICTIONS ON THE TRANSFER OF SUCH COMMON INTEREST. ANY PERSON
ACCEPTING THE COMMON INTEREST REPRESENTED BY THIS CERTIFICATE SHALL AGREE TO THE PROVISIONS OF SUCH
AGREEMENTS. A COPY OF SUCH AGREEMENTS WILL BE FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
This
Certifies that
is the owner of
fully paid
and non-assessable Common Interests of the above-named Company and is entitled to the full benefits
and privileges of such Common Interest, subject to the duties and obligations, as more fully set
forth in the Agreements. This Certificate is transferable on the books of the Company by the holder
hereof in person or by duly authorized attorney upon surrender of this Certificate properly
endorsed.
In Witness Whereof the said Limited Liability Trust Company has caused this Certificate, and
the Common Interest it represents, to be signed by its duly authorized officers this day of
, 20 .
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[Title of person executing]
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[Title of person executing]
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16
EXHIBIT 4
Securities and Exchange Commission
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321 (b) of the Trust Indenture Act of 1939, and subject to
the limitations therein contained, American Stock Transfer & Trust Company, LLC hereby consents
that reports of examinations of said corporation by Federal, State, Territorial or District
authorities may be furnished by such authorities to you upon request therefor.
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Very truly yours, |
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AMERICAN STOCK
TRANSFER & TRUST COMPANY, LLC |
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By
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/s/ Illegible
Vice President
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Schedule RC 14
EXHIBIT 5
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Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for June 30, 2008
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All
schedules are to be reported in thousands of dollars. Unless otherwise Indicated, report the amount outstanding as of the last business day of the quarter.
Schedule RC Balance Sheet
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Dollar Amounts in Thousands |
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Bil Mil Thou |
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ASSETS |
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1. Cash and balances due from depository institutions (from Schedule RC-A): |
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a.
Noninterest-bearing balances and currency and coin (1) |
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RCON0081 |
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21,128 |
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1.a. |
b. Interest-bearing balances (2) |
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RCON0071 |
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542 |
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1.b. |
2. Securities: |
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a.
Held-to-maturity securities (from Schedule RC-B, column A) |
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RCON1754 |
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0 |
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2.a. |
b. Available-for-sale securities (from Schedule RC-B, column D) |
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RCON1773 |
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0 |
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2.b. |
3. Federal funds sold and securities purchased under agreements to resell: |
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a. Federal funds sold |
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RCONB987 |
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0 |
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3.a. |
b. Securities purchased under agreements to resell (3) |
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RCONB989 |
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0 |
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3.b. |
4. Loans and lease financing receivables (from Schedule RC-C): |
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a. Loans and leases held for sale |
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RCON5369 |
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0 |
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4.a. |
b. Loans and leases, net of unearned income |
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RCONB528 |
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0 |
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4.b. |
c. LESS: Allowance for loan and lease losses |
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RCON3123 |
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0 |
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4.c. |
d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) |
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RCONB529 |
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0 |
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4.d. |
5. Trading assets (from Schedule RC-D) |
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RCON3545 |
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0 |
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5. |
6. Premises and fixed assets (including capitalized leases) |
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RCON2145 |
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36,689 |
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6. |
7. Other real estate owned (from Schedule RC-M) |
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RCON2150 |
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0 |
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7. |
8.
Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) |
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RCON2130 |
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0 |
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8. |
9. Not applicable |
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10. Intangible assets: |
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a. Goodwill |
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RCON3163 |
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446,071 |
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10.a. |
b. Other intangible assets (from Schedule RC-M) |
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RCON0426 |
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489,940 |
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10.b. |
11. Other assets (from Schedule RC-F) |
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RCON2160 |
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15,061 |
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11. |
12. Total assets (sum of items 1 through 11) |
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RCON2170 |
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1,009,431 |
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12. |
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(1) |
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Includes cash items in process of collection and unposted debits. |
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(2) |
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Includes time certificates of deposit not held for trading. |
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(3) |
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Includes all securities resale agreements, regardless of maturity. |
Schedule RC 15
EXHIBIT 5
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Dollar Amounts in Thousands |
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Bil Mil Thou |
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LIABILITIES |
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13. Deposits: |
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a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) |
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RCON2200 |
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0 |
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13.a. |
(1) Noninterest-bearing (1) |
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RCON6631 |
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0 |
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13.a.(1) |
(2) Interest-bearing |
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RCON6636 |
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0 |
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13.a.(2) |
b. Not applicable |
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14. Federal funds purchased and securities sold under agreements to repurchase: |
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a. Federal funds purchased (2) |
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RCONB993 |
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0 |
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14.a. |
b. Securities sold under agreements to repurchase (3) |
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RCONB995 |
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0 |
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14.b. |
15. Trading liabilities (from Schedule RC-D) |
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RCON3548 |
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0 |
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15. |
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases)
(from Schedule RC-M) |
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RCON3190 |
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0 |
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16. |
17. Not applicable |
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18. Not applicable |
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19. Subordinated notes and debentures (4) |
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RCON3200 |
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0 |
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19. |
20. Other liabilities (from Schedule RC-G) |
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RCON2930 |
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6,765 |
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20. |
21. Total liabilities (sum of items 13 through 20) |
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RCON2948 |
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6,765 |
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21. |
22. Minority interest in consolidated subsidiaries |
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RCON3000 |
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0 |
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22. |
EQUITY CAPITAL |
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23. Perpetual preferred stock and related surplus |
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RCON3838 |
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0 |
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23. |
24. Common stock |
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RCON3230 |
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5,000 |
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24. |
25. Surplus
(exclude all surplus related to preferred stock) |
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RCON3839 |
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995,011 |
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25. |
26. |
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a. Retained earnings |
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RCON3632 |
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2,655 |
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26.a. |
b. Accumulated other comprehensive income (5) |
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RCONB530 |
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0 |
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26.b. |
27. Other equity capital components (6) |
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RCONA130 |
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0 |
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27. |
28. Total equity capital (sum of items 23 through 27) |
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RCON3210 |
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1,002,666 |
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28. |
29. Total liabilities, minority interest, and equity capital (sum of items 21, 22, and 28) |
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RCON3300 |
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1,009,431 |
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29. |
Memorandum
To be reported with the March Report of Condition.
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Number |
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1.
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Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external auditors as of
any date during 2007
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RCON6724
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N/A |
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M.1. |
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1
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=
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Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which submits a report on the
bank |
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2
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=
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Independent audit of the banks parent holding company conducted in
accordance with generally accepted auditing standards by a certified public accounting firm which
submits a report on the consolidated holding company (but not on the bank separately) |
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3
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=
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Attestation on bank managements assertion on the effectiveness of
the banks internal control over financial reporting by a certified public accounting firm |
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4
|
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=
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Directors examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting firm (may be required by
state chartering authority) |
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5
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=
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Directors examination of the bank performed by other external auditors
(may be required by state chartering authority) |
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6
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=
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Review of the banks financial statements by external auditors |
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7
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=
|
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Compilation of the banks financial statements by external auditors |
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8
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=
|
|
Other audit procedures (excluding tax preparation work) |
|
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9
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=
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No external audit work |
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(1) |
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Includes total demand deposits and noninterest-bearing time and savings deposits. |
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(2) |
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Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, Other borrowed
money. |
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(3) |
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Includes all securities repurchase
agreements, regardless of maturity. |
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(4) |
|
Includes limited-life preferred stock and
related surplus. |
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(5) |
|
Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated
net gains (losses) on cash flow hedges, and minimum pension
liability adjustments. |
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(6) |
|
Includes treasury stock and unearned Employee Stock Ownership Plan shares. |