As filed with the Securities and Exchange Commission on December 30, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ONCOTHYREON INC.
(Exact
name of registrant as specified in its charter)
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Delaware |
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26-0868560 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
2601 Fourth Ave., Suite 500
Seattle, Washington 98121
(206) 801-2100
(Address,
including zip code, and telephone number, including area code, of registrants principal executive offices)
Robert L.
Kirkman, M.D.,
Chief Executive Officer
Oncothyreon Inc.
2601
Fourth Ave., Suite 500
Seattle, Washington 98121
(206) 801-2100
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Alan C. Smith
Effie Toshav
James D.
Evans
Fenwick & West LLP
1191 Second Avenue, 10th Floor
Seattle, Washington 98101
(206) 389-4510
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earliest effective registration statement for the same offering: ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I. D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer |
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Accelerated filer |
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x |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Registered |
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Proposed Maximum Aggregate Offering Price(1)(2) |
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Amount of Registration
Fee(3) |
Common Stock, $0.0001 par value per share |
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Preferred Stock, $0.0001 par value per share |
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Warrants |
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Senior Debt Securities |
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Subordinated Debt Securities |
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Total |
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$150,000,000(4) |
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$14,364(4) |
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(1) |
An indeterminate number of shares of common stock and preferred stock, and an indeterminate number of warrants to purchase debt securities, common stock or preferred stock and an indeterminate amount of debt securities
are being registered hereunder, but in no event will the aggregate offering price exceed $150,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater
principal amount as shall result in an aggregate offering price not to exceed $150,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder. The securities registered also include such indeterminate amount and number of shares of common stock as may be issued upon conversion of preferred stock or pursuant to the antidilution provisions of any such
securities. The securities registered also include such indeterminate amount and number of shares of common stock as may be issued upon exercise of warrants or pursuant to the antidilution provisions of any such securities. The securities registered
also include such indeterminate amount and number of shares of common stock and debt securities as may be issued upon conversion of or exchange for debt securities that provide for conversion or exchange or pursuant to the antidilution provisions of
any such securities. |
(2) |
Unspecified pursuant to General Instruction II.D to Form S-3 under the Securities Act. |
(3) |
Calculated in accordance with Rule 457(o) under the Securities Act. |
(4) |
This Registration Statement registers an indeterminate amount of securities having an aggregate initial offering price of $150,000,000. Pursuant to Rule 415(a)(6) under the Securities Act, $26,386,606 of the securities
registered hereunder are unsold securities previously registered on the Registrants Registration Statement on Form S-3 (File No. 333-178726), filed on December 23, 2011, for which a filing fee of $3,023 was previously paid and will continue to
be applied to such unsold securities. The amount of the registration fee in the Calculation of Registration Fee table relates to the additional $123,613,394 of securities being registered hereunder. As a result, a filing fee of $14,364
is being paid herewith. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell
these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities, in any state where
the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 30, 2014
PROSPECTUS
$150,000,000
Oncothyreon Inc.
Common Stock, Preferred Stock,
Debt Securities and Warrants
We may offer
and sell common stock, preferred stock, debt securities and warrants, or any combination thereof, with a total value of up to $150,000,000.
This prospectus provides a general description of securities we may offer and sell from time to time. Each time we sell those securities, we
will provide their specific terms in a supplement to this prospectus. This prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement
carefully before you invest in any securities. This prospectus is not an offer and may not be used to consummate a sale of securities unless accompanied by the applicable prospectus supplement.
We may offer and sell these securities, from time to time, to or through one or more underwriters, dealers and agents, or directly to
purchasers, on a continuous or delayed basis, at prices and on other terms to be determined at the time of offering. If we use agents, underwriters or dealers to sell the securities, we will name them and describe their compensation in a prospectus
supplement.
Our common stock is listed on The NASDAQ Global Market under the symbol ONTY. On December 29, 2014, the last
reported sale price of our common stock on The NASDAQ Global Market was $1.91 per share.
An investment in our securities involves a
high degree of risk. You should carefully consider the information under the heading Risk Factors beginning on page 5 of this prospectus before investing in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of
this prospectus is , 2014
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the SEC) using a
shelf registration process. Under this shelf registration process, from time to time, we may sell any combination of the securities described in this prospectus in one or more offerings, up to a total dollar amount of $150,000,000. We
have provided to you in this prospectus a general description of the securities we may offer. Each time we sell securities under this shelf registration process, we will provide a prospectus supplement that will contain specific information about
the terms of the offering. We may also add, update or change in the prospectus supplement any of the information contained in this prospectus. 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 datefor example, a document incorporated
by reference in this prospectus or any prospectus supplementthe statement in the document having the later date modifies or supersedes the earlier statement. You should read both this prospectus and any prospectus supplement together with
additional information described under the next heading Where You Can Find More Information.
You should rely only on the
information contained in or incorporated by reference into this prospectus or any applicable prospectus supplement. No dealer, salesperson or any other person is authorized to give any information or to make any representation other than the
information and representations contained in or incorporated by reference into this prospectus or any applicable prospectus supplement. If different information is given or different representations are made, you may not rely on that information or
those representations as having been authorized by us. You may not imply from the delivery of this prospectus and any applicable prospectus supplement, nor from a sale made under this prospectus and any applicable prospectus supplement, that our
affairs are unchanged since the date of this prospectus and any applicable prospectus supplement or that the information contained in any document incorporated by reference is accurate as of any date other than the date of the document incorporated
by reference, regardless of the time of delivery of this prospectus and any applicable prospectus supplement or any sale of a security. This prospectus and any applicable prospectus supplement may only be used where it is legal to sell the
securities.
THIS PROSPECTUS MAY NOT BE USED TO OFFER AND SELL SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
In this prospectus, unless the context otherwise requires, the terms Oncothyreon Inc., the Company,
Oncothyreon, we, us, and our refer to Oncothyreon Inc.
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PROSPECTUS SUMMARY
This summary may not contain all the information that you should consider before investing in securities. You should read the entire
prospectus and the information incorporated by reference in this prospectus carefully, including Risk Factors and the financial data and related notes and other information incorporated by reference, before making an investment decision.
Company Overview
We are a
clinical-stage biopharmaceutical company focused primarily on the development of therapeutic products for the treatment of cancer. Our goal is to discover, develop and commercialize novel compounds that have the potential to improve the lives and
outcomes of cancer patients. Our current clinical-stage product candidates include ONT-380, an orally active and selective small-molecule HER2 inhibitor, and ONT-10, a therapeutic vaccine targeting MUC1. We are developing preclinical product
candidates in oncology, and potentially certain rare diseases, using our recently acquired protocell technology. We also collaborate with partners to discover and develop additional product candidates.
We have entered into a license agreement with Array BioPharma Inc. (Array). Pursuant to the license agreement, Array has granted us an
exclusive license to develop, manufacture and commercialize ONT-380, an orally active, reversible and selective small-molecule HER2 inhibitor. HER2, also known as ErbB2, is a receptor tyrosine kinase that is over-expressed in breast cancer and other
cancers, such as gastric and ovarian cancer. The license agreement replaced a development and commercialization agreement under which we and Array were previously jointly developing ONT-380. Array previously completed a Phase 1 clinical trial of
ONT-380 in patients with heavily pre-treated metastatic breast cancer which demonstrated that the compound was well tolerated and had anti-tumor activity. We have initiated two Phase 1b trials of ONT-380, one in combination with Kadcyla® (ado-trastuzumab emtansine or TDM-1) and another in combination with Xeloda® (capecitabine) and/or Herceptin® (trastuzumab). In December 2014, we announced that interim data from these ongoing Phase 1b trials indicated preliminary clinical activity and tolerability in a heavily pretreated patient
population.
We are also conducting a Phase 1 trial for ONT-10, a cancer vaccine directed against the Mucin 1 peptide antigen (MUC1).
Results from this trial have demonstrated that ONT-10 activates the humoral arm of the immune system and elicits antibodies specific for MUC1. We are continuing the ongoing Phase 1 trial and we have also recently initiated a Phase 1b trial of
ONT-10 in combination with the T-cell agonist antibody varlilumab in collaboration with Celldex Therapeutics, Inc.
We are focused on
expanding our pipeline of product candidates through both internal research and collaborative efforts. To support our internal efforts we recently acquired Alpine Biosciences, Inc., a privately held biotechnology company developing protocells, a
nanoparticle platform technology designed to enable the targeted delivery of multiple therapeutic agents, including nucleic acids, proteins, peptides and small molecules. We intend to utilize the protocell technology to develop new product
candidates for the treatment of cancer and rare diseases, either on our own or with partners. On October 22, 2014 we filed unaudited pro forma condensed combined financial statements for Alpine Biosciences, Inc. for the period ending June 30, 2014
on our Current Report on Form 8-K that are incorporated by reference. Updates to the unaudited pro forma condensed combined statements of operations for the interim period from July 1, 2014 to September 30, 2014 were immaterial. For the interim
period, the pro forma combined net loss increased by $62,000 primarily due to salary and stock-based compensation related to hiring of a key employee that was contingent upon the consummation of the merger. These expenses were recorded in research
and development. There were no changes to pro forma combined basic and diluted net loss per share.
The Securities We May Offer
With this prospectus, we may offer common stock, preferred stock, debt securities and warrants, or any combination of the foregoing. The
aggregate offering price of securities that we offer with this prospectus will
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not exceed $150,000,000. Each time we offer securities with this prospectus, we will provide offerees with a prospectus supplement that will contain the specific terms of the securities being
offered. The following is a summary of the securities we may offer with this prospectus.
Common Stock
We may offer shares of our common stock, par value $0.0001 per share.
Preferred Stock
We may offer shares of
our preferred stock, par value $0.0001 per share, in one or more series. Our board of directors or a committee designated by the board will determine the dividend, voting, conversion and other rights of the series of shares of preferred stock being
offered. Each series of preferred stock will be more fully described in the particular prospectus supplement that will accompany this prospectus, including redemption provisions, rights in the event of our liquidation, dissolution or the winding up,
voting rights and rights to convert into common stock.
Debt Securities
We may offer general obligations, which may be secured or unsecured, senior or subordinated and convertible into shares of our common stock or
preferred stock. In this prospectus, we refer to the senior debt securities and the subordinated debt securities together as the debt securities. The senior debt securities will have the same rank as all of our other indebtedness that is
not subordinated. The subordinated debt securities will be entitled to payment only after payment on our senior debt. In addition, the subordinated debt securities will be effectively subordinated to creditors. Our board of directors will determine
the terms of each series of debt securities being offered.
We will issue the debt securities under an indenture or indentures between us
and a trustee. In this document, we have summarized general features of the debt securities from the indentures. We encourage you to read the indentures, which are exhibits to the registration statement of which this prospectus is a part.
Warrants
We may offer warrants for the
purchase of debt securities, shares of preferred stock or shares of common stock. We may issue warrants independently or together with other securities. Our board of directors will determine the terms of the warrants.
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Oncothyreon is the
successor corporation to Biomira Inc. On August 23, 1985, Biomira Inc. was incorporated under the Canada Business Corporations Act. Oncothyreon Inc. was incorporated in the state of Delaware on September 7, 2007. On December 10, 2007,
Oncothyreon became the successor corporation to Biomira by way of an arrangement effected pursuant to Canadian law. Our executive office is located at 2601 Fourth Avenue, Suite 500, Seattle, Washington 98121 and our telephone number is
(206) 801-2100.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our ratio of earnings to fixed charges for the periods indicated.
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Year Ended December 31, |
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Nine Months Ended September 30, 2014 |
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2009 |
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2010 |
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2011 |
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2012 |
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2013 |
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Ratio of earnings to fixed charges(1) |
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(1) |
The ratio of earnings to fixed charges represents the number of times that fixed charges are covered by earnings. Earnings consist of income or loss
from continuing operations before income taxes and fixed |
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charges. Fixed charges consist of interest expensed and capitalized under capital leases and estimated interest expense within rental expense. In the years ended December 31, 2009, 2010,
2011, 2012 and 2013 and the nine months ended September 30, 2014 earnings were sufficient (insufficient) to cover fixed charges by ($17.0) million, ($15.8) million, ($42.6) million, ($3.4) million, ($38.7) million and
($22.4) million, respectively. |
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RISK FACTORS
An investment in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of securities will
contain a discussion of the risks applicable to an investment in our securities. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed under the heading Risk Factors in
the applicable prospectus supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You should also consider the risks,
uncertainties and assumptions discussed under Part II, Item 1A, Risk Factors, in our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2014, which is incorporated herein by reference, and may be
amended, supplemented, or superseded from time to time by other reports we file with the SEC in the future. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also affect our operations.
FORWARD-LOOKING STATEMENTS
This prospectus and documents incorporated herein by reference contain forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. These forward-looking statements involve a number of risks and uncertainties. We caution readers that any forward-looking statement is not a guarantee of future performance and that actual results
could differ materially from those contained in the forward-looking statement. These statements are based on current expectations of future events. Such statements include, but are not limited to, statements about future financial and operating
results, plans, objectives, expectations and intentions, costs and expenses, interest rates, outcome of contingencies, financial condition, results of operations, liquidity, business strategies, cost savings, objectives of management and other
statements that are not historical facts. You can find many of these statements by looking for words like believes, expects, anticipates, estimates, may, should,
will, could, plan, intend, or similar expressions in this prospectus or in documents incorporated by reference into this prospectus. We intend that such forward-looking statements be subject to the
safe harbors created thereby. Examples of these forward-looking statements include, but are not limited to:
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the results we anticipate from our pre-clinical development activities and the clinical trials of our product candidates; |
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our belief that our product candidates could potentially be useful for different oncology and potentially also for rare disease indications; |
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our ability to manage our growth; |
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the size of the markets for the treatment of conditions our product candidates target; |
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our ability to acquire or in-license additional product candidates and technologies; |
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our ability to manage our relationships with partners and collaborators; |
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our ability to generate future revenue; |
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financing to support our operations, clinical trials and commercialization of our products; |
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our ability to adequately protect our proprietary information and technology from competitors and avoid infringement of proprietary information and technology of our competitors; |
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the possibility that government-imposed price restrictions may make our products, if successfully developed and commercialized following regulatory approval, unprofitable; |
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potential exposure to product liability claims and the impact that successful claims against us will have on our ability to commercialize our product candidates; |
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our ability to obtain on commercially reasonable terms adequate product liability insurance for our commercialized products; |
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the possibility that competing products or technologies may make our products, if successfully developed and commercialized following regulatory approval, obsolete; |
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our ability to succeed in finding and retaining joint venture and collaboration partners to assist us in the successful marketing, distribution and commercialization of our products; |
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our ability to attract and retain highly qualified scientific, clinical, manufacturing, and management personnel; |
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our ability to identify and capitalize on possible collaboration, strategic partnering, acquisition or divestiture opportunities; |
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potential problems with third parties, including suppliers and key personnel, upon whom we are dependent; and |
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our estimates regarding our capital requirements and our need for additional financing. |
These
forward-looking statements are based on the current beliefs and expectations of our management and are subject to significant risks and uncertainties. If underlying assumptions prove inaccurate or unknown risks or uncertainties materialize, actual
results may differ materially from current expectations and projections. Factors that might cause such a difference include those discussed in Part II, Item 1A Risk Factors in our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2014, as well as those discussed in this prospectus and in the documents incorporated by reference into this prospectus. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the
date of this prospectus or, in the case of documents referred to or incorporated by reference, the date of those documents.
All
subsequent written or oral forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. We do not undertake any
obligation to release publicly any revisions to these forward-looking statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events, except as may be required under applicable
U.S. securities law. If we do update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the Exchange Act) and are required to
file annual, quarterly and other reports, proxy statements and other information with the SEC. You may inspect and copy these reports, proxy statements and other information at the public reference facilities maintained by the SEC in Washington,
D.C., 100 F Street N.E., Washington, D.C. 20549. Copies of such materials can be obtained from the SECs public reference section at prescribed rates. You may obtain information on the operation of the public reference rooms by calling the SEC
at (800) SEC-0330. Additionally, the SEC maintains an Internet site (http://www.sec.gov) that contains reports, proxy and information statements, and various other of our information. You may also inspect the documents described herein at our
principal executive offices, 2601 Fourth Avenue, Suite 500, Seattle, Washington 98121, during normal business hours.
In addition, we are
subject to the filing requirements prescribed by the securities legislation of all Canadian provinces or territories. You are invited to read and copy any reports, statements, or other information that we file with the Canadian provincial securities
commissions or other similar regulatory authorities at their respective public reference rooms. These filings are also electronically available from the Canadian System for Electronic Document Analysis and Retrieval at http://www.sedar.com, which is
commonly known by the acronym SEDAR, the Canadian equivalent of the SECs EDGAR system.
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Information about us is also available at our website at http://www.oncothyreon.com. However, the
information on our website is not a part of this prospectus and is not incorporated by reference into this prospectus.
INCORPORATION OF INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference information that we file with
the SEC, which means that we can disclose important information to you by referring you to those other documents. The information incorporated by reference is an important part of this prospectus, and information we file later with the SEC will
automatically update and supercede this information. We incorporate by reference the documents listed below and any future filings we make with the SEC under Section 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the termination of any
offering of securities made by this prospectus:
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our Annual Report on Form 10-K for the year ended December 31, 2013 filed with the SEC on March 13, 2014, including certain information incorporated by reference therein from our Definitive Proxy Statement for
our 2014 annual meeting of stockholders filed with the SEC on April 24, 2014; |
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2014, June 30, 2014 and September 30, 2014 and filed with the SEC on May 1, 2014, August 11, 2014 and November 6,
2014, respectively; |
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our Current Reports on Form 8-K filed on June 2, 2014, June 10, 2014, August 11, 2014 (except with respect to information furnished under Item 2.02), August 18,
2014, September 12, 2014, September 18, 2014, September 23, 2014, October 22, 2014 and December 12, 2014; |
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the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on December 10, 2007 under Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating such description; and |
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filings we make with the SEC pursuant to the Exchange Act after the date of the initial registration statement, of which this prospectus is a part, and prior to the effectiveness of the registration statement.
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Upon written or oral request, we will provide without charge to each person, including any beneficial owner, to whom this
prospectus is delivered, a copy of any or all of such information that has been incorporated herein by reference (other than exhibits to such documents unless such exhibits are specifically incorporated by reference into the documents that this
prospectus incorporates). Written or oral requests for copies should be directed to Oncothyreon Inc., Attn: Investor Relations, 2601 Fourth Avenue, Suite 500, Seattle, Washington 98121, telephone number (206) 801-2100. See the section of this
prospectus entitled Where You Can Find More Information for information concerning how to read and obtain copies of materials that we file with the SEC at the SECs public offices.
Any statement contained in this prospectus, or in a document all or a portion of which is incorporated by reference, shall be modified or
superseded for purposes of this prospectus to the extent that a statement contained in this prospectus, any prospectus supplement or any document incorporated by reference modifies or supersedes such statement. Any such statement so modified or
superseded shall not, except as so modified or superseded, constitute a part of this prospectus.
USE OF
PROCEEDS
We will retain broad discretion over the use of the net proceeds to us from the sale of our securities under this
prospectus. Unless otherwise provided in the applicable prospectus supplement, we intend to use the net proceeds from the sale of securities under this prospectus for general corporate purposes, which may include funding research and development,
increasing our working capital, reducing indebtedness, acquisitions or
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investments in businesses, products or technologies that are complementary to our own and capital expenditures. We will set forth in the prospectus supplement our intended use for the net
proceeds received from the sale of any securities. Pending the application of the net proceeds, we intend to invest the net proceeds in short-term, long-term, investment-grade, interest-bearing securities.
PLAN OF DISTRIBUTION
We may sell the securities covered by this prospectus to one or more underwriters for public offering and sale by them, and may also sell the
securities to investors directly or through agents. We will name any underwriter or agent involved in the offer and sale of securities in the applicable prospectus supplement. We have reserved the right to sell or exchange securities directly to
investors on our own behalf in jurisdictions where we are authorized to do so. We may distribute the securities from time to time in one or more transactions:
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at a fixed price or prices, which may be changed; |
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at market prices prevailing at the time of sale; |
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at prices related to such prevailing market prices; or |
We may solicit directly offers to purchase the securities being offered
by this prospectus. We may also designate agents to solicit offers to purchase the securities from time to time. We will name in a prospectus supplement any agent involved in the offer or sale of our securities. Unless otherwise indicated in a
prospectus supplement, an agent will be acting on a best efforts basis, and a dealer will purchase securities as a principal for resale at varying prices to be determined by the dealer.
If we utilize an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with
the underwriter at the time of sale and we will provide the name of any underwriter in the prospectus supplement that the underwriter will use to make resales of the securities to the public. In connection with the sale of the securities, we, or the
purchasers of securities for whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers, and those dealers may receive
compensation in the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers for whom they may act as agent.
We will provide in the applicable prospectus supplement any compensation we pay to underwriters, dealers, or agents in connection with the
offering of the securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters within
the meaning of the Securities Act of 1933 (the Securities Act), and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter
into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, and to reimburse them for certain expenses. We may grant underwriters who participate in the distribution of our
securities under this prospectus an option to purchase additional securities to cover any over-allotments in connection with the distribution.
The securities we offer under this prospectus may or may not be listed through The NASDAQ Global Market or any other securities exchange. To
facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include short sales of the securities, which involves
the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would cover such short positions by making purchases in the open market or by exercising their option to purchase
additional securities. In addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the
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open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at
any time.
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third
parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement,
including short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and they may use securities received from us in
settlement of those derivatives to close out any related open borrowings of stock. The third party in these sale transactions will be an underwriter and will be identified in the applicable prospectus supplement. In addition, we may otherwise loan
or pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus. The financial institution or other third party may transfer its economic short position to investors in our
securities or in connection with a concurrent offering of other securities.
We will file a prospectus supplement to describe the terms of
any offering of our securities covered by this prospectus. The prospectus supplement will disclose:
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the terms of the offer; |
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the names of any underwriters, including any managing underwriters, as well as any dealers or agents; |
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the purchase price of the securities from us; |
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the net proceeds to us from the sale of the securities; |
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any delayed delivery arrangements; |
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any underwriting discounts, commissions or other items constituting underwriters compensation, and any commissions paid to agents; |
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any public offering price; and |
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other facts material to the transaction. |
We will bear all or substantially all of the costs,
expenses, and fees in connection with the registration of our securities under this prospectus. The underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business.
DESCRIPTION OF CAPITAL STOCK
General
We are authorized to issue
210,012,500 shares of all classes of capital stock, of which 200,000,000 shares is common stock, $0.0001 par value per share; 9,990,000 shares are undesignated preferred stock, $0.0001 par value per share; 10,000 shares are Series A convertible
preferred stock, $0.0001 par value per share and 12,500 shares are Class UA preferred stock, no par value per share. Our capital is stated in U.S. dollars. As of September 30, 2014, we had 91,555,975 outstanding shares of common stock, 10,000
outstanding shares of Series A convertible preferred stock and 12,500 outstanding shares of Class UA preferred stock.
Common Stock
The holders of our common stock are entitled to receive such dividends or distributions as are lawfully declared on our common stock, to have
notice of any authorized meeting of stockholders, and to one vote for
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each share of our common stock on all matters which are properly submitted to a vote of stockholders. As a Delaware corporation, we are subject to statutory limitations on the declaration and
payment of dividends. In the event of a liquidation, dissolution or winding up of Oncothyreon, holders of our common stock have the right to a ratable portion of assets remaining after satisfaction in full of the prior rights of creditors, including
holders of our indebtedness, all liabilities and the aggregate liquidation preferences of any outstanding shares of our preferred stock. The holders of our common stock have no conversion, redemption, preemptive or cumulative voting rights.
Preferred Stock
As of September 30,
2014, other than as described below, no shares of our preferred stock had been issued and no such shares were subject to outstanding options and other rights to purchase or acquire. However, shares of preferred stock may be issued in one or more
series from time to time by our board of directors, and the board of directors is expressly authorized to fix by resolution or resolutions the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions
thereof, of the shares of each series of preferred stock. Subject to the determination of our board of directors, any shares of our preferred stock that may be issued in the future would generally have preferences over our common stock with respect
to the payment of dividends and the distribution of assets in the event of our liquidation, dissolution or winding up.
Series A Convertible Preferred
Stock
On September 22, 2014, in connection with the public offering of 10,000 shares of the Companys Series A Convertible
Preferred Stock, our board of directors designated 10,000 shares of its authorized and unissued preferred stock as Series A Convertible Preferred Stock and we filed a Certificate of Designation of Preferences, Rights and Limitations of Series A
Convertible Preferred Stock with the Delaware Secretary of State.
Voting. Shares of Series A Convertible Preferred Stock generally
have no voting rights, except as required by law and except that the consent of holders of a majority of the outstanding Series A Convertible Preferred Stock are required to amend the terms of the Series A Convertible Preferred Stock.
Conversion. Each share of Series A Convertible Preferred Stock is convertible into 1,000 shares of our common stock at any time at the
holders option. The holder, however, is prohibited from converting Series A Convertible Preferred Stock into shares of our common stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 4.99% of
the shares of our common stock then issued and outstanding.
Dividends. Shares of Series A Convertible Preferred Stock will not be
entitled to receive any dividends, unless and until specifically declared by the Companys board of directors, and will rank:
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senior to all common stock; |
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senior to any class or series of capital stock created specifically ranking by its terms junior to the Series A Convertible Preferred Stock; |
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on parity with and any class or series of capital stock created specifically ranking by its terms on parity with the Series A Convertible Preferred Stock; and |
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junior to the Companys Class UA Preferred Stock and any class or series of capital stock created specifically ranking by its terms senior to the Series A Convertible Preferred Stock. |
Liquidation Preference. In the event of our liquidation, dissolution or winding up, holders of Series A will receive a payment equal to
$0.0001 per share of Series A Convertible Preferred Stock before any proceeds are distributed to the holders of common stock, but after any proceeds are distributed to the holder of the our Class UA Preferred Stock.
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Class UA Preferred Stock
Our certificate of incorporation provides for a separate class of preferred stock, the Class UA preferred stock. As of September 30, 2014,
12,500 shares of Class UA preferred stock are issued and outstanding and held by the University of Alberta. Below is a summary of the terms associated with our Class UA preferred stock. Please refer to our certificate of incorporation for a full
description of the rights and privileges attached to our Class UA preferred stock.
Voting. Each share of Class UA preferred stock
is not entitled to receive notice of, or to attend and vote at, any stockholder meeting unless the meeting is called to consider any matter in respect of which the holders of the shares of Class UA preferred stock would be entitled to vote
separately as a class, in which case the holders of the shares of Class UA preferred stock shall be entitled to receive notice of and to attend and vote at such meeting. Amendments to our certificate of incorporation that would increase or decrease
the par value of the Class UA preferred stock or alter or change the powers, preferences or special rights of the Class UA preferred stock so as to affect them adversely would require the approval of the Class UA preferred stock.
Conversion. The Class UA preferred stock is not convertible into shares of any other class of our capital stock.
Dividends. The holders of the shares of Class UA preferred stock are not entitled to receive dividends.
Liquidation Preference. In the event of our liquidation, dissolution or winding up, the holders of the Class UA preferred stock are
entitled to receive, in preference to the holders of our common stock, an amount equal to the lesser of (a) 20% of the after tax profits, which we refer to as net profits, determined in accordance with generally accepted accounting principles,
where relevant, consistently applied, for the period commencing at the end of our last completed fiscal year and ending on the date of the distribution of our assets to stockholders together with 20% of our net profits for the last completed fiscal
year and (b) Cdn.$100 per share.
Redemption. We may, at our option and subject to the requirements of applicable law, redeem
at any time the whole or from time to time any part of the then-outstanding shares of Class UA preferred stock for Cdn.$100 per share.
Anti-Takeover
Effect of Unissued Shares of Capital Stock
Common Stock. Our shares of authorized and unissued common stock are available for
future issuance without additional stockholder approval. While these additional shares are not designed to deter or prevent a change of control, under some circumstances we could use the additional shares to create voting impediments or to frustrate
persons seeking to effect a takeover or otherwise gain control by, for example, issuing those shares in private placements to purchasers who might side with our board of directors in opposing a hostile takeover bid.
Preferred Stock. Our certificate of incorporation grants our board of directors the authority, without any further vote or action by
our stockholders, to issue preferred stock in one or more series and to fix the number of shares constituting any such series and the preferences, limitations and relative rights, including dividend rights, dividend rate, voting rights, terms of
redemption, redemption price or prices, conversion rights and liquidation preferences of the shares constituting any series. The existence of authorized but unissued preferred stock could reduce our attractiveness as a target for an unsolicited
takeover bid since we could, for example, issue shares of preferred stock to parties who might oppose such a takeover bid or shares that contain terms the potential acquirer may find unattractive. This may have the effect of delaying or preventing a
change in control, may discourage bids for the common stock at a premium over the market price of the common stock, and may adversely affect the market price of, and the voting and other rights of the holders of, common stock.
Delaware Anti-Takeover Law and Certain Provisions of Our Certificate of Incorporation and By-laws
Certain provisions of Delaware law and our certificate of incorporation and bylaws could make it more difficult to acquire us by means of a
tender offer, a proxy contest or otherwise and to remove our incumbent
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officers and directors. These provisions, summarized below, are expected to discourage certain types of coercive takeover practices and inadequate takeover bids and to encourage persons seeking
to acquire control of us to first negotiate with us. We believe that the benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the
disadvantages of discouraging takeover or acquisition proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.
We are subject to Section 203 of the General Corporation Law of the State of Delaware, an anti-takeover law. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years following the date the person became an interested stockholder, unless, with
exceptions, the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner. Generally, a business combination includes a merger, asset or stock sale, or other transaction resulting
in a financial benefit to the interested stockholder. Generally, an interested stockholder is a person who, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder status, did own,
15% or more of a corporations voting stock. The existence of this provision would be expected to have an anti-takeover effect with respect to transactions not approved in advance by our board of directors, including discouraging attempts that
might result in a premium over the market price for the shares of common stock held by stockholders.
Our certificate of incorporation and
bylaws require that any action required or permitted to be taken by our stockholders must be effected at a duly called annual or special meeting of the stockholders and may not be effected by written consent. Special meetings of our stockholders may
be called only by the Chairman of our board of directors, a majority of our board of directors or our president. Our certificate of incorporation and bylaws also provide that our board of directors will be divided into three classes, with each class
serving staggered three-year terms. Except as otherwise set forth in our certificate of incorporation and bylaws, the stockholders may amend or repeal certain provisions of our certificate of incorporation and may amend, alter or repeal our bylaws
only with the affirmative vote of the holders of 75% of the shares of capital stock issued and outstanding and entitled to vote at a general or special meeting of our stockholders, as applicable. These provisions may have the effect of deterring
hostile takeovers or delaying changes in control of us or our management.
Transfer Agent
The transfer agent for our common stock is Computershare Investor Services Inc., 350 Indiana St., Suite 800, Golden, Colorado 80401,
(214) 340-0757.
Listing
Our
common stock is quoted on The Nasdaq Global Market under the trading symbol ONTY.
DESCRIPTION OF
DEBT SECURITIES
The following description of the terms of the debt securities summarizes some general terms that will apply to the
debt securities. The description is not complete, and we refer you to the indentures which we filed with the SEC as exhibits to the registration statement of which this prospectus is a part.
General
The debt securities will be
either our senior debt securities or our subordinated debt securities. We will issue our debt securities under one or more separate indentures between us and a trustee. Senior debt securities will be issued under a senior indenture and subordinated
securities will be issued under a subordinated indenture. A copy
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of the form of each type of indenture has been filed as an exhibit to the registration statement of which this prospectus is a part. The indentures may be supplemented by one or more supplemental
indentures. We refer to the senior indenture and the subordinated indenture, together with any supplemental indentures, as the indentures throughout the remainder of this prospectus.
The indentures do not limit the amount of debt securities that we may issue. The indentures provide that debt securities may be issued up to
the principal amount that we authorize from time to time. The senior debt securities will be secured or unsecured and will have the same rank as all of our other indebtedness that is not subordinated. The subordinated debt securities will be secured
or unsecured and will be subordinated and junior to all senior indebtedness. The terms of the indentures do not contain any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations,
financial condition or transactions involving us, but those provisions may be included in the documents that include the specific terms of the debt securities.
We may issue the debt securities in one or more separate series of senior debt securities and subordinated debt securities. The prospectus
supplement relating to the particular series of debt securities being offered will specify the particular amounts, prices and terms of those debt securities. These terms may include:
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the title of the debt securities; |
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any limit upon the aggregate principal amount of the debt securities; |
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if other than United States dollars, the currency or currencies, including the euro and other composite currencies, in which payments on the debt securities will be payable and whether the holder may elect payment to be
made in a different currency; |
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the date or dates when payments on the principal must be made or the method of determining that date or dates; |
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interest rates, and the dates from which interest, if any, will accrue, and the dates when interest is payable and the maturity; |
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the right, if any, to extend the interest payment periods and the duration of the extensions; |
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the places where payments may be made and the manner of payments; |
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any mandatory or optional redemption provisions; |
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any subordination provisions; |
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the denominations in which debt securities will be issued; |
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the terms applicable to any debt securities issued at a discount from their stated principal amount; |
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the currency or currencies of payment of principal or interest and the period, if any, during which a holder may elect to pay in a currency other than the currency in which the debt securities are denominated;
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if the amount of payments of principal or interest is to be determined by reference to an index or formula, or based on a coin or currency other than that in which the debt securities are stated to be payable, the
manner in which these amounts are determined and the calculation agent, if any; |
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whether the debt securities will be secured or unsecured; |
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whether the debt securities will be issued in the form of one or more global securities in temporary or definitive form; |
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whether and on what terms we will pay additional amounts to holders of the debt securities that are not United States persons in respect of any tax, assessment or governmental charge withheld or deducted and, if so,
whether and on what terms we will have the option to redeem the debt securities rather than pay the additional amounts; |
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the certificates or forms required for the issuance of debt securities in definitive form; |
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the trustees, depositaries, authenticating or paying agents, transfer agents or registrars of the debt securities; |
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any deletions of, or changes or additions to, the events of default or covenants; |
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conversion or exchange provisions, if any, including conversion or exchange prices or rates and adjustments to those prices and rates; and |
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any other specific terms of the debt securities. |
If any debt securities are sold for any
foreign currency or currency unit or if any payments on the debt securities are payable in any foreign currency or currency unit, the prospectus supplement will contain any restrictions, elections, tax consequences, specific terms and other
information with respect to the debt securities and the foreign currency or currency unit.
Some of the debt securities may be issued as
original issue discount debt securities. Original issue discount securities may bear no interest or bear interest at below-market rates and will be sold at a discount below their stated principal amount and may bear no or below market interest. The
applicable prospectus supplement will also contain any special tax, accounting or other information relating to original issue discount securities other kinds of debt securities that may be offered, including debt securities linked to an index or
payable in currencies other than United States dollars.
Senior Debt Securities
Payment of the principal of, premium, if any, and interest on senior debt securities will rank on parity with all of our other indebtedness
that is not subordinated.
Subordinated Debt Securities
Payment of the principal of, premium, if any, and interest on subordinated debt securities will be junior in right of payment to the prior
payment in full of all of our unsubordinated debt, including senior debt securities. We will state in the applicable prospectus supplement relating to any subordinated debt securities the subordination terms of the securities as well as the
aggregate amount of outstanding debt, as of the most recent practicable date, that by its terms would be senior to the subordinated debt securities. We will also state in such prospectus supplement limitations, if any, on issuance of additional
senior debt.
Registrar and Paying Agent
The debt securities may be presented for registration of transfer or for exchange at the corporate trust office of the security registrar or at
any other office or agency that we maintain for those purposes. In addition, the debt securities may be presented for payment of principal, interest and any premium at the office of the paying agent or at any office or agency that we maintain for
those purposes.
Global Securities
We may issue the debt securities of a series in whole or in part in the form of one or more global certificates that will be deposited with a
depositary we will identify in a prospectus supplement. We may issue global debt securities in either temporary or definitive form. We will describe the specific terms of the depositary arrangement with respect to any series of debt securities in
the prospectus supplement.
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Conversion or Exchange Rights
Debt securities may be convertible into or exchangeable for shares of our common stock. The terms and conditions of conversion or exchange will
be stated in the applicable prospectus supplement. The terms will include, among others, the following:
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the conversion or exchange price; |
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the conversion or exchange period; |
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provisions regarding the convertibility or exchangeability of the debt securities, including who may convert or exchange; |
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events requiring adjustment to the conversion or exchange price; |
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provisions affecting conversion or exchange in the event of our redemption of the debt securities; and |
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any anti-dilution provisions, if applicable. |
Registered Global Securities
Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not be
transferred except as a whole:
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by the depositary for that registered global security to its nominee; |
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by a nominee of the depositary to the depositary or another nominee of the depositary; or |
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by the depositary or its nominee to a successor of the depositary or a nominee of the successor. |
The prospectus supplement relating to a series of debt securities will describe the specific terms of the depositary arrangement involving any
portion of the series represented by a registered global security.
We anticipate that the following provisions will apply to all
depositary arrangements for debt securities:
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ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for that registered global security, these persons being referred to as
participants, or persons that may hold interests through participants; |
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upon the issuance of a registered global security, the depositary for the registered global security will credit, on its book-entry registration and transfer system, the participants accounts with the respective
principal amounts of the debt securities represented by the registered global security beneficially owned by the participants; |
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any dealers, underwriters or agents participating in the distribution of the debt securities will designate the accounts to be credited; and |
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ownership of beneficial interest in that registered global security will be shown on, and the transfer of that ownership interest will be effected only through, records maintained by the depositary for that registered
global security for interests of participants and on the records of participants for interests of persons holding through participants. |
The laws of some states may require that specified purchasers of securities take physical delivery of the securities in definitive form. These
laws may limit the ability of those persons to own, transfer or pledge beneficial interests in registered global securities.
So long as
the depositary for a registered global security, or its nominee, is the registered owner of that registered global security, the depositary or that nominee will be considered the sole owner or holder of the debt
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securities represented by the registered global security for all purposes under the indenture. Except as stated below, owners of beneficial interests in a registered global security:
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will not be entitled to have the debt securities represented by a registered global security registered in their names; |
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will not receive or be entitled to receive physical delivery of the debt securities in definitive form; and |
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will not be considered the owners or holders of the debt securities under the indenture. |
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for the
registered global security and, if the person is not a participant, on the procedures of a participant through which the person owns its interest, to exercise any rights of a holder under the indenture.
We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a
registered global security desires to give or take any action that a holder is entitled to give or take under the indenture, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests
to give or take the action, and the participants would authorize beneficial owners owning through the participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding through them.
We will make payments of principal and premium, if any, and interest, if any, on debt securities represented by a registered global security
registered in the name of a depositary or its nominee to the depositary or its nominee as the registered owners of the registered global security. None of us, the trustee or any other of our agents or agents of the trustee will be responsible or
liable for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to the beneficial ownership
interests.
We expect that the depositary for any debt securities represented by a registered global security, upon receipt of any
payments of principal and premium, if any, and interest, if any, in respect of the registered global security, will immediately credit participants accounts with payments in amounts proportionate to their respective beneficial interests in the
registered global security as shown on the records of the depositary. We also expect that standing customer instructions and customary practices will govern payments by participants to owners of beneficial interests in the registered global security
held through the participants, as is now the case with the securities held for the accounts of customers in bearer form or registered in street name. We also expect that any of these payments will be the responsibility of the
participants.
If the depositary for any debt securities represented by a registered global security is at any time unwilling or unable to
continue as depositary or stops being a clearing agency registered under the Exchange Act, we will appoint an eligible successor depositary. If we fail to appoint an eligible successor depositary within 90 days, we will issue the debt
securities in definitive form in exchange for the registered global security. In addition, we may at any time and in our sole discretion decide not to have any of the debt securities of a series represented by one or more registered global
securities. In that event, we will issue debt securities of the series in a definitive form in exchange for all of the registered global securities representing the debt securities. The trustee will register any debt securities issued in definitive
form in exchange for a registered global security in the name or names as the depositary, based upon instructions from its participants, will instruct the trustee.
Merger, Consolidation or Sale of Assets
Under the terms of the indentures, we may consolidate or merge with another company, or sell, lease or convey all or substantially all our
assets to another company, if:
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we are the continuing entity; or |
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(i) we are not the continuing entity, (ii) the successor entity is organized under the laws of the United States of America and expressly assumes all payments on all of the debt securities and the performance
and observance of all the covenants and conditions of the applicable indenture, and (iii) the merger, sale of assets or other transaction must not cause a default on the debt securities and we must not already be in default. |
Events of Default
Unless otherwise
provided for in the prospectus supplement, the term event of default, when used in the indentures means any of the following:
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failure to pay interest for 30 days after the date payment is due and payable; however, if we extend an interest payment period under the terms of the debt securities, the extension will not be a failure to pay
interest; |
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failure to pay principal or premium, if any, on any debt security when due, either at maturity, upon any redemption, by declaration or otherwise; |
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failure to perform other covenants for 60 days after notice that performance was required; |
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certain events in bankruptcy, insolvency or reorganization of our company; or |
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any other event of default provided in the applicable resolution of our board of directors or the supplemental indenture under which we issue a series of debt securities. |
An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of
debt securities issued under an indenture. If an event of default relating to the payment of interest, principal or any sinking fund installment involving any series of debt securities has occurred and is continuing, the trustee or the holders of
not less than 25% in aggregate principal amount of the debt securities of each affected series may declare the entire principal of all the debt securities of that series to be due and payable immediately.
If an event of default relating to the performance of other covenants occurs and is continuing for a period of 60 days after notice of
that event of default, or if any other event of default occurs and is continuing involving all of the series of senior debt securities, then the trustee or the holders of not less than 25% in aggregate principal amount of all of the series of senior
debt securities may declare the entire principal amount of all of the series of senior debt securities due and payable immediately.
Similarly, if an event of default relating to the performance of other covenants occurs and is continuing for a period of 60 days after
notice, or if any other event of default occurs and is continuing involving all of the series of subordinated debt securities, then the trustee or the holders of not less than 25% in aggregate principal amount of all of the series of subordinated
debt securities may declare the entire principal amount of all of the series of subordinated debt securities due and payable immediately.
If, however, the event of default relating to the performance of other covenants or any other event of default that has occurred and is
continuing is for less than all of the series of senior debt securities or subordinated debt securities, then, the trustee or the holders of not less than 25% in aggregate principal amount of each affected series of the senior debt securities or the
subordinated debt securities, as the case may be, may declare the entire principal amount of all debt securities of that affected series due and payable immediately. The holders of not less than a majority, or any applicable supermajority, in
aggregate principal amount of the debt securities of a series may, after satisfying conditions, rescind and annul any of the above-described declarations and consequences involving the series.
If an event of default relating to events in bankruptcy, insolvency or reorganization occurs and is continuing, then the principal amount of
all of the debt securities outstanding, and any accrued interest, will automatically become due and payable immediately, without any declaration or other act by the trustee or any holder.
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Each indenture imposes limitations on suits brought by holders of debt securities against us.
Except for actions for payment of overdue principal or interest, no holder of debt securities of any series may institute any action against us under each indenture unless:
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the holder has previously given to the trustee written notice of default and continuance of that default; |
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the holders of at least 25% in principal amount of the outstanding debt securities of the affected series have requested that the trustee institute the action; |
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the requesting holders have offered the trustee reasonable indemnity for expenses and liabilities that may be incurred by bringing the action; |
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the trustee has not instituted the action within 60 days of the request; and |
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the trustee has not received inconsistent direction by the holders of a majority in principal amount of the outstanding debt securities of the series. |
We will be required to file annually with the trustee a certificate, signed by an officer of our company, stating whether or not the officer
knows of any default by us in the performance, observance or fulfillment of any condition or covenant of an indenture.
Discharge, Defeasance and
Covenant Defeasance
We can discharge or defease our obligations under the indentures as stated below or as provided in the prospectus
supplement.
Unless otherwise provided in the applicable prospectus supplement, we may discharge obligations to holders of any series of
debt securities that have not already been delivered to the trustee for cancellation and that have either become due and payable or are by their terms to become due and payable, or are scheduled for redemption, within one year. We may effect a
discharge by irrevocably depositing with the trustee cash or United States government obligations, as trust funds, in an amount certified to be enough to pay when due, whether at maturity, upon redemption or otherwise, the principal of, premium, if
any, and interest on the debt securities and any mandatory sinking fund payments.
Unless otherwise provided in the applicable prospectus
supplement, we may also discharge any and all of our obligations to holders of any series of debt securities at any time, which we refer to as defeasance. We may also be released from the obligations imposed by any covenants of any
outstanding series of debt securities and provisions of the indentures, and we may omit to comply with those covenants without creating an event of default under the trust declaration, which we refer to as covenant defeasance. We may
effect defeasance and covenant defeasance only if, among other things:
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|
|
we irrevocably deposit with the trustee cash or United States government obligations, as trust funds, in an amount certified to be enough to pay at maturity, or upon redemption, the principal, premium, if any, and
interest on all outstanding debt securities of the series; |
|
|
|
we deliver to the trustee an opinion of counsel from a nationally recognized law firm to the effect that (i) in the case of covenant defeasance, the holders of the series of debt securities will not recognize
income, gain or loss for United States federal income tax purposes as a result of the defeasance, and will be subject to tax in the same manner and at the same times as if no covenant defeasance had occurred and (ii) in the case of defeasance,
either we have received from, or there has been published by, the Internal Revenue Service a ruling or there has been a change in applicable United States federal income tax law, and based on that ruling or change, the holders of the series of debt
securities will not recognize income, gain or loss for United States federal income tax purposes as a result of the defeasance and will be subject to tax in the same manner as if no defeasance had occurred; and |
|
|
|
in the case of subordinated debt securities, no event or condition will exist that, based on the subordination provisions applicable to the series,
would prevent us from making payments of principal |
18
|
of, premium, if any, and interest on any of the applicable subordinated debt securities at the date of the irrevocable deposit referred to above or at any time during the period ending on the
91st day after the deposit date. |
Although we may discharge or decrease our obligations under the indentures as
described in the two preceding paragraphs, we may not avoid, among other things, our duty to register the transfer or exchange of any series of debt securities, to replace any temporary, mutilated, destroyed, lost or stolen series of debt securities
or to maintain an office or agency in respect of any series of debt securities.
Modification of the Indenture
Except as provided in the prospectus supplement, each indenture provides that we and the trustee may enter into supplemental indentures without
the consent of the holders of debt securities to:
|
|
|
secure any debt securities; |
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|
evidence the assumption by a successor corporation of our obligations and the conversion of any debt securities into the capital stock of that successor corporation, if the terms of those debt securities so provide;
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add covenants for the protection of the holders of debt securities; |
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cure any ambiguity or correct any inconsistency in the indenture; |
|
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establish the forms or terms of debt securities of any series; and |
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evidence and provide for the acceptance of appointment by a successor trustee. |
Each indenture
also provides that we and the trustee may, with the consent of the holders of not less than a majority in aggregate principal amount of debt securities of all series of senior debt securities or of subordinated debt securities then outstanding and
affected, voting as one class, add any provisions to, or change in any manner, eliminate or modify in any way the provisions of, the indenture or modify in any manner the rights of the holders of the debt securities. We and the trustee may not,
however, without the consent of the holder of each outstanding debt security affected:
|
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extend the stated maturity of any debt security; |
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reduce the principal amount or premium, if any; |
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reduce the rate or extend the time of payment of interest; |
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reduce any amount payable on redemption; |
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change the currency in which the principal, unless otherwise provided for a series, premium, if any, or interest is payable; |
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reduce the amount of the principal of any debt security issued with an original issue discount that is payable upon acceleration or provable in bankruptcy; |
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impair the right to institute suit for the enforcement of any payment on any debt security when due; or |
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reduce the percentage of holders of debt securities of any series whose consent is required for any modification of the indenture for any such series. |
Concerning the Trustee
Each indenture
provides that there may be more than one trustee under the indenture, each for one or more series of debt securities. If there are different trustees for different series of debt securities, each trustee will be a trustee of a trust under the
indentures separate and apart from the trust administered by any other trustee under
19
the indenture. Except as otherwise indicated in this prospectus or any prospectus supplement, any action permitted to be taken by a trustee may be taken by that trustee only on the one or more
series of debt securities for which it is the trustee under the indenture. Any trustee under the indentures may resign or be removed from one or more series of debt securities. All payments of principal of, premium, if any, and interest on, and all
registration, transfer, exchange, authentication and delivery of, the debt securities of a series may be effected by the trustee for that series at an office or agency designated by the trustee of that series.
If the trustee becomes a creditor of our company, each indenture places limitations on the right of the trustee to obtain payment of claims or
to realize on property received in respect of any such claim as security or otherwise. The trustee may engage in other transactions. If it acquires any conflicting interest relating to any duties concerning the debt securities, however, it must
eliminate the conflict or resign as trustee.
The holders of a majority in aggregate principal amount of any series of debt securities
then outstanding will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee concerning the applicable series of debt securities, so long as the direction:
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would not conflict with any rule of law or with the applicable indenture; |
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would not be unduly prejudicial to the rights of another holder of the debt securities; and |
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would not involve any trustee in personal liability. |
Each indenture provides that if an event
of default occurs, is not cured and is known to any trustee, the trustee must use the same degree of care as a prudent person would use in the conduct of his or her own affairs in the exercise of the trusts power. The trustee will be under no
obligation to exercise any of its rights or powers under the indenture at the request of any of the holders of the debt securities, unless they have offered to the trustee security and indemnity satisfactory to the trustee.
No Individual Liability of Incorporators, Stockholders, Officers or Directors
Each indenture provides that no incorporator and no past, present or future stockholder, officer or director of our company or any successor
corporation in those capacities will have any individual liability for any of our obligations, covenants or agreements under the debt securities or such indenture.
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.
DESCRIPTION OF WARRANTS
General
We may issue warrants for the
purchase of our debt securities, preferred stock, or common stock, or any combination thereof. Warrants may be issued independently or together with our debt securities, preferred stock, or common stock and may be attached to or separate from any
offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the
warrants. The warrant agent will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. This summary of certain provisions of the warrants is not complete. For the terms of a particular
series of warrants, you should refer to the prospectus supplement for that series of warrants and the warrant agreement for that particular series.
20
Debt Warrants
The prospectus supplement relating to a particular issue of warrants to purchase debt securities will describe the terms of the debt warrants,
including the following:
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|
the title of the debt warrants; |
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|
|
the offering price for the debt warrants, if any; |
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|
|
the aggregate number of the debt warrants; |
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|
|
the designation and terms of the debt securities, including any conversion rights, purchasable upon exercise of the debt warrants; |
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|
if applicable, the date from and after which the debt warrants and any debt securities issued with them will be separately transferable; |
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|
|
the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which may be payable in cash, securities, or other property; |
|
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|
the dates on which the right to exercise the debt warrants will commence and expire; |
|
|
|
if applicable, the minimum or maximum amount of the debt warrants that may be exercised at any one time; |
|
|
|
whether the debt warrants represented by the debt warrant certificates or debt securities that may be issued upon exercise of the debt warrants will be issued in registered or bearer form; |
|
|
|
information with respect to book-entry procedures, if any; the currency or currency units in which the offering price, if any, and the exercise price are payable; |
|
|
|
if applicable, a discussion of material U.S. federal income tax considerations; |
|
|
|
the antidilution provisions of the debt warrants, if any; |
|
|
|
the redemption or call provisions, if any, applicable to the debt warrants; |
|
|
|
any provisions with respect to the holders right to require us to repurchase the warrants upon a change in control or similar event; and |
|
|
|
any additional terms of the debt warrants, including procedures, and limitations relating to the exchange, exercise, and settlement of the debt warrants. |
Debt warrant certificates will be exchangeable for new debt warrant certificates of different denominations. Debt warrants may be exercised at
the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement. Prior to the exercise of their debt warrants, holders of debt warrants will not have any of the rights of holders of the debt securities
purchasable upon exercise and will not be entitled to payment of principal or any premium, if any, or interest on the debt securities purchasable upon exercise.
Equity Warrants
The prospectus
supplement relating to a particular series of warrants to purchase our common stock or preferred stock will describe the terms of the warrants, including the following:
|
|
|
the title of the warrants; |
|
|
|
the offering price for the warrants, if any; |
|
|
|
the aggregate number of warrants; |
|
|
|
the designation and terms of the common stock or preferred stock that may be purchased upon exercise of the warrants; |
21
|
|
|
if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each security; |
|
|
|
if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; |
|
|
|
the number of shares of common stock or preferred stock that may be purchased upon exercise of a warrant and the exercise price for the warrants; |
|
|
|
the dates on which the right to exercise the warrants shall commence and expire; |
|
|
|
if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
|
|
|
the currency or currency units in which the offering price, if any, and the exercise price are payable; |
|
|
|
if applicable, a discussion of material U.S. federal income tax considerations; |
|
|
|
the antidilution provisions of the warrants, if any; |
|
|
|
the redemption or call provisions, if any, applicable to the warrants; |
|
|
|
any provisions with respect to holders right to require us to repurchase the warrants upon a change in control or similar event; and |
|
|
|
any additional terms of the warrants, including procedures, and limitations relating to the exchange, exercise, and settlement of the warrants. |
Holders of equity warrants will not be entitled:
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|
|
to vote, consent, or receive dividends; |
|
|
|
receive notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter; or |
|
|
|
exercise any rights as stockholders. |
LEGAL MATTERS
Fenwick & West LLP, Seattle, Washington, will issue an opinion about certain legal matters with respect to the securities. Any
underwriters or agents will be advised about legal matters relating to any offering by their own counsel.
EXPERTS
The consolidated financial statements of Oncothyreon Inc. appearing in Oncothyreon Inc.s Annual Report on Form 10-K for the year ended
December 31, 2013, and the effectiveness of Oncothyreon Inc.s internal control over financial reporting as of December 31, 2013 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set
forth in their reports thereon included therein, and incorporated herein by reference. Such financial statements are, and audited financial statements to be included in subsequently filed documents will be, incorporated herein in reliance upon the
reports of Ernst & Young LLP pertaining to such financial statements and the effectiveness of our internal control over financial reporting as of the respective dates (to the extent covered by consents filed with the Securities Exchange
Commission) given on the authority of such firm as experts in accounting and auditing. The financial statements of Alpine Biosciences, Inc. as of and for the year ended December 31, 2013, appearing in Oncothyreon Inc.s Current Report on Form
8-K, as amended, filed with the Securities Exchange Commission on October 22, 2014, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon incorporated by reference therein, and incorporated
herein by reference. Such financial statements are incorporated herein in reliance upon the report of Ernst & Young LLP pertaining to such financial statements given on the authority of such firm as experts in accounting and auditing.
22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth estimated expenses in connection with the issuance and distribution of the securities being registered:
|
|
|
|
|
SEC registration fee |
|
$ |
14,364 |
|
Legal fees and expenses* |
|
|
50,000 |
|
Transfer Agent and Depository* |
|
|
5,000 |
|
Printing* |
|
|
10,000 |
|
Accounting fees and expenses* |
|
|
25,000 |
|
Miscellaneous* |
|
|
20,000 |
|
|
|
|
|
|
Total |
|
$ |
124,364 |
|
|
|
|
|
|
* |
Estimated for purposes of completing the information required pursuant to this item 14. |
Item 15.
Indemnification of Officers and Directors
As permitted by the Delaware General Corporation Law (the DGCL), the Registrants
certificate of incorporation eliminates the liability of directors to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent otherwise required by the DGCL.
The certificate of incorporation further provides that the Registrant will indemnify any person who is or was made a party to any proceeding
by reason of the fact that such person is or was a director or officer of the Registrant to the fullest extent authorized by the DGCL. The Registrants bylaws provide for a similar indemnity to directors and officers of the Registrant to the
fullest extent authorized by the DGCL.
The Registrants bylaws authorize the Registrants board of directors to enter into
indemnification contracts with each of its officers and directors that provide the maximum indemnity allowed to directors and executive officers by Section 145 of the DGCL. The Registrant has entered into indemnification contracts with each of
its directors and executive officers. The indemnification contracts provide for the indemnification of directors and officers against all expenses, liability, and loss actually reasonably incurred to the fullest extent permitted by the
Registrants certificate of incorporation, bylaws, and applicable law.
The Registrants bylaws also authorize the Registrant to
maintain insurance to protect any director or officer against any expense, liability, or loss, whether or not the Registrant would have the power to indemnify such person against such expense, liability, or loss under the DGCL. The Registrant
maintains such insurance.
Item 16. Exhibits
The exhibits listed in the accompanying Exhibit Index are filed (except where otherwise indicated) as part of this Registration Statement.
Item 17. Undertakings
(a) The undersigned
Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
23
aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration
statement;
(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 subparagraphs (i),(ii),
and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant
to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this Registration
Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of
the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
24
(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) The undersigned registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or
Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.
(d) 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.
(e) If and when applicable, the Registrant hereby further undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act.
25
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 Seattle, State of Washington, on December 30, 2014.
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ONCOTHYREON INC. |
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By: |
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/s/ Robert L. Kirkman, M.D. |
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Robert L. Kirkman, M.D. President and Chief
Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert L. Kirkman
and Julia M. Eastland, or each one of them individually, as the undersigneds true and lawful attorney-in-fact and agents, with full power of substitution and resubstitution for such person and in such persons name, place and stead,
in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto, and other documents in connection therewith to this Registration Statement and any later registration statement filed by the registrant
under Rule 462(b) of the Securities Act of 1933, which relates to this Registration Statement) and to file the same with exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming
all that each of said attorney-in-fact and agent, or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and
on the dates indicated.
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|
|
Signature |
|
Title |
|
Date |
|
|
|
/s/ Robert L. Kirkman,
M.D. Robert L. Kirkman, M.D. |
|
President, Chief Executive Officer and Director (Principal Executive Officer) |
|
December 30, 2014 |
|
|
|
/s/ Julia M.
Eastland Julia M. Eastland |
|
Chief Financial Officer, Secretary and Vice President of Corporate Development (Principal Financial and Accounting Officer) |
|
December 30, 2014 |
|
|
|
/s/ Christopher S. Henney,
Ph.D. Christopher S. Henney, Ph.D. |
|
Chairman and Director |
|
December 30, 2014 |
|
|
|
/s/ Richard L. Jackson,
Ph.D. Richard L. Jackson, Ph.D. |
|
Director |
|
December 30, 2014 |
|
|
|
/s/ Ted W. Love,
M.D. Ted W. Love, M.D. |
|
Director |
|
December 30, 2014 |
|
|
|
/s/ Daniel K.
Spiegelman Daniel K. Spiegelman |
|
Director |
|
December 30, 2014 |
|
|
|
/s/ W. Vickery
Stoughton W. Vickery Stoughton |
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Director |
|
December 30, 2014 |
26
EXHIBIT INDEX
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|
Exhibit
Number |
|
|
|
Incorporated by Reference |
|
Filed Herewith |
|
|
Exhibit Description |
|
Form |
|
File No. |
|
Exhibit |
|
Filing Date |
|
|
|
|
|
|
|
|
1.1* |
|
Form of Underwriting Agreement |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.1(a) |
|
Agreement and Plan of Reorganization among ProlX Pharmaceuticals Corporation, D. Lynn Kirkpatrick, Garth Powis and Biomira Inc., dated October 30, 2006 |
|
S-4/A |
|
333-145995 |
|
2.1 |
|
October 29, 2007 |
|
|
|
|
|
|
|
|
|
|
|
2.1(b) |
|
Amendment No. 1 to Agreement and Plan of Reorganization dated November 7, 2007 |
|
10-K |
|
001-33822 |
|
2.1B |
|
May 6, 2010 |
|
|
|
|
|
|
|
|
|
|
|
3.1 |
|
Amended and Restated Certificate of Incorporation of Oncothyreon Inc. |
|
S-4/A |
|
333-145995 |
|
3.1 |
|
September 27, 2007 |
|
|
|
|
|
|
|
|
|
|
|
3.2 |
|
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Oncothyreon Inc. |
|
8-K |
|
001-33822 |
|
3.1 |
|
June 10, 2014 |
|
|
|
|
|
|
|
|
|
|
|
3.3 |
|
Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock |
|
8-K |
|
001-33882 |
|
3.1 |
|
September 23, 2014 |
|
|
|
|
|
|
|
|
|
|
|
3.4 |
|
Bylaws of Oncothyreon Inc. |
|
10-Q |
|
001-33882 |
|
3.1 |
|
August 14, 2009 |
|
|
|
|
|
|
|
|
|
|
|
4.1 |
|
Specimen Common Stock Certificate |
|
10-Q |
|
000-21243 |
|
4.1 |
|
November 10, 2008 |
|
|
|
|
|
|
|
|
|
|
|
4.2 |
|
Specimen Series A Convertible Preferred Stock Certificate |
|
8-K |
|
001-33882 |
|
4.1 |
|
September 23, 2014 |
|
|
|
|
|
|
|
|
|
|
|
4.3 |
|
Form of Senior Debt Security |
|
|
|
|
|
|
|
|
|
|
X |
|
|
|
|
|
|
|
|
4.4 |
|
Form of Senior Indenture |
|
|
|
|
|
|
|
|
|
|
X |
|
|
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|
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|
4.5 |
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Form of Subordinated Debt Security |
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X |
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4.6 |
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Form of Subordinated Indenture |
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X |
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4.7* |
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Form of Warrant |
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4.8* |
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Form of Warrant Agreement |
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5.1 |
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Opinion of Fenwick & West LLP |
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X |
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12.1 |
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Statement of Computation of Ratio of Earnings to Fixed Charges |
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X |
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23.1 |
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Consent of Independent Registered Public Accounting Firm |
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X |
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23.2 |
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Consent of Independent Auditors |
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X |
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23.3 |
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Consent of Fenwick & West LLP (included as Exhibit 5.1) |
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X |
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24.1 |
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Power of Attorney (included on the signature page hereto) |
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X |
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25.1** |
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Form T-1 Statement of Eligibility of Trustee for Senior Indenture under the Trust Indenture Act of 1939. |
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25.2** |
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Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture under the Trust Indenture Act of 1939. |
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27
* |
To be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended and incorporated herein by reference. |
** |
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder. |
28
EXHIBIT 4.3
FORM OF SENIOR DEBT SECURITY
[Face of
Security]
ONCOTHYREON INC.
[If applicable, insertFOR PURPOSES OF THE ORIGINAL ISSUE DISCOUNT PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, THE ISSUE PRICE OF
THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT AT STATED MATURITY SET FORTH BELOW (ITS PRINCIPAL AMOUNT), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS
% OF ITS PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS % AND THE ISSUE DATE IS
]
[IF THE
SECURITY IS A GLOBAL SECURITY, INSERTTHIS NOTE IS A GLOBAL SECURITY. IT IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY (AS HEREINAFTER DEFINED) OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
HEREINAFTER DESCRIBED AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[Unless this Security is presented by an
authorized representative of The Depositary Trust Company (55 Water Street, 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 requested by an authorized representative of The Depositary Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
Oncothyreon Inc., a Delaware Corporation (herein called the Company, which term includes any
successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to, or registered assigns, the principal sum of Dollars on
[if Security is to bear interest prior to maturity, insert, and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
and in
each year, commencing , at the rate of % per annum, until the principal hereof is
paid or made available for payment [if applicable, insert, provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of % per
annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Record
Date for such interest, which shall be the or
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Record Date and may either be paid to the Person this Security (or one or more Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. [If the
Security is not to bear interest prior to maturity, insertThe principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case
the overdue principal and any overdue premium shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts
are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. [Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of
% per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment.
Interest on any overdue interest shall be payable on demand.]].
Payment of the principal of (and premium, if any, on) and [any such] interest on this Security
will be made at the office or agency of the Company maintained for that purpose in, in such coin or currency of [the United States of America] as at the time of payment is legal tender for payment of public and private debts [; provided, however,
that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Register].
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually executed
by or on behalf of the Trustee under the Indenture referred to on the reverse hereof, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
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Dated: ONCOTHYREON INC. |
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By |
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[Title] |
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Attest and Countersign
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Secretary |
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[Form of Reverse of Security.]
ONCOTHYREON INC.
This
Security is one of a duly authorized issue of securities of the Company (herein called the Securities), issued and to be issued in one or more series under an Indenture dated as of
, (herein called the Indenture, which term shall have the meaning assigned to it in such instrument), between the
Company and , as trustee (herein called the Trustee, which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations or rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [, limited in aggregate principal amount to
$ ].
[If the Security is to be subordinated, insertThe
indebtedness evidenced by this Security is, to the extent and in the manner set forth in the Indenture, expressly subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness (as defined in the Indenture) of
the Company. This Security is issued subject to such provisions of the Indenture, and each Holder of this Security, by accepting the same, agrees to and shall be bound by such provisions and authorizes and directs the Trustee on the Holders
behalf to take such action as may be necessary or appropriate to acknowledge or effectuate such subordination as provided in the Indenture and appoints the Trustee such Holders attorney-in-fact for any and all such purposes.]
[If the Security is to be subject to redemption only at the option of the Company, insertThe Securities of this series are subject to
redemption upon not less than 30 days notice provided in the manner set forth in the Indenture, [(1) on in any year
commencing with the year and ending with the year
at the Redemption Price equal to 100% of the principal amount, and (2)] at any time [on or after
, ], as a whole or in part, at the election of the principal the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [on or before , %, and if
redeemed] during the 12-month period beginning of the years indicated,
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Year |
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Redemption Price |
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Year |
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Redemption Price |
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and thereafter at a Redemption Price equal to % of the principal amount
together in the case of any such redemption with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities of record at the close
of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.]
[If the Security is to be
redeemable in part, insertIn the event of redemption of this Security in part only, a new Security or Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is to be subject to repayment at the option of the Holder, insertTo be repaid at the option of the Holder, the
Company must receive this Security, with the form of Option to Elect Repayment hereon duly completed, at an office or agency of the Company maintained for that purpose in
(or at such other place of which the Company shall from time to time notify the Holder of this Security) not less than nor more
than days prior to the Repayment Date. The exercise of the repayment option by the Holder shall be irrevocable.
[If the Security is not to be subject to redemption at the option of the Company, insertThe Securities are not redeemable at the option
of the Company prior to Maturity.]
[If the Security is not to be an Original Issue Discount Security, insertIf an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Securities of each series under the Indenture to be affected at any time by the Company with the consent of the Holders of not less than 66-2/3% in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or I lieu hereof, whether or not notation of such consent of waiver is made upon this
Security.
As provided in and subject to the provisions of the indenture, the Holder of this Security shall not have the right to
institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default
with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
[If the Security is to be registered form, insertAs provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium, if any, on) and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and, thereupon one or more new
Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.]
[The Securities of this series are issuable only in registered form in denominations of
$ [and any integral multiple] [or increments of $ in excess] thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination, as requested by the Holder surrendering the
same.]
[No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.]
[Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the contrary.]
[If the Security is a Global Security,
insertGlobal Security and Global Securities means a Security or Securities evidencing all or a part of a series of Securities, issued to the Depositary (as hereinafter defined) for such Series or its nominee, and
registered in the name of such Depositary or its nominee. 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 the
Depositary by the Company.
No holder of any beneficial interest in this Security held on its behalf by a Depositary or a nominee of such
Depositary shall have any rights under the Indenture with respect to such Global Security, and such Depositary or nominee may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall impair, as between a Depositary and such holders of beneficial interests, the operation of customary practices governing the exercise of the rights of the Depositary as
Holder of any Security.
This Security is exchangeable, in whole but not in part, for Securities registered in the names of Persons other
than the Depositary or its nominee or in the name of a successor to the Depositary or a nominee of such successor depositary only if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for
this Note or if at any time such Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, in either case, a successor depositary is not
appointed by the Company within 90 days, (ii) the Company in its discretion at any time determines not to have all of the Securities of this series represented by one or more Global Security or Securities and notifies the Trustee thereof, or
(iii) an Event of Default has occurred and is continuing with respect to the Securities of this series. If this Security is exchangeable pursuant to the preceding sentence, it shall be exchangeable for Securities issuable in authorized
denominations and registered in such names as the Depositary holding this Security shall direct. Subject to the foregoing, this Security is not exchangeable, except for a Security or Securities of the same aggregate denominations to be registered in
the name of such Depositary or its nominee or in the name of a successor to the Depositary or a nominee of such successor depositary.]
[The Indenture entitles Holders to receive annual reports with respect to the Trustees eligibility and qualifications to serve as
Trustee by filing their names and addresses with the Trustee for that purpose within two years preceding and mailing of any such annual report.]
No recourse shall be had for the payment of the principal of (and premium, if any, on) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the Indenture of any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
This Security, including without limitation the obligation of the Company contained herein to pay the principal of
(and premium, if any, on) and interest on this Security in accordance with the terms hereof and of the Indenture, shall be construed in accordance with and governed by the laws of the State of New York.
[Trustees Certificate of Authentication.]
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
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, as |
[Authenticating Agent for] the Trustee |
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By |
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Authorized Officer |
EXHIBIT 4.4
FORM OF
SENIOR
INDENTURE
BETWEEN
ONCOTHYREON INC.
AND
,
AS TRUSTEE
Dated as of
TABLE OF CONTENTS
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Page |
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ARTICLE 1 |
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DEFINITIONS |
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1 |
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Section 1.01. |
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Certain Terms Defined |
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1 |
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ARTICLE 2 |
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ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES |
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6 |
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Section 2.01. |
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Form of Securities and Trustees Certificate of Authentication |
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6 |
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Section 2.02. |
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Form of Trustees Certificate of Authentication |
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6 |
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Section 2.03. |
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Amount Unlimited, Issuable in Series |
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6 |
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Section 2.04. |
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Authentication and Delivery of Securities; Supplemental Indentures for Secured Issues |
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8 |
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Section 2.05. |
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Execution of Securities |
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10 |
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Section 2.06. |
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Certificate of Authentication |
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11 |
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Section 2.07. |
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Denominations; Payment of Interest on Securities |
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11 |
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Section 2.08. |
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Registration, Transfer and Exchange of Securities |
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12 |
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Section 2.09. |
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Mutilated, Defaced, Destroyed, Lost and Stolen Securities |
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13 |
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Section 2.10. |
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Cancellation and Destruction of Surrendered Securities |
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14 |
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Section 2.11. |
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Temporary Securities |
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14 |
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Section 2.12. |
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Securities in Global Form |
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15 |
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Section 2.13. |
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CUSIP Numbers |
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15 |
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ARTICLE 3 |
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REDEMPTION OF SECURITIES |
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16 |
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Section 3.01. |
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Applicability of Article |
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16 |
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Section 3.02. |
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Notice of Redemption; Partial Redemptions |
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16 |
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Section 3.03. |
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Payment of Securities Called for Redemption |
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17 |
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Section 3.04. |
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Exclusion of Certain Securities From Eligibility for Selection for Redemption |
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17 |
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TABLE OF CONTENTS
(Continued)
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Page |
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ARTICLE 4 |
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PARTICULAR COVENANTS OF THE COMPANY |
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17 |
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Section 4.01. |
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Payment of Principal of and Interest on Securities |
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17 |
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Section 4.02. |
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Corporate Existence of the Company; Consolidation, Merger, Sale or Transfer |
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18 |
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Section 4.03. |
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Maintenance of Offices or Agencies for Transfer, Registration, Exchange and Payment of Securities |
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18 |
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Section 4.04. |
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Appointment to Fill a Vacancy in the Office of Trustee |
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18 |
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Section 4.05. |
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Duties of Paying Agent |
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19 |
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Section 4.06. |
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Notice of Default |
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19 |
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Section 4.07. |
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Maintenance of Properties |
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19 |
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Section 4.08. |
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Payment of Taxes and Other Claims |
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20 |
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ARTICLE 5 |
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SECURITYHOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
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20 |
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Section 5.01. |
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Company to Furnish Trustee Information as to the Names and Addresses of Securityholders |
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20 |
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Section 5.02. |
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Preservation of Information; Communication to Securityholders |
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20 |
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Section 5.03. |
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Reports by Company |
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21 |
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Section 5.04. |
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Reports by Trustee |
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22 |
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ARTICLE 6 |
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REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
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23 |
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Section 6.01. |
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Events of Default; Acceleration, Waiver of Default and Restoration of Position and Rights |
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23 |
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Section 6.02. |
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Covenant of Company to Pay to Trustee Whole Amount Due on Securities on Default in Payment of Interest or Principal |
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26 |
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Section 6.03. |
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Trustee May File Proofs of Claim |
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27 |
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Section 6.04. |
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Trustee May Enforce Claims Without Possession of Securities |
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27 |
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ii
TABLE OF CONTENTS
(Continued)
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Page |
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Section 6.05. |
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Application of Moneys Collected by Trustee |
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27 |
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Section 6.06. |
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Limitation on Suits by Holders of Securities |
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28 |
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Section 6.07. |
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Rights and Remedies Cumulative |
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29 |
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Section 6.08. |
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Delay or Omission Not Waiver |
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29 |
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Section 6.09. |
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Control by Holders; Waiver of Past Defaults |
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29 |
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Section 6.10. |
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Trustee to Give Notice of Defaults Known to it, but May Withhold in Certain Circumstances |
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30 |
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Section 6.11. |
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Requirement of an Undertaking to Pay Costs in Certain Suits Under the Indenture or Against the Trustee |
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30 |
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Section 6.12. |
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Waiver of Stay or Extension Laws |
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30 |
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ARTICLE 7 |
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CONCERNING THE TRUSTEE |
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30 |
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Section 7.01. |
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Certain Duties and Responsibilities of Trustee |
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30 |
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Section 7.02. |
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Certain Rights of Trustee |
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31 |
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Section 7.03. |
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Trustee Not Responsible for Recitals or Application of Proceeds |
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33 |
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Section 7.04. |
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Trustee May Own Securities |
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33 |
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Section 7.05. |
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Moneys Received by Trustee to be Held in Trust |
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33 |
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Section 7.06. |
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Trustee Entitled to Compensation, Reimbursement and Indemnity |
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33 |
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Section 7.07. |
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Right of Trustee to Rely on Officers Certificate Where No Other Evidence Specifically Prescribed |
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33 |
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Section 7.08. |
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Disqualification; Conflicting Interest |
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34 |
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Section 7.09. |
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Requirements for Eligibility of Trustee |
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34 |
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Section 7.10. |
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Resignation and Removal of Trustee; Appointment of Successor |
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34 |
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Section 7.11. |
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Acceptance of Appointment by Successor Trustee |
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35 |
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iii
TABLE OF CONTENTS
(Continued)
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Page |
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Section 7.12. |
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Successor to Trustee by Merger, Consolidation or Succession to Business |
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36 |
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Section 7.13. |
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Preferential Collection of Claims Against Company |
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36 |
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Section 7.14. |
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Appointment of Authenticating Agent |
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36 |
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ARTICLE 8 |
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CONCERNING THE SECURITYHOLDERS |
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37 |
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Section 8.01. |
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Evidence of Action by Securityholders |
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37 |
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Section 8.02. |
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Proof of Execution of Instruments and of Holding of Securities |
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38 |
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Section 8.03. |
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Who May be Deemed Owners of Securities |
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38 |
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Section 8.04. |
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Securities Owned by the Company or Controlled or Controlling Persons Disregarded for Certain Purposes |
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38 |
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Section 8.05. |
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Instruments Executed by Securityholders Bind Future Holders |
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39 |
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ARTICLE 9 |
|
SECURITYHOLDERS MEETINGS |
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39 |
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Section 9.01. |
|
Purposes for Which Meetings May be Called |
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39 |
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Section 9.02. |
|
Manner of Calling Meetings |
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40 |
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Section 9.03. |
|
Call of Meeting by the Company or Securityholders |
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40 |
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Section 9.04. |
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Who May Attend and Vote at Meetings |
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40 |
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Section 9.05. |
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Regulations May be Made by Trustee; Conduct of the Meeting; Voting RightsAdjournment |
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40 |
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Section 9.06. |
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Manner of Voting at Meetings and Record to be Kept |
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41 |
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Section 9.07. |
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Exercise of Rights of Trustee and Securityholders Not to be Hindered or Delayed |
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41 |
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ARTICLE 10 |
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SUPPLEMENTAL INDENTURES |
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41 |
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Section 10.01. |
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Purposes for Which Supplemental Indentures May be Entered Into Without Consent of Securityholders |
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41 |
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Section 10.02. |
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Modification of Indenture with Consent of Holders of Securities |
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42 |
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iv
TABLE OF CONTENTS
(Continued)
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Page |
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Section 10.03. |
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Effect of Supplemental Indentures |
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44 |
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Section 10.04. |
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Securities May Bear Notation of Changes by Supplemental Indentures |
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44 |
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ARTICLE 11 |
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DISCHARGE; DEFEASANCE |
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44 |
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Section 11.01. |
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Satisfaction and Discharge of Indenture |
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44 |
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Section 11.02. |
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Application by Trustee of Funds Deposited for Payment of Securities |
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47 |
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Section 11.03. |
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Repayment of Moneys Held by Paying Agent |
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47 |
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Section 11.04. |
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Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
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47 |
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ARTICLE 12 |
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IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
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48 |
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Section 12.01. |
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Incorporators, Stockholders, Officers and Directors of Company Exempt From Individual Liability |
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48 |
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ARTICLE 13 |
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MISCELLANEOUS PROVISIONS |
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48 |
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Section 13.01. |
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Successors and Assigns of the Company Bound by Indenture |
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48 |
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Section 13.02. |
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Notices; Effectiveness |
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48 |
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Section 13.03. |
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Compliance Certificates and Opinions |
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49 |
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Section 13.04. |
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Days on Which Payment to be Made, Notice Given or Other Action Taken |
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50 |
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Section 13.05. |
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Provisions Required by Trust Indenture Act to Control |
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50 |
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Section 13.06. |
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Governing Law and Waiver of Trial By Jury |
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50 |
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Section 13.07. |
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Effect of Headings |
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50 |
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Section 13.08. |
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Judgment Currency |
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50 |
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Section 13.09. |
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Provisions of the Indenture and Securities for the Sole Benefit of the Parties and the Securityholders |
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51 |
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Section 13.10. |
|
Indenture May be Executed in Counterparts |
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51 |
|
v
TABLE OF CONTENTS
(Continued)
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Page |
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Section 13.11. |
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Facsimile or PDF |
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51 |
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Section 13.12. |
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Force Majeure |
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51 |
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Section 13.13. |
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U.S.A. Patriot Act |
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51 |
|
vi
THIS INDENTURE, dated as of
, between ONCOTHYREON INC., a Delaware corporation (the Company), and
, a
,
as trustee (the Trustee).
WITNESSETH:
WHEREAS, the Company has duly authorized the issuance, sale, execution and delivery, from time to time, of its unsecured evidences of
indebtedness (hereinafter referred to as the Securities), without limit as to principal amount, issuable in one or more series, the amount and terms of each such series to be determined as hereinafter provided; and, to provide the terms
and conditions upon which the Securities are to be issued, authenticated and delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities, when executed by the Company and authenticated and delivered by the Trustee as
in this Indenture provided, the valid, binding and legal subordinated obligations of the Company, and to constitute this Indenture a valid indenture and agreement according to its terms, have been done and performed, and the execution of this
Indenture and the issuance hereunder of the Securities have in all respects been duly authorized;
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
That in order to
declare the terms and conditions upon which the Securities are to be issued, authenticated and delivered, and in consideration of the premises and of the purchase and acceptance of the Securities by the Holders thereof, the Company covenants and
agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the Securities or of any series thereof, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article One have the meanings assigned to them in this Article One, and include
the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein shall have the
meanings assigned to them and all computations herein provided for shall be made, in accordance with generally accepted accounting principles, and the term U.S. generally accepted accounting principles shall mean such principles
as they exist at the date of applicability thereof; and
(d) the words herein, hereof and
hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
1
Affiliate of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, control (including, with correlative meanings, the terms controlling, controlled by
and under common control with) when used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
Agent means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
Authenticating Agent shall the meaning set forth in Section 7.14. Authorized
Newspaper means a newspaper (which, in the case of The City of New York, will, if practicable, be The Wall Street Journal (Eastern Edition), published in an official language of the country of publication customarily published at least
once a day for at least five days in each calendar week and of general circulation. If it shall be impractical in the opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval of the Trustee shall constitute a sufficient publication of such notice.
Board of Directors shall mean the Board of Directors of the Company, or any duly authorized committee of such Board of
Directors.
Board Resolution shall mean on or more resolutions of the Board of Directors of the Company certified by
the Secretary or by an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company and to be in full force and effect on the date of such certification.
Business Day means, with respect to any Security, a day that is not a Saturday, Sunday or a day on which the office of the
Trustee or banking institutions in the City of New York in which amounts are payable, as specified in the form of such Security, are authorized or required by any applicable law or regulation to be closed.
Commission shall mean the U.S. Securities and Exchange Commission, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution of this Indenture such Commission is not existing and performing the duties theretofore assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
Company shall mean Oncothyreon Inc., a Delaware corporation, until a successor corporation shall have become such pursuant
to the applicable provisions hereof, and thereafter Company shall mean such successor Company.
Company
Order means a written statement, request or order of the Company signed in its name by the Chairman of the Board of Directors of the Company, the President or Chief Executive Officer, any Vice President, the Treasurer or the Chief
Financial Officer of the Company.
covenant defeasance shall have the meaning set forth in Section 11.01.
Defaulted Interest shall have the meaning set forth in Section 2.07.
Depository shall mean, with respect to the Securities of any series issuable or issued in whole or in part in the form of
one or more Global Securities, the Person designated as Depository by the Company pursuant to Section 2.03 of this Indenture until a successor Depository shall have become such pursuant to the applicable provisions of this Indenture, and
thereafter the term Depository shall mean or include each Person who is then a Depository hereunder, and if at any time there is more than one such Person, Depository as used with respect to the Securities of
any such series shall mean the Depository with respect to the Securities of that series.
2
Euro or euro means the currency adopted by those countries
participating in the third stage of the European Monetary Union.
Event of Default with respect to Securities of any
series shall mean any event specified as such in Section 6.01 and any other event as may be established with respect to the securities of such series as permitted by Section 2.03. An Event of Default shall exist if an Event of
Default shall have occurred and be continuing.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Foreign Currency means a currency issued by the government of a country other than the United States of America, and
the European Currency Unit as defined and revised from time to time by the European Monetary System of the European Community and/or Euros.
Global Security means a Security evidencing all or a portion of a series of Registered Securities, issued to the Depository
for such series in accordance with Section 2.12, and bearing the legend prescribed in Section 2.12 and any other legend required by the Depository for such series.
Holder, Holder of Securities, Securityholder or any other similar term means in the
case of any Registered Security, the person in whose name such Security is registered in the Register kept by the Company for that purpose in accordance with the terms hereof.
Interest Payment Date when used with respect to any Security means the Stated Maturity of an installment of interest on
such Security.
IRS means the Internal Revenue Service of the United States Department of the Treasury, or any
successor entity.
Judgment Currency has the meaning set forth in Section 13.09.
Officers Certificate shall mean a certificate signed by the Chairman of the Board of Directors of the Company, any
ViceChairman of the Board of Directors of the Company, the President or Chief Executive Officer or any VicePresident, the Treasurer, the Chief Financial Officer, the Secretary or any Assistant Secretary of the Company.
Opinion of Counsel shall mean a written opinion of legal counsel who may be an employee of the Company or other counsel
satisfactory to the Trustee.
Original Issue Date of any Security (or portion thereof) means the earlier of
(a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
Original Issue Discount Security shall mean (a) any Security which provides for an amount less than the principal
amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or (b) any other Security which for United States Federal income tax purposes would be considered an original issue
discount security.
3
Outstanding when used with reference to Securities shall, subject to the
provisions of Section 8.04, mean, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption moneys or U.S. Government Obligations (as provided in Section 11.01)
in the necessary amount have been theretofore deposited with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside, segregated and held in trust by the Company (if the Company shall act as its own Paying Agent)
in trust for the Holders of such Securities, provided that if such Securities or portions thereof, are to be redeemed prior to the Stated Maturity thereof, notice of such redemption has been duly given as provided in Article Three hereof, or
provision therefor satisfactory to the Trustee has been made;
(c) Securities in exchange for or in lieu of which other Securities shall
have been authenticated and delivered under this Indenture; and
(d) Securities alleged to have been destroyed, lost or stolen which have
been paid as provided in Section 2.07 hereof.
In determining whether the Holders of the requisite principal amount of Outstanding
Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such determination as if a declaration of acceleration of the maturity thereof pursuant to Section 6.01 had been made.
Paying Agent means any Person authorized by the Company to pay the principal of and any interest and premium, if any, on
any Securities on behalf of the Company.
Periodic Offering means an offering of Securities of a series from time to
time, the specific terms of which Securities, including, without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined
by the Company or its agents upon the issuance of such Securities.
Person shall mean an individual, a corporation, a
partnership, a limited liability company, a joint venture, an association, a joint stock company, a trust, an unincorporated organization, or a government or any agency, authority or political subdivision thereof.
Predecessor Security of any particular Security means every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.04 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
principal whenever used with reference
to the Securities or any Security or any portion thereof, shall be deemed to include and premium, if any, provided, however, that such inclusion of premium, if any, shall under no circumstances result in the double counting of such
premium for the purpose of any calculation required hereunder.
4
Principal Office of the Trustee shall mean the office of the Trustee at which
at any particular time the trust created by this Indenture shall be administered, except that with respect to presentation of Securities for payment such term shall mean any office or agency of the Trustee at which at any particular time its
corporate trust services business shall be conducted. The present address of the Principal Office of the Trustee is
,
Attention: .
Record Date for the interest payable on any Interest Payment Date on any series of Securities shall mean the date specified
as such in the Securities of such series.
Register shall mean the books for the registration and transfer of
Securities which books are kept by the Trustee pursuant to Section 2.08.
Registered Security means any Security
registered on the Register of the Company.
Required Currency shall have the meaning set forth in Section 13.09.
Responsible Officer when used with respect to the Trustee shall mean any officer of the Trustee or any other officer
of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred
because of such Persons knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to
Section 2.07.
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.
Indenture shall mean this instrument as originally executed, or as it may from time to time be supplemented, modified or
amended, as provided herein, and shall include the form and terms of particular series of Securities established in accordance with the provisions of Sections 2.03 and 2.04.
Security or Securities shall mean any security or securities of the Company without regard to series,
authenticated and delivered under this Indenture.
Supplemental Indenture shall mean an indenture supplemental hereto
as such Supplemental Indenture may be originally executed, or as it may from time to time be supplemented, modified or amended, as provided herein and therein.
Trustee shall mean the party named as such in the first paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean such successor Trustee. Trustee shall also mean or include each Person who is then a trustee hereunder, and, if at
any time there is more than one such Person, Trustee as used with respect to the Securities of any series shall mean the trustee with respect to the Securities of such series.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended as of the date of this Indenture.
5
United States Dollars shall mean the lawful currency of the United States of
America.
U.S. Government Obligations shall have the meaning set forth in Section 11.01.
Yield to Maturity means the yield to maturity on a series of securities, calculated at the time of issuance of such series,
or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE 2
ISSUE, DESCRIPTION,
EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Form of Securities and Trustees Certificate of Authentication. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be established by or pursuant to one or more Board Resolutions and as set forth in an Officers Certificate or Supplemental Indenture, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements thereon as the Board of
Directors may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange
on which the Securities of such series may be listed, or to conform to usage all as may be determined by the officers executing such Securities as evidenced by their execution of such Securities.
The definitive Securities and each Global Security may be printed, lithographed or fully or partly engraved or produced in any other manner,
all as determined by the officers executing such Securities as evidenced by their execution thereof.
SECTION 2.02. Form of
Trustees Certificate of Authentication. The Trustees certificate of authentication on all Securities shall be in substantially the following form:
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein, referred to in the within-mentioned Indenture.
|
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, as Trustee |
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By |
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|
Authorized Signatory |
SECTION 2.03. Amount Unlimited, Issuable in Series.
(a) The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is not limited. The Securities
may be issued in one or more series.
6
The following terms and provisions of each series of Securities shall be established in or
pursuant to one or more Board Resolutions and set forth in an Officers Certificate detailing such establishment or established in one or more Supplemental Indentures prior to the issuance of Securities of any series:
(1) the designation of the series of Securities of the series (which shall distinguish the Securities of such series from all other series of
Securities) and which may be part of a series of Securities previously issued;
(2) any limit upon the aggregate principal amount of the
particular series of Securities which may be executed, authenticated and delivered under this Indenture; provided, however, that nothing contained in this Section 2.03 or elsewhere in this Indenture or in the Securities or in an Officers
Certificate or in a Supplemental Indenture is intended to or shall limit execution by the Company or authentication and delivery by the Trustee of Securities under the circumstances contemplated by Sections 2.08, 2.09, 2.11, 3.03 and 10.04;
(3) if other than United States Dollars, the coin, currency or currencies or composite currency in which principal of and interest and any
premium on such series of Securities shall be payable (including, but not limited to, any Foreign Currency);
(4) the Stated Maturity for
payment of principal of such series of Securities;
(5) the rate or rates at which such series of Securities shall bear interest, if any,
the date or dates from which such interest shall accrue, on which such interest shall be payable, the terms and conditions of any deferral of interest and the additional interest, if any, thereon, the right, if any, of the Company to extend the time
for payment of interest, the terms and duration of such extension rights and (in the case of Registered Securities) the date or dates on which a record shall be taken for the determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined;
(6) the place or places where the principal of and any interest on
Securities of any series shall be payable, where such Securities may be surrendered for registration of transfer, where such Securities may be surrendered for exchange and where notice and demands to or upon the Company, in respect of such
Securities, and this Indenture may be served, if other than as provided in Section 4.03;
(7) the right, if any, of the Company to
redeem Securities, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions upon which Securities of the series may be so redeemed;
(8) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption or
analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and any terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof;
(10) the percentage of the principal amount at which the Securities will be issued, and, if other than the principal amount thereof, the
portion of the principal amount of such series of Securities which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
7
(11) if other than the U.S. Dollar, the coin, currency or currencies in which payment of the
principal of or interest on the Securities of such series shall be payable, including composite currencies or currency units and any related provisions for the calculations of payments and denominations;
(12) if the principal or interest on the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;
(13) if the amount of payments or principal of and interest on the Securities of the series may be determined with reference to an index or
formula based on a coin, currency, composite currency or currency unit other than that in which the Securities of the series are denominated, the manner in which such amounts shall be determined;
(14) whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by a person who is not
a U.S. person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem the Securities of the series rather than pay such additional amounts;
(15) if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(16) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars of any other agents with respect to the
Securities of such series;
(17) any additional events of default or covenants with respect to the Securities of a particular series not
set forth herein;
(18) the terms and conditions, if any, upon which any Securities of such series may or shall be converted or exchanged
into common stock of the Company; and
(19) any other terms of such series of Securities (which terms shall not be inconsistent with the
provisions of this Indenture).
(b) All Securities of any one series shall be substantially identical except that any series may have
serial maturities and different interest rates for different maturities and except in the case of Registered Securities as to denomination and the differences herein specified between Global Securities and Registered Securities issued in definitive
form and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers Certificate or Supplemental Indenture relating to such series of Securities. All Securities of any one series need not be
issued at the same time, and, unless otherwise provided in the Officers Certificate or Supplemental Indenture relating to such series, a series may be reopened for issuances of additional Securities of such series.
SECTION 2.04. Authentication and Delivery of Securities; Supplemental Indentures for Secured Issues. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver any series of Securities executed by the Company to the Trustee for authentication by it together with the applicable documents referred to below in this
Section 2.04, and the Trustee shall thereupon authenticate and deliver said Securities (or if only a single Security, such Security) to or upon the written order of the Company, signed by an officer of the Company, without any further corporate
8
action. The maturity date, original issue date, interest rate and any other terms of the Securities of such series shall be determined by or pursuant to such Company Order and procedures. In
authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and (4) below only at or
before the time of the first request of the Company to the Trustee to authenticate Securities of such series) and (subject to Section 7.01) shall be fully protected in relying upon, the following enumerated documents unless and until such
documents have been superseded or revoked:
(1) a Company Order requesting such authentication and setting forth delivery instructions if
the Securities are not to be delivered to the Company, provided that, with respect to Securities of a series subject to a Periodic Offering, (a) such Company Order may be delivered by the Company to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal
amount established for such series, pursuant to a Company Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time by a Company Order, and (c) the maturity date or dates, original issue date or dates,
interest rate or rates and any other terms of Securities of such series shall be determined by a Company Order or pursuant to such procedures;
(2) any Board Resolution, Officers Certificate and/or executed Supplemental Indenture referred to in Section 2.01 and 2.03 by or
pursuant to which the forms and terms of the Securities were established;
(3) an Officers Certificate setting forth the form or
forms and terms of the Securities stating that the form or forms and terms of the Securities have been established pursuant to Sections 2.01 and 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably
request; and
(4) either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more
Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities have been duly authorized and established
in conformity with the provisions of this Indenture;
(b) the terms of the Securities have been duly authorized and established in
conformity with the provisions of this Indenture, and certain terms of the Securities have been established pursuant to a Board Resolution, an Officers Certificate or a Supplemental Indenture in accordance with this Indenture, and when such
other terms as are to be established pursuant to procedures set forth in a Company Order shall have been established, all such terms will have been duly authorized by the Company and will have been established in conformity with the provisions of
this Indenture;
(c) this Indenture and such Securities, when executed and issued by the Company and authenticated by the Trustee in
accordance with the provisions of this Indenture and duly paid for by the purchasers thereof, and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable in accordance
with their terms, except as any rights thereunder may be limited by the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors
generally; the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law; the effect of applicable
court decisions invoking statutes or principles of equity, which have held that certain covenants and provisions of agreements are unenforceable where the breach of such covenants or provisions imposes restrictions or burdens upon a borrower, and it
cannot be demonstrated that the enforcement of such restrictions or burdens is necessary for the protection of the creditor, or which have
9
held that the creditors enforcement of such covenants or provisions under the circumstances would have violated the creditors covenants of good faith and fair dealing implied under
Washington law; and the effect of Washington statutes and rules of law which cannot be waived prospectively by a borrower, and such counsel need express no opinion with regard to the enforceability of Section 7.06 or of a judgment denominated
in a currency other than United States Dollars; and
(d) the Company has complied with all applicable Federal laws and requirements in
respect of the execution and delivery of such Securities; and
(e) such other opinions as the Company may be required to deliver under the
Trust Indenture Act.
(5) if the Securities are to be secured, a supplemental indenture conforming to the requirements of Section 314
of the Trust Indenture Act and such other documents as may be required by Section 314; and
(6) if the Securities are to be
convertible, a supplemental indenture conforming to the requirements of Section 314 of the Trust Indenture Act and such other documents as may be required by Section 314.
In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel
believes he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, he has relied, to the extent he deems proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this
section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Company or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust committee of
directors or trustees shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustees own rights, duties or immunities under the Securities, this Indenture or otherwise.
SECTION 2.05. Execution of Securities. The Securities shall be executed manually or in facsimile, by any two of the Chairman of
the Board, Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary, or the Chief Financial Officer of the Company under its corporate seal, which may be affixed thereto or printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise. Only such Securities as shall bear thereon a certificate of authentication substantially in the form recited herein, executed by the Trustee manually by an authorized officer, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate of authentication of the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this Indenture. Typographical or other errors or defects in the seal or facsimile signature on any Security or in the text thereof shall not affect the validity or enforceability
of such Security if it has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed
any of the Securities (manually or in facsimile) shall cease to be such officer before the Securities so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Securities nevertheless may be
10
authenticated and delivered or disposed of as though the Person who signed such Securities had not ceased to be such officer of the Company. Also, any Security may be signed on behalf of the
Company by such Persons as on the actual date of execution of such Security shall be the proper officers of the Company, although at the date of the execution of this Indenture or on the nominal date of such Security any such Person was not such
officer.
SECTION 2.06. Certificate of Authentication. Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
SECTION 2.07. Denominations; Payment of Interest on Securities.
(a) The Securities of each series may be issued in such denominations as shall be specified as contemplated by Section 2.03. In the
absence of such provisions with respect to the Securities of any series, the Securities of such series shall be issued in denominations of $1,000 and any integral multiple thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the officers of the Company executing the same may determine.
(b) If the Securities of any series shall bear interest, each Security of such series shall bear interest from the applicable date at the rate
per annum specified in the Officers Certificate or Supplemental Indenture with respect to such series of Securities. Unless otherwise specified in the Officers Certificate or Supplemental Indenture with respect to the Securities of any
series, interest on the Securities of such series shall be computed on the basis of a 360day year of twelve 30day months. Such interest shall be payable on the Interest Payment Dates specified in the Officers Certificate or
Supplemental Indenture with respect to such series of Securities. The Person in whose name any Security (or one or more Predecessor Securities) is registered at the close of business on the applicable Record Date for the series of which such
Security is a part shall be entitled to receive the interest payable thereon on such Interest Payment Date notwithstanding the cancellation of such Security upon any transfer or exchange thereof subsequent to such Record Date and prior to such
Interest Payment Date unless such Security shall have been called for redemption on a Redemption Date which is subsequent to such Record Date and prior to such Interest Payment Date or unless the Company shall default in the payment of interest due
on such Interest Payment Date on any Security of such series.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall forthwith cease to be payable to the registered Holder on the relevant Record Date solely by virtue of such Holder having
been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest on the Securities of any series to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment (which date shall be such as will enable the Trustee to comply with the next sentence hereof), and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest, such money when deposited to be held in trust
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for the benefit of the Persons entitled to such Defaulted Interest as in this subsection provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, firstclass postage prepaid, to each Holder of a
Security of such series at such Holders address as it appears in the Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series are registered on such Special Record Date and shall no longer be payable pursuant to the following subsection (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be listed and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this subsection,
such payment shall be deemed practicable by the Trustee.
Interest on Securities of any series that bear interest may be paid by mailing a
check to the address of the person entitled thereto as such address shall appear in the Register.
Subject to the foregoing provisions of
this Section 2.07, each Security delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security shall carry all the rights to interest accrued and unpaid, and to accrue, which were carried by such other
Security and each such Security shall bear interest from such date, such that neither gain nor loss in interest shall result from such transfer, exchange or substitution.
SECTION 2.08. Registration, Transfer and Exchange of Securities. Except as specifically otherwise provided herein with respect to
Global Securities, Securities of any series may be exchanged for a like aggregate principal amount of Securities of the same series of other authorized denominations. Securities to be exchanged shall be surrendered at the offices or agencies to be
maintained in accordance with the provisions of Section 4.03 and the Company shall execute the Security or Securities, and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities which the Securityholder
making the exchange shall be entitled to receive.
The Company shall cause the Trustee to keep or cause to be kept, at one or more of the
offices or agencies to be maintained by the Trustee in accordance with the provisions of Section 4.03 with respect to the Securities of each series, the Register in which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of the Registered Securities of such series and the transfer of Registered Securities of such series as in this Article provided. The Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times the Register shall be open for inspection by the Trustee and any registrar of the Securities of such series other than the Trustee. Upon due presentment for transfer of
any Security of any series at the offices or agencies of the Company to be maintained in accordance with Section 4.03 with respect to the Registered Securities of such series, the Company shall execute a new Security and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new Security or Registered Securities of the same series for a like aggregate principal amount of authorized denominations. Notwithstanding any other provisions of this
Section 2.08, unless and until it is exchanged in whole or in part for Registered Securities in definitive form, a Global Security representing all or a portion of the Registered Securities of a series may not be transferred except as a whole
by the Depository
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for such series to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository or by such Depository or any such nominee to a
successor Depository for such series or a nominee of such successor Depository.
At the option of the Holder thereof, Registered
Securities of any series (other than a Global Security, except as set forth below) may be exchanged for a Registered Security or Registered Securities of such series and tenor having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of the Company that shall be maintained for such purpose in accordance with Section 4.03 and upon payment, if the Company shall so require, of the charges hereinafter
provided.
All Registered Securities of any series presented or surrendered for exchange, transfer, redemption, conversion or payment
shall, if so required by the Company or any registrar of the Securities of such series, be accompanied by a written instrument or instruments of transfer, in form satisfactory to the Company and such registrar, duly executed by the registered Holder
or by such Persons attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto.
The Company shall not be required to exchange or transfer (a) any Securities of any series during a period beginning at the opening of
business 15 days before the day of the first publication or the mailing (if there is no publication) of a notice of redemption of Securities of such series and ending at the close of business on the day of such publication or mailing or (b) any
Securities called or selected for redemption in whole or in part, except, in the case of Securities called for redemption in part, the portion thereof not so called for redemption in whole or in part or during a period beginning at the opening of
business on any Record Date for such series and ending at the close of business on the relevant Interest Payment Date therefor.
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security shall be
mutilated, defaced, destroyed, lost or stolen, the Company in its discretion may execute and, upon the written request of any officer of the Company, the Trustee shall authenticate and delivery, a new Security of the same series, maturity date,
interest rate and original issue date, bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen In every case the applicant for a substitute Security shall furnish to the Company and to the Trustee and any agent of the Company or the Trustee such security or indemnity as may be required by them to indemnify and defend
and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof, and in the case of mutilation or defacement shall
surrender the Security to the Trustee or such agent. If the Company becomes aware that such Security has been acquired by a bona fide purchaser, it shall notify the Trustee in writing.
Upon the issuance of any substitute Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) or its agent connected therewith. In case any Security which has matured or is about to mature or has been called for redemption
in full shall become mutilated or defaced or be destroyed, lost or stolen, the Company may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced
Security), if the applicant for such payment shall furnish to the Company and to
13
the Trustee and any agent of the Company or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and to the Trustee and any agent of the Company or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall
be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statue existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
SECTION 2.10. Cancellation and Destruction of Surrendered Securities. All Securities surrendered for payment, redemption,
transfer, conversion or exchange, or for credit against any payment in respect of a sinking or analogous fund, if any, shall, if surrendered to the Company, the Trustee or any agent of the Company or of the Trustee, be delivered to the Trustee, and
the same, together with Securities surrendered to the Trustee for cancellation, shall be canceled by it and thereafter disposed of by it as directed by the Company, and no Securities shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. The Trustee shall destroy canceled Securities in accordance with applicable laws and procedures, and deliver a certificate of destruction thereof to the Company. If the Company shall purchase or otherwise
acquire any of the Securities, however, such purchase or acquisition shall not operate as a payment, redemption or satisfaction of the indebtedness represented by such Securities unless and until the Company, at its option shall deliver or surrender
the same to the Trustee for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute and the Trustee shall authenticate and deliver temporary Securities of such series which are printed, lithographed, typewritten or otherwise produced, in each case satisfactory to the Trustee.
Temporary Securities of any series shall be issuable substantially in the form of the definitive Securities of such series but with such appropriate omissions, insertions, substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities. Every such temporary Security shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive
Securities. If temporary Securities are issued, the Company will cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities of such series shall be exchangeable for
definitive Securities upon surrender of the temporary Securities without charge to the Holder at the offices or agencies to be maintained by the Trustee as provided in Section 4.03 with respect to the Securities of such series. Upon surrender
for cancellation of any one or more temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series.
Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the benefits of this Indenture and interest thereon, when and as payable, shall be paid to the registered owners thereof.
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SECTION 2.12. Securities in Global Form.
(a) If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal
amount of, all of the Outstanding Securities of such series, (ii) shall be registered in the name of the Depository or its nominee, (iii) shall be held by the Trustee as custodian for the Depository or pursuant to the Depositorys
instruction and (iv) shall bear a legend substantially to the following effect: Except as otherwise provided in Section 2.12 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of
the Depository or to a successor Depository or to a nominee of such successor Depository.
(b) Notwithstanding the provisions of
Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.08, only to another nominee of the Depository for such series, or to a successor Depository for such series
selected or approved by the Corporation or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of
the Securities notifies the Company that it is unwilling or unable to continue as Depository for such series or if at any time the Depository for such series shall no longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depository for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has
occurred and is continuing and the Company has received a request from the Depositary, this Section 2.10 shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in
exchange for such Global Security upon the instruction of the Depository. In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions of this
Section 2.12 shall no longer apply to the Securities of such series. In such event the Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officers Certificate evidencing such determination by the
Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series
in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in
definitive registered form issued in exchange for the Global Security pursuant to this Section 2.10(c) shall be registered in such names and in such authorized denominations as the Depository, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Debt Securities to the Depository for delivery to the Persons in whose names such Securities are so registered.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Securities may use CUSIP and CINS numbers (if then
generally in use), and the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders and no representation shall be made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or exchange. The Company will promptly notify the Trustee of any change in the CUSIP and/or such other numbers.
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ARTICLE 3
REDEMPTION OF SECURITIES
SECTION 3.01. Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which
are redeemable before their Stated Maturity except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Registered Securities of any
series to be redeemed as a whole or in part at the option of the Company shall be given by mailing notice of such redemption by electronic transmission, first-class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date
fixed for redemption to such Holders of Securities of such series at their last addresses as they shall appear upon the Register. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for
the redemption of such Security of such series.
The notice of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities that interest accrued to
the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only
the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company or, at the Companys request delivered to the Trustee at least five Business Days prior to the intended date of mailing to the Holders, by the Trustee in the name and at the
expense of the Company.
On or before the redemption date specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and holder in trust as provided in Section 4.05), no later than 11:00 a.m. New York City time,
an amount of money sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. The Company will deliver
to the Trustee at least 70 days prior to the date fixed for redemption, or such shorter period as shall be acceptable to the Trustee, an Officers Certificate stating the aggregate principal amount of Securities to be redeemed with a copy of
the form on notice to the Holders setting forth the information required by this Section 3.02. In case of a redemption at the election of the Company prior to the expiration of any restriction on such redemption, the Company shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officers Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and
fair, in its sole discretion, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly
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notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or is to be redeemed.
SECTION 3.03. Payment of
Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Company shall default in the payment of such Securities at the redemption price, together with interest accrued to
said date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided in Sections 7.05 and 11.04, such Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified in said notice maturing after the date fixed for redemption, said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with interest accrued thereon to the date fixed for redemption; provided, that payment of interest becoming due on or prior to the date fixed for redemption shall be payable to the Holder of such Registered Securities
registered as such on the relevant record date, subject to the terms and provisions of Section 2.03 and 2.07 hereof.
If any Security
called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an
Original Issue Discount Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Company, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented.
SECTION 3.04. Exclusion of Certain Securities From Eligibility for Selection for
Redemption. Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in an Officers Certificate delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Company or (b) an entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common control with the Company.
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal of and Interest on Securities. The Company covenants that it will duly and punctually pay or
cause to be paid the principal of and any interest and premium on each of the Securities in accordance with the terms of the Securities and this Indenture. Except with respect to any Global Securities, if the Securities of any series bear interest,
each installment of interest on
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the Securities of such series may, at the option of the Company, be paid by mailing a check or checks for such interest payable to the Person entitled thereto pursuant to Section 2.07 to the
address of such Person as it appears on the Register of such series on the applicable Record Date for such interest payment. The interest, if any, on Registered Securities (together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only to or upon the written order of the Holders thereof and, at the option of the Company, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the Register of the Company.
SECTION 4.02. Corporate Existence of the Company;
Consolidation, Merger, Sale or Transfer. The Company covenants that so long as any of the Securities are Outstanding, it will maintain its existence, will not dissolve, sell or otherwise dispose of all or substantially all of its assets and will
not consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it; provided that the Company may, without violating the covenants in this Section 4.02 contained, consolidate with or
merge into another entity or permit one or more other entities to consolidate with or merge into it, or sell or otherwise transfer to another entity all or substantially all of its assets as an entirety and thereafter dissolve, if the surviving,
resulting or transferee entity, as the case may be, (i) shall be organized and existing under the laws of one of the States of the United States of America, (ii) assumes, if such entity is not the Company, all of the obligations of the
Company hereunder and (iii) is not, after such transaction, otherwise in default under any provisions hereof.
SECTION 4.03.
Maintenance of Offices or Agencies for Transfer, Registration, Exchange and Payment of Securities. So long as any of the Securities shall remain Outstanding, the Company covenants that it will cause the Trustee to maintain an office or agency
in , where the Securities may be presented for registration, exchange and transfer as in this Indenture provided, and
where notices and demands to or upon the Trustee in respect of the Securities or of this Indenture may be served, and where the Securities may be presented for payment. In case the Trustee shall fail to maintain any such office or agency,
presentations and demands may be made and notices may be served at the principal office of the Company.
The Company will give to the
Trustee written notice of the location of each such office or agency and of any change of location thereof. In case the Company shall fail to maintain any agency required by this Section to be located in
, or shall fail to give such notice of the location or for any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Principal Office of the Trustee.
The Company may from time to time
designate one or more additional offices or agencies where the Securities of a series may be presented for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and pursuant to Section 2.04 and
where the Registered Securities of that series may be presented for registration of transfer as in this Indenture provided, and the Company may from time to time rescind any such designation, as the Company may deem desirable or expedient; provided,
that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain the agencies provided for in this Section. The Company shall give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 4.04. Appointment to Fill a Vacancy in the Office of Trustee. The Company, whenever necessary to
avoid or fill a vacancy in the office of Trustee, covenants that it will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee with respect to the Outstanding Securities.
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SECTION 4.05. Duties of Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee with respect to Securities of any series, it will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.05 and Section 11.04,
(1) that it will hold all sums held by it as such agent for the payment of the principal of or interest, if any, on the Securities of such
series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities entitled to such principal or interest and will notify the Trustee of
the receipt of sums to be so held,
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on
the Securities of such series) to make any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and
(3) that it will at any time during the continuance of any Event of Default, upon the written request of the Trustee, deliver to the Trustee
all sums so held in trust by it.
(b) Whenever the Company shall have one or more Paying Agents with respect to the Securities of any
series, it will, prior to each due date of the principal of or any interest on the Securities of such series, deposit with a Paying Agent of such series a sum sufficient to pay the principal or interest so becoming due, such sum to be held in trust
for the benefit of the Holders of Securities 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.
(c) If the Company shall act as its own Paying Agent with respect to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series a sum sufficient to pay such principal or interest so becoming due. The Company will
promptly notify the Trustee of any failure to take such action.
(d) Anything in this Section 4.05 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums
held in trust for such series by it, or any Paying Agent hereunder, as required by this Section 4.05, and such sums are to be held by the Trustee upon the trust herein contained.
SECTION 4.06. Notice of Default. The Company covenants that, as soon as is practicable but in no event later than twenty Business
Days after the occurrence thereof, the Company will furnish the Trustee notice of any event which is an Event of Default or which with the giving of notice or the passage of time or both would constitute an Event of Default which has occurred and is
continuing on the date of such notice, which notice shall set forth the nature of such event and the action which the Company proposes to take with respect thereto.
SECTION 4.07. Maintenance of Properties. The Company will cause all properties used in or useful in the conduct of its business to
be maintained and kept in good condition, repair, and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary, so that the business carried on in connection therewith may be properly and
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advantageously conducted at all time except to the extent that the Company may be prevented from so doing by circumstances beyond its control; provided, that nothing in this Section shall prevent
the Company from discontinuing the operation or maintenance of any of such properties, or disposing of any of them, if such discontinuance or disposal is, in the judgment of the Company desirable in the conduct of the business of the Company and not
disadvantageous in any material respect to the Securityholders.
SECTION 4.08. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall become delinquent: (a) all taxes, assessments and governmental charges levied or imposed upon the Company or upon the income, profits or property of the Company; and
(b) all lawful claims for labor, materials, and supplies, which, if unpaid, might by law become a lien upon the property of the Company; provided, that the Company shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings; and provided further that the Company shall not be required to cause to be paid or discharged any such tax,
assessment, charge or claim if the Company shall determine that such payment is not advantageous to the conduct of the business of the Company taken as a whole and that the failure so to pay or discharge is not disadvantageous in any material
respect to the Securityholders.
ARTICLE 5
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Information as to the Names and Addresses of Securityholders. The Company will furnish or
cause to be furnished to the Trustee, not less than 45 days nor more than 60 days after each date (month and day) specified as an Interest Payment Date for the Securities of the first series issued under this Indenture (whether or not any Securities
of that series are then Outstanding), but in no event less frequently than semiannually, and at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list in such form as the
Trustee may reasonably require containing all the information in the possession or control of the Company, or any of its Paying Agents other than the Trustee, as to the names and addresses of the Holders of Securities, obtained since the date as of
which the next previous list, if any, was furnished, excluding from any such list the names and addresses received by the Trustee in its capacity as registrar (if so acting). Any such list may be dated as of a date not more than 15 days prior to the
time such information is furnished and need not include information received after such date. However, if the Trustee is appointed as Registrar, the Company has no obligation to furnish the list of holders
SECTION 5.02. Preservation of Information; Communication to Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Holders of Securities of
each series (1) contained in the most recent list furnished to it as provided in Section 5.01, (2) received by the Trustee in the capacity of Paying Agent or registrar (if so acting) and (3) filed with the Trustee within the two
preceding years as provided for in Section 5.04(c). The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities (hereinafter referred to as applicants) apply in writing to the Trustee, and furnish to
the Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of
Securities of any series or with Holders of all Securities with respect to their rights under this Indenture or under such Securities, and is
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accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either:
(1) afford such applicants access to the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 5.02; or
(2) inform such applicants as to the approximate
number of Holders of Securities of such series or all Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this
Section 5.02, and as to the approximate cost of mailing to such Securityholders the form of proxy or other communications, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such
applicants, mail to each of the Holders of Securities of such series, or all Securities, as the case may be, whose name and address appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection
(a) of this Section 5.02, a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after such tender, the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities of such series or all Securities, as the case may be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material
to all such Securityholders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Each and every Holder of the Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Paying Agent nor any registrar shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with the provisions of subsection
(b) of this Section 5.02, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b).
SECTION 5.03. Reports by Company.
(a) The Company covenants and agrees to file with the Trustee within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations.
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(b) The Company covenants and agrees to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit to the Holders of Securities
within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04, such summaries of any
information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section 5.03 as may be required by rules and regulations prescribed from time to time by the Commission. Delivery of
reports, information and documents to the Trustee under this Section 5.03 is for informational purposes only and the Trustees receipt of the foregoing shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Companys compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
(d) The Company and any other obligor on the Securities each covenant and agree to furnish to deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an Officers Certificate, from the principal executive officer, principal financial officer or principal accounting officer stating whether or not to the best knowledge of
the signers thereof, the Company or Subsidiary of the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company or a Subsidiary of the Company in default, specifying all such defaults and the nature and status thereof of which they may have knowledge
SECTION 5.04. Reports by Trustee.
(a) On or before the first July 15th following the date of execution of this Indenture, and on or before July 15 in every year
thereafter, if and so long as any Securities are Outstanding hereunder, the Trustee shall transmit to the Securityholders as hereinafter in this Section 5.04 provided, a brief report dated as of the preceding May 15 with respect to any of
the following events which may have occurred within the previous 12 months (but if no such event has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its qualifications under Section 7.08;
(2) the creation of or any material change to a relationship specified in paragraph (1) through (10) of Section 7.08(d);
(3) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities of any series, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect) to state such advances if such advances so remaining unpaid aggregate not more than onehalf of one percent of the principal amount of the Securities of such series
Outstanding on the date of such report;
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(4) the amount, interest rate and maturity date of all other indebtedness owing by the Company
(or by any other obligor on the Securities) to the Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor, except indebtedness based upon a creditor relationship
arising in any manner described in paragraph (2), (3), (4) or (6) of subsection (b) of Section 7.13;
(5) any change
to the property and funds, if any, physically in the possession of the Trustee (as such) on the date of such report;
(6) any additional
issue of Securities which the Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and which in its opinion materially affects the Securities, except action in respect of a default, notice of which has been or is to be withheld by it in accordance with the provisions
of Section 6.10.
(b) The Trustee shall transmit to the Securityholders, as hereinafter provided, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) since the date of the last report transmitted pursuant to the provisions of subsection
(a) of this Section 5.04 (or if no such report has yet been so transmitted, since the date of execution of this Indenture), for the reimbursement of which it claims or may claim a lien or charge prior to that of the Securities of any
series on property or funds held or collected by it as Trustee, and which it has not previously reported pursuant to this subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate ten percent or less of the principal amount of Securities of such series Outstanding at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 5.04 shall be transmitted by mail (i) to all Holders of Securities of any series, as the names
and addresses of such Holders shall appear upon the Register of the Securities of such series, (ii) to such Holders of Securities as have, within the two years preceding such transmission, filed their names and addresses with the Trustee for
that purpose and (iii) except in the case of reports pursuant to subsection (b) of this Section 5.04 to each Holder whose name and address are preserved at the time by the Trustee as provided in Section 5.02(a) hereof.
(d) A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with each stock exchange
upon which the Securities of any series are listed and also with the Commission. The Company will notify the Trustee when and as the Securities of any series become listed on any stock exchange.
ARTICLE 6
REMEDIES OF THE
TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default; Acceleration, Waiver of Default and Restoration of Position and Rights. The term Event
of Default whenever used herein with respect to any particular series of Securities shall mean any one of the following events:
(a) default in the payment of any installment of interest on any Security of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days provided however, that an extension of one or more Interest Payment Dates by the Company in accordance with the provisions of any Supplemental Indenture, shall not constitute an Event of
Default; or
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(b) default in the payment of all or any part of the principal of or any premium on any Security
of such series as and when the same shall become due and payable whether at maturity, by proceedings for redemption, by declaration or otherwise, provided however, that an extension of the Stated Maturity for payment of principal of Securities of
such series in accordance with the provisions of any Supplemental Indenture, shall not constitute an Event of Default; or
(c) failure on
the part of the Company to observe or perform in any material respect any other of the covenants or agreements on its part in the Securities or in this Indenture (including any Supplemental Indenture or pursuant to any Officers Certificate, as
contemplated by Section 2.03) specifically contained for the benefit of the Holders of the Securities of such series, for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the Holders of not less than 25% in principal amount of the Securities of such series and all other series so benefited (all series voting as one class) at the time Outstanding under this Indenture a written notice
specifying such failure and stating that such is a Notice of Default hereunder; or
(d) the entry by a court having
jurisdiction in the premises of a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, if such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(e) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or the Companys consent to the entry of an order for relief in any involuntary case under any such law, or its consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or similar official) of the Company or for any substantial part of its property, or the making by the Company of any general assignment for the benefit of creditors, or its failure generally to pay its
debts as they become due or the taking by the Company of any corporate action in furtherance of any of the foregoing; or
(f) any other
Event of Default provided in the Officers Certificate or Supplemental Indenture under which such series of is issued or in the form of Security for such series.
If an Event of Default described in clause (a) or (b) shall have occurred and be continuing with respect to any one or more series
of Outstanding Securities, then and in each and every such case, unless the principal amount of all the Securities of each series as to which there is an Event of Default shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in principal amount of the Securities of such series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Company (and to the Trustee if given by Securityholders) may declare the
principal amount (or, if the Securities of any such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all the Securities of such series, together with any accrued
interest, to be due and payable immediately, and upon any such declaration the same shall be immediately due and payable, anything in this Indenture or in the Securities of such series contained to the contrary notwithstanding.
Except as otherwise provided in the terms of any series of Securities pursuant to Section 2.03, if an Event of Default described in
clause (c) or (f) above with respect to all series of Securities then
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Outstanding, occurs and is continuing, then, and in each and every such case, unless the principal of all of the Securities shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of all of the Securities then Outstanding hereunder (treated as one class) by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all of the Securities then Outstanding, and the interest accrued thereon,
if any, to be due and payable immediately, and upon such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (e) or (f) above occurs and is continuing, then the principal amount of all
of the Securities then Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of Default is with respect to less than
all series of Securities then Outstanding, then, and in each and every such case, except for any series of Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, and the interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable.
The
foregoing provisions, however, are subject to the condition that if, at any time after the principal amount (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof of the
Securities of any one or more series (or of all the Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment of moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of such series (or upon all the Securities, as the case may be) and the principal of any and all
Securities of such series (or of any and all the Securities, as the case may be) which shall have become due otherwise than by declaration (with interest on overdue installments of interest to the extent permitted by law and on such principal at the
rate or rates of interest borne by, or prescribed therefor in the Securities of such series to the date of such payment or deposit) and interest upon such principal and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series (or at the respective rates of interest or Yields
to Maturity of all the Securities, as the case may be) to the date of such payment or deposit; and the amounts payable to the Trustee under Section 7.06 and any and all defaults under the Indenture with respect to Securities of such series (or
all Securities, as the case may be), other than the nonpayment of principal of and any accrued interest on Securities of such series (or any Securities, as the case may be) which shall have become due by declaration shall have been cured,
remedied or waived as provided in Section 6.09then and in every such case the Holders of a majority in principal amount of the Securities of such series (or of all the Securities, as the case may be) then Outstanding (such series or all
series voting as one class if more than one series are so entitled) by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences; but no such rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof,
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then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes
hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee and the Holders of the Securities of such series (or of all the
Securities, as the case may be) shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee and the Holders of the Securities of such series (or of all the
Securities, as the case may be) shall continue as though no such proceedings had been taken.
SECTION 6.02. Covenant of Company to
Pay to Trustee Whole Amount Due on Securities on Default in Payment of Interest or Principal. The Company covenants that:
(a) in case
default shall be made in the payment of any installment of interest on any of the Securities of any series as and when the same shall become due and payable and which payment has not been extended in accordance with the provisions of a Supplemental
Indenture, and such default shall have continued for a period of 30 days;
(b) in case default shall be made in the payment of all or any
part of the principal of any of the Securities of any series when the same shall have become due and payable and which payment has not been extended in accordance with the provisions of a Supplemental Indenture, whether at the Stated Maturity of
such series or by any call for redemption or by declaration of acceleration or otherwise; or
(c) upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the Holders of the Securities of such series, the whole amount that then shall have become due and payable on all such Securities of such series for principal (and any premium) and interest together with
interest upon the overdue principal and installments of interest (to the extent permitted by law) at the rate or rates of interest borne by or Yield to Maturity (in the case of Original Issue Discount Securities), or prescribed therefor in, the
Securities of such series; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expense of collection, including a reasonable compensation to the Trustee, its agents and counsel, and any expenses or liabilities
incurred, and all advances made, by the Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail
forthwith to pay such amounts upon such demand, the Trustee, in its own name and as Trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor upon such Securities, and collect in the manner provided by law out of
the property of the Company or any other obligor upon such Securities wherever situated the moneys adjudged or decreed to be payable.
If
an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
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SECTION 6.03. Trustee May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the
Securities (or, if the Securities are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) and to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.04. Trustee
May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee to the fullest extent permitted by law without the possession of any of the
Securities of any series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 6.05. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee pursuant to Section 6.02
shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys, upon presentation of the several Securities in respect of which moneys have been collected, and stamping thereon the payment, if
only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 7.06;
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SECOND: In case the principal of the Outstanding Securities in respect of which moneys have been
collected shall not have become due and be unpaid, to the payment of any interest on such Securities, in the order of the maturity of the installments of such interest, with interest upon the overdue installments of interest (so far as permitted by
law and to the extent that such interest has been collected by the Trustee at the rate or rates of interest borne by or Yield to Maturity (in the case of Original Issue Discount Securities) of such Securities or prescribed therefor therein) such
payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the
Outstanding Securities in respect of which such moneys have been collected shall have become due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal and interest, if any, with
interest on the overdue principal and any installments of interest (so far as permitted by law and to the extent that such interest has been collected by the Trustee) at the rate or rates of interest borne by or Yield to Maturity (in the case of
Original Issue Discount Securities), or prescribed therefor in, such Securities; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal and interest
or Yield to Maturity, without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest, or of any Security
over any other Security, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To
the payment of the remainder, with appropriate interest to the Company or its successors or assigns, or to whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.06. Limitation on Suits by Holders of Securities. No Holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder,
unless such Holder previously shall have given to the Trustee written notice of a continuing Event of Default, as hereinbefore provided, and unless also the Holders of not less than 25% in principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby (including the reasonable fees of counsel for the Trustee), and the Trustee, for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee by the holders of a majority in principal amount of the outstanding debt securities pursuant to this
Section 6.06; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series appertaining to
such Securities shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the Holders of any other of such Securities, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, the right of any Holder of any Security to receive payment of the principal of and
interest on such Security on or after the respective due dates expressed in such Security (or, in the case of redemption, on or after the date fixed for redemption), or to institute suit for the enforcement of any such payment on or after such
respective dates shall not be impaired or affected without the consent of such Holder.
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SECTION 6.07. Rights and Remedies Cumulative. All powers and remedies given by this
Article Six to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any
default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy
given by this Article Six or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders. The assertion or employment of any right or remedy hereunder or
otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.08. Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Subject to the provisions of Section 6.06, every right and remedy given by this Article Six or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.09. Control by Holders; Waiver of Past Defaults.
The Holders of a majority in principal amount of the Securities of all series (voting as one class) at the time Outstanding (determined as provided in Section 8.04) shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee; provided, however, that, subject to Section 7.01 the Trustee shall have the right to decline to follow any such direction if the
Trustee in reliance upon an Opinion of Counsel determines that the action so directed may not lawfully be taken, or if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly prejudicial to the rights of Holders not parties to such direction, and provided further that nothing in this Indenture shall impair the right of the Trustee to take any action deemed
proper by the Trustee and which is not inconsistent with such direction by the Holders.
The Company may set a special record date for
purposes of determining the identity of the Holders of Securities entitled to vote or consent to any action by vote or consent authorized or permitted by this Section 6.09. Such record date shall be the later of 15 days prior to the first
solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee pursuant to Section 5.01 of this Indenture prior to such solicitation.
The Holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding (determined as provided in
Section 8.04) may on behalf of the Holders of all the Securities of such series waive any past Event of Default with respect to such series and its consequences (subject to Section 6.02), except a continuing Event of Default specified in
Section 6.01(a), (b) or (c), or in respect of a covenant or provision of this Indenture which under Article Ten cannot be modified or amended without the consent of the Holder of each Security so affected. Upon any such waiver, the
Company, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively, and such Event of Default shall be deemed to have been cured and not continuing for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon.
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SECTION 6.10. Trustee to Give Notice of Defaults Known to it, but May Withhold in Certain
Circumstances. The Trustee shall, within 90 days after the occurrence of a default with respect to the Securities of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of Securities of such
series in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, unless in each case such defaults shall have been cured before the mailing or publication of such notice (the term default for the purpose
of this Section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided, that, except in the case of default in the payment of the principal of or interest on
any of the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series.
SECTION 6.11. Requirement of an Undertaking to Pay Costs in Certain Suits Under the Indenture or Against the Trustee. All parties
to this Indenture agree, and each Holder of any Security by such Holders acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.11
shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder of Securities of any series, or group of such Holders, holding in the aggregate more than ten percent in principal amount of the Securities of such series
Outstanding, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or any interest or premium on any Security, on or after the due date expressed in such Security or for such interest (or in the case of any
redemption, on or after the dated fixed for redemption).
SECTION 6.12. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that they will not hinder, delay
or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and
after the curing, remedying or waiving of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default has occurred (which has not
been cured, remedied or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act, or its own willful misconduct, provided, however, that:
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(a) prior to the occurrence of an Event of Default and after the curing, remedying or waving of
all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture
against the Trustee;
(2) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein); and
(3) this Subsection shall not be construed to limit the effect
of the first paragraph and the second to last paragraph of this Section;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Securities pursuant to Section 6.09 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided in
Section 7.01:
(a) The Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers Certificate
(unless other evidence in respect thereof shall be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a Board Resolution;
(c) The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such written advice or Opinion of Counsel;
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(d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it
by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which may be incurred therein or thereby;
(e) The Trustee shall not be liable for any
action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document, unless requested in writing so to do by the Holders of Securities pursuant to Section 6.09; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities as a condition to such proceeding; and provided further, that nothing in this subsection (f) shall require the
Trustee to give the Securityholders any notice other than that required by Section 6.10. The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be reimbursed by the Company upon demand;
(g) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder
(h) The Trustee shall be under no responsibility for the approval by it in good faith of any expert for any of the purposes expressed in this
Indenture;
(i) The Trustee shall not be deemed to have notice or be charged with knowledge of any default (within the meaning of
Section 602) or Event of Default with respect to the Securities of any series for which it is acting as Trustee unless written notice of such default or Event of Default, as the case may be, is received by the Trustee at the Corporate Trust
Office of the Trustee from the Company, any other obligor upon such Securities or by any Holder of such Securities, and such notice references the Securities and this Indenture;
(j) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(k) The Trustee may request that the Company deliver an Officers Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any persons authorized to sign an Officers Certificate, including any person specified as so authorized in
any such certificate previously delivered and not superseded;
(l) The permissive right of the Trustee hereunder to take or omit to take
any action shall not be construed as a duty; and
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(m) Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for
special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Company has been advised as to the likelihood of such loss or damage and regardless of the form of action.
SECTION 7.03. Trustee Not Responsible for Recitals or Application of Proceeds. The recitals contained herein and in the
Securities (other than the certificate of authentication on the Securities) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds thereof.
SECTION 7.04. Trustee May Own Securities. The Trustee, any Paying Agent, registrar or any agent of the Company or of the Trustee,
in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent, registrar or such other agent.
SECTION 7.05. Moneys Received by Trustee to be Held in Trust. Moneys held by the Trustee in trust need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
SECTION 7.06. Trustee Entitled to Compensation, Reimbursement and Indemnity. The Company agrees to pay to the Trustee from time to
time reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of any express trust), and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in connection with the acceptance or administration of its trust under this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all
Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Company also agrees to indemnify the Trustee and its officers, directors, agents and employees for, and to hold
it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the reasonable costs and
expenses of defending itself against any claim of liability in the premises. The obligations of the Company under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and
hold harmless the Trustee and its officers, directors, agents and employees shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee. Such
additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of or interest or redemption premium on
particular Securities.
In addition and without prejudice to the rights provided to the Trustee under any of the provisions of this
Indenture, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 601(e) or Section 601(f), the expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of administration under any applicable Federal and State bankruptcy, insolvency or other similar law.
SECTION 7.07. Right of Trustee to Rely on Officers Certificate Where No Other Evidence Specifically Prescribed. Except as
otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
33
established prior to taking, suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence
or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers Certificate of the Company or an Opinion of Counsel or both delivered to the Trustee, and such Officers Certificate or Opinion of
Counsel, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08. Disqualification; Conflicting Interest. If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall eliminate such interest, apply to the Commission for permission to continue as trustee (if any of the Securities are registered pursuant to the Securities Act) or resign,
to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee, by virtue of its capacity as Trustee of the Securities of any series shall
not be deemed to have a conflicting interest arising from its capacity as trustee in respect of the Securities of any other series issued under this Indenture. Nothing herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Requirements for
Eligibility of Trustee. There shall always be at least one Trustee hereunder. The Trustee hereunder shall at all times be a Company organized and doing business as a commercial bank under the laws of the United States of America or any state
thereof or of the District of Columbia or a Company or other Person permitted to act as a trustee by the Commission and, in each case, authorized under such laws to exercise corporate trust powers, having (or, in the case of a subsidiary of a bank
holding company, its bank holding company parent shall have) a combined capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal, State or District of Columbia authority. If such Company or bank holding
company parent publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Company or
bank holding company parent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. No obligor on the Subordinated Securities or Person directly or indirectly controlling, controlled
by or under common control with such obligor shall serve as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09, the Trustee shall resign immediately in the manner and with
the effect specified in this Article Seven.
SECTION 7.10. Resignation and Removal of Trustee; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee
may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 7.11 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section
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6.11 shall not have been delivered to the Trustee within 30 days after the Trustees receipt of such notice of removal, the departing Trustee may, at the expense of the Company, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(b) In case at
any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of subsection (a) of
Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation; or
(4) the Company shall determine that the Trustee has failed to perform its obligations under this Indenture in any
material respect, then, in any such case, the Company may remove the Trustee and appoint a successor trustee by written instrument executed by an authorized officer of the Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11, any Securityholder who has been a bona fide Holder of a Security or Securities of the affected series for at least six months may, on such
Persons behalf and on behalf of all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a
majority in principal amount of the Securities Outstanding (determined as provided in Section 8.04) may at any time remove the Trustee and appoint a successor trustee by written instrument or instruments signed by such Holders or their
attorneysinfact duly authorized, or by the affidavits of the permanent chairman and secretary of a meeting of the Securityholders evidencing the vote upon a resolution or resolutions submitted thereto with respect to such removal and
appointment (as provided in Article Nine), and by delivery thereof to the Trustee so removed, to the successor trustee and to the Company.
(d) Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this
Section 7.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
SECTION 7.11. Acceptance of Appointment by Successor Trustee. Any successor trustee appointed as provided in Section 7.10
shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers with respect to
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the trustee so ceasing to act. Upon written request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions
of Section 7.06.
No successor trustee shall accept appointment as provided in this Section 7.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09.
SECTION 7.12. Successor to Trustee by Merger, Consolidation or Succession to Business. Any Company into which the Trustee may be
merged or converted or with which it may be consolidated, or any Company resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Company succeeding to all or substantially all of the corporate trust
business of the Trustee (including the administration of the trust created by this Indenture), shall be the successor of the Trustee hereunder, provided such Company shall be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 7.13. Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
SECTION 7.14. Appointment of Authenticating Agent. As long as any Subordinated Securities of a series remain Outstanding, the
Trustee may, by an instrument in writing, appoint with the approval of the Company an authenticating agent (the Authenticating Agent) which shall be authorized to act on behalf of the Trustee to authenticate Subordinated Securities,
including Subordinated Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.09. Subordinated Securities of each such series authenticated by such Authenticating Agent shall be entitled to the
benefits of this Subordinated Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is made in this Subordinated Indenture to the authentication and delivery of Subordinated Securities of
any series by the Trustee or to the Trustees Certificate of Authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent for such series and a Certificate of
Authentication executed on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State, authorized
under such laws to exercise corporate trust powers, having (or in the case of a subsidiary of a bank holding company, its bank holding company parent shall have) a combined capital and surplus of at least $45,000,000 (determined as provided in
Section 7.09 with respect to the Trustee) and subject to supervision or examination by Federal or State authority.
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Any corporation into which any Authenticating Agent may be merged or converted, or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent (including the agency contemplated by this Indenture) shall be a party, or any corporation succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the authenticating Agent with respect to all series of Subordinated Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case in any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 7.14 with respect to one or more series of Securities, the Trustee shall upon receipt of a Company Order appoint a successor Authenticating Agent and the Company shall provide notice of
such appointment to all Holders of Securities of such series in the manner and to the extent provided in Section 13.02. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Company agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation. The
Authenticating Agent for the Securities of any series shall have no responsibility or liability for any action taken by it as such at the direction of the Trustee.
If an appointment is made with respect to one or more series pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustees certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities described in the withinmentioned Indenture.
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, as Trustee |
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By |
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As Authenticating Agent |
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By |
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Authorized Signatory |
Sections 7.02, 7.03, 7.04, 7.06 and 8.03 shall be applicable to any Authenticating Agent.
ARTICLE 8
CONCERNING THE
SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders. Whenever in this Indenture it is provided that the
Holders of a specified percentage in principal amount of the Securities of any or all
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series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any
such action the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by such Securityholders in Person or by agent or proxy appointed in writing,
or (b) by the record of such Holders of Securities voting in favor thereof at any meeting of such Securityholders duly called and held in accordance with the provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of such Securityholders.
SECTION 8.02. Proof of Execution of Instruments and of
Holding of Securities. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any instrument by a Securityholder or such Holders agent or proxy and proof of the holding by any Person of any of the Securities
shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any instrument may be
proved in any reasonable manner acceptable to the Trustee;
(b) The ownership of Securities of any series shall be proved by the Register
of such Securities of such series, or by certificates of the Security registrar or registrars thereof.
The Trustee shall not be bound to
recognize any Person as a Securityholder unless and until such Persons title to the Securities held by it is proved in the manner in this Article Eight provided.
The record of any Securityholders meeting shall be proved in the manner provided in Section 9.06.
The Trustee may accept such other proof or require such additional proof of any matter referred to in this Section 8.02 as it shall deem
reasonable.
SECTION 8.03. Who May be Deemed Owners of Securities. Prior to due presentment for transfer of any Security, the
Company, the Trustee and any agent of the Company or the Trustee may deem and treat the Person in whose name such Security shall be registered upon the Register of Securities of the series of which such Security is a part as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and interest, subject to the provisions of
this Indenture, on such Security and for all other purposes; and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such Holder for the
time being, or upon such Holders order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability of moneys payable upon any such Security.
If the Securities of any series are issued in the form of one or more Global Securities, the Depository therefor may grant proxies to Persons
having a beneficial ownership in such Global Security or Securities for purposes of voting or otherwise responding to any request for consent, waiver or other action which the Holder of such Registered Security is entitled to grant or take under
this Indenture and the Trustee shall accept such proxies for the purposes granted; provided that neither the Trustee nor the Company shall have any obligation with respect to the grant of or solicitation by the Depository of such proxies.
SECTION 8.04. Securities Owned by the Company or Controlled or Controlling Persons Disregarded for Certain Purposes. In
determining whether the Holders of the requisite principal amount
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of Securities have concurred in any demand, direction, request, notice, vote, consent, waiver or other action under this Indenture, Securities which are owned by the Company or any other obligor
on the Securities or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, provided that for the purposes of determining whether the Trustee shall be protected in relying on any such demand, direction, request, notice, vote, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustee assigned to its Principal Office knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section 8.04, if
the pledgee shall establish to the satisfaction of the Trustee the pledgees right to vote such Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers
Certificate listing and identifying all Securities, if any, known by the Company to be owned or held by or for the account of the Company or any other obligor on the Securities or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor on the Securities; and, subject to the provisions of Section 7.01, the Trustee shall be entitled to accept such Officers Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination.
SECTION 8.05. Instruments Executed by Securityholders Bind Future Holders. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage in principal amount of the Securities specified in this Indenture in connection with such action, any Holder of a Security which is shown by
the evidence to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal office and upon proof of holding as provided in Section 8.02, revoke such action so
far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security and any direction, demand, request, notice, waiver, consent, vote or other action of the Holder of any Security which by any provisions of this
Indenture is required or permitted to be given shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security, and of any Security issued in lieu thereof, irrespective of whether any notation in regard
thereto is made upon such Security. Any action taken by the Holders of the percentage in principal amount of the Securities of any or all series specified in this Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the Holders of all of the Securities of such series subject, however, to the provisions of Section 7.01.
ARTICLE 9
SECURITYHOLDERS
MEETINGS
SECTION 9.01. Purposes for Which Meetings May be Called. A meeting of Holders of Securities of any or all series may
be called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:
(a) to give any
notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders of Securities of any or all
series, as the case may be, pursuant to any of the provisions of Article Six;
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(b) to remove the Trustee and appoint a successor trustee pursuant to the provisions of Article
Seven;
(c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of
Section 10.02; or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified principal
amount of the Securities of any or all series, as the case may be, under any other provision of this Indenture or under applicable law.
SECTION 9.02. Manner of Calling Meetings. The Trustee may at any time call a meeting of Securityholders to take any action
specified in Section 9.01, to be held at such time and at such place in The City of New York, New York, or such other city as the Trustee shall determine. Notice of every meeting of Securityholders, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting, shall be mailed not less than 20 nor more than 60 days prior to the date fixed for the meeting.
SECTION 9.03. Call of Meeting by the Company or Securityholders. In case at any time the Company pursuant to a resolution of its
Board of Directors, or the Holders of not less than ten percent in principal amount of the Securities of any or all series, as the case may be, then Outstanding, shall have requested the Trustee to call a meeting of Holders of Securities of any or
all series, as the case may be, to take any action authorized in Section 9.01 by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of such meeting
within 20 days after receipt of such request, then the Company or such Holders of Securities in the amount above specified may determine the time and place in any of the City of Seattle, Washington, County of King, Washington or The City of New
York, New York for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing (and publishing, if required) notice thereof as provided in Section 9.02.
SECTION 9.04. Who May Attend and Vote at Meetings. To be entitled to vote at any meeting of Securityholders a Person shall
(a) be a Holder of one or more Securities with respect to which the meeting is being held; or (b) be a Person appointed by an instrument in writing as proxy by such Holder of one or more Securities. The only Persons who shall be entitled
to be present or to speak at any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 9.05. Regulations May be Made by Trustee; Conduct of the Meeting; Voting RightsAdjournment. Notwithstanding any
other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 8.02. and the appointment of any proxy shall be proved in the manner specified in said Section 8.02; provided,
however, that such regulations may provide that written instruments appointing proxies regular on their face, may be presumed valid and genuine without the proof hereinabove or in said Section 8.02 specified.
The Trustee shall by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 9.03, in which case the Company or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
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Subject to the provisions of Section 8.04, at any meeting each Securityholder or proxy shall
be entitled to one vote for each $1,000 principal amount (in the case of Original Issue Discount Securities, such principal amount shall be equal to such portion of the principal amount as may be specified in the terms of such series) of Securities
held or represented by such Holder; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Securities held by such Person or instruments in writing as aforesaid duly designating such Person as the Person to vote on behalf of other Securityholders. Any meeting of Securityholders
duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be held so adjourned without further notice.
At any meeting of Securityholders, the presence of Persons holding or representing Securities in principal amount sufficient to take action on
the business for the transaction of which such meeting was called shall constitute a quorum, but, if less than a quorum is present, the Persons holding or representing a majority in principal amount of the Securities represented at the meeting may
adjourn such meeting with the same effect for all intents and purposes, as though a quorum had been present.
SECTION 9.06. Manner
of Voting at Meetings and Record to be Kept. The vote upon any resolution submitted to any meeting of Securityholders shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities or of their
representatives by proxy and the principal amount or principal amounts of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Securityholders shall be
prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth
a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall show the principal amount or principal amounts of the Securities voting in favor of or against any resolution. The record
shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one copy thereof shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 9.07. Exercise of Rights of Trustee and Securityholders Not to be Hindered or Delayed. Nothing in this Article Nine
contained shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders or any rights expressly or impliedly conferred hereunder to make such call, any hindrances or delay in the exercise of any right or
rights conferred upon or reserved to the Trustee or to the Securityholders under any of the provisions of this Indenture or of the Securities.
ARTICLE 10
SUPPLEMENTAL
INDENTURES
SECTION 10.01. Purposes for Which Supplemental Indentures May be Entered into Without Consent of Securityholders.
Without the consent of the Holders of any Securities, the Company and the
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Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall comply with the provisions of the Trust Indenture Act as then in effect) for
one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities
of one or more series any property or assets;
(b) if deemed appropriate by the Company or required by law, to evidence the succession of
another Company to the Company or successive successions and the assumption by the successor Company of the covenants, agreements and obligations of the Company pursuant to Article Four hereof;
(c) to add to the covenants of the Company such further covenants, restrictions or conditions as its Board of Directors and the Trustee shall
consider to be for the protection of the Holders of all or any series of Securities (and if such covenants, restrictions or conditions are to be for the benefit of less than all series of Securities, stating that such covenants, restrictions or
conditions are expressly being included solely for the benefit of such series), and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions or conditions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that in respect to any such additional covenant, restriction or condition such Supplemental Indenture may provide for a
particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon
such default;
(d) to add or change any of the provisions of this Indenture to such extent as shall be necessary to facilitate the
issuance of Securities in (i) global form or (ii) bearer form, registerable or not registerable as to principal or principal and interest, and with or without coupons;
(e) to change or eliminate any of the provisions of this Indenture; provided, however, that any such change or elimination shall become
effective only when there is no Security of any series Outstanding created prior to the execution of such Supplemental Indenture which is entitled to the benefit of such provision;
(f) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03;
(g) to appoint, at the request of the Trustee, a successor Trustee for a particular series of Securities to act as such pursuant to the
provisions of this Indenture and to add to or change the provisions of this Indenture to such extent as shall be necessary to facilitate the performance of the duties of such trustee; and
(h) to cure any ambiguity or to correct or supplement any provisions contained herein or in any Supplemental Indenture which may be defective
or inconsistent with any other provision contained herein or in any Supplemental Indenture, or to make such other provisions in regard to matters or questions arising under this Indenture or any Supplemental Indenture which shall not adversely
affect the interests of the Holders of the Securities.
SECTION 10.02. Modification of Indenture with Consent of Holders of
Securities. With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in principal amount of the Securities of all series at the time Outstanding (determined as provided in Section 8.04)
affected by such Supplemental Indenture (voting as one class), the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall
42
comply with the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this
Indenture or of any Supplemental Indenture or of modifying in any manner the rights of the Holders of the Securities of each such series; provided, however, that no such Supplemental Indenture shall, without the consent of the Holders of each
Outstanding Security affect thereby:
(a) change the Stated Maturity of the principal of, or any installment of principal of or interest
on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which
would be due and payable upon a declaration of acceleration of the Stated Maturity thereof pursuant to Section 6.01, or change any place of payment where, or the coin or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the date fixed for redemption), or modify the provisions of this Indenture
with respect to this subordination of the Securities in a manner adverse to the Holders, or
(b) Reduce the percentage in principal amount
of the Outstanding Securities the consent of the Holders of which is required for any such Supplemental Indenture, or the consent of the Holders of which is required for any waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture or
(c) Change the time of payment or reduce the amount of any
minimum sinking account or fund payment or
(d) Modify any of the provisions of this Section 10.02, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which modifies the rights of Holders of Securities of such series, with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series.
Upon the request of the Company, accompanied by a copy of a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to a Company Order) certified by the secretary or an
assistant secretary of the Company authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of the Holders of the Securities as aforesaid and other documents, if any, required by
Section 8.01, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions to this Section, the
Trustee shall give notice thereof to the Holders of then
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Outstanding Registered Securities of each series affected thereby, by mailing a notice thereof by firstclass mail to such Holders at their addresses as they shall appear on the Security
Register, and in each case such notice shall set forth in general terms the substance of such supplemental indenture. Any failure of the Company to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 10.03. Effect of Supplemental Indentures. Upon the execution of any Supplemental
Indenture pursuant to the provisions of this Article Ten, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such
Supplemental Indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
The
Trustee shall be entitled to receive, and subject to the provisions of Section 7.01 shall be entitled to rely upon, an Opinion of Counsel as conclusive evidence that any such Supplemental Indenture complies with the provisions of this Article
Ten and that the Securities affected by the Supplemental Indenture, when such Securities are authenticated and delivered by the Trustee and executed and issued by the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will be valid and binding obligations of the Company, except as any rights thereunder may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors rights generally and by general equity
principles.
SECTION 10.04. Securities May Bear Notation of Changes by Supplemental Indentures. Securities authenticated and
delivered after the execution of any Supplemental Indenture pursuant to the provisions of this Article Ten, or after any action taken at a Securityholders meeting pursuant to Article Nine, may bear a notation in form approved by the Trustee as
to any matter provided for in such Supplemental Indenture or as to any action taken at any such meeting. If the Company or the Trustee shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Company, to
any modification of this Indenture contained in any such Supplemental Indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities then Outstanding.
ARTICLE 11
DISCHARGE; DEFEASANCE
SECTION 11.01. Satisfaction and Discharge of Indenture.
(A) If at any time (i) the Company shall have paid or caused to be paid the principal of and interest on all the Securities of any series
Outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.09) as and when the same shall have become due and payable, or (ii) the
Company shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.09) or (iii) in the case of any series of Securities where the exact amount (including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred
to in clause (b) below, (a) all the Securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (b) the Company shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust the
entire
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amount in (i) cash (other than moneys repaid by the Trustee or any Paying Agent to the Company in accordance with Section 11.04), (ii) in the case of any series of Securities the
payments on which may only be made in Dollars, direct obligations of the United States of America, backed by its full faith and credit (U.S. Government Obligations), maturing as to principal and interest at such times and in such amounts
as will insure the availability of cash sufficient to pay at such Maturity or upon such redemption, as the case may be, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay (a) the principal and interest on all Securities of such series on each date that such principal or interest is due and payable in accordance with the terms of the
Indenture and the Securities of such series; (x) the principal and interest on all Securities of such series on each date that such principal or interest is due and payable and in accordance with the terms of the Indenture and the Securities of
such series; and if, in any such case, the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect (except as to (i) rights of registration of transfer
and exchange of Securities of such series and the Companys right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of Holders of Securities to receive payments
of principal thereof and interest thereon, upon the original stated due dates therefore (but not upon acceleration), (iv) any optional redemption rights of such series of Securities to the extent to be exercised to make such call for redemption
within one year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, including without limitation those under Section 7.6, (vi) the rights of the Holders of securities of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any of them, and (vii) the obligations of the Company under Section 4.03 and the Trustee, on demand of the Company accompanied by an Officers Certificate
and an Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture; provided, that the rights of Holders of the Securities to receive amounts in
respect of principal of and interest on the Securities held by them shall not be delayed longer than required by then applicable mandatory rules or policies of any securities exchange upon which the Securities are listed. The Company agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities
of such series.
(B) The following provisions shall apply to the Securities of each series unless specifically otherwise provided in an
Officers Certificate or indenture supplemental hereto provided pursuant to Section 2.03. In addition to discharge of the Indenture pursuant to the next preceding paragraph, in the case of any series of Securities the exact amounts
(including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause (a) below, the Company shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of such a series on the date of the deposit referred to in clause (a) below, and the provisions of this Indenture with respect to the Securities of such series shall no longer be in effect (except as to (i) rights of
registration of transfer and exchange of Securities of such series and the Companys right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of Holders of
Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), (iv) any optional redemption rights of such series of Securities to the extent to be exercised to
make such call for redemption within one year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, (vi) the rights of the Holders of Securities of such series as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them and (vii) the obligations of the Company under Section 4.03 and the Trustee, at the expense of the Company, shall at the Companys request, execute proper instruments
acknowledging the same, if
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(a) with reference to this provision the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (i) cash in an amount, or (ii) in the case of any
series of Securities the payments on which may only be made in United States Dollars, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal and interest on all Securities of such
series on each date that such principal or interest is due and payable in accordance with the terms of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which the Company
is a party or by which it is bound;
(c) the Company has delivered to the Trustee an Opinion of Counsel based on the fact that
(x) the Company has received from, or there has been published by, the IRS a ruling or (y) since the date hereof, there has been a change in the applicable Federal income tax law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Securities of such series will not recognize income, gain or loss for United States Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States Federal
income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred; and
(d) the Company has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this provision have been complied with.
(C) The Company shall be
released from its obligations under Sections 4.02 and unless otherwise provided for in the Board Resolution, Officers Certificate or Indenture supplemental hereto establishing such series of Securities, from all covenants and other obligations
referred to in Section 2.03(18) or 2.03(20) with respect to such series of Securities outstanding on and after the date the conditions set forth below are satisfied (hereinafter, covenant defeasance). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of any series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in such Section, whether directly or
indirectly by reason of any reference elsewhere herein to such Section or by reason of any reference in such Section to any other provision herein or in any other document and such omission to comply shall not constitute an Event of Default under
Section 6.01, but the remainder of this Indenture and such Securities shall be unaffected thereby. The following shall be the conditions to application of this subsection C of this Section 11.01:
(a) The Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series and coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of any series of
Securities the payments on which may only be made in United States Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal and interest on all Securities of such series in
accordance with the terms of the Indenture and the Securities of such series;
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(b) No Event of Default or event which with notice or lapse of time or both would become an Event
of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit;
(c) Such covenant defeasance
shall not cause the Trustee to have a conflicting interest as defined in Section 7.08 and for purposes of the Trust Indenture Act with respect to any securities of the Company;
(d) Such covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is bound;
(e) Such covenant defeasance shall not cause any
Securities then listed on any registered national securities exchange under the Exchange Act to be delisted;
(f) The Company shall have
delivered to the Trustee an Officers Certificate and Opinion of Counsel to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for United States Federal income tax purposes as a result of such
covenant defeasance and will be subject to United States 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; 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 relating to the covenant defeasance contemplated by this provision have been complied with.
SECTION 11.02.
Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 11.04, all moneys deposited with the Trustee (for other trustee) pursuant to Section 11.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law.
SECTION 11.03. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with
respect to Securities of any series, all moneys then held by any Paying Agent under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to such moneys.
SECTION 11.04. Return of Moneys Held
by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any Paying Agent for the payment of the principal of and any premium and interest on any Security and not so applied but remaining unclaimed
under applicable law shall be transferred by the Trustee to the appropriate Persons in accordance with applicable laws, and the Holder of such Security of such series shall thereafter look only to such Persons for any payment which such Holder may
be entitled to collect and all liability of the Trustee and such Paying Agent with respect to such moneys shall thereupon cease.
SECTION
11.05. Indemnity for U.S. Government of Obligations. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 11.01
or the principal or interest received in respect of such obligations.
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ARTICLE 12
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. Incorporators, Stockholders, Officers and Directors of Company Exempt From Individual Liability. No recourse under
or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such past, present or
future, of the Company, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the Company because of the
creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal liability of every
name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom are hereby expressly waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors and Assigns of the Company Bound by Indenture. All the covenants, stipulations, promises and agreements
in this Indenture contained by or in behalf of the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 13.02. Notices; Effectiveness. Any notice or demand which by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the Holders of Securities to or on the Company, or by the Company or by the Holders of Securities to the Trustee or upon the Depository by the Company or the Trustee may be electronically communicated or hand
delivered or sent by overnight courier, addressed to the relevant party as provided in this Section 13.02.
All communications
intended for the Company shall be sent to:
Oncothyreon Inc.
2601 Fourth Ave., Suite 500
Seattle, Washington 98121
Attention: Chief Financial Officer
All communications intended for the Trustee shall be sent to:
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or at any other address of which any of the foregoing shall have notified the others in any manner prescribed in
this Section 13.02.
For all purposes of this Indenture, a notice or communication will be deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day it is delivered unless (i) that day is not a Business Day in the city
specified (a Local Business Day) in the address for notice provided by the recipient or (ii) if delivered after the close of business on a Local Business Day, then on the next succeeding Local Business Day or
(b) if sent by facsimile transmission, on the date transmitted, provided that oral or written confirmation of receipt is obtained by the
sender unless the date of transmission and confirmation is not a Local Business Day, in which case, on the next succeeding Local Business Day.
Any notice, direction, requires, demand, consent or waiver by the Company, any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given, made or filed, for all purposes, if given, made or filed in writing at the Principal Office of the Trustee in accordance with the provisions of this Section 13.02.
Any notice, request, consent or waiver by the Company or the Trustee upon the Depository shall have been sufficiently given, made or filed,
for all purposes, if give or made in accordance with the provisions of this Section 13.02 at the address shown for such Depository in the Register or at such other address as the Depository shall have provided for purposes of notice.
SECTION 13.03. Compliance Certificates and Opinions. Upon on any request or application by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided pursuant to Section 5.03(d) shall include (a) a statement that the Person making such certificate or opinion has read such covenant or condition; (b) a brief
statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which such certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or Opinion of Counsel may be based, insofar as it relates to factual matters, upon the
certificate, statement or opinion of or representations by an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate,
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statement or opinion or representations with respect to the matters upon which such Persons certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of counsel
may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants, unless such officer or counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate or
opinion of any firm of independent public accountants filed with the Trustee shall contain a statement that such firm is independent.
SECTION 13.04. Days on Which Payment to be Made, Notice Given or Other Action Taken. If any date on which a payment is to be made,
notice given or other action taken hereunder is a Saturday, Sunday or legal holiday in the state in which the payment, notice or other action is to be made, given or taken, then such payment, notice or other action shall be made, given or taken on
the next succeeding Business Day in such state, and in the case of any payment, no interest shall accrue for the delay.
SECTION 13.05. Provisions Required by Trust Indenture Act to Control. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act such required provision shall control.
SECTION 13.06. Governing Law and Waiver of Trial By Jury. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR TO SUCH STATUTE). THE TRUSTEE AND THE COMPANY AGREE TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION
OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES. THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE
TRUST INDENTURE ACT THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
THE TRUSTEE AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE TRUSTEE OR THE COMPANY RELATING THERETO. THE COMPANY
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE TRUSTEE AND THE HOLDERS ENTERING INTO THIS INDENTURE.
SECTION 13.07. Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 13.08. Judgment Currency. The Company agrees, to the fullest extent that it
may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series
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(the Required Currency), into a currency in which a judgment will be rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day,
then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on
the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. The Company agrees,
as a separate obligation and notwithstanding any such judgment, to indemnify the Trustee against loss if Dollars so purchased are less than the sum originally due to the Trustee in Dollars. For purposes of the foregoing, New York Banking
Day means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.
SECTION 13.09. Provisions of the Indenture and Securities for the Sole Benefit of the Parties and the Securityholders. Nothing in
this Indenture or in the Securities, expressed or implied, shall give or be construed to give any Person, firm or Company, other than the parties hereto and the Holders of the Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition and provision herein contained; all its covenants, conditions and provisions being for the sole benefit of the parties hereto and of the Holders of the Securities.
SECTION 13.10. Indenture May be Executed in Counterparts. This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but one and the same instrument.
SECTION 13.11.
Facsimile or PDF. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the
original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 13.12. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance
of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions or loss of utilities; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 13.13. U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A.
Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a
relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
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IN WITNESS WHEREOF, ONCOTHYREON INC. has caused this Indenture to be signed by its Chairman of
the Board or its President or Chief Financial Officer or one of its Vice Presidents and Trustee has caused this Indenture to be signed and acknowledged by an appropriate officer all as of the day and year first written above.
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ONCOTHYREON INC. |
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EXHIBIT 4.5
FORM OF SUBORDINATED DEBT SECURITY
[Face
of Subordinated Security]
ONCOTHYREON INC.
[If applicable, insertFOR PURPOSES OF THE ORIGINAL ISSUE DISCOUNT PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, THE ISSUE PRICE OF
THIS SUBORDINATED SECURITY IS % OF ITS PRINCIPAL AMOUNT AT STATED MATURITY SET FORTH BELOW (ITS PRINCIPAL AMOUNT), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS
% OF ITS PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS % AND THE ISSUE DATE
IS ]
[IF THE
SUBORDINATED SECURITY IS A GLOBAL SUBORDINATED SECURITY, INSERTTHIS NOTE IS A GLOBAL SUBORDINATED SECURITY. IT IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY (AS HEREINAFTER DEFINED) OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[Unless this
Subordinated Security is presented by an authorized representative of The Depositary Trust Company (55 Water Street, 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 requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
Oncothyreon Inc., a Delaware Corporation (herein called the Company, which term includes any
successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to, or registered assigns, the principal sum of Dollars
on [if Subordinated Security is to bear interest prior to maturity, insert, and to pay interest thereon
from or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually
on
and in each year,
commencing , at the rate of % per annum, until the principal hereof is paid
or made available for payment [if applicable, insert, provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of % per
annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Subordinated Security (or one or more Predecessor Subordinated Securities) is registered at the close of
business on the Record Date for such interest, which shall be the
or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Record Date and may either be paid to the Person this Subordinated Security (or one or more Predecessor Subordinated Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Subordinated Securities of this series not less than 10 days prior to such Special Record Date,
or be paid at any time in any other lawful manner not inconsistent with the requirements of any Subordinated Securities exchange on which the Subordinated Securities of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. [If the Subordinated Security is not to bear interest prior to maturity, insertThe principal of this Subordinated Security shall not bear interest except in the case of a default in
payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of % per annum (to the
extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. [Any such
interest on overdue principal or premium which is not paid on demand shall bear interest at
the rate of % per annum (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand
until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]].
Payment of the principal of (and premium, if any, on) and [any such] interest on this Subordinated Security will be made at the office or
agency of the Company maintained for that purpose in in such coin or currency of [the United States of
America] as at the time of payment is legal tender for payment of public and private debts[; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Register].
Reference is hereby made to the further provisions of this Subordinated Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the
certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture referred to on the reverse hereof, this Subordinated Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
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Dated: |
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Oncothyreon Inc. |
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[Title] |
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Secretary |
[Reverse of Subordinated Security.]
ONCOTHYREON INC.
This
Subordinated Security is one of a duly authorized issue of Subordinated Securities of the Company (herein called the Subordinated Securities), issued and to be issued in one or more series under an Indenture dated as
of , (herein called the Indenture, which term shall have the meaning assigned to it in such instrument), between
the Company and , as trustee (herein called the Trustee, which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations or rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Subordinated Securities and of the terms upon which the Subordinated Securities are, and are to be, authenticated and delivered. This Subordinated Security is one of the series designated on the face hereof [, limited in aggregate principal amount
to $ ].
[If the Subordinated Security is to be subordinated,
insertThe indebtedness evidenced by this Subordinated Security is, to the extent and in the manner set forth in the Indenture, expressly subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness (as
defined in the Indenture) of the Company. This Subordinated Security is issued subject to such provisions of the Indenture, and each Holder of this Subordinated Security, by accepting the same, agrees to and shall be bound by such provisions and
authorizes and directs the Trustee on the Holders behalf to take such action as may be necessary or appropriate to acknowledge or effectuate such subordination as provided in the Indenture and appoints the Trustee such Holders
attorney-in-fact for any and all such purposes.]
[If the Subordinated Security is to be subject to redemption only at the option of the
Company, insertThe Subordinated Securities of this series are subject to redemption upon not less than 30 days notice provided in the manner set forth in the Indenture, [(1) on in any year commencing with the year and ending with the
year at the Redemption Price equal to 100% of the principal amount, and (2)] at any time [on or after, ], as a whole or in part, at the election of the principal the following Redemption Prices (expressed as percentages of the principal amount): If
redeemed [on or before, %, and if redeemed] during the 12-month period beginning of the years indicated,
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and thereafter at a Redemption Price equal to % of the principal amount
together in the case of any such redemption [(whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Subordinated Securities of record at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.]
[If the Subordinated Security is to be redeemable in part, insertIn the event of redemption of this Subordinated Security in part only,
a new Subordinated Security or Subordinated Securities of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Subordinated Security is to be subject to repayment at the option of the Holder, insertTo be repaid at the option of the Holder,
the Company must receive this Subordinated Security, with the form of Option to Elect Repayment hereon duly completed, at an office or agency of the Company maintained for that purpose in (or at such other place of which the Company
shall from time to time notify the Holder of this Subordinated Security) not less than nor more than days prior to the Repayment Date. The exercise of the repayment option by the Holder shall be irrevocable.
[If the Subordinated Security is not to be subject to redemption at the option of the Company, insertThe Subordinated Securities are not
redeemable at the option of the Company prior to Maturity.]
[If the Subordinated Security is not to be an Original Issue Discount
Security, insertIf an Event of Default with respect to Subordinated Securities of this series shall occur and be continuing, the principal of the Subordinated Securities of this series may be declared due and payable in the manner and with the
effect provided in the Indenture.]
[If the Subordinated Security is to be an Original Issue Discount Security, insertIf an
Event of Default with respect to Subordinated Securities of this series shall occur and be continuing, an amount of principal of the Subordinated Securities of this series may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to [insert formula for determining the amount]. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each
case to the extent that the payment of such interest shall be legally enforceable), all of the Companys obligations in respect of the payment of the principal of and interest, if any, on the Subordinated Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders of the Subordinated Securities of each series under the Indenture to be affected at any time by the Company with the consent of the Holders of not less than 66-2/3% in principal amount of
the Subordinated Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Subordinated Securities of each series at the time
Outstanding, on behalf of the Holders of all Subordinated Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this Subordinated Security shall be conclusive and binding upon such Holder and upon all future Holders of this Subordinated Security and of any Subordinated Security issued upon the registration of transfer hereof or in
exchange herefor or I lieu hereof, whether or not notation of such consent of waiver is made upon this Subordinated Security.
As provided
in and subject to the provisions of the indenture, the Holder of this Subordinated Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Subordinated Subordinated Securities of this series, the Holders of not less than 25% in principal amount of
the Subordinated Securities of this series at the time Outstanding shall have made written request to the trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in principal amount of Subordinated Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Subordinated Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Subordinated Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any, on) and interest on this Subordinated Security at the times,
place and rate, and in the coin or currency, herein prescribed.
[If the Subordinated Security is to be registered form, insertAs
provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Subordinated Security is registrable in the Register, upon surrender of this Subordinated Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any, on) and interest on this Subordinated Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and
the Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and, thereupon one or more new Subordinated Securities of this series, of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.]
[The Subordinated Securities of this series are issuable only in registered form in
denominations of $ [and any integral multiple] [or increments of $ in excess] thereof. As provided in the Indenture and subject to certain limitations therein set forth, Subordinated Securities of this series are exchangeable for a like aggregate
principal amount of Subordinated Securities of this series of a different authorized denomination, as requested by the Holder surrendering the same.]
[No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.]
[Prior to due presentment of this Subordinated Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Subordinated Security is registered as the owner hereof for all purposes, whether or not this Subordinated
Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.]
[If the Subordinated Security is a Global Subordinated Security, insertGlobal
Subordinated Security and Global Subordinated Securities means a Subordinated Security or Subordinated Securities evidencing all or a part of a series of Subordinated Securities, issued to the Depositary (as hereinafter defined)
for such Series or its nominee, and registered in the name of such Depositary or its nominee. Depositary means, with respect to the Subordinated Securities of any series issuable or issued in whole or in part in the form of one or more
Global Subordinated Securities, the person designated as the Depositary by the Company.
No holder of any beneficial interest in this
Subordinated Security held on its behalf by a Depositary or a nominee of such Depositary shall have any rights under the Indenture with respect to such Global Subordinated Security, and such Depositary or nominee may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such Global Subordinated Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall impair, as between a Depositary and such holders of beneficial
interests, the operation of customary practices governing the exercise of the rights of the Depositary as Holder of any Subordinated Security.
This Subordinated Security is exchangeable, in whole but not in part, for Subordinated Securities registered in the names of Persons other
than the Depositary or its nominee or in the name of a successor to the Depositary or a nominee of such successor depositary only if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for this Note
or if at any time such Depositary ceases to be a clearing agency registered under the Subordinated Securities Exchange Act of 1934, as amended, and, in either case, a successor depositary is not appointed by the Company within 90 days, (ii) the
Company in its discretion at any time determines not to have all of the Subordinated Securities of this series represented by one or more Global Subordinated Security or Subordinated Securities and notifies the Trustee thereof, or (iii) an
Event of Default has occurred and is continuing with respect to the Subordinated Securities of this series. If this Subordinated Security is exchangeable pursuant to the preceding sentence, it shall be exchangeable for Subordinated Securities
issuable in authorized denominations and registered in such names as the Depositary holding this Subordinated Security shall direct. Subject to the foregoing, this Subordinated Security is not exchangeable, except for a Subordinated Security or
Subordinated Securities of the same aggregate denominations to be registered in the name of such Depositary or its nominee or in the name of a successor to the Depositary or a nominee of such successor depositary.]
[The Indenture entitles Holders to receive annual reports with respect to the Trustees eligibility and qualifications to serve as
Trustee by filing their names and addresses with the Trustee for that purpose within two years preceding and mailing of any such annual report.]
No recourse shall be had for the payment of the principal of (and premium, if any, on) or interest on this Subordinated Security, or for any
claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture of any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Subordinated Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
This Subordinated Security, including without limitation the obligation of the Company
contained herein to pay the principal of (and premium, if any, on) and interest on this Subordinated Security in accordance with the terms hereof and of the Indenture, shall be construed in accordance with and governed by the laws of the State of
New York.
[Trustees Certificate of Authentication.]
This is one of the Subordinated Securities of the series designated herein referred to in the within-mentioned Indenture.
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, as |
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[Authenticating Agent for] the Trustee |
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By |
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Authorized Officer |
EXHIBIT 4.6
FORM OF
SUBORDINATED
INDENTURE
Between
ONCOTHYREON INC.
and
,
AS TRUSTEE
Dated as of
TABLE OF CONTENTS
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ARTICLE 1 |
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DEFINITIONS |
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1 |
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Section 1.01. |
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Certain Terms Defined |
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1 |
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ARTICLE 2 |
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ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, TRANSFER AND EXCHANGE OF SUBORDINATED SECURITIES |
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6 |
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Section 2.01. |
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Form of Subordinated Securities and Trustees Certificate of Authentication |
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6 |
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Section 2.02. |
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Form of Trustees Certificate of Authentication |
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7 |
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Section 2.03. |
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Amount Unlimited, Issuable in Series |
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7 |
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Section 2.04. |
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Authentication and Delivery of Subordinated Indentures |
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9 |
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Section 2.05. |
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Execution of Subordinated Securities |
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11 |
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Section 2.06. |
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Certificate of Authentication |
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11 |
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Section 2.07. |
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Denominations; Payment of Interest on Subordinated Securities |
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12 |
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Section 2.08. |
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Registration, Transfer and Exchange of Subordinated Securities |
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13 |
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Section 2.09. |
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Mutilated, Defaced, Destroyed, Lost and Stolen Subordinated Securities |
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14 |
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Section 2.10. |
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Cancellation and Destruction of Surrendered Subordinated Securities |
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15 |
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Section 2.11. |
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Temporary Subordinated Securities |
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15 |
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Section 2.12. |
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Subordinated Securities in Global Form |
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16 |
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Section 2.13. |
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CUSIP Numbers |
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17 |
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ARTICLE 3 |
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REDEMPTION OF SUBORDINATED SECURITIES |
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17 |
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Section 3.01. |
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Applicability of Article |
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17 |
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Section 3.02. |
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Notice of Redemption; Partial Redemptions |
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17 |
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Section 3.03. |
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Payment of Subordinated Securities Called for Redemption |
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18 |
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i
TABLE OF CONTENTS
(Continued)
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Section 3.04. |
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Exclusion of Certain Subordinated Securities From Eligibility for Selection for Redemption |
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19 |
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ARTICLE 4 |
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PARTICULAR COVENANTS OF THE COMPANY |
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19 |
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Section 4.01. |
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Payment of Principal of and Interest on Subordinated Securities |
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19 |
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Section 4.02. |
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Corporate Existence of the Company; Consolidation, Merger, Sale or Transfer |
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19 |
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Section 4.03. |
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Maintenance of Offices or Agencies for Transfer, Registration, Exchange and Payment of Subordinated Securities |
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19 |
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Section 4.04. |
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Appointment to Fill a Vacancy in the Office of Trustee |
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20 |
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Section 4.05. |
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Duties of Paying Agent |
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20 |
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Section 4.06. |
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Notice of Default |
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21 |
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Section 4.07. |
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Maintenance of Properties |
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21 |
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Section 4.08. |
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Payment of Taxes and Other Claims |
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21 |
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ARTICLE 5 |
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SUBORDINATED SECURITYHOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
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21 |
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Section 5.01. |
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Company to Furnish Trustee Information as to the Names and Addresses of Subordinated Securityholders |
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21 |
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Section 5.02. |
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Preservation of Information; Communication to Subordinated Securityholders |
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22 |
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Section 5.03. |
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Reports by Company |
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23 |
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Section 5.04. |
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Reports by Trustee |
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24 |
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ARTICLE 6 |
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REMEDIES OF THE TRUSTEE AND SUBORDINATED SECURITYHOLDERS ON EVENT OF DEFAULT |
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25 |
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Section 6.01. |
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Events of Default; Acceleration, Waiver of Default and Restoration of Position and Rights |
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Section 6.02. |
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Covenant of Company to Pay to Trustee Whole Amount Due on Subordinated Securities on Default in Payment of Interest or Principal |
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27 |
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ii
TABLE OF CONTENTS
(Continued)
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Section 6.03. |
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Trustee May File Proofs of Claim |
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28 |
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Section 6.04. |
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Trustee May Enforce Claims Without Possession of Subordinated Securities |
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29 |
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Section 6.05. |
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Application of Moneys Collected by Trustee |
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29 |
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Section 6.06. |
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Limitation on Suits by Holders of Subordinated Securities |
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30 |
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Section 6.07. |
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Rights and Remedies Cumulative |
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30 |
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Section 6.08. |
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Delay or Omission Not Waiver |
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31 |
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Section 6.09. |
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Control by Holders; Waiver of Past Defaults |
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31 |
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Section 6.10. |
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Trustee to Give Notice of Defaults Known to it, but May Withhold in Certain Circumstances |
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31 |
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Section 6.11. |
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Requirement of an Undertaking to Pay Costs in Certain Suits Under the Subordinated Indenture or Against the Trustee |
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32 |
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Section 6.12. |
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Waiver of Stay, or Extension Laws |
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32 |
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ARTICLE 7 |
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CONCERNING THE TRUSTEE |
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32 |
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Section 7.01. |
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Certain Duties and Responsibilities of Trustee |
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32 |
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Section 7.02. |
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Certain Rights of Trustee |
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33 |
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Section 7.03. |
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Trustee Not Responsible for Recitals or Application of Proceeds |
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35 |
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Section 7.04. |
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Trustee May Own Subordinated Securities |
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35 |
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Section 7.05. |
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Moneys Received by Trustee to be Held in Trust |
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35 |
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Section 7.06. |
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Trustee Entitled to Compensation, Reimbursement and Indemnity |
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35 |
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Section 7.07. |
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Right of Trustee to Rely on Officers Certificate Where No Other Evidence Specifically Prescribed |
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35 |
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Section 7.08. |
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Disqualification; Conflicting Interest |
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36 |
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Section 7.09. |
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Requirements for Eligibility of Trustee |
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36 |
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iii
TABLE OF CONTENTS
(Continued)
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Section 7.10. |
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Resignation and Removal of Trustee; Appointment of Successor |
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36 |
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Section 7.11. |
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Acceptance of Appointment by Successor Trustee |
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37 |
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Section 7.12. |
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Successor to Trustee by Merger, Consolidation or Succession to Business |
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38 |
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Section 7.13. |
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Preferential Collection of Claims Against Company |
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38 |
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Section 7.14. |
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Appointment of Authenticating Agent |
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38 |
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ARTICLE 8 |
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CONCERNING THE SUBORDINATED SECURITYHOLDERS |
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40 |
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Section 8.01. |
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Evidence of Action by Subordinated Securityholders |
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40 |
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Section 8.02. |
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Proof of Execution of Instruments and of Holding of Subordinated Securities |
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40 |
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Section 8.03. |
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Who May be Deemed Owners of Subordinated Securities |
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40 |
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Section 8.04. |
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Subordinated Securities Owned by the Company or Controlled or Controlling Persons Disregarded for Certain Purposes |
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41 |
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Section 8.05. |
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Instruments Executed by Subordinated Securityholders Bind Future Holders |
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41 |
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ARTICLE 9 |
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SUBORDINATED SECURITYHOLDERS MEETINGS |
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42 |
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Section 9.01. |
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Purposes for Which Meetings May be Called |
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42 |
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Section 9.02. |
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Manner of Calling Meetings |
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42 |
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Section 9.03. |
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Call of Meeting by the Company or Subordinated Securityholders |
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42 |
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Section 9.04. |
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Who May Attend and Vote at Meetings |
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42 |
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Section 9.05. |
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Regulations May be Made by Trustee; Conduct of the Meeting; Voting RightsAdjournment |
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43 |
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Section 9.06. |
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Manner of Voting at Meetings and Record to be Kept |
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43 |
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Section 9.07. |
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Exercise of Rights of Trustee and Subordinated Securityholders Not to be Hindered or Delayed |
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44 |
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iv
TABLE OF CONTENTS
(Continued)
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ARTICLE 10 |
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SUPPLEMENTAL SUBORDINATED INDENTURES |
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44 |
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Section 10.01. |
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Purposes for Which Supplemental Subordinated Indentures May be Entered into Without Consent of Subordinated Securityholders |
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44 |
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Section 10.02. |
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Modification of Subordinated Indenture With Consent of Holders of Subordinated Securities |
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45 |
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Section 10.03. |
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Effect of Supplemental Subordinated Indentures |
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46 |
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Section 10.04. |
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Subordinated Securities May Bear Notation of Changes by Supplemental Subordinated Indentures |
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46 |
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ARTICLE 11 |
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DISCHARGE; DEFEASANCE |
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47 |
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Section 11.01. |
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Satisfaction and Discharge of Subordinated Indenture |
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47 |
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Section 11.02. |
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Application by Trustee of Funds Deposited for Payment of Subordinated Securities |
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50 |
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Section 11.03. |
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Repayment of Moneys Held by Paying Agent |
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50 |
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Section 11.04. |
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Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
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50 |
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Section 11.05. |
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Indemnity for U.S. Government of Obligations |
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50 |
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ARTICLE 12 |
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IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
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50 |
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Section 12.01. |
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Incorporators, Stockholders, Officers and Directors of Company Exempt From Individual Liability |
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ARTICLE 13 |
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MISCELLANEOUS PROVISIONS |
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51 |
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Section 13.01. |
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Successors and Assigns of the Company bound by Subordinated Indenture |
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51 |
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Section 13.02. |
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Notices; Effectiveness |
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51 |
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Section 13.03. |
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Compliance Certificates and Opinions |
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52 |
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Section 13.04. |
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Days on Which Payment to be Made, Notice Given or Other Action Taken |
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53 |
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Section 13.05. |
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Provisions Required by Trust Indenture Act to Control |
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53 |
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v
TABLE OF CONTENTS
(Continued)
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Page |
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Section 13.06. |
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Governing Law and Waiver of Trial By Jury |
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53 |
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Section 13.07. |
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Effect of Headings |
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53 |
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Section 13.08. |
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Judgment Currency |
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53 |
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Section 13.09. |
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Provisions of the Subordinated Indenture and Subordinated Securities for the Sole Benefit of the Parties and the Subordinated Securityholders |
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54 |
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Section 13.10. |
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Subordinated Indenture May be Executed in Counterparts |
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54 |
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Section 13.11. |
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Facsimile or PDF |
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54 |
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Section 13.12. |
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U.S.A. Patriot Act |
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54 |
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ARTICLE 14 |
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SUBORDINATION OF SECURITIES |
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55 |
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Section 14.01. |
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Subordinated Securities Subordinated to Senior Indebtedness |
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55 |
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Section 14.02. |
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Subrogation |
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56 |
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Section 14.03. |
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Obligation of the Company Unconditional |
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56 |
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Section 14.04. |
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Payments on Subordinated Securities Permitted |
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57 |
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Section 14.05. |
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Effectuation of Subordinated by Trustee |
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57 |
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Section 14.06. |
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Knowledge of Trustee |
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57 |
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Section 14.07. |
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Trustee May Hold Senior Indebtedness |
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57 |
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Section 14.08. |
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Rights of Holders of Senior Indebtedness Not Impaired |
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57 |
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vi
THIS SUBORDINATED INDENTURE, dated as of
, between ONCOTHYREON INC., a Delaware corporation (the Company), and
, a
, as trustee (the Trustee).
WITNESSETH:
WHEREAS, the
Company has duly authorized the issuance, sale, execution and delivery, from time to time, of its unsecured evidences of subordinated indebtedness (hereinafter referred to as the Subordinated Securities), without limit as to
principal amount, issuable in one or more series, the amount and terms of each such series to be determined as hereinafter provided; and, to provide the terms and conditions upon which the Subordinated Securities are to be issued, authenticated and
delivered, the Company has duly authorized the execution of this Subordinated Indenture; and
WHEREAS, all acts and things necessary to
make the Subordinated Securities, when executed by the Company and authenticated and delivered by the Trustee as in this Subordinated Indenture provided, the valid, binding and legal subordinated obligations of the Company, and to constitute this
Subordinated Indenture a valid indenture and agreement according to its terms, have been done and performed, and the execution of this Subordinated Indenture and the issuance hereunder of the Subordinated Securities have in all respects been duly
authorized;
NOW, THEREFORE, THIS SUBORDINATED INDENTURE
WITNESSETH:
That in order to
declare the terms and conditions upon which the Subordinated Securities are to be issued, authenticated and delivered, and in consideration of the premises and of the purchase and acceptance of the Subordinated Securities by the Holders thereof, the
Company covenants and agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of the Subordinated Securities or of any series thereof, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. For all purposes of this Subordinated Indenture, except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Article One have the meanings assigned to them in this Article One, and
include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein shall have the
meanings assigned to them and all computations herein provided for shall be made, in accordance with generally accepted accounting principles, and the term U.S. generally accepted accounting principles shall mean such principles
as they exist at the date of applicability thereof; and
(d) the words herein, hereof and
hereunder and other words of similar import refer to this Subordinated Indenture as a whole and not to any particular Article, Section or other subdivision.
1
Affiliate of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, control (including, with correlative meanings, the terms controlling, controlled by
and under common control with) when used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
Agent means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
Authenticating Agent shall the meaning set forth in Section 7.14.
Authorized Newspaper means a newspaper (which, in the case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition), published in an official language of the country of publication customarily published at least once a day for at least five days in each calendar week and of general circulation. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof which is made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
Board of Directors shall mean the Board of Directors of the Company, or any duly
authorized committee of such Board of Directors.
Board Resolution shall mean on or more resolutions of the Board of
Directors of the Company certified by the Secretary or by an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company and to be in full force and effect on the date of such certification.
Business Day means, with respect to any Subordinated Security, a day that is not a Saturday, Sunday or a day on which the
office of the Trustee or banking institutions in the City of New York in which amounts are payable, as specified in the form of such Subordinated Security, are authorized or required by any applicable law or regulation to be closed.
Commission shall mean the U.S. Securities and Exchange Commission, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution of this Subordinated Indenture such Commission is not existing and performing the duties theretofore assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
Company shall mean Oncothyreon Inc., a Delaware corporation, until a successor corporation shall have become such
pursuant to the applicable provisions hereof, and thereafter Company shall mean such successor Company.
Company
Order means a written statement, request or order of the Company signed in its name by the Chairman of the Board of Directors of the Company, the President or Chief Executive Officer, any Vice President, the Treasurer or the Chief
Financial Officer of the Company.
covenant defeasance shall have the meaning set forth in Section 11.01.
Defaulted Interest shall have the meaning set forth in Section 2.07.
Depository shall mean, with respect to the Subordinated Securities of any series issuable or issued in whole or in part in
the form of one or more Global Subordinated Securities, the Person designated as Depository by the Company pursuant to Section 2.03 of this Subordinated Indenture until a
2
successor Depository shall have become such pursuant to the applicable provisions of this Subordinated Indenture, and thereafter the term Depository shall mean or include each Person
who is then a Depository hereunder, and if at any time there is more than one such Person, Depository as used with respect to the Subordinated Securities of any such series shall mean the Depository with respect to the Subordinated
Securities of that series.
Euro or euro means the currency adopted by those countries participating
in the third stage of the European Monetary Union.
Event of Default with respect to Subordinated Securities of any
series shall mean any event specified as such in Section 6.01 and any other event as may be established with respect to the securities of such series as permitted by Section 2.03. An Event of Default shall exist if an Event of
Default shall have occurred and be continuing.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Foreign Currency means a currency issued by the government of a country other than the United States of America, and
the European Currency Unit as defined and revised from time to time by the European Monetary System of the European Community and/or Euros.
Global Subordinated Security means a Subordinated Security evidencing all or a portion of a series of Registered
Subordinated Securities, issued to the Depository for such series in accordance with Section 2.12, and bearing the legend prescribed in Section 2.12 and any other legend required by the Depository for such series.
Holder, Holder of Subordinated Securities, Subordinated Securityholder or any other
similar term means in the case of any Registered Subordinated Security, the person in whose name such Subordinated Security is registered in the Register kept by the Company for that purpose in accordance with the terms hereof.
Interest Payment Date when used with respect to any Subordinated Security means the Stated Maturity of an installment of
interest on such Subordinated Security.
IRS means the Internal Revenue Service of the United States Department of the
Treasury, or any successor entity.
Judgment Currency has the meaning set forth in Section 13.09.
Officers Certificate shall mean a certificate signed by the Chairman of the Board of Directors of the Company, any
ViceChairman of the Board of Directors of the Company, the President or Chief Executive Officer or any VicePresident, the Treasurer, the Chief Financial Officer, the Secretary or any Assistant Secretary of the Company.
Opinion of Counsel shall mean a written opinion of legal counsel who may be an employee of the Company or other counsel
satisfactory to the Trustee.
Original Issue Date of any Subordinated Security (or portion thereof) means the earlier
of (a) the date of such Subordinated Security or (b) the date of any Subordinated Security (or portion thereof) for which such Subordinated Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
3
Original Issue Discount Subordinated Security shall mean (a) any
Subordinated Security which provides for an amount less than the principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or (b) any other Subordinated Security which
for United States Federal income tax purposes would be considered an original issue discount security.
Outstanding
when used with reference to Subordinated Securities shall, subject to the provisions of Section 8.04, mean, as of the date of determination, all Subordinated Securities theretofore authenticated and delivered under this Subordinated Indenture,
except:
(a) Subordinated Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Subordinated Securities, or portions thereof, for whose payment or redemption moneys or U.S. Government Obligations (as provided in
Section 11.01) in the necessary amount have been theretofore deposited with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside, segregated and held in trust by the Company (if the Company shall act as its
own Paying Agent) in trust for the Holders of such Subordinated Securities, provided that if such Subordinated Securities or portions thereof, are to be redeemed prior to the Stated Maturity thereof, notice of such redemption has been duly given as
provided in Article Three hereof, or provision therefor satisfactory to the Trustee has been made;
(c) Subordinated Securities in
exchange for or in lieu of which other Subordinated Securities shall have been authenticated and delivered under this Subordinated Indenture; and
(d) Subordinated Securities alleged to have been destroyed, lost or stolen which have been paid as provided in Section 2.07 hereof.
In determining whether the Holders of the requisite principal amount of Outstanding Subordinated Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Subordinated Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would
be due and payable as of the date of such determination as if a declaration of acceleration of the maturity thereof pursuant to Section 6.01 had been made.
Paying Agent means any Person authorized by the Company to pay the principal of and any interest and premium, if any, on
any Subordinated Securities on behalf of the Company.
Periodic Offering means an offering of Subordinated Securities
of a series from time to time, the specific terms of which Subordinated Securities, including, without limitation, the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the issuance of such Subordinated Securities.
Person shall mean an individual, a corporation, a partnership, a limited liability company, a joint venture, an
association, a joint stock company, a trust, an unincorporated organization, or a government or any agency, authority or political subdivision thereof.
Predecessor Subordinated Security of any particular Subordinated Security means every previous Subordinated Security
evidencing all or a portion of the same debt as that evidenced by such particular Subordinated Security; and, for the purposes of this definition, any Subordinated Security authenticated and delivered under Section 2.04 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Subordinated Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Subordinated Security.
4
principal whenever used with reference to the Subordinated Securities or any
Subordinated Security or any portion thereof, shall be deemed to include and premium, if any, provided, however, that such inclusion of premium, if any, shall under no circumstances result in the double counting of such premium for the
purpose of any calculation required hereunder.
Principal Office of the Trustee shall mean the office of the Trustee at
which at any particular time the trust created by this Indenture shall be administered, except that with respect to presentation of Subordinated Securities for payment such term shall mean any office or agency of the Trustee at which at any
particular time its corporate trust services business shall be conducted. The present address of the Principal Office of the Trustee is
,
Attention: .
Record Date for the interest payable on any Interest Payment Date on any series of Subordinated Securities shall mean the
date specified as such in the Subordinated Securities of such series.
Register shall mean the books for the
registration and transfer of Subordinated Securities which books are kept by the Trustee pursuant to Section 2.08.
Registered Subordinated Security means any Subordinated Security registered on the Register of the Company.
Required Currency shall have the meaning set forth in Section 13.09.
Responsible Officer when used with respect to the Trustee shall mean an officer of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom such matter is referred because
of such Persons knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
Senior Indebtedness means (i) the principal of and premium, if any, and unpaid interest on indebtedness for money
borrowed, (ii) purchase money and similar obligations, (iii) obligations under capital leases, (iv) guarantees, assumptions or purchase commitments relating to, or other transactions as a result of which the Company is responsible for
the payment of, such indebtedness of others, (v) renewals, extensions and refunding of any such indebtedness, (vi) interest or obligations in respect of any such indebtedness accruing after the commencement of any insolvency or bankruptcy
proceedings; and (vii) obligations associated with derivative products such as interest rate and currency exchange contracts, foreign exchange contracts, commodity contracts, and similar arrangements, unless, in each case, the instrument by
which the Company incurred, assumed or guaranteed the indebtedness or obligations described in clauses (i) through (vii) hereof expressly provides that such indebtedness or obligation is subordinate or junior in right or payment to any
other indebtedness or obligation is subordinate or junior in right of payment to any other indebtedness or obligations of the Company.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to
Section 2.07.
5
Stated Maturity when used with respect to any Subordinated Security or any
installment of interest thereon means the date specified in such Subordinated Security as the fixed date on which the principal of such Subordinated Security or such installment of interest is due and payable.
Subordinated Indenture shall mean this instrument as originally executed, or as it may from time to time be supplemented,
modified or amended, as provided herein, and shall include the form and terms of particular series of Subordinated Securities established in accordance with the provisions of Sections 2.03 and 2.04.
Subordinated Security or Subordinated Securities shall mean any security or securities of the Company without
regard to series, authenticated and delivered under this Subordinated Indenture.
Supplemental Subordinated Indenture
shall mean an indenture supplemental hereto as such Supplemental Subordinated Indenture may be originally executed, or as it may from time to time be supplemented, modified or amended, as provided herein and therein.
Trustee shall mean the party named as such in the first paragraph of this Subordinated Indenture until a successor Trustee
shall have become such pursuant to the applicable provisions of this Subordinated Indenture, and thereafter Trustee shall mean such successor Trustee. Trustee shall also mean or include each Person who is then a trustee
hereunder, and, if at any time there is more than one such Person, Trustee as used with respect to the Subordinated Securities of any series shall mean the trustee with respect to the Subordinated Securities of such series.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended as of the date of this Subordinated Indenture.
United States Dollars shall mean the lawful currency of the United States of America.
U.S. Government Obligations shall have the meaning set forth in Section 11.01.
Yield to Maturity means the yield to maturity on a series of securities, calculated at the time of issuance of such series,
or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE 2
ISSUE, DESCRIPTION,
EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SUBORDINATED SECURITIES
SECTION 2.01. Form of Subordinated Securities and Trustees Certificate of Authentication. The Subordinated Securities of each
series shall be substantially in such form (not inconsistent with this Subordinated Indenture) as shall be established by or pursuant to one or more Board Resolutions and as set forth in an Officers Certificate or Supplemental Subordinated
Indenture, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Subordinated Indenture, and may have such letters, numbers or other marks of identification or designation
and such legends or endorsements thereon as the Board of Directors may deem appropriate and as are not inconsistent with the provisions of this Subordinated Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which the Subordinated Securities of such series may be listed, or to conform to usage all as may be determined by the officers executing such Subordinated Securities as
evidenced by their execution of such Subordinated Securities.
6
The definitive Subordinated Securities and each Global Subordinated Security may be printed,
lithographed or fully or partly engraved or produced in any other manner, all as determined by the officers executing such Subordinated Securities as evidenced by their execution thereof.
SECTION 2.02. Form of Trustees Certificate of Authentication. The Trustees certificate of authentication on all Subordinated
Securities shall be in substantially the following form:
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Securities, of the series designated herein, referred to in the withinmentioned Subordinated Indenture.
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, as Trustee |
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By |
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Authorized Signatory |
SECTION 2.03. Amount Unlimited, Issuable in Series.
(a) The aggregate principal amount of Subordinated Securities which may be authenticated and delivered under this Subordinated Indenture is
not limited. The Subordinated Securities may be issued in one or more series.
The following terms and provisions of each series of
Subordinated Securities shall be established in or pursuant to one or more Board Resolutions and set forth in an Officers Certificate detailing such establishment or established in one or more Supplemental Subordinated Indentures prior to the
issuance of Subordinated Securities of any series:
(1) the designation of the series of Subordinated Securities of the series (which
shall distinguish the Subordinated Securities of such series from all other series of Subordinated Securities) and which may be part of a series of Subordinated Securities previously issued;
(2) any limit upon the aggregate principal amount of the particular series of Subordinated Securities which may be executed, authenticated and
delivered under this Subordinated Indenture; provided, however, that nothing contained in this Section 2.03 or elsewhere in this Subordinated Indenture or in the Subordinated Securities or in an Officers Certificate or in a Supplemental
Subordinated Indenture is intended to or shall limit execution by the Company or authentication and delivery by the Trustee of Subordinated Securities under the circumstances contemplated by Sections 2.08, 2.09, 2.11, 3.03 and 10.04;
(3) if other than United States Dollars, the coin, currency or currencies or composite currency in which principal of and interest and any
premium on such series of Subordinated Securities shall be payable (including, but not limited to, any Foreign Currency);
(4) the Stated
Maturity for payment of principal of such series of Subordinated Securities;
(5) the rate or rates at which such series of Subordinated
Securities shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest shall be payable, the terms and conditions of any deferral of interest and the additional interest, if any, thereon, the right,
if any, of
7
the Company to extend the time for payment of interest, the terms and duration of such extension rights and (in the case of Registered Subordinated Securities) the date or dates on which a record
shall be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(6) the place or places where the principal of and any interest on Subordinated Securities of any series shall be payable, where such
Subordinated Securities may be surrendered for registration of transfer, where such Subordinated Securities may be surrendered for exchange and where notice and demands to or upon the Company, in respect of such Subordinated Securities, and this
Subordinated Indenture may be served, if other than as provided in Section 4.03;
(7) the right, if any, of the Company to redeem
Subordinated Securities, in whole or in part, at its option and the period or periods within which, the price or prices at which and any terms and conditions upon which Subordinated Securities of the series may be so redeemed;
(8) the obligation, if any, of the Company to redeem, purchase or repay Subordinated Securities of the series pursuant to any mandatory
redemption or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and any terms and conditions upon which Subordinated Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which such series of Subordinated Securities shall be issuable;
(10) the percentage of the
principal amount at which the Subordinated Securities will be issued, and, if other than the principal amount thereof, the portion of the principal amount of such series of Subordinated Securities which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01;
(11) if other than the U.S. Dollar, the coin, currency or
currencies in which payment of the principal of or interest on the Subordinated Securities of such series shall be payable, including composite currencies or currency units and any related provisions for the calculations of payments and
denominations;
(12) if the principal or interest on the Subordinated Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other than that in which the Subordinated Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;
(13) if the amount of payments or principal of and interest on the Subordinated Securities of the series may be determined with reference to
an index or formula based on a coin, currency, composite currency or currency unit other than that in which the Subordinated Securities of the series are denominated, the manner in which such amounts shall be determined;
(14) whether and under what circumstances the Company will pay additional amounts on the Subordinated Securities of the series held by a
person who is not a U.S. person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem the Subordinated Securities of the series rather than pay such additional
amounts;
(15) if the Subordinated Securities of the series are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Subordinated Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
8
(16) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars
of any other agents with respect to the Subordinated Securities of such series;
(17) any additional events of default or covenants with
respect to the Subordinated Securities of a particular series not set forth herein;
(18) the terms of subordination applicable to such
series of Subordinated Securities;
(19) the terms and conditions, if any, upon which any Subordinated Securities of such series may or
shall be converted or exchanged into common stock of the Company; and
(20) any other terms of such series of Subordinated Securities
(which terms shall not be inconsistent with the provisions of this Subordinated Indenture).
(b) All Subordinated Securities of any one
series shall be substantially identical except that any series may have serial maturities and different interest rates for different maturities and except in the case of Registered Subordinated Securities as to denomination and the differences
herein specified between Global Subordinated Securities and Registered Subordinated Securities issued in definitive form and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers Certificate
or Supplemental Subordinated Indenture relating to such series of Subordinated Securities. All Subordinated Securities of any one series need not be issued at the same time, and, unless otherwise provided in the Officers Certificate or
Supplemental Subordinated Indenture relating to such series, a series may be reopened for issuances of additional Subordinated Securities of such series.
SECTION 2.04. Authentication and Delivery of Subordinated Indentures. At any time and from time to time after the execution and delivery
of this Subordinated Indenture, the Company may deliver any series of Subordinated Securities executed by the Company to the Trustee for authentication by it together with the applicable documents referred to below in this Section 2.04, and the
Trustee shall thereupon authenticate and deliver said Subordinated Securities (or if only a single Subordinated Security, such Subordinated Security) to or upon the written order of the Company, signed by an officer of the Company, without any
further corporate action. The maturity date, original issue date, interest rate and any other terms of the Subordinated Securities of such series shall be determined by or pursuant to such Company Order and procedures. In authenticating such
Subordinated Securities and accepting the additional responsibilities under this Subordinated Indenture in relation to such Subordinated Securities, the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and
(4) below only at or before the time of the first request of the Company to the Trustee to authenticate Subordinated Securities of such series) and (subject to Section 7.01) shall be fully protected in relying upon, the following
enumerated documents unless and until such documents have been superseded or revoked:
(1) a Company Order requesting such authentication
and setting forth delivery instructions if the Subordinated Securities are not to be delivered to the Company, provided that, with respect to Subordinated Securities of a series subject to a Periodic Offering, (a) such Company Order may be
delivered by the Company to the Trustee prior to the delivery to the Trustee of such Subordinated Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver Subordinated Securities of such series for original
issue from time to time, in an aggregate principal amount not exceeding the aggregate principal amount established for such series, pursuant to a Company Order or pursuant to procedures acceptable to the Trustee as may be specified from time to time
by a Company Order, and (c) the maturity date or dates, original issue date or dates, interest rate or rates and any other terms of Subordinated Securities of such series shall be determined by a Company Order or pursuant to such procedures;
9
(2) any Board Resolution, Officers Certificate and/or executed Supplemental Subordinated
Indenture referred to in Section 2.01 and 2.03 by or pursuant to which the forms and terms of the Subordinated Securities were established;
(3) an Officers Certificate setting forth the form or forms and terms of the Subordinated Securities stating that the form or forms and
terms of the Subordinated Securities have been established pursuant to Sections 2.01 and 2.03 and comply with this Subordinated Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) either one or more Opinions of Counsel, or a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel,
substantially to the effect that:
(a) the form or forms of the Subordinated Securities have been duly authorized and established in
conformity with the provisions of this Subordinated Indenture;
(b) the terms of the Subordinated Securities have been duly authorized and
established in conformity with the provisions of this Subordinated Indenture, and, certain terms of the Subordinated Securities have been established pursuant to a Board Resolution, an Officers Certificate or a Supplemental Subordinated
Indenture in accordance with this Subordinated Indenture, and when such other terms as are to be established pursuant to procedures set forth in a Company Order shall have been established, all such terms will have been duly authorized by the
Company and will have been established in conformity with the provisions of this Subordinated Indenture;
(c) this Indenture and such
Subordinated Securities, when executed and issued by the Company and authenticated by the Trustee in accordance with the provisions of this Subordinated Indenture and duly paid for by the purchasers thereof, and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except as any rights thereunder may be limited by the effect of bankruptcy, insolvency, reorganization,
receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors generally; the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a proceeding in equity or at law; the effect of applicable court decisions invoking statutes or principles of equity, which have held that certain covenants and provisions of agreements are
unenforceable where the breach of such covenants or provisions imposes restrictions or burdens upon a borrower, and it cannot be demonstrated that the enforcement of such restrictions or burdens is necessary for the protection of the creditor, or
which have held that the creditors enforcement of such covenants or provisions under the circumstances would have violated the creditors covenants of good faith and fair dealing implied under Washington law; and the effect of Washington
statutes and rules of law which cannot be waived prospectively by a borrower, and such counsel need express no opinion with regard to the enforceability of Section 7.06 or of a judgment denominated in a currency other than United States
Dollars; and
(d) the Company has complied with all applicable Federal laws and requirements in respect of the execution and delivery of
such Subordinated Securities; and
(e) such other opinions as the Company may be required to deliver under the Trust Indenture Act.
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(5) if the Securities are to be secured, a supplemental indenture conforming to the requirements
of Section 314 of the Trust Indenture Act and such other documents as may be required by Section 314; and
(6) if the Securities
are to be convertible, a supplemental indenture conforming to the requirements of Section 314 of the Trust Indenture Act and such other documents as may be required by Section 314.
In rendering such opinions, any counsel may qualify any opinions as to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors and is subject to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in which case the opinion shall state that such counsel
believes he and the Trustee are entitled so to rely. Such counsel may also state that, insofar as such opinion involves factual matters, he has relied, to the extent he deems proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver any Subordinated Securities
under this section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Company or if the Trustee in good faith by its board of directors or board of trustees, executive committee or a trust
committee of directors or trustees shall determine that such action would expose the Trustee to personal liability to existing Holders or would affect the Trustees own rights, duties or immunities under the Subordinated Securities, this
Subordinated Indenture or otherwise.
SECTION 2.05. Execution of Subordinated Securities. The Subordinated Securities shall be
executed manually or in facsimile, by any two of the Chairman of the Board, Chief Executive Officer, the President, and Vice President, the Treasurer, the Secretary, or the Chief Financial Officer of the Company under its corporate seal which may be
affixed thereto or printed, engraved or otherwise reproduced thereon, by facsimile or otherwise. Only such Subordinated Securities as shall bear thereon a certificate of authentication substantially in the form recited herein, executed by the
Trustee manually by an authorized officer, shall be entitled to the benefits of this Subordinated Indenture or be valid or obligatory for any purpose. Such certificate of authentication of the Trustee upon any Subordinated Security executed by the
Company shall be conclusive evidence that the Subordinated Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Subordinated Indenture. Typographical or other errors or
defects in the seal or facsimile signature on any Subordinated Security or in the text thereof shall not affect the validity or enforceability of such Subordinated Security if it has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the Subordinated Securities (manually or in facsimile) shall cease to be such
officer before the Subordinated Securities so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Subordinated Securities nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Subordinated Securities had not ceased to be such officer of the Company. Also, any Subordinated Security may be signed on behalf of the Company by such Persons as on the actual date of execution of such Subordinated Security
shall be the proper officers of the Company, although at the date of the execution of this Subordinated Indenture or on the nominal date of such Subordinated Security any such Person was not such officer.
SECTION 2.06. Certificate of Authentication. Only such Subordinated Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the
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Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Subordinated Indenture or be valid or obligatory for any purpose. The execution of
such certificate by the Trustee upon any Subordinated Security executed by the Company shall be conclusive evidence that the Subordinated Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled
to the benefits of this Subordinated Indenture.
SECTION 2.07. Denominations; Payment of Interest on Subordinated Securities.
(a) The Subordinated Securities of each series may be issued in such denominations as shall be specified as contemplated by Section 2.03.
In the absence of such provisions with respect to the Subordinated Securities of any series, the Subordinated Securities of such series shall be issued in denominations of $1,000 and any integral multiple thereof. The Subordinated Securities of each
series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Company executing the same may determine.
(b) If the Subordinated Securities of any series shall bear interest, each Subordinated Security of such series shall bear interest from the
applicable date at the rate per annum specified in the Officers Certificate or Supplemental Subordinated Indenture with respect to such series of Subordinated Securities. Unless otherwise specified in the Officers Certificate or
Supplemental Subordinated Indenture with respect to the Subordinated Securities of any series, interest on the Subordinated Securities of such series shall be computed on the basis of a 360day year of twelve 30day months. Such interest
shall be payable on the Interest Payment Dates specified in the Officers Certificate or Supplemental Subordinated Indenture with respect to such series of Subordinated Securities. The Person in whose name any Subordinated Security (or one or
more Predecessor Subordinated Securities) is registered at the close of business on the applicable Record Date for the series of which such Subordinated Security is a part shall be entitled to receive the interest payable thereon on such Interest
Payment Date notwithstanding the cancellation of such Subordinated Security upon any transfer or exchange thereof subsequent to such Record Date and prior to such Interest Payment Date unless such Subordinated Security shall have been called for
redemption on a Redemption Date which is subsequent to such Record Date and prior to such Interest Payment Date or unless the Company shall default in the payment of interest due on such Interest Payment Date on any Subordinated Security of such
series.
Any interest on any Subordinated Security of any series which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called Defaulted Interest) shall forthwith cease to be payable to the registered Holder on the relevant Record Date solely by virtue of such Holder having been such Holder; and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make
payment of any Defaulted Interest on the Subordinated Securities of any series to the Persons in whose names such Subordinated Securities (or their respective Predecessor Subordinated Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Subordinated Security and the date
of the proposed payment (which date shall be such as will enable the Trustee to comply with the next sentence hereof), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this subsection provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record
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Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, firstclass
postage prepaid, to each Holder of a Subordinated Security of such series at such Holders address as it appears in the Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Subordinated Securities of such series are registered on such Special Record Date and shall no longer be
payable pursuant to the following subsection (2).
(2) The Company may make payment of any Defaulted Interest on the Subordinated
Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Subordinated Securities may be listed and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this subsection, such payment shall be deemed practicable by the Trustee.
Interest on Subordinated Securities of any series that bear interest may be paid by mailing a check to the address of the person entitled
thereto as such address shall appear in the Register.
Subject to the foregoing provisions of this Section 2.07, each Subordinated
Security delivered under this Subordinated Indenture upon transfer of or in exchange for or in lieu of any other Subordinated Security shall carry all the rights to interest accrued and unpaid, and to accrue, which were carried by such other
Subordinated Security and each such Subordinated Security shall bear interest from such date, such that neither gain nor loss in interest shall result from such transfer, exchange or substitution.
SECTION 2.08. Registration, Transfer and Exchange of Subordinated Securities. Except as specifically otherwise provided herein with
respect to Global Subordinated Securities, Subordinated Securities of any series may be exchanged for a like aggregate principal amount of Subordinated Securities of the same series of other authorized denominations. Subordinated Securities to be
exchanged shall be surrendered at the offices or agencies to be maintained in accordance with the provisions of Section 4.03 and the Company shall execute the Subordinated Security or Subordinated Securities, and the Trustee shall authenticate
and deliver in exchange therefor the Subordinated Security or Subordinated Securities which the Subordinated Securityholder making the exchange shall be entitled to receive.
The Company shall cause the Trustee to keep or cause to be kept, at one or more of the offices or agencies to be maintained by the Trustee in
accordance with the provisions of Section 4.03 with respect to the Subordinated Securities of each series, the Register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the
Registered Subordinated Securities of such series and the transfer of Registered Subordinated Securities of such series as in this Article provided. The Register shall be in written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times the Register shall be open for inspection by the Trustee and any registrar of the Subordinated Securities of such series other than the Trustee. Upon due presentment for transfer of any
Subordinated Security of any series at the offices or agencies of the Company to be maintained in accordance with Section 4.03 with respect to the Registered Subordinated Securities of such series, the Company shall execute a new Subordinated
Security and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Subordinated Security or Registered Subordinated Securities of the same series for a like aggregate principal amount of authorized
denominations. Notwithstanding any other provisions of this Section 2.08, unless and until it is exchanged in whole or in part for Registered Subordinated Securities in definitive form, a Global Subordinated Security representing all or a
portion of the Registered Subordinated Securities of a series may not be transferred except as a whole by the Depository for such series to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor Depository for such series or a nominee of such successor Depository.
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At the option of the Holder thereof, Registered Subordinated Securities of any series (other than
a Global Subordinated Security, except as set forth below) may be exchanged for a Registered Subordinated Security or Registered Subordinated Securities of such series and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Subordinated Securities to be exchanged at the agency of the Company that shall be maintained for such purpose in accordance with Section 4.03 and upon payment, if the Company shall so require, of the
charges hereinafter provided. All Subordinated Securities surrendered upon any exchange or transfer provided for in this Subordinated Indenture shall be promptly cancelled and disposed of by the Trustee, and the Trustee shall deliver a certificate
of disposition thereof to the Company.
All Registered Subordinated Securities of any series presented or surrendered for exchange,
transfer, redemption, conversion or payment shall, if so required by the Company or any registrar of the Subordinated Securities of such series, be accompanied by a written instrument or instruments of transfer, in form satisfactory to the Company
and such registrar, duly executed by the registered Holder or by such Persons attorney duly authorized in writing.
No service
charge shall be made for any exchange or registration of transfer of Subordinated Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto.
The Company shall not be required to exchange or transfer (a) any Subordinated Securities of any series during a period beginning at the
opening of business 15 days before the day of the first publication or the mailing (if there is no publication) of a notice of redemption of Subordinated Securities of such series and ending at the close of business on the day of such publication or
mailing or (b) any Subordinated Securities called or selected for redemption in whole or in part, except, in the case of Subordinated Securities called for redemption in part, the portion thereof not so called for redemption in whole or in part
or during a period beginning at the opening of business on any Record Date for such series and ending at the close of business on the relevant Interest Payment Date therefor.
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Subordinated Securities. In case any temporary or definitive Subordinated
Security shall be mutilated, defaced, destroyed, lost or stolen, the Company in its discretion may execute and, upon the written request of any officer of the Company, the Trustee shall authenticate and delivery, a new Subordinated Security of the
same series, maturity date, interest rate and original issue date, bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Subordinated Security, or in lieu of and
in substitution for the Subordinated Security so destroyed, lost or stolen. In every case the applicant for a substitute Subordinated Security shall furnish to the Company and to the Trustee and any agent of the Company or the Trustee such security
or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Subordinated Security and of
the ownership thereof, and in the case of mutilation or defacement shall surrender the Subordinated Security to the Trustee or such agent. If the Company becomes aware that such Security has been acquired by a bona fide purchaser, it shall notify
the Trustee in writing.
Upon the issuance of any substitute Subordinated Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) or its agent connected therewith. In case any Subordinated Security which has
matured or is about to mature or has
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been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Company may instead of issuing a substitute Subordinated Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated or defaced Subordinated Security, if the applicant for such payment shall furnish to the Company and to the Trustee and any agent of the Company or the Trustee such
security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee and any agent of the Company or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Subordinated Security and of the ownership thereof.
Every substitute
Subordinated Security of any series issued pursuant to the provisions of this Section by virtue of the fact that any such Subordinated Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Subordinated Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Subordinated
Indenture equally and proportionately with any and all other Subordinated Securities of such series duly authenticated and delivered hereunder. All Subordinated Securities shall be held and owned upon the express condition that, to the extent
permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Subordinated Securities and shall preclude any and all other rights or remedies notwithstanding
any law or statue existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
SECTION 2.10. Cancellation and Destruction of Surrendered Subordinated Securities. All Subordinated Securities surrendered for payment,
redemption, transfer, conversion or exchange, or for credit against any payment in respect of a sinking or analogous fund, if any, shall, if surrendered to the Company, the Trustee or any agent of the Company or of the Trustee, be delivered to the
Trustee, and the same, together with Subordinated Securities surrendered to the Trustee for cancellation, shall be canceled by it and thereafter disposed of by it as directed by the Company, and no Subordinated Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this Subordinated Indenture. The Trustee shall destroy canceled Subordinated Securities in accordance with applicable laws and procedures, and deliver a certificate of destruction
thereof to the Company. If the Company shall purchase or otherwise acquire any of the Subordinated Securities, however, such purchase or acquisition shall not operate as a payment, redemption or satisfaction of the indebtedness represented by such
Subordinated Securities unless and until the Company, at its option shall deliver or surrender the same to the Trustee for cancellation.
SECTION 2.11. Temporary Subordinated Securities. Pending the preparation of definitive Subordinated Securities of any series, the Company
may execute and the Trustee shall authenticate and deliver temporary Subordinated Securities of such series which are printed, lithographed, typewritten or otherwise produced, in each case satisfactory to the Trustee. Temporary Subordinated
Securities of any series shall be issuable substantially in the form of the definitive Subordinated Securities of such series but with such appropriate omissions, insertions, substitutions and other variations as the officers executing such
Subordinated Securities may determine, as evidenced by their execution of such Subordinated Securities. Every such temporary Subordinated Security shall be authenticated by the Trustee upon the same conditions and in substantially the same manner,
and with the same effect, as the definitive Subordinated Securities. If temporary Subordinated Securities are issued, the Company will cause definitive Subordinated Securities to be prepared without unreasonable delay. After the preparation of
definitive Subordinated Securities, the temporary Subordinated Securities of such series shall be exchangeable for definitive Subordinated Securities upon surrender of the temporary Subordinated Securities without charge to the Holder at the offices
or agencies to be maintained by the Trustee as provided in Section 4.03 with respect to the Subordinated Securities of such series.
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Upon surrender for cancellation of any one or more temporary Subordinated Securities the Company
shall execute and the Trustee shall authenticate and deliver in exchange for such temporary Subordinated Securities an equal aggregate principal amount of definitive Subordinated Securities of such series. Until so exchanged, the temporary
Subordinated Securities of any series shall in all respects be entitled to the benefits of this Subordinated Indenture and interest thereon, when and as payable, shall be paid to the registered owners thereof.
SECTION 2.12. Subordinated Securities in Global Form.
(a) If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal
amount of, all of the Outstanding Subordinated Securities of such series, (ii) shall be registered in the name of the Depository or its nominee, (iii) shall be held by the Trustee as custodian for the Depository or pursuant to the
Depositorys instruction and (iv) shall bear a legend substantially to the following effect: Except as otherwise provided in Section 2.12 of the Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depository or to a successor Depository or to a nominee of such successor Depository.
(b)
Notwithstanding the provisions of Section 2.05, the Global Subordinated Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.08, only to another nominee of the Depository for such
series, or to a successor Depository for such series selected or approved by the Corporation or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of the Subordinated Securities notifies the Company that it is unwilling or unable to continue
as Depository for such series or if at any time the Depository for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, and a successor Depository for such series is not
appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing and the Company has received a request from the
Depositary, this Section 2.10 shall no longer be applicable to the Securities of such series and the Company will execute and subject to Section 2.04, the Trustee will authenticate and deliver the Subordinated Securities of such series in
definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Subordinated Security of such series in exchange for such Global Subordinated Security or
Subordinated Securities upon the instruction of the Depository. In addition, the Company may at any time determine that the Subordinated Securities of any series shall no longer be represented by a Global Subordinated Security and that the
provisions of this Section 2.12 shall no longer apply to the Securities of such series. In such event, the Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officers Certificate evidencing such
determination by the Company, will authenticate and deliver the Subordinated Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of
the Global Subordinated Security of such series in exchange for such Global Subordinated Security. Upon the exchange of the Global Subordinated Security for such Subordinated Securities in definitive registered form without coupons, in authorized
denominations, the Global Subordinated Security shall be canceled by the Trustee.
Such Subordinated Securities in definitive registered
form issued in exchange for the Global Subordinated Security pursuant to this Section 2.10(c) shall be registered in such names and in such authorized denominations as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Debt Securities to the Depository for delivery to the Persons in whose names such Securities are so registered.
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SECTION 2.13. CUSIP Numbers. The Company in issuing the Subordinated Securities may use
CUSIP and CINS numbers (if then generally in use), and the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders and no representation shall be
made as to the correctness of such numbers either as printed on the Subordinated Securities or as contained in any notice of redemption or exchange. The Company will promptly notify the Trustee of any change in the CUSIP and/or such
other numbers.
ARTICLE 3
REDEMPTION OF SUBORDINATED SECURITIES
SECTION 3.01. Applicability of Article. The provisions of this Article shall be applicable to the Subordinated Securities of any series
which are redeemable before their Stated Maturity except as otherwise specified as contemplated by Section 2.03 for Subordinated Securities of such series.
SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Registered Subordinated Securities of any
series to be redeemed as a whole or in part at the option of the Company shall be given by mailing notice of such redemption by electronic transmission, first-class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date
fixed for redemption to such Holders of Subordinated Securities of such series at their last addresses as they shall appear upon the Register.
Any notice
which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Subordinated
Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of such Subordinated Security of such series.
The notice of redemption to each such Holder shall specify the principal amount of each Subordinated Security of such series held by such
Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Subordinated Securities, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Subordinated Security of a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Subordinated Security, a new Subordinated Security or Subordinated
Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of
Subordinated Securities of any series to be redeemed at the option of the Company shall be given by the Company or, at the Companys request delivered to the Trustee at least five Business Days prior to the intended date of mailing to the
Holders, by the Trustee in the name and at the expense of the Company.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and holder in trust as provided in
Section 4.05), no later than 11:00 a.m. New York City time, an amount of money sufficient to redeem on the
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redemption date all the Subordinated Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. The
Company will deliver to the Trustee at least 70 days prior to the date fixed for redemption, or such shorter period as shall be acceptable to the Trustee, an Officers Certificate stating the aggregate principal amount of Subordinated
Securities to be redeemed with a copy of the form on notice to the Holders setting forth the information required by this Section 3.02. In case of a redemption at the election of the Company prior to the expiration of any restriction on such
redemption, the Company shall deliver to the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officers Certificate stating that such restriction has been complied with.
If less than all the Subordinated Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, in its sole discretion, Subordinated Securities of such series to be redeemed in whole or in part. Subordinated Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Subordinated
Securities of such series or any multiple thereof. The Trustee shall promptly notify the Company in writing of the Subordinated Securities of such series selected for redemption and, in the case of any Subordinated Securities of such series selected
for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Subordinated Indenture, unless the context otherwise requires, all provisions relating to the redemption of Subordinated Securities of any series shall
relate, in the case of any Subordinated Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Subordinated Security which has been or is to be redeemed.
SECTION 3.03. Payment of Subordinated Securities Called for Redemption. If notice of redemption has been given as above provided, the
Subordinated Securities or portions of Subordinated Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Company shall default in the payment of such Subordinated Securities at the redemption price, together with interest accrued to said date) interest on the Subordinated Securities or
portions of Subordinated Securities so called for redemption shall cease to accrue, and, except as provided in Sections 7.05 and 11.04, such Subordinated Securities shall cease from and after the date fixed for redemption to be entitled to any
benefit or security under this Subordinated Indenture, and the Holders thereof shall have no right in respect of such Subordinated Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Subordinated Securities at a place of payment specified in said notice, said Subordinated Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with interest accrued thereon to the date fixed for redemption; provided, that payment of interest becoming due on or prior to the date fixed for redemption shall be payable to the Holder of such Registered Subordinated
Securities registered as such on the relevant record date, subject to the terms and provisions of Section 2.03 and 2.07 hereof.
If
any Subordinated Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to
Maturity (in the case of an Original Issue Discount Subordinated Security) borne by such Subordinated Security.
Upon presentation of any
Subordinated Security redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Company, a new Subordinated Security or Subordinated Securities of
such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Subordinated Security so presented.
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SECTION 3.04. Exclusion of Certain Subordinated Securities From Eligibility for Selection
for Redemption. Subordinated Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in an Officers Certificate delivered to the Trustee at least 40 days prior to
the last date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Company or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal of and Interest on Subordinated Securities. The Company covenants that it will duly and punctually pay
or cause to be paid the principal of and any interest and premium on each of the Subordinated Securities in accordance with the terms of the Subordinated Securities and this Subordinated Indenture. Except with respect to any Global Subordinated
Securities, if the Subordinated Securities of any series bear interest, each installment of interest on the Subordinated Securities of such series may, at the option of the Company, be paid by mailing a check or checks for such interest payable to
the Person entitled thereto pursuant to Section 2.07 to the address of such Person as it appears on the Register of such series on the applicable Record Date for such interest payment. The interest, if any, on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to or upon the written order of the Holders thereof and, at the option of the Company, may be paid by wire transfer or by mailing checks for such
interest payable to or upon the written order of such Holders at their last addresses as they appear on the Register of the Company.
SECTION 4.02. Corporate Existence of the Company; Consolidation, Merger, Sale or Transfer. The Company covenants that so long as any of
the Subordinated Securities are Outstanding, it will maintain its existence, will not dissolve, sell or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another entity or permit one or more
other entities to consolidate with or merge into it; provided that the Company may, without violating the covenants in this Section 4.02 contained, consolidate with or merge into another entity or permit one or more other entities to
consolidate with or merge into it, or sell or otherwise transfer to another entity all or substantially all of its assets as an entirety and thereafter dissolve, if the surviving, resulting or transferee entity, as the case may be, (i) shall be
organized and existing under the laws of one of the States of the United States of America, (ii) assumes, if such entity is not the Company, all of the obligations of the Company hereunder and (iii) is not, after such transaction,
otherwise in default under any provisions hereof.
SECTION 4.03. Maintenance of Offices or Agencies for Transfer, Registration,
Exchange and Payment of Subordinated Securities. So long as any of the Subordinated Securities shall remain Outstanding, the Company covenants that it will cause the Trustee to maintain an office or agency in
, where the Subordinated Securities may be presented for registration, exchange and transfer as in this Subordinated
Indenture provided, and where notices and demands to or upon the Trustee in respect of the Subordinated Securities or of this Subordinated Indenture may be served, and where the Subordinated Securities may be presented for payment. In case the
Trustee shall fail to maintain any such office or agency, presentations and demands may be made and notices may be served at the principal office of the Company.
The Company will give to the Trustee written notice of the location of each such office or agency and of any change of location thereof. In
case the Company shall fail to maintain any agency required by this Section to be located in , or shall fail to give such
notice of the location or for any change in the location of any of the above agencies, presentations and demands may be made and notices may be served at the Principal Office of the Trustee.
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The Company may from time to time designate one or more additional offices or agencies where the
Subordinated Securities of a series may be presented for payment, where the Subordinated Securities of that series may be presented for exchange as provided in this Subordinated Indenture and pursuant to Section 2.04 and where the Registered
Subordinated Securities of that series may be presented for registration of transfer as in this Subordinated Indenture provided, and the Company may from time to time rescind any such designation, as the Company may deem desirable or expedient;
provided, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain the agencies provided for in this Section. The Company shall give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 4.04. Appointment to Fill a Vacancy in the Office of Trustee. The Company, whenever necessary to avoid
or fill a vacancy in the office of Trustee, covenants that it will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee with respect to the Outstanding Subordinated Securities.
SECTION 4.05. Duties of Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee with respect to Subordinated Securities of any series, it will cause
such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.05 and Section 11.04,
(1) that it will hold all sums held by it as such agent for the payment of the principal of or interest, if any, on the Subordinated
Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Subordinated Securities of such series) in trust for the benefit of the Holders of the Subordinated Securities entitled to such principal
or interest and will notify the Trustee of the receipt of sums to be so held,
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Subordinated Securities of such series) to make any payment of the principal of or interest on the Subordinated Securities of such series when the same shall be due and payable, and
(3) that it will at any time during the continuance of any Event of Default, upon the written request of the Trustee, deliver to the Trustee
all sums so held in trust by it.
(b) Whenever the Company shall have one or more Paying Agents with respect to the Subordinated
Securities of any series, it will, prior to each due date of the principal of or any interest on the Subordinated Securities of such series, deposit with a Paying Agent of such series a sum sufficient to pay the principal or interest so becoming
due, such sum to be held in trust for the benefit of the Holders of Subordinated Securities 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.
(c) If the Company shall act as its own Paying Agent with respect to the Subordinated Securities of any series, it will, on or
before each due date of the principal of or interest on the Subordinated Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Subordinated Securities of such series a sum sufficient to pay such
principal or interest so becoming due. The Company will promptly notify the Trustee of any failure to take such action.
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(d) Anything in this Section 4.05 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Subordinated Indenture with respect to one or more or all series of Subordinated Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums
held in trust for such series by it, or any Paying Agent hereunder, as required by this Section 4.05, and such sums are to be held by the Trustee upon the trust herein contained.
SECTION 4.06. Notice of Default. The Company covenants that, as soon as is practicable but in no event later than twenty Business Days
after the occurrence thereof, the Company will furnish the Trustee notice of any event which is an Event of Default or which with the giving of notice or the passage of time or both would constitute an Event of Default which has occurred and is
continuing on the date of such notice, which notice shall set forth the nature of such event and the action which the Company proposes to take with respect thereto.
SECTION 4.07. Maintenance of Properties. The Company will cause all properties used in or useful in the conduct of its business to be
maintained and kept in good condition, repair, and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the
Company may be necessary, so that the business carried on in connection therewith may be properly and advantageously conducted at all time except to the extent that the Company may be prevented from so doing by circumstances beyond its control;
provided, that nothing in this Section shall prevent the Company from discontinuing the operation or maintenance of any of such properties, or disposing of any of them, if such discontinuance or disposal is, in the judgment of the Company desirable
in the conduct of the business of the Company and not disadvantageous in any material respect to the Subordinated Securityholders.
SECTION 4.08. Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same
shall become delinquent: (a) all taxes, assessments and governmental charges levied or imposed upon the Company or upon the income, profits or property of the Company; and (b) all lawful claims for labor, materials, and supplies, which, if
unpaid, might by law become a lien upon the property of the Company; provided, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings; and provided further that the Company shall not be required to cause to be paid or discharged any such tax, assessment, charge or claim if the Company shall determine that such
payment is not advantageous to the conduct of the business of the Company taken as a whole and that the failure so to pay or discharge is not disadvantageous in any material respect to the Subordinated Securityholders.
ARTICLE 5
SUBORDINATED
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Information as to the Names and Addresses of Subordinated Securityholders. The Company will
furnish or cause to be furnished to the Trustee, not less than 45 days nor more than 60 days after each date (month and day) specified as an Interest Payment Date for the Subordinated Securities of the first series issued under this Subordinated
Indenture (whether or not any Subordinated Securities of that series are then Outstanding), but in no event less frequently than semiannually, and at such other times as the Trustee may request in writing, within 30 days after receipt by the Company
of any such request, a list in such form as the Trustee may reasonably require containing all the information in the possession or control of the Company, or any of its Paying Agents other than the Trustee, as to the names and addresses of the
Holders of Subordinated Securities, obtained since the date
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as of which the next previous list, if any, was furnished, excluding from any such list the names and addresses received by the Trustee in its capacity as registrar (if so acting). Any such list
may be dated as of a date not more than 15 days prior to the time such information is furnished and need not include information received after such date. However, if the Trustee is appointed as Registrar, the Company has no obligation to furnish
the list of holders.
SECTION 5.02. Preservation of Information; Communication to Subordinated Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Holders of Subordinated
Securities of each series (1) contained in the most recent list furnished to it as provided in Section 5.01, (2) received by the Trustee in the capacity of Paying Agent or registrar (if so acting) and (3) filed with the Trustee
within the two preceding years as provided for in Section 5.04(c). The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(b) If three or more Holders of Subordinated Securities (hereinafter referred to as applicants) apply in writing to the Trustee,
and furnish to the Trustee reasonable proof that each such applicant has owned a Subordinated Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate
with other Holders of Subordinated Securities of any series or with Holders of all Subordinated Securities with respect to their rights under this Subordinated Indenture or under such Subordinated Securities, and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, at its election, either:
(1) afford such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection
(a) of this Section 5.02; or
(2) inform such applicants as to the approximate number of Holders of Subordinated Securities of
such series or all Subordinated Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 5.02, and as to
the approximate cost of mailing to such Subordinated Securityholders the form of proxy or other communications, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such
applicants, mail to each of the Holders of Subordinated Securities of such series, or all Subordinated Securities, as the case may be, whose name and address appear in the information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 5.02, a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment,
or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Subordinated Securities of such series or all Subordinated Securities, as the case may be, or would be in violation
of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of
such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Subordinated Securityholders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
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(c) Each and every Holder of the Subordinated Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee nor any Paying Agent nor any registrar shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of
Subordinated Securities in accordance with the provisions of subsection (b) of this Section 5.02, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
SECTION 5.03. Reports by Company.
(a) The Company covenants and agrees to file with the Trustee within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Subordinated Indenture as may be required from time to time by such
rules and regulations.
(c) The Company covenants and agrees to transmit to the Holders of Subordinated Securities within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in subsection (c) of Section 5.04 with respect to reports pursuant to subsection (a) of said Section 5.04, such summaries of any information, documents
and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section 5.03 as may be required by rules and regulations prescribed from time to time by the Commission. Delivery of reports, information and
documents to the Trustee under this Section 5.03 is for informational purposes only and the Trustees receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information
contained therein, including the Companys compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
(d) The Company and any other obligor on the Subordinated Securities each covenant and agree to furnish to deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending after the date hereof, an Officers Certificate, from the principal executive officer, principal financial officer or principal accounting officer stating whether or not to the best
knowledge of the signers thereof, the Company or Subsidiary of the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Subordinated Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company or a Subsidiary of the Company in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
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SECTION 5.04. Reports by Trustee.
(a) On or before the first July 15th following the date of execution of this Subordinated Indenture, and on or before July 15 in
every year thereafter, if and so long as any Subordinated Securities are Outstanding hereunder, the Trustee shall transmit to the Subordinated Securityholders as hereinafter in this Section 5.04 provided, a brief report dated as of the
preceding May 15 with respect to any of the following events which may have occurred within the previous 12 months (but if no such event has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its qualifications under Section 7.08;
(2) the creation of or any material change to a relationship specified in paragraph (1) through (10) of Section 7.08(d);
(3) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by
the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Subordinated Securities of any series, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may elect) to state such advances if such advances so remaining unpaid aggregate not more than onehalf of one percent of the principal amount of the Subordinated Securities
of such series Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other indebtedness owing by
the Company (or by any other obligor on the Subordinated Securities) to the Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor, except indebtedness based upon
a creditor relationship arising in any manner described in paragraph (2), (3), (4) or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any, physically in the possession of the Trustee (as such) on the date of such report;
(6) any additional issue of Subordinated Securities which the Trustee has not previously reported; and
(7) any action taken by the Trustee in the performance of its duties under this Subordinated Indenture which it has not previously reported
and which in its opinion materially affects the Subordinated Securities, except action in respect of a default, notice of which has been or is to be withheld by it in accordance with the provisions of Section 6.10.
(b) The Trustee shall transmit to the Subordinated Securityholders, as hereinafter provided, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) since the date of the last report transmitted pursuant to the provisions of subsection (a) of this
Section 5.04 (or if no such report has yet been so transmitted, since the date of execution of this Subordinated Indenture), for the reimbursement of which it claims or may claim a lien or charge prior to that of the Subordinated Securities of
any series on property or funds held or collected by it as Trustee, and which it has not previously reported pursuant to this subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate ten percent or less of the principal amount of Subordinated Securities of such series Outstanding at such time, such report to be transmitted within 90 days after such time.
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(c) Reports pursuant to this Section 5.04 shall be transmitted by mail (i) to all
Holders of Subordinated Securities of any series, as the names and addresses of such Holders shall appear upon the Register of the Subordinated Securities of such series, (ii) to such Holders of Subordinated Securities as have, within the two
years preceding such transmission, filed their names and addresses with the Trustee for that purpose and (iii) except in the case of reports pursuant to subsection (b) of this Section 5.04 to each Holder whose name and address are
preserved at the time by the Trustee as provided in Section 5.02(a) hereof.
(d) A copy of each such report shall, at the time of
such transmission to Subordinated Securityholders, be filed by the Trustee with each stock exchange upon which the Subordinated Securities of any series are listed and also with the Commission. The Company will notify the Trustee when and as the
Subordinated Securities of any series become listed on any stock exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SUBORDINATED
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default; Acceleration, Waiver of Default and Restoration of Position and Rights. The term Event of
Default whenever used herein with respect to any particular series of Subordinated Securities shall mean any one of the following events:
(a) default in the payment of any installment of interest on any Subordinated Security of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days provided however, that an extension of one or more Interest Payment Dates by the Company in accordance with the provisions of any Supplemental Subordinated Indenture, shall not
constitute an Event of Default; or
(b) default in the payment of all or any part of the principal of or any premium on any Subordinated
Security of such series as and when the same shall become due and payable whether at maturity, by proceedings for redemption, by declaration or otherwise, provided however, that an extension of the Stated Maturity for payment of principal of
Subordinated Securities of such series in accordance with the provisions of any Supplemental Subordinated Indenture, shall not constitute an Event of Default; or
(c) failure on the part of the Company to observe or perform in any material respect any other of the covenants or agreements on its part in
the Subordinated Securities or in this Subordinated Indenture (including any Supplemental Subordinated Indenture or pursuant to any Officers Certificate, as contemplated by Section 2.03) specifically contained for the benefit of the
Holders of the Subordinated Securities of such series, for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of not less than 25% in
principal amount of the Subordinated Securities of such series and all other series so benefited (all series voting as one class) at the time Outstanding under this Subordinated Indenture a written notice specifying such failure and stating that
such is a Notice of Default hereunder; or
(d) the entry by a court having jurisdiction in the premises of a decree or order
for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or ordering the winding up or liquidation of its affairs, if such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
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(e) the commencement by the Company of a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or the Companys consent to the entry of an order for relief in any involuntary case under any such law, or its consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or for any substantial part of its property, or the making by the Company of any general assignment for the benefit of creditors, or its failure generally to
pay its debts as they become due or the taking by the Company of any corporate action in furtherance of any of the foregoing; or
(f) any
other Event of Default provided in the Officers Certificate or Supplemental Subordinated Indenture under which such series of Subordinated is issued or in the form of Subordinated Security for such series.
If an Event of Default described in clause (a) or (b) shall have occurred and be continuing with respect to any one or more series
of Outstanding Subordinated Securities, then and in each and every such case, unless the principal amount of all the Subordinated Securities of each series as to which there is an Event of Default shall have already become due and payable, either
the Trustee or the Holders of not less than 25% in principal amount of the Subordinated Securities of such series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Company (and to the Trustee if
given by Subordinated Securityholders) may declare the principal amount (or, if the Subordinated Securities of any such series are Original Issue Discount Subordinated Securities, such portion of the principal amount as may be specified in the terms
of such series) of all the Subordinated Securities of such series, together with any accrued interest, to be due and payable immediately, and upon any such declaration the same shall be immediately due and payable, anything in this Subordinated
Indenture or in the Subordinated Securities of such series contained to the contrary notwithstanding.
Except as otherwise provided in the
terms of any series of Subordinated Securities pursuant to Section 2.03, if an Event of Default described in clause (c) or (f) above with respect to all series of Subordinated Securities then Outstanding, occurs and is continuing,
then, and in each and every such case, unless the principal of all of the Subordinated Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all of the
Subordinated Securities then Outstanding hereunder (treated as one class) by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Subordinated Securities of any series are
Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all of the Subordinated Securities then Outstanding, and the interest accrued thereon, if any, to be due and payable
immediately, and upon such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (e) or (f) above occurs and is continuing, then the principal amount of all of the Subordinated
Securities then Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of Default is with respect to less than
all series of Subordinated Securities then Outstanding, then, and in each and every such case, except for any series of Subordinated Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Subordinated Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series,
and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable.
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The foregoing provisions, however, are subject to the condition that if, at any time after the
principal amount (or, if the Subordinated Securities are Original Issue Discount Subordinated Securities, such portion of the principal as may be specified in the terms thereof of the Subordinated Securities of any one or more series (or of all the
Subordinated Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment of moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Subordinated Securities of such series (or upon all the Subordinated Securities, as the case may be) and the principal of any and all Subordinated
Securities of such series (or of any and all the Subordinated Securities, as the case may be) which shall have become due otherwise than by declaration (with interest on overdue installments of interest to the extent permitted by law and on such
principal at the rate or rates of interest borne by, or prescribed therefor in the Subordinated Securities of such series to the date of such payment or deposit) and interest upon such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series (or at the respective
rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit; and the amounts payable to the Trustee under Section 7.06 and any and all defaults under the Subordinated Indenture with
respect to Subordinated Securities of such series (or all Subordinated Securities, as the case may be), other than the nonpayment of principal of and any accrued interest on Subordinated Securities of such series (or any Subordinated
Securities, as the case may be) which shall have become due by declaration shall have been cured, remedied or waived as provided in Section 6.09then and in every such case the Holders of a majority in principal amount of the Subordinated
Securities of such series (or of all the Subordinated Securities, as the case may be) then Outstanding (such series or all series voting as one class if more than one series are so entitled) by written notice to the Company and to the Trustee, may
rescind and annul such declaration and its consequences; but no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair any right consequent thereon.
For all purposes under this Subordinated Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
In case the Trustee shall have proceeded to enforce any right under this Subordinated Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee and the Holders of the Subordinated Securities of
such series (or of all the Subordinated Securities, as the case may be) shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee and the Holders of the
Subordinated Securities of such series (or of all the Subordinated Securities, as the case may be) shall continue as though no such proceedings had been taken.
SECTION 6.02. Covenant of Company to Pay to Trustee Whole Amount Due on Subordinated Securities on Default in Payment of Interest or
Principal. The Company covenants that:
(a) in case default shall be made in the payment of any installment of interest on any of the
Subordinated Securities of any series as and when the same shall become due and payable and which payment has not been extended in accordance with the provisions of a Supplemental Subordinated Indenture, and such default shall have continued for a
period of 30 days;
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(b) in case default shall be made in the payment of all or any part of the principal of any of
the Subordinated Securities of any series when the same shall have become due and payable and which payment has not been extended in accordance with the provisions of a Supplemental Subordinated Indenture, whether at the Stated Maturity of such
series or by any call for redemption or by declaration of acceleration or otherwise; or
(c) upon demand of the Trustee, the Company will
pay to the Trustee, for the benefit of the Holders of the Subordinated Securities of such series, the whole amount that then shall have become due and payable on all such Subordinated Securities of such series for principal (and any premium) and
interest together with interest upon the overdue principal and installments of interest (to the extent permitted by law) at the rate or rates of interest borne by or Yield to Maturity (in the case of Original Issue Discount Subordinated Securities),
or prescribed therefor in, the Subordinated Securities of such series; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expense of collection, including a reasonable compensation to the Trustee, its agents
and counsel, and any expenses or liabilities incurred, and all advances made, by the Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as Trustee of an express
trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor upon such Subordinated Securities, and collect in the manner provided by law out of the property of the Company or any other obligor upon such Subordinated Securities wherever
situated the moneys adjudged or decreed to be payable.
If an Event of Default with respect to Subordinated Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Subordinated Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Subordinated Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.03. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Company or any other obligor upon the Subordinated Securities or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Subordinated Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the
Company for the payment of overdue principal or interest) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the
Subordinated Securities (or, if the Subordinated Securities are Original Issue Discount Subordinated Securities, such portion of the principal amount as may be specified in the terms of such Subordinated Securities) and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding; and
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(b) to collect and receive any moneys or other property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Subordinated Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.04. Trustee May Enforce Claims Without Possession of Subordinated Securities. All rights of action and claims under this
Subordinated Indenture or the Subordinated Securities of any series may be prosecuted and enforced by the Trustee to the fullest extent permitted by law without the possession of any of the Subordinated Securities of any series or the production
thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Subordinated Securities in respect of which such judgment has been recovered.
SECTION 6.05. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee pursuant to Section 6.02 shall be
applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys, upon presentation of the several Subordinated Securities in respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 7.06;
SECOND: In case the principal of the Outstanding Subordinated Securities in respect of which moneys have been
collected shall not have become due and be unpaid, to the payment of any interest on such Subordinated Securities, in the order of the maturity of the installments of such interest, with interest upon the overdue installments of interest (so far as
permitted by law and to the extent that such interest has been collected by the Trustee at the rate or rates of interest borne by or Yield to Maturity (in the case of Original Issue Discount Subordinated Securities) of such Subordinated Securities
or prescribed therefor therein) such payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Subordinated Securities in respect of which such moneys have been collected shall have become
due, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Subordinated Securities for principal and interest, if any, with interest on the overdue principal and any installments of interest (so far as
permitted by law and to the extent that such interest has been collected by the Trustee) at the rate or rates of interest borne by or Yield to Maturity (in the case of Original Issue Discount Subordinated Securities), or prescribed therefor in, such
Subordinated Securities; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Subordinated Securities, then to the payment of such principal and interest or Yield to Maturity, without preference
or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest, or of any Subordinated Security over any other Subordinated
Security, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
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FOURTH: To the payment of the remainder, with appropriate interest to the Company or its
successors or assigns, or to whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.06. Limitation on Suits by Holders of Subordinated Securities. No Holder of any Subordinated Security of any series shall have
any right by virtue or by availing of any provision of this Subordinated Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Subordinated Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of a continuing Event of Default, as hereinbefore provided, and unless also the Holders of not less than 25% in principal amount
of the Subordinated Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby (including the reasonable fees of counsel for the Trustee), and the Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee by the holders of a majority in principal amount of the
outstanding debt securities pursuant to this Section 6.06; it being understood and intended, and being expressly covenanted by the taker and Holder of every Subordinated Security with every other taker and Holder and the Trustee, that no one or
more Holders of Subordinated Securities of any series shall have any right in any manner whatever by virtue or by availing of any provision of this Subordinated Indenture to affect, disturb or prejudice the rights of the Holders of any other of such
Subordinated Securities, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Subordinated Indenture, except in the manner herein provided and for the equal, ratable and common
benefit of all Holders of Subordinated Securities of the applicable series. For the protection and enforcement of the provisions of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Notwithstanding any other provisions in this Subordinated Indenture, the right of any Holder of any Subordinated
Security to receive payment of the principal of and interest on such Subordinated Security on or after the respective due dates expressed in such Subordinated Security (or, in the case of redemption, on or after the date fixed for redemption), or to
institute suit for the enforcement of any such payment on or after such respective dates shall not be impaired or affected without the consent of such Holder.
SECTION 6.07. Rights and Remedies Cumulative. All powers and remedies given by this Article Six to the Trustee or to the Holders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Subordinated Indenture, and no delay or omission of the Trustee or of any Holder of any of the Subordinated Securities to exercise any right or power accruing upon any default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.06, every power and remedy given by this Article Six or by law to
the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders. The assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 6.08. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Subordinated Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Subject to the provisions
of Section 6.06, every right and remedy given by this Article Six or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.09. Control by Holders; Waiver of Past Defaults. The Holders of a majority in principal amount of the Subordinated Securities
of all series (voting as one class) at the time Outstanding (determined as provided in Section 8.04) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided, however, that, subject to Section 7.01 the Trustee shall have the right to decline to follow any such direction if the Trustee in reliance upon an Opinion of Counsel determines that the
action so directed may not lawfully be taken, or if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceedings so directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders not parties to such direction, and provided further that nothing in this Subordinated Indenture shall impair the right of the Trustee to take any action deemed proper by the Trustee and which is not inconsistent
with such direction by the Holders.
The Company may set a special record date for purposes of determining the identity of the Holders of
Subordinated Securities entitled to vote or consent to any action by vote or consent authorized or permitted by this Section 6.09. Such record date shall be the later of 15 days prior to the first solicitation of such consent or the date of the
most recent list of Holders furnished to the Trustee pursuant to Section 5.01 of this Subordinated Indenture prior to such solicitation.
The Holders of not less than a majority in principal amount of the Subordinated Securities of any series at the time Outstanding (determined
as provided in Section 8.04) may on behalf of the Holders of all the Subordinated Securities of such series waive any past Event of Default with respect to such series and its consequences (subject to Section 6.02), except a continuing
Event of Default specified in Section 6.01(a), (b) or (c), or in respect of a covenant or provision of this Subordinated Indenture which under Article Ten cannot be modified or amended without the consent of the Holder of each Subordinated
Security so affected. Upon any such waiver, the Company, the Trustee and the Holders of the Subordinated Securities of such series shall be restored to their former positions and rights hereunder, respectively, and such Event of Default shall be
deemed to have been cured and not continuing for every purpose of this Subordinated Indenture; but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon.
SECTION 6.10. Trustee to Give Notice of Defaults Known to it, but May Withhold in Certain Circumstances. The Trustee shall, within 90
days after the occurrence of a default with respect to the Subordinated Securities of any series, give notice of all defaults with respect to that series known to the Trustee to all Holders of Subordinated Securities of such series in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless in each case such defaults shall have been cured before the mailing or publication of such notice (the term default for the purpose of this Section being
hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided, that, except in the case of default in the payment of the principal of or interest on any of the
Subordinated Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the interests of the Subordinated Securityholders of such series.
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SECTION 6.11. Requirement of an Undertaking to Pay Costs in Certain Suits Under the
Subordinated Indenture or Against the Trustee. All parties to this Subordinated Indenture agree, and each Holder of any Subordinated Security by such Holders acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Subordinated Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section 6.11 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder of Subordinated Securities of any series, or group of such
Holders, holding in the aggregate more than ten percent in principal amount of the Subordinated Securities of such series Outstanding, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or any interest or
premium on any Subordinated Security, on or after the due date expressed in such Subordinated Security or for such interest (or in the case of any redemption, on or after the dated fixed for redemption).
SECTION 6.12. Waiver of Stay, or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereinafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that they will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the
curing, remedying or waiving of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Subordinated Indenture. In case an Event of Default has occurred (which has
not been cured, remedied or waived), the Trustee shall exercise such of the rights and powers vested in it by this Subordinated Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
No provision of this Subordinated Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, provided, however, that:
(a) prior to the occurrence of an Event of Default and after the curing, remedying or waving of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee shall be determined solely by the express provisions of this Subordinated Indenture and the
Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Subordinated Indenture, and no implied covenants or obligations shall be read into this Subordinated Indenture against the
Trustee;
(2) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein,
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upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Subordinated Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Subordinated Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated therein); and;
(3) this Subsection shall not be construed to
limit the effect of the first paragraph and the second to last paragraph of this Section;
(b) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Subordinated Securities pursuant to Section 6.09 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Subordinated Indenture.
None of the provisions contained in this Subordinated Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably assured to it.
SECTION 7.02. Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an
Officers Certificate (unless other evidence in respect thereof shall be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with such written advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Subordinated Indenture at the
request, order or direction of any of the Subordinated Securityholders pursuant to the provisions of this Subordinated Indenture, unless such Subordinated Securityholders shall have offered to the Trustee reasonable security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred therein or thereby;
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(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Subordinated Indenture;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or
document, unless requested in writing so to do by the Holders of Subordinated Securities pursuant to Section 6.09; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Subordinated Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to such proceeding; and provided further, that nothing in this subsection (f) shall require the Trustee to give the Subordinated Securityholders any notice other than that required by
Section 6.10. The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be reimbursed by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall be under no responsibility for the approval by it in good faith of any expert for any of the purposes expressed in this
Subordinated Indenture;
(i) the Trustee shall not be deemed to have notice or be charged with knowledge of any default (within the
meaning of Section 602) or Event of Default with respect to the Securities of any series for which it is acting as Trustee unless written notice of such default or Event of Default, as the case may be, is received by the Trustee at the
Corporate Trust Office of the Trustee from the Company, any other obligor upon such Securities or by any Holder of such Securities, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(k) the Trustee may request that the Company deliver an Officers Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any persons authorized to sign an Officers Certificate, including any person specified as so authorized in
any such certificate previously delivered and not superseded;
(l) the permissive right of the Trustee hereunder to take or omit to take
any action shall not be construed as a duty; and
(m) anything in this Indenture notwithstanding, in no event shall the Trustee be liable
for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Company has been advised as to the likelihood of such loss or damage and regardless of the form of
action.
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SECTION 7.03. Trustee Not Responsible for Recitals or Application of Proceeds. The recitals
contained herein and in the Subordinated Securities (other than the certificate of authentication on the Subordinated Securities) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of this Subordinated Indenture or of the Subordinated Securities. The Trustee shall not be accountable for the use or application by the Company of any of the Subordinated
Securities or of the proceeds thereof.
SECTION 7.04. Trustee May Own Subordinated Securities. The Trustee, any Paying Agent,
registrar or any agent of the Company or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Subordinated Securities with the same rights it would have if it were not Trustee, Paying Agent, registrar or such
other agent.
SECTION 7.05. Moneys Received by Trustee to be Held in Trust. Moneys held by the Trustee in trust need not be
segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
SECTION 7.06. Trustee Entitled to Compensation, Reimbursement and Indemnity. The Company agrees to pay to the Trustee from time to time
reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of any express trust), and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in connection with the acceptance or administration of its trust under this Subordinated Indenture (including the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Company also agrees to indemnify the Trustee and its officers, directors, agents and employees for,
and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the reasonable
costs and expenses of defending itself against any claim of liability in the premises. The obligations of the Company under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee and its officers, directors, agents and employees shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Subordinated Indenture and the resignation or
removal of the Trustee. Such additional indebtedness shall be secured by a lien prior to that of the Subordinated Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of
principal of or interest or redemption premium on particular Subordinated Securities.
In addition and without prejudice to the rights
provided to the Trustee under any of the provisions of this Indenture, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 601(e) or Section 601(f), the expenses (including the
reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal and State bankruptcy, insolvency or other similar law.
SECTION 7.07. Right of Trustee to Rely on Officers Certificate Where No Other Evidence Specifically Prescribed. Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of this Subordinated Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers
Certificate of the Company or an Opinion of Counsel or both delivered to the Trustee, and such Officers
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Certificate or Opinion of Counsel, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under
the provisions of this Subordinated Indenture upon the faith thereof.
SECTION 7.08. Disqualification; Conflicting Interest. If the
Trustee has or shall acquire a conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall eliminate such interest, apply to the Commission for permission to continue as trustee (if any of the
Securities are registered pursuant to the Securities Act) or, resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee, by
virtue of its capacity as Trustee of the Securities of any series shall not be deemed to have a conflicting interest arising from its capacity as trustee in respect of the Securities of any other series issued under this Indenture. Nothing herein
shall prevent the Trustee from filing with the Commission the application referred to in the second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Requirements for Eligibility of Trustee. There shall always be at least one Trustee hereunder. The Trustee hereunder shall
at all times be a Company organized and doing business as a commercial bank under the laws of the United States of America or any state thereof or of the District of Columbia or a Company or other Person permitted to act as a trustee by the
Commission and, in each case, authorized under such laws to exercise corporate trust powers, having (or, in the case of a subsidiary of a bank holding company, its bank holding company parent shall have) a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by Federal, State or District of Columbia authority. If such Company or bank holding company parent publishes reports of condition at least annually, pursuant to law or to the requirements of
the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Company or bank holding company parent shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. No obligor on the Subordinated Securities or Person directly or indirectly controlling, controlled by or under common control with such obligor shall serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 7.09, the Trustee shall resign immediately in the manner and with the effect specified in this Article Seven.
SECTION 7.10. Resignation and Removal of Trustee; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee,
may resign at any time with respect to the Subordinated Securities of one or more series of by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 7.11 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to
the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee within 30 days after the Trustees receipt of such notice of removal, the departing Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Subordinated Security of such series.
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(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of subsection (a) of Section 7.08 after written request therefor by the
Company or by any Subordinated Securityholder who has been a bona fide Holder of a Subordinated Security or Subordinated Securities of the applicable series for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Subordinated Securityholder; or
(3) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation; or
(4) the Company shall determine that the Trustee has failed to perform its obligations under this Subordinated
Indenture in any material respect, then, in any such case, the Company may remove the Trustee and appoint a successor trustee by written instrument executed by an authorized officer of the Company, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11, any Subordinated Securityholder who has been a bona fide Holder of a Subordinated Security or Subordinated Securities of the affected
series for at least six months may, on such Persons behalf and on behalf of all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to
such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in principal amount of the Subordinated Securities Outstanding (determined as provided in Section 8.04) may
at any time remove the Trustee and appoint a successor trustee by written instrument or instruments signed by such Holders or their attorneysinfact duly authorized, or by the affidavits of the permanent chairman and secretary of a
meeting of the Subordinated Securityholders evidencing the vote upon a resolution or resolutions submitted thereto with respect to such removal and appointment (as provided in Article Nine), and by delivery thereof to the Trustee so removed, to the
successor trustee and to the Company.
(d) Any resignation or removal of the Trustee and any appointment of a successor trustee pursuant
to any of the provisions of this Section 7.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
SECTION 7.11. Acceptance of Appointment by Successor Trustee. Any successor trustee appointed as provided in Section 7.10 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers with respect to
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the trustee so ceasing to act. Upon written request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions
of Section 7.06.
No successor trustee shall accept appointment as provided in this Section 7.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09.
SECTION 7.12. Successor to Trustee by Merger, Consolidation or Succession to Business. Any Company into which the Trustee may be merged
or converted or with which it may be consolidated, or any Company resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Company succeeding to all or substantially all of the corporate trust business of
the Trustee (including the administration of the trust created by this Indenture), shall be the successor of the Trustee hereunder, provided such Company shall be qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Subordinated Indenture any of the Subordinated
Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Subordinated Securities so authenticated; and in case at that time
any of the Subordinated Securities shall not have been authenticated, any successor to the Trustee may authenticate such Subordinated Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the Subordinated Securities or in this Subordinated Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate Subordinated Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 7.13. Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Subordinated Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
SECTION 7.14. Appointment of Authenticating Agent. As long as any Subordinated Securities of a series remain Outstanding, the Trustee
may, by an instrument in writing, appoint with the approval of the Company an authenticating agent (the Authenticating Agent) which shall be authorized to act on behalf of the Trustee to authenticate Subordinated Securities,
including Subordinated Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.09. Subordinated Securities of each such series authenticated by such Authenticating Agent shall be entitled to the
benefits of this Subordinated Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Whenever reference is made in this Subordinated Indenture to the authentication and delivery of Subordinated Securities of
any series by the Trustee or to the Trustees Certificate of Authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent for such series and a Certificate of
Authentication executed on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State, authorized
under such laws to exercise corporate trust powers, having (or in the case of a subsidiary of a bank holding company, its bank holding company parent shall have) a combined capital and surplus of at least $45,000,000 (determined as provided in
Section 7.09 with respect to the Trustee) and subject to supervision or examination by Federal or State authority.
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Any corporation into which any Authenticating Agent may be merged or converted, or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent (including the agency contemplated by this Indenture) shall be a party, or any corporation succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the authenticating Agent with respect to all series of Subordinated Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation to the Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case in any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 7.14 with respect to one or more series of Subordinated Securities, the Trustee shall upon receipt of a Company Order appoint a successor Authenticating Agent and the Company shall
provide notice of such appointment to all Holders of Subordinated Securities of such series in the manner and to the extent provided in Section 13.02. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Company agrees to pay to the Authenticating Agent for such series from time to time
reasonable compensation. The Authenticating Agent for the Subordinated Securities of any series shall have no responsibility or liability for any action taken by it as such at the direction of the Trustee.
If an appointment is made with respect to one or more series pursuant to this Section, the Subordinated Securities of such series may have
endorsed thereon, in addition to the Trustees certificate of authentication, an alternative certificate of authentication substantially in the following form:
This is one of the Subordinated Securities described in the withinmentioned Subordinated Indenture.
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,
as Trustee |
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By |
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As Authenticating Agent |
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By |
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Authorized Signatory |
Sections 7.02, 7.03, 7.04, 7.06 and 8.03 shall be applicable to any Authenticating Agent.
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ARTICLE 8
CONCERNING THE SUBORDINATED SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Subordinated Securityholders. Whenever in this Subordinated Indenture it is provided that the Holders
of a specified percentage in principal amount of the Subordinated Securities of any or all series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the
fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by such Subordinated Securityholders in
Person or by agent or proxy appointed in writing, or (b) by the record of such Holders of Subordinated Securities voting in favor thereof at any meeting of such Subordinated Securityholders duly called and held in accordance with the provisions
of Article Nine, or (c) by a combination of such instrument or instruments and any such record of such a meeting of such Subordinated Securityholders.
SECTION 8.02. Proof of Execution of Instruments and of Holding of Subordinated Securities. Subject to the provisions of Sections 7.01,
7.02 and 9.05, proof of the execution of any instrument by a Subordinated Securityholder or such Holders agent or proxy and proof of the holding by any Person of any of the Subordinated Securities shall be sufficient if made in the following
manner:
(a) The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to
the Trustee;
(b) The ownership of Subordinated Securities of any series shall be proved by the Register of such Subordinated Securities
of such series, or by certificates of the Subordinated Security registrar or registrars thereof.
The Trustee shall not be bound to
recognize any Person as a Subordinated Securityholder unless and until such Persons title to the Subordinated Securities held by it is proved in the manner in this Article Eight provided.
The record of any Subordinated Securityholders meeting shall be proved in the manner provided in Section 9.06.
The Trustee may accept such other proof or require such additional proof of any matter referred to in this Section 8.02 as it shall deem
reasonable.
SECTION 8.03. Who May be Deemed Owners of Subordinated Securities. Prior to due presentment for transfer of any
Subordinated Security, the Company, the Trustee and any agent of the Company or the Trustee may deem and treat the Person in whose name such Subordinated Security shall be registered upon the Register of Subordinated Securities of the series of
which such Subordinated Security is a part as the absolute owner of such Subordinated Security (whether or not such Subordinated Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of
receiving payment of or on account of the principal of and interest, subject to the provisions of this Subordinated Indenture, on such Subordinated Security and for all other purposes; and neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such Holder for the time being, or upon such Holders order, shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability of moneys payable upon any such Subordinated Security.
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If the Subordinated Securities of any series are issued in the form of one or more Global
Subordinated Securities, the Depository therefor may grant proxies to Persons having a beneficial ownership in such Global Subordinated Security or Subordinated Securities for purposes of voting or otherwise responding to any request for consent,
waiver or other action which the Holder of such Registered Subordinated Security is entitled to grant or take under this Subordinated Indenture and the Trustee shall accept such proxies for the purposes granted; provided that neither the Trustee nor
the Company shall have any obligation with respect to the grant of or solicitation by the Depository of such proxies.
SECTION 8.04.
Subordinated Securities Owned by the Company or Controlled or Controlling Persons Disregarded for Certain Purposes. In determining whether the Holders of the requisite principal amount of Subordinated Securities have concurred in any demand,
direction, request, notice, vote, consent, waiver or other action under this Subordinated Indenture, Subordinated Securities which are owned by the Company or any other obligor on the Subordinated Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Subordinated Securities shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, provided
that for the purposes of determining whether the Trustee shall be protected in relying on any such demand, direction, request, notice, vote, consent, waiver or other action, only Subordinated Securities which a Responsible Officer of the Trustee
assigned to its Principal Office knows are so owned shall be so disregarded. Subordinated Securities so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section 8.04, if the pledgee shall
establish to the satisfaction of the Trustee the pledgees right to vote such Subordinated Securities and that the pledgee is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers
Certificate listing and identifying all Subordinated Securities, if any, known by the Company to be owned or held by or for the account of the Company or any other obligor on the Subordinated Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Subordinated Securities; and, subject to the provisions of Section 7.01, the Trustee shall be entitled to accept such
Officers Certificate as conclusive evidence of the facts therein set forth and of the fact that all Subordinated Securities not listed therein are Outstanding for the purpose of any such determination.
SECTION 8.05. Instruments Executed by Subordinated Securityholders Bind Future Holders. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage in principal amount of the Subordinated Securities specified in this Subordinated Indenture in connection with such action, any
Holder of a Subordinated Security which is shown by the evidence to be included in the Subordinated Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal office and upon proof
of holding as provided in Section 8.02, revoke such action so far as concerns such Subordinated Security. Except as aforesaid any such action taken by the Holder of any Subordinated Security and any direction, demand, request, notice, waiver,
consent, vote or other action of the Holder of any Subordinated Security which by any provisions of this Subordinated Indenture is required or permitted to be given shall be conclusive and binding upon such Holder and upon all future Holders and
owners of such Subordinated Security, and of any Subordinated Security issued in lieu thereof, irrespective of whether any notation in regard thereto is made upon such Subordinated Security. Any action taken by the Holders of the percentage in
principal amount of the Subordinated Securities of any or all series specified in this Subordinated Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all of the Subordinated
Securities of such series subject, however, to the provisions of Section 7.01.
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ARTICLE 9
SUBORDINATED SECURITYHOLDERS MEETINGS
SECTION 9.01. Purposes for Which Meetings May be Called. A meeting of Holders of Subordinated Securities of any or all series may be
called at any time and from time to time pursuant to the provisions of this Article for any of the following purposes:
(a) to give any
notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders of Subordinated Securities
of any or all series, as the case may be, pursuant to any of the provisions of Article Six;
(b) to remove the Trustee and appoint a
successor trustee pursuant to the provisions of Article Seven;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 10.02; or
(d) to take any other action authorized to be taken by or on behalf of the
Holders of any specified principal amount of the Subordinated Securities of any or all series, as the case may be, under any other provision of this Subordinated Indenture or under applicable law.
SECTION 9.02. Manner of Calling Meetings. The Trustee may at any time call a meeting of Subordinated Securityholders to take any action
specified in Section 9.01, to be held at such time and at such place in The City of New York, New York, or such other city as the Trustee shall determine. Notice of every meeting of Subordinated Securityholders, setting forth the time and place
of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed not less than 20 nor more than 60 days prior to the date fixed for the meeting.
SECTION 9.03. Call of Meeting by the Company or Subordinated Securityholders. In case at any time the Company pursuant to a resolution of
its Board of Directors, or the Holders of not less than ten percent in principal amount of the Subordinated Securities of any or all series, as the case may be, then Outstanding, shall have requested the Trustee to call a meeting of Holders of
Subordinated Securities of any or all series, as the case may be, to take any action authorized in Section 9.01 by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have
mailed notice of such meeting within 20 days after receipt of such request, then the Company or such Holders of Subordinated Securities in the amount above specified may determine the time and place in any of the City of Seattle, Washington, County
of King, Washington or The City of New York, New York for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing (and publishing, if required) notice thereof as provided in Section 9.02.
SECTION 9.04. Who May Attend and Vote at Meetings. To be entitled to vote at any meeting of Subordinated Securityholders a Person shall
(a) be a Holder of one or more Subordinated Securities with respect to which the meeting is being held; or (b) be a Person appointed by an instrument in writing as proxy by such Holder of one or more Subordinated Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of Subordinated Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
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SECTION 9.05. Regulations May be Made by Trustee; Conduct of the Meeting; Voting
RightsAdjournment. Notwithstanding any other provisions of this Subordinated Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Subordinated Securityholders, in regard to proof of the
holding of Subordinated Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit. Except as otherwise permitted or required by any such regulations, the holding of Subordinated Securities shall be proved in the manner specified in Section 8.02. and the
appointment of any proxy shall be proved in the manner specified in said Section 8.02; provided, however, that such regulations may provide that written instruments appointing proxies regular on their face, may be presumed valid and genuine
without the proof hereinabove or in said Section 8.02 specified.
The Trustee shall by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Company or by Subordinated Securityholders as provided in Section 9.03, in which case the Company or the Subordinated Securityholders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each Subordinated Securityholder or proxy shall be entitled to one vote for
each $1,000 principal amount (in the case of Original Issue Discount Subordinated Securities, such principal amount shall be equal to such portion of the principal amount as may be specified in the terms of such series) of Subordinated Securities
held or represented by such Holder; provided, however, that no vote shall be cast or counted at any meeting in respect of any Subordinated Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of Subordinated Securities held by such Person or instruments in writing as aforesaid duly designating such Person as the Person to vote on behalf of other Subordinated
Securityholders. Any meeting of Subordinated Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may be held so adjourned without further notice.
At any meeting of Subordinated Securityholders, the presence of Persons holding or representing Subordinated Securities in principal amount
sufficient to take action on the business for the transaction of which such meeting was called shall constitute a quorum, but, if less than a quorum is present, the Persons holding or representing a majority in principal amount of the Subordinated
Securities represented at the meeting may adjourn such meeting with the same effect for all intents and purposes, as though a quorum had been present.
SECTION 9.06. Manner of Voting at Meetings and Record to be Kept. The vote upon any resolution submitted to any meeting of Subordinated
Securityholders shall be by written ballots on which shall be subscribed the signatures of the Holders of Subordinated Securities or of their representatives by proxy and the principal amount or principal amounts of the Subordinated Securities held
or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Subordinated Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed
as provided in Section 9.02. The record shall show the principal amount or principal amounts of the Subordinated Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one copy thereof shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
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Any record so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 9.07. Exercise of Rights of Trustee and Subordinated Securityholders Not to be Hindered or Delayed. Nothing in this Article
Nine contained shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Subordinated Securityholders or any rights expressly or impliedly conferred hereunder to make such call, any hindrances or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to the Subordinated Securityholders under any of the provisions of this Subordinated Indenture or of the Subordinated Securities.
ARTICLE 10
SUPPLEMENTAL
SUBORDINATED INDENTURES
SECTION 10.01. Purposes for Which Supplemental Subordinated Indentures May be Entered into Without Consent
of Subordinated Securityholders. Without the consent of the Holders of any Subordinated Securities, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall comply with
the provisions of the Trust Indenture Act as then in effect) for one or more of the following purposes:
(a) to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Subordinated Securities of one or more series any property or assets;
(b) if deemed
appropriate by the Company or required by law, to evidence the succession of another Company to the Company or successive successions and the assumption by the successor Company of the covenants, agreements and obligations of the Company pursuant to
Article Four hereof;
(c) to add to the covenants of the Company such further covenants, restrictions or conditions as its Board of
Directors and the Trustee shall consider to be for the protection of the Holders of all or any series of Subordinated Securities (and if such covenants, restrictions or conditions are to be for the benefit of less than all series of Subordinated
Securities, stating that such covenants, restrictions or conditions are expressly being included solely for the benefit of such series), and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants,
restrictions or conditions an Event of Default permitting the enforcement of all or any of the several remedies provided in this Subordinated Indenture as herein set forth; provided, however, that in respect to any such additional covenant,
restriction or condition such Supplemental Subordinated Indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to the Trustee upon such default;
(d) to add or change any of the
provisions of this Subordinated Indenture to such extent as shall be necessary to facilitate the issuance of Subordinated Securities in (i) global form or (ii) bearer form, registerable or not registerable as to principal or principal and
interest, and with or without coupons;
(e) to change or eliminate any of the provisions of this Subordinated Indenture; provided,
however, that any such change or elimination shall become effective only when there is no Subordinated Security of any series Outstanding created prior to the execution of such Supplemental Subordinated Indenture which is entitled to the benefit of
such provision;
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(f) to establish the form or terms of Subordinated Securities of any series as permitted by
Sections 2.01 and 2.03;
(g) to appoint, at the request of the Trustee, a successor Trustee for a particular series of Subordinated
Securities to act as such pursuant to the provisions of this Subordinated Indenture and to add to or change the provisions of this Subordinated Indenture to such extent as shall be necessary to facilitate the performance of the duties of such
trustee; and
(h) to cure any ambiguity or to correct or supplement any provisions contained herein or in any Supplemental Subordinated
Indenture which may be defective or inconsistent with any other provision contained herein or in any Supplemental Subordinated Indenture, or to make such other provisions in regard to matters or questions arising under this Subordinated Indenture or
any Supplemental Subordinated Indenture which shall not adversely affect the interests of the Holders of the Subordinated Securities.
SECTION 10.02. Modification of Subordinated Indenture with Consent of Holders of Subordinated Securities. With the consent (evidenced as
provided in Section 8.01) of the Holders of not less than a majority in principal amount of the Subordinated Securities of all series at the time Outstanding (determined as provided in Section 8.04) affected by such Supplemental
Subordinated Indenture (voting as one class), the Company and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall comply with the provisions of the Trust Indenture Act as then in
effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Subordinated Indenture or of any Supplemental Subordinated Indenture or of modifying in any manner the rights of the Holders
of the Subordinated Securities of each such series; provided, however, that no such Supplemental Subordinated Indenture shall, without the consent of the Holders of each Outstanding Subordinated Security affect thereby:
(a) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Subordinated Security, or reduce
the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Subordinated Security or any other Subordinated Security which would
be due and payable upon a declaration of acceleration of the Stated Maturity thereof pursuant to Section 6.01, or change any place of payment where, or the coin or currency in which, any Subordinated Security or any premium or interest thereon
is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the date fixed for redemption), or modify the provisions of this
Subordinated Indenture with respect to this subordination of the Subordinated Securities in a manner adverse to the Holders, or
(b)
Reduce the percentage in principal amount of the Outstanding Subordinated Securities the consent of the Holders of which is required for any such Supplemental Subordinated Indenture, or the consent of the Holders of which is required for any waiver
(of compliance with certain provisions of this Subordinated Indenture or certain defaults hereunder and their consequences) provided for in this Subordinated Indenture or
(c) Change the time of payment or reduce the amount of any minimum sinking account or fund payment or
(d) Modify any of the provisions of this Section 10.02, except to increase any such percentage or to provide that certain other
provisions of this Subordinated Indenture cannot be modified or waived without the consent of the Holder of each Subordinated Security affected thereby.
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A supplemental indenture which changes or eliminates any covenant or other provision of this
Subordinated Indenture which has expressly been included solely for the benefit of one or more particular series of Subordinated Securities, or which modifies the rights of Holders of Subordinated Securities of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this Subordinated Indenture of the Holders of Subordinated Securities of any other series.
Upon the request of the Company, accompanied by a copy of a resolution of the Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to a Company Order) certified by the secretary or an assistant secretary of the Company authorizing the execution
of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of the Holders of the Subordinated Securities as aforesaid and other documents, if any, required by Section 8.01, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustees own rights, duties or immunities under this Subordinated Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions to this Section, the
Trustee shall give notice thereof to the Holders of then Outstanding Registered Subordinated Securities of each series affected thereby, by mailing a notice thereof by firstclass mail to such Holders at their addresses as they shall appear on
the Security Register and in each case such notice shall set forth in general terms the substance of such supplemental indenture. Any failure of the Company to give such notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 10.03. Effect of Supplemental Subordinated Indentures. Upon the execution
of any Supplemental Subordinated Indenture pursuant to the provisions of this Article Ten, this Subordinated Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Subordinated Indenture of the Trustee, the Company and the Holders of Subordinated Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such Supplemental Subordinated Indenture shall be and be deemed to be part of the terms and conditions of this Subordinated Indenture for any and all purposes.
The Trustee shall be entitled to receive, and subject to the provisions of Section 7.01 shall be entitled to rely upon, an Opinion of
Counsel as conclusive evidence that any such Supplemental Subordinated Indenture complies with the provisions of this Article Ten and that the Subordinated Securities affected by the Supplemental Subordinated Indenture, when such Subordinated
Securities are authenticated and delivered by the Trustee and executed and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will be valid and binding obligations of the Company, except as any
rights thereunder may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors rights generally and by general equity principles.
SECTION 10.04. Subordinated Securities May Bear Notation of Changes by Supplemental Subordinated Indentures. Subordinated Securities
authenticated and delivered after the execution of any Supplemental Subordinated Indenture pursuant to the provisions of this Article Ten, or after any action taken at a Subordinated Securityholders meeting pursuant to Article Nine, may bear a
notation in form
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approved by the Trustee as to any matter provided for in such Supplemental Subordinated Indenture or as to any action taken at any such meeting. If the Company or the Trustee shall so determine,
new Subordinated Securities so modified as to conform, in the opinion of the Trustee and the Company, to any modification of this Subordinated Indenture contained in any such Supplemental Subordinated Indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Subordinated Securities then Outstanding.
ARTICLE 11
DISCHARGE; DEFEASANCE
SECTION 11.01. Satisfaction and Discharge of Subordinated Indenture.
(A) If at any time (i) the Company shall have paid or caused to be paid the principal of and interest on all the Subordinated Securities
of any series Outstanding hereunder (other than Subordinated Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.09) as and when the same shall have become due and
payable, or (ii) the Company shall have delivered to the Trustee for cancellation all Subordinated Securities of any series theretofore authenticated (other than any Subordinated Securities of such series which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section 2.09) or (iii) in the case of any series of Subordinated Securities where the exact amount (including the currency of payment) of principal of and interest due on
which can be determined at the time of making the deposit referred to in clause (b) below, (a) all the Subordinated Securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (b) the Company shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust the entire amount in (i) cash (other than moneys repaid by the Trustee or any Paying Agent to the Company in accordance with Section 11.04), (ii) in the case
of any series of Subordinated Securities the payments on which may only be made in Dollars, direct obligations of the United States of America, backed by its full faith and credit (U.S. Government Obligations), maturing as to
principal and interest at such times and in such amounts as will insure the availability of cash sufficient to pay at such Maturity or upon such redemption, as the case may be, or (iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (a) the principal and interest on all Subordinated Securities of such series on each date that such
principal or interest is due and payable in accordance with the terms of the Subordinated Indenture and the Subordinated Securities of such series; (x) the principal and interest on all Subordinated Securities of such series on each date that
such principal or interest is due and payable and in accordance with the terms of the Subordinated Indenture and the Subordinated Securities of such series; and if, in any such case, the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Subordinated Indenture shall cease to be of further effect (except as to (i) rights of registration of transfer and exchange of Subordinated Securities of such series and the Companys right of
optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Subordinated Securities, (iii) rights of Holders of Subordinated Securities to receive payments of principal thereof and interest thereon, upon
the original stated due dates therefore (but not upon acceleration), (iv) any optional redemption rights of such series of Subordinated Securities to the extent to be exercised to make such call for redemption within one year, (v) the
rights, obligations, duties and immunities of the Trustee hereunder, including without limitation those under Section 7.6, (vi) the rights of the Holders of securities of such series as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them, and (vii) the obligations of the Company under Section 4.03 and the Trustee, on demand of the Company accompanied by an Officers Certificate and an Opinion of Counsel and at
the
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cost and expense of the Company, shall execute proper instruments acknowledging such satisfaction of and discharging this Subordinated Indenture; provided, that the rights of Holders of the
Subordinated Securities to receive amounts in respect of principal of and interest on the Subordinated Securities held by them shall not be delayed longer than required by then applicable mandatory rules or policies of any securities exchange upon
which the Subordinated Securities are listed. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Subordinated Indenture or the Subordinated Securities of such series.
(B) The following
provisions shall apply to the Subordinated Securities of each series unless specifically otherwise provided in an Officers Certificate or indenture supplemental hereto provided pursuant to Section 2.03. In addition to discharge of the
Subordinated Indenture pursuant to the next preceding paragraph, in the case of any series of Subordinated Securities the exact amounts (including the currency of payment) of principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (a) below, the Company shall be deemed to have paid and discharged the entire indebtedness on all the Subordinated Securities of such a series on the date of the deposit referred to in clause
(a) below, and the provisions of this Subordinated Indenture with respect to the Subordinated Securities of such series shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of Subordinated
Securities of such series and the Companys right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Subordinated Securities, (iii) rights of Holders of Subordinated Securities to
receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), (iv) any optional redemption rights of such series of Subordinated Securities to the extent to be exercised to
make such call for redemption within one year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, (vi) the rights of the Holders of Subordinated Securities of such series as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them and (vii) the obligations of the Company under Section 4.03 and the Trustee, at the expense of the Company, shall at the Companys request, execute proper
instruments acknowledging the same, if
(a) with reference to this provision the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Subordinated Securities of such series (i) cash in an amount, or (ii) in the
case of any series of Subordinated Securities the payments on which may only be made in United States Dollars, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal and interest on all
Subordinated Securities of such series on each date that such principal or interest is due and payable in accordance with the terms of the Subordinated Indenture and the Subordinated Securities of such series;
(b) such deposit will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which the Company
is a party or by which it is bound;
(c) the Company has delivered to the Trustee an Opinion of Counsel based on the fact that
(x) the Company has received from, or there has been published by, the IRS a ruling or (y) since the date hereof, there has been a change in the applicable Federal income tax law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Subordinated Securities of such series will not recognize income, gain or loss for United States Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States
Federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred;
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(d) no event or condition exists that, based on the subordination provisions applicable to the
Subordinated Securities of such series, would prevent the Company from making payments of principal of, premium, if any, and interest on any of the applicable Subordinated Securities at the date of the irrevocable deposit referred to in
Section 11.01(B)(a) above or at any time during the period ending on the 91st day after such deposit date; and
(e) the Company has
delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with.
(C) The Company shall be released from its obligations under Sections 4.02 and unless otherwise provided for in the Board Resolution,
Officers Certificate or Subordinated Indenture supplemental hereto establishing such series of Subordinated Securities, from all covenants and other obligations referred to in Section 2.03(18) or 2.03(20) with respect to such series of
Subordinated Securities outstanding on and after the date the conditions set forth below are satisfied (hereinafter, covenant defeasance). For this purpose, such covenant defeasance means that, with respect to the Outstanding
Subordinated Securities of any series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in such Section, whether directly or indirectly by reason of any reference elsewhere
herein to such Section or by reason of any reference in such Section to any other provision herein or in any other document and such omission to comply shall not constitute an Event of Default under Section 6.01, but the remainder of this
Subordinated Indenture and such Subordinated Securities shall be unaffected thereby. The following shall be the conditions to application of this subsection C of this Section 11.01:
(a) The Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Subordinated Securities of such series (i) cash in an amount, or (ii) in the case of any series of Subordinated Securities
the payments on which may only be made in United States Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal and interest on all Subordinated Securities of such series in
accordance with the terms of the Subordinated Indenture and the Subordinated Securities of such series;
(b) No Event of Default or event
which with notice or lapse of time or both would become an Event of Default with respect to the Subordinated Securities shall have occurred and be continuing on the date of such deposit;
(c) Such covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in Section 7.08 and for purposes of
the Trust Indenture Act with respect to any securities of the Company;
(d) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Subordinated Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(e) Such covenant defeasance shall not cause any Subordinated Securities then listed on any registered national securities exchange under the
Exchange Act to be delisted;
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(f) The Company shall have delivered to the Trustee an Officers Certificate and Opinion of
Counsel to the effect that the Holders of the Subordinated Securities of such series will not recognize income, gain or loss for United States Federal income tax purposes as a result of such covenant defeasance and will be subject to United States
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; 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 relating to the covenant defeasance contemplated by this provision have been complied with.
SECTION 11.02.
Application by Trustee of Funds Deposited for Payment of Subordinated Securities. Subject to Section 11.04, all moneys deposited with the Trustee (for other trustee) pursuant to Section 11.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Holders of the particular Subordinated Securities of such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law.
SECTION 11.03. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Subordinated Indenture
with respect to Subordinated Securities of any series, all moneys then held by any Paying Agent under the provisions of this Subordinated Indenture with respect to such series of Subordinated Securities shall, upon demand of the Company, be repaid
to it or paid to the Trustee and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.
SECTION 11.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the
Trustee or any Paying Agent for the payment of the principal of and any premium and interest on any Subordinated Security and not so applied but remaining unclaimed under applicable law shall be transferred by the Trustee to the appropriate Persons
in accordance with applicable laws, and the Holder of such Subordinated Security of such series shall thereafter look only to such Persons for any payment which such Holder may be entitled to collect and all liability of the Trustee and such Paying
Agent with respect to such moneys shall thereupon cease.
SECTION 11.05. Indemnity for U.S. Government of Obligations. The Company
shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 11.01 or the principal or interest received in respect of such obligations.
ARTICLE 12
IMMUNITY OF
INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Incorporators, Stockholders, Officers and Directors of Company Exempt From Individual Liability. No recourse under or upon
any obligation, covenant or agreement of this Subordinated Indenture, or of any Subordinated Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such
past, present or future, of the Company, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this
Subordinated Indenture and the obligations issued hereunder are
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solely corporate obligations, and that no personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the
Company because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Subordinated Indenture or in any of the Subordinated Securities or implied therefrom; and that
any and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Subordinated Indenture or in any of the Subordinated Securities or implied therefrom are hereby
expressly waived and released as a condition of, and as a consideration for, the execution of this Subordinated Indenture and the issue of such Subordinated Securities.
ARTICLE 13
MISCELLANEOUS
PROVISIONS
SECTION 13.01. Successors and Assigns of the Company Bound by Subordinated Indenture. All the covenants, stipulations,
promises and agreements in this Subordinated Indenture contained by or in behalf of the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 13.02. Notices; Effectiveness. Any notice or demand which by any provision of this Subordinated Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Subordinated Securities to or on the Company, or by the Company or by the Holders of Subordinated Securities to the Trustee or upon the Depository by the Company or the Trustee may
be electronically communicated or hand delivered or sent by overnight courier, addressed to the relevant party as provided in this Section 13.02.
All communications intended for the Company shall be sent to:
Oncothyreon Inc.
2601 Fourth
Ave., Suite 500
Seattle, Washington 98121
Attention: Chief Financial Officer
All communications intended for the Trustee shall be sent to:
or at any other address of which any of the foregoing shall have notified the others in any manner prescribed in this
Section 13.02.
For all purposes of this Subordinated Indenture, a notice or communication will be deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day it is delivered unless (i) that day is not a Business Day in the city
specified (a Local Business Day) in the address for notice provided by the recipient or (ii) if delivered after the close of business on a Local Business Day, then on the next succeeding Local Business Day or
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(b) if sent by facsimile transmission, on the date transmitted, provided that oral or written
confirmation of receipt is obtained by the sender unless the date of transmission and confirmation is not a Local Business Day, in which case, on the next succeeding Local Business Day.
Any notice, direction, requires, demand, consent or waiver by the Company, any Subordinated Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given, made or filed, for all purposes, if given, made or filed in writing at the Principal Office of the Trustee in accordance with the provisions of this Section 13.02.
Any notice, request, consent or waiver by the Company or the Trustee upon the Depository shall have been sufficiently given, made or filed,
for all purposes, if give or made in accordance with the provisions of this Section 13.02 at the address shown for such Depository in the Register or at such other address as the Depository shall have provided for purposes of notice.
SECTION 13.03. Compliance Certificates and Opinions. Upon on any request or application by the Company to the Trustee to take any action
under any of the provisions of this Subordinated Indenture, the Company shall furnish to the Trustee an Officers Certificate stating that all conditions precedent, if any, provided for in this Subordinated Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Subordinated Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Subordinated Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Subordinated Indenture (other than a certificate provided pursuant to Section 5.03(d) shall include (a) a statement that the Person making such certificate or opinion has read such covenant or
condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which such
certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon the certificate, statement or opinion of or representations by an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that
the certificate, statement or opinion or representations with respect to the matters upon which such Persons certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the
same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of counsel may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the
accounting matters upon which his or her certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate or opinion of any firm of independent
public accountants filed with the Trustee shall contain a statement that such firm is independent.
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SECTION 13.04. Days on Which Payment to be Made, Notice Given or Other Action Taken. If any
date on which a payment is to be made, notice given or other action taken hereunder is a Saturday, Sunday or legal holiday in the state in which the payment, notice or other action is to be made, given or taken, then such payment, notice or other
action shall be made, given or taken on the next succeeding Business Day in such state, and in the case of any payment, no interest shall accrue for the delay.
SECTION 13.05. Provisions Required by Trust Indenture Act to Control. If and to the extent that any provision of this Subordinated
Indenture limits, qualifies or conflicts with another provision included in this Subordinated Indenture which is required to be included in this Subordinated Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act such
required provision shall control.
SECTION 13.06. Governing Law and Waiver of Trial By Jury. THIS SUBORDINATED INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR TO SUCH STATUTE). THE TRUSTEE AND THE COMPANY
AGREE TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES.
THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
THE TRUSTEE AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE TRUSTEE OR THE COMPANY RELATING THERETO. THE COMPANY
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE TRUSTEE AND THE HOLDERS ENTERING INTO THIS INDENTURE.
SECTION 13.07. Effect of Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 13.08. Judgment Currency. The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Subordinated Securities of any series (the
Required Currency), into a currency in which a judgment will be rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the
rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which
final unappealable judgment is entered and (b) its obligations under this Subordinated Indenture to make payments in the Required Currency (i) shall not be discharged or
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satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Subordinated Indenture. The Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Trustee against loss if Dollars so purchased are less than the sum
originally due to the Trustee in Dollars. For purposes of the foregoing, New York Banking Day means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of
New York are authorized or required by law or executive order to close.
SECTION 13.09. Provisions of the Subordinated Indenture and
Subordinated Securities for the Sole Benefit of the Parties and the Subordinated Securityholders. Nothing in this Subordinated Indenture or in the Subordinated Securities, expressed or implied, shall give or be construed to give any Person, firm or
Company, other than the parties hereto and the Holders of the Subordinated Securities, any legal or equitable right, remedy or claim under or in respect of this Subordinated Indenture, or under any covenant, condition and provision herein contained;
all its covenants, conditions and provisions being for the sole benefit of the parties hereto and of the Holders of the Subordinated Securities.
SECTION 13.10. Subordinated Indenture May be Executed in Counterparts. This Subordinated Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
SECTION 13.11. Facsimile or PDF. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall
constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.
SECTION 13.12. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions or loss of utilities; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as
soon as practicable under the circumstances.
SECTION 13.12. U.S.A. Patriot Act. The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person
or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
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ARTICLE 14
SUBORDINATION OF SECURITIES
SECTION 14.01. Subordinated Securities Subordinated to Senior Indebtedness. The Company covenants and agrees, and each Holder of
Subordinated Securities, by his acceptance thereof, likewise covenants and agrees, that the indebtedness represented by the Subordinated Securities and the payment of the principal of (and premium, if any) in respect of each and all of the
Subordinated Securities is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of Senior Indebtedness.
In the event (a) of any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the
Company whether in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Company or otherwise, except a distribution in
connection with a member or consolidation or a conveyance or transfer of all or substantially all of the properties of the Company which complies with the requirements of Section 4.02, or (b) that a default shall have occurred and be
continuing with respect to the payment of principal of (or premium, if any) in respect of any Senior Indebtedness, or (c) that the principal of the Subordinated Securities of any series (or in the case of Original Issue Discount Securities, the
portion of the principal amount thereof referred to in Section 6.01) shall have been declared due and payable pursuant to Section 6.01 and such declaration shall not have been rescinded and annulled as provided in Section 6.01, then:
(1) in a circumstance described in the foregoing clause (a) or (b) the holders of all Senior Indebtedness, and in the
circumstance described in the foregoing clause (c) the holders of all Senior Indebtedness outstanding at the time the principal of such Subordinated Securities (or in the case of Original Issue Discount Securities, such portion of the principal
amount) shall have been so declared due and payable, shall first be entitled to receive payment of the full amount due thereon in respect of principal, premium (if any), interest, or provision shall be made for such payment in money or moneys
worth, before the Holders of any of the Subordinated Securities are entitled to receive any payment on account of the principal of (or premium, if any) or interest payable in respect of the indebtedness evidenced by the Subordinated Securities;
(2) any payment by, or distribution of assets of, the Company of any kind of character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this
Article with respect to the securities, to the payment of all Senior Indebtedness, provided that the rights of the holders of the Senior Indebtedness are not altered by such reorganization or readjustment), to which the Holders of any of the
Subordinated Securities would be entitled except for the provisions of this Article shall be paid or delivered by the person making such payment or distribution, whether a trustee in bankruptcy, a receive or liquidating trustee or otherwise,
directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent
payment or distribution (or provision therefore) to the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the indebtedness evidenced by the Subordinated Securities under this Subordinated Indenture;
and
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(3) in the event that, notwithstanding the foregoing, any payment by, or distribution of assets
of, the Company of any kind of character, whether in cash, property or securities (other than securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or
readjustments the payment of which is subordinate, at least to the extent provided in this Article with respect to the Subordinated Securities, to the payment of all Senior Indebtedness, provided that the rights of the holders of Senior Indebtedness
are not altered by such reorganization or readjustment), shall be received by the Holders of any of the Subordinated Securities before all Senior Indebtedness is paid in full, such payment or distribution shall be paid over to the holders of such
Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably as aforesaid, for application to
the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior
Indebtedness.
SECTION 14.02. Subrogation. Subject to the payment in full of all Senior Indebtedness to which the indebtedness
evidenced by the securities is in the circumstances subordinated as provided in Section 14.01, the Holders of the Subordinated Securities shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or Subordinated Securities of the Company applicable to such Senior Indebtedness until all amounts owing on the Subordinated Securities shall be paid in full, and, as between the Company, its creditors other than
holders of such Senior Indebtedness, and the Holders of the Subordinated Securities, no such payment or distribution made to the holders of such Senior Indebtedness by virtue of this Article which otherwise would have been made to the Holders of the
Subordinated Securities shall be deemed to be a payment by the Company on account of such Senior Indebtedness, it being understood that the provisions of this Article are and are intended solely for the purpose of defining the relative rights of the
Holders of the Subordinated Securities, on the one hand, and the holders of Senior Indebtedness.
SECTION 14.03. Obligation of the
Company Unconditional. Nothing contained in this Article or elsewhere in this Subordinated Indenture or in the Subordinated Securities is intended to or shall impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Subordinated Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Subordinated Securities the principal of (and premium, if any) and interest payable in the
respect of the Subordinated Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Subordinated Securities and creditors of the Company
other than the holders of Senior Indebtedness nor shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Subordinated Indenture,
subject to the rights, if any, under this Article of the holders of Senior Indebtedness in respect of cash, property or Subordinated Securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee and the Holders of the Subordinated
Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a
certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee or agent or other person making any payment or distribution, delivered to the Trustee or to the Holders of the Subordinated Securities,
for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount paid or distributed
thereon and all other facts pertinent thereto or to this Article.
56
SECTION 14.04. Payments on Subordinated Securities Permitted. Nothing contained in this
Article or elsewhere in this Subordinated Indenture, or in any of the Subordinated Securities, shall affect the obligation of the Company to make, or prevent the Company from making, payment of the principal of (or premium, if any) or interest
payable in respect of the Subordinated Securities in accordance with the provisions hereof and thereof, except as otherwise provided in this Article.
SECTION 14.05. Effectuation of Subordinated by Trustee. Each holder of the Subordinated Securities, by his acceptance thereof, authorizes
and directs the Trustee in his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Knowledge of Trustee. Notwithstanding the provisions of this Article or any other provisions of this Subordinated
Indenture, the Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment or moneys to or by the
Trustee, or the taking of any other action by the Trustee, unless and until the Trustee shall have received written notice thereof from the Company, any Holder of Subordinated Securities, any paying or conversion agent of the Company or the holder
or representative of any class of Senior Indebtedness; provided, however, that if the Trustee shall not have received the notice provided for in this Section at least three Business Days prior to the date upon which, by the terms hereof, any money
may become payable for any purpose (including, without limitation, the payment of the principal of (or premium, if any) or interest on any Subordinated Security) then, anything herein contained to the contrary notwithstanding, the Trustee shall have
all power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it during or after such three Business Day period.
SECTION 14.07. Trustee May Hold Senior Indebtedness. The trustee in its individual capacity shall be entitled to all the rights set
forth in this Article with respect to any Senior Indebtedness at the time held by it, to the same extent ads any other holder of Senior Indebtedness, and nothing in Section 313 of the Trust Indenture Act or elsewhere in this Subordinated
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall subordinate any claims of, or
payments to, the Trustee (under or pursuant to Section 7.06) to Senior Indebtedness.
SECTION 14.08. Rights of Holders of Senior
Indebtedness Not Impaired. No right of any present or future holder of any Senior Indebtedness to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or
by any non-compliance by the Company with the terms, provisions and covenants of this Subordinated Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.
[Signature page follows]
57
IN WITNESS WHEREOF, ONCOTHYREON INC. has caused this Subordinated Indenture to be signed by its
Chairman of the Board or its President or Chief Financial Officer or one of its Vice Presidents and Trustee has caused this Subordinated Indenture to be signed and acknowledged by an appropriate officer, all as of the day and year first written
above.
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ONCOTHYREON INC. |
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By |
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Title: |
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, as Trustee |
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By |
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Title: |
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58
Exhibit 5.1
December 30, 2014
Oncothyreon Inc.
2601 Fourth Avenue, Suite 500
Seattle, Washington 98121
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 filed by Oncothyreon Inc. (the Company) with the Securities
and Exchange Commission (the Commission) on December 30, 2014 (the Registration Statement), in connection with the registration under the Securities Act of 1933, as amended (the
Securities Act), of the offering and sale from time to time of (i) one or more series of debt securities (the Debt Securities) issuable pursuant to an indenture (the
Indenture) by and between the Company and a financial institution to be identified therein as trustee (the Trustee), (ii) shares of the Companys common stock, $0.0001 par value per share
(the Common Stock), (iii) shares of the Companys preferred stock, $0.0001 par value per share (the Preferred Stock), and/or (iv) warrants to purchase shares of Common Stock and/or
Preferred Stock (the Warrants) having a maximum public offering price of up to $150,000,000. The Debt Securities, Common Stock, the Preferred Stock and the Warrants are collectively referred to herein as the
Securities. The Securities may be sold from time to time by the Company as set forth in the Registration Statement, the prospectus contained within the Registration Statement (the Prospectus) and
supplements to the Prospectus.
In rendering this opinion, we have examined such matters of fact as we have deemed necessary in order to
render the opinion set forth herein, which included examination of the following.
|
(1) |
the Companys Amended and Restated Certificate of Incorporation, as amended, certified by the Delaware Secretary of State on September 18, 2014 (as amended, the Restated Certificate);
|
|
(2) |
the Companys Bylaws, as amended, certified by the Companys Chief Executive Officer on September 18, 2014 (as amended, the Bylaws); |
|
(3) |
the Registration Statement, together with the Exhibits filed as a part thereof or incorporated therein by reference; |
|
(5) |
the following minutes of meetings of the Companys Board of Directors (the Board) and the Companys stockholders
(the Stockholders) at which the |
December 30, 2014
Page 2
|
Restated Certificate and the Bylaws were approved: (i) action by Incorporator of the Company dated September 7, 2007, at which resolutions were adopted approving the Bylaws; (ii) minutes of a meeting of
the Board held on June 12, 2009, at which resolutions were adopted approving the amendment to the Bylaws; (iii) minutes of a meeting of the Board held on September 27, 2007, at which resolutions were adopted approving the Restated
Certificate; (iv) minutes of a special meeting of the Stockholders held on December 4, 2007, at which resolutions were adopted by the Stockholders adopting and approving the Restated Certificate; (v) minutes of a meeting of the Board
held on March 20, 2014, at which resolutions were adopted approving the amendment to the Restated Certificate (the Certificate Amendment); and (vi) minutes of a meeting of the Stockholders held on June 6,
2014, at which resolutions were adopted by the Stockholders adopting and approving the Certificate Amendment; |
|
(6) |
The following minutes of meeting of the Board held on December 4, 2014 at which the Board approved the filing of the Registration Statement and the offering of the Securities contemplated thereby;
|
|
(7) |
a certificate from the Companys transfer agent dated December 29, 2014 verifying the number of the Companys issued and outstanding shares of capital stock as of December 26, 2014; |
|
(8) |
a certificate of good standing of the Company issued by the Secretary of State of the State of Delaware, dated December 29, 2014, stating that the Company is qualified to do business and in good standing under the
laws of the State of Delaware (the Certificate of Good Standing); and |
|
(9) |
a Management Certificate addressed to us and dated of even date herewith executed by the Company containing certain factual representations (the Management Certificate). |
In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures
on original documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing
the same, the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are prerequisites
to the effectiveness thereof. We have also assumed that any certificates or instruments representing the Securities will have been properly signed by authorized officers of the Company or their agents, and, in the case of Debt Securities, properly
authenticated in accordance with the terms of the Indenture and delivered to the intended recipients with the intent that the Company be bound thereby. We have also assumed that the Indenture at the time of execution, authentication, issuance and
delivery of the Debt Securities will be a valid and legally binding obligation of the Trustee.
December 30, 2014
Page 3
As to matters of fact relevant to this
opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties
made by representatives of the Company to us, including but not limited to those set forth in the Management Certificate. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine
the existence or non-existence of any other factual matters.
We render this opinion only with respect to, and express no opinion herein
concerning the application or effect of the laws of any jurisdiction other than (i) the existing federal laws of the United States of America, (ii) the existing laws of the State of Washington, (iii) the Delaware General Corporation
Law and (iv) solely with respect to whether or not the Debt Securities are the valid and binding obligations of the Company, the existing laws of the state of New York. To the extent that any Warrant Agreement (as defined below) is governed by
the laws of any jurisdiction other than the State of Washington, our opinion expressed below assumes that Washington law will apply, without regard to any interpretation or construction that might be indicated by the laws stated as governing any
such Warrant Agreement.
In connection with our opinions expressed below, we have assumed that, (i) at or prior to the time of the
delivery of any of the Securities, there will not have occurred any change in the law or the facts affecting the validity of the Securities, (ii) if any Debt Securities are issued, such Debt Securities will only be issued pursuant to the
Indenture in the form filed with the Registration Statement as an exhibit and that there will not have occurred any change in law affecting the enforceability of the Debt Securities, (iii) the Registration Statement and any amendments
(including any necessary post-effective amendments) will have been declared effective under the Securities Act and (iv) at the at the time of the offer, issuance and sale of any Securities, no stop order suspending the Registration
Statements effectiveness will have been issued and remain in effect. We have also assumed that the terms of any Debt Securities to be established subsequent to the date hereof, the issuance and delivery of Securities subsequent to the date
hereof and the compliance by the Company with the terms of such Securities will not violate any applicable law (including, without limitation, any law relating to usury) or result in a violation of any provision of any instrument or agreement then
binding upon the Company or any restriction imposed by any court or governmental body having jurisdiction over the Company.
This opinion
is qualified by, and is subject to, and we render no opinion with respect to, the following limitations and exceptions to the enforceability of the Debt Securities:
|
(1) |
The effect of the laws of bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent conveyance, and other similar laws now or hereinafter in effect relating to or affecting the rights and remedies of
creditors, including the effect of statutory or other laws regarding fraudulent transfers or preferential transfers. |
|
(2) |
The effect of general principles of equity and similar principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, public policy and unconscionability, and the
possible unavailability of specific performance, injunctive relief, or other equitable remedies, regardless of whether considered in a proceeding in equity or at law. |
December 30, 2014
Page
4
|
(3) |
The effect of laws relating to usury or permissible rates of interest for loans, forebearances or the use of money. |
We express no opinion regarding the effectiveness of any waiver of stay, extension or usury laws or of unknown future rights.
The Company has informed us that the Company intends to issue the Securities from time to time on a delayed or continuous basis. This opinion
is limited to the laws, including the rules and regulations, as in effect on the date hereof. We are basing this opinion on our understanding that, prior to issuing any Securities in connection with the Registration Statement, the Company will
advise us in writing of the terms thereof and other information material thereto, will afford us an opportunity to review the operative documents pursuant to which such Securities are to be issued (including the Registration Statement, the
Prospectus and the applicable supplement to the Prospectus, as then in effect) and will file such supplement or amendment to this opinion (if any) as we may reasonably consider necessary or appropriate with respect to such Securities. However, we
undertake no responsibility to monitor the Companys future compliance with applicable laws, rules or regulations of the Commission or other governmental body. In particular, we assume that the Company will obtain the requisite approval of the
Board and the requisite approval of its stockholders if required by the laws of the state of Delaware, or if necessary because the Company does not have a sufficient number of authorized but unissued and unreserved shares of capital stock at the
time of issuance. We also assume the Company will timely file any and all supplements to the Registration Statement and Prospectus as are necessary to comply with applicable laws in effect from time to time.
In accordance with Section 95 of the American Law Institutes Restatement (Third) of the Law Governing Lawyers (2000), this opinion
letter is to be interpreted in accordance with customary practices of lawyers rendering opinions in connection with the filing of a registration statement of the type described herein.
Based upon the foregoing, we are of the following opinion:
|
1. |
The Company is a corporation validly existing and in good standing under the laws of the State of Delaware. |
|
2. |
With respect to any Debt Securities registered pursuant to the Registration Statement, when (i) the issuance of the Debt Securities has been duly
authorized by appropriate corporate action of the Board and, if required, the stockholders of the Company, (ii) an Indenture relating to such Debt Securities in the form filed with the Registration Statement as an exhibit has been duly
authorized and validly executed and delivered by each of the Company and the Trustee, (iii) the form and terms of the Debt Securities have been duly established in accordance with the Indenture pursuant to resolutions duly adopted by the Board
and as set forth in an officers certificate or supplemental indenture duly authorized by the Board and duly executed by an authorized officer of the Company and (iv) instruments representing such Debt Securities have been duly
|
December 30, 2014
Page
5
|
executed and authenticated in accordance with the terms of the Indenture and any supplement thereto, and issued, sold and delivered in the manner and for the consideration approved by the Board
and stated in the Registration Statement, the Prospectus and any prospectus supplement relating thereto (as amended as of the date of such issuance, sale and delivery) and any applicable definitive purchase, underwriting or similar agreement, then
the Debt Securities will be validly issued and will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms. |
|
3. |
With respect to the shares of Common Stock registered pursuant to the Registration Statement, when (i) the issuance of and the terms of the offering of the shares of Common Stock and related matters has been duly
authorized by appropriate corporate action of the Board and, if required, the stockholders of the Company and (ii) certificates representing the shares of Common Stock have been duly executed, countersigned, registered and delivered either
(a) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board, or upon the exercise of warrants to purchase Common Stock, upon payment of the consideration therefor (not less than the par
value of the Common Stock) provided for therein or (b) upon conversion or exercise of any other security of the Company, in accordance with the terms of such security or the instrument governing such security providing for such conversion or
exercise as approved by the Board, for the consideration approved by the Board (not less than the par value of the Common Stock), then such shares of Common Stock will be validly issued, fully paid and nonassessable. |
|
4. |
With respect to any particular series of shares of Preferred Stock registered pursuant to the Registration Statement, when (i) the issuance and terms of the shares of Preferred Stock, the terms of the offering
thereof and related matters, including the adoption of a certificate of designation relating to such Preferred Stock conforming to the Companys Certificate of Incorporation and Bylaws and the Delaware General Corporation Law (a
Certificate) and the filing of the Certificate with the Delaware Secretary of State, has been duly authorized by appropriate corporate action of the Board and, if required, the stockholders of the Company and
(ii) certificates representing the shares of Preferred Stock have been duly executed, countersigned, registered and delivered either (a) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by
the Board, or upon the exercise of warrants to purchase Preferred Stock, upon payment of the consideration therefor (not less than the par value of the Preferred Stock) provided for therein or (b) upon conversion or exercise of any other
security of the Company, in accordance with the terms of such security or the instrument governing such security providing for such conversion or exercise as approved by the Board, for the consideration approved by the Board (not less than the par
value of the Preferred Stock), then such shares of Preferred Stock will be validly issued, fully paid and nonassessable. |
|
5. |
With respect to any Warrants registered pursuant to the Registration Statement, when (i) the issuance and terms of such Warrants, the terms,
execution and delivery of the |
December 30, 2014
Page
6
warrant agreement relating to the Warrants (Warrant Agreement), the terms of the offering thereof and related matters has been duly authorized by appropriate corporate
action of the Board and, if required, the stockholders of the Company, (ii) the Warrant Agreement has been duly authorized and validly executed and delivered and (iii) such Warrants have been duly executed, issued and delivered by duly
authorized officers of the Company in accordance with the provisions of the applicable Warrant Agreement and the applicable definitive purchase, underwriting or similar agreement approved by the Board, upon payment of the consideration therefor
provided for therein, such Warrants will constitute valid and binding obligations of the Company.
We consent to the use of this opinion
as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the Prospectus constituting a part thereof and any amendments thereto. In giving this consent we do not thereby admit
that we come within the category of persons whose consent is required by the Securities Act or by the rules and regulations promulgated thereunder.
December 30, 2014
Page
7
This opinion is intended solely for use in connection with the issuance and sale of
Securities subject to the Registration Statement and is not to be relied upon for any other purpose. This opinion is rendered as of the date first written above and based solely on our understanding of facts in existence as of such date after the
aforementioned examination. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions
expressed herein.
|
Very truly yours, |
|
/s/ Fenwick & West LLP |
|
FENWICK & WEST LLP |
Exhibit 12.1
Oncothyreon Inc.
Ratio of Earnings to Fixed Charges
September 30, 2014
Oncothyreon Inc. and Consolidated Subsidiaries
Computation of Deficiency in the Coverage of Fixed Charges by Earnings Before Fixed Charges
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For the Nine Months Ended September 30, |
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Years Ended December 31, |
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2014 |
|
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2013 |
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2012 |
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2011 |
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2010 |
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2009 |
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(in thousands) |
|
Earnings before fixed charges: |
|
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|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
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|
Income (loss) from continuing operations before income taxes |
|
$ |
(22,384 |
) |
|
$ |
(38,759 |
) |
|
$ |
(3,415 |
) |
|
$ |
(42,656 |
) |
|
$ |
(15,818 |
) |
|
$ |
(17,019 |
) |
Add fixed charges |
|
|
93 |
|
|
|
124 |
|
|
|
433 |
|
|
|
763 |
|
|
|
145 |
|
|
|
174 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before fixed charges |
|
$ |
(22,291 |
) |
|
$ |
(38,635 |
) |
|
$ |
(2,982 |
) |
|
$ |
(41,893 |
) |
|
$ |
(15,673 |
) |
|
$ |
(16,845 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed charges: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
$ |
|
|
|
$ |
|
|
|
$ |
309 |
|
|
$ |
631 |
|
|
$ |
|
|
|
$ |
|
|
Estimate of interest expense within rental expense |
|
|
93 |
|
|
|
124 |
|
|
|
124 |
|
|
|
132 |
|
|
|
145 |
|
|
|
174 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fixed charges |
|
$ |
93 |
|
|
$ |
124 |
|
|
$ |
433 |
|
|
$ |
763 |
|
|
$ |
145 |
|
|
$ |
174 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sufficiency (deficiency) of earnings: |
|
$ |
(22,384 |
) |
|
$ |
(38,759 |
) |
|
$ |
(3,415 |
) |
|
$ |
(42,656 |
) |
|
$ |
(15,818 |
) |
|
$ |
(17,019 |
) |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption Experts in the Registration Statement (Form S-3) and related Prospectus of Oncothyreon
Inc. for the registration of common stock, preferred stock, debt securities and warrants and to the incorporation by reference therein of our reports dated March 13, 2014, with respect to the consolidated financial statements of Oncothyreon
Inc., and the effectiveness of internal control over financial reporting of Oncothyreon Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2013, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Seattle, Washington
December 30, 2014
Exhibit 23.2
Consent of Independent Auditors
We
consent to the reference to our firm under the caption Experts in the Registration Statement (Form S-3) and related Prospectus of Oncothyreon Inc. for the registration of common stock, preferred stock, debt securities and warrants and to
the incorporation by reference therein of our report dated October 22, 2014, with respect to the financial statements of Alpine Biosciences, Inc., formerly known as Andaman Therapeutics, Inc., as of and for the year ended December 31,
2013, incorporated by reference in the Current Report on Form 8-K, as amended, of Oncothyreon Inc. dated October 22, 2014, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Seattle, Washington
December 30, 2014
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