As filed with the Securities and Exchange Commission on February 21, 2024
Registration No. 333- __________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
______________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
______________________
Centene Corporation
(Exact name of registrant as specified in its charter)
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Delaware (State or other jurisdiction of incorporation or organization) | | 42-1406317 (IRS Employer Identification Number) |
7700 Forsyth Blvd.
St. Louis, Missouri 63105
(314) 725-4477
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)
______________________
Christopher A. Koster
Executive Vice President, Secretary and General Counsel
Centene Corporation
7700 Forsyth Blvd.
St. Louis, Missouri 63105
(314) 725-4477
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
______________________
Copy to:
John B. Meade
Deanna L. Kirkpatrick
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ý
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ý
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company" and "emerging growth company" in Rule 12b-2 of the Exchange Act.
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| Large accelerated filer | ☒ | Accelerated filer | ☐ |
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ |
| | Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
PROSPECTUS
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Warrants
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We may offer and sell from time to time, one or any combination of the securities we describe in this prospectus. We will provide specific terms of any offering in supplements to this prospectus. The prospectus supplement will contain more specific information about the offering and the securities being offered. The supplements may add, update or change information contained in this prospectus. You should read this prospectus and any prospectus supplement carefully before you invest. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
We may offer securities for sale directly to purchasers or through underwriters, dealers or agents to be designated at a future date. The supplements to this prospectus will provide the names of any underwriters, the specific terms of the plan of distribution and the underwriters' discounts and commissions.
Our common stock is listed on the New York Stock Exchange (the "NYSE") under the symbol "CNC." Any common stock sold pursuant to a prospectus supplement will be listed, subject to notice of issuance, on the New York Stock Exchange. If we decide to list or seek a quotation for any other securities, the prospectus supplement relating to those securities will disclose the exchange or market on which those securities will be listed or quoted.
Investing in our securities involves risks. See "Risk Factors" beginning on page 2 of this prospectus. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
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The date of this prospectus is February 21, 2024
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of an automatic "shelf" registration statement on Form S-3 that we filed with the Securities and Exchange Commission ("SEC,") as a "well-known seasoned issuer" as defined in Rule 405 under the Securities Act of 1933, as amended (the "Securities Act"). Under this shelf registration process, we may, from time to time, sell the securities described in this prospectus in one or more offerings. For further information about our business and the securities, you should refer to the registration statement and its exhibits. The exhibits to our registration statement contain the full text of certain contracts and other important documents we have summarized in this prospectus. Since these summaries may not contain all the information that you may find important in deciding whether to purchase the securities we offer, you should review the full text of these documents. The registration statement and the exhibits can be obtained from the SEC as indicated under the heading "Where You Can Find More Information and Incorporation by Reference."
This prospectus provides you with a general description of our securities. Each time we offer securities, we will provide you with a prospectus supplement that will contain specific information about the terms of that offering. When we refer to a "prospectus supplement," we are also referring to any free writing prospectus or other offering material authorized by us. The prospectus supplement may also add, update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the information in the prospectus supplement. You should read this prospectus and any prospectus supplement together with additional information described under the heading "Where You Can Find More Information and Incorporation by Reference." These documents contain important information that you should consider when making your investment decision.
We have not authorized anyone to provide you with different or additional information other than that contained in, or incorporated by reference into, this prospectus or any applicable prospectus supplement. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. You should not assume that the information in this prospectus or any supplement to this prospectus, is accurate at any date other than the date indicated on the cover page of these documents or the date of the statement contained in any incorporated documents, respectively. This prospectus is not an offer to sell or a solicitation of an offer to buy any securities other than the securities referred to in the prospectus supplement. This prospectus is not an offer to sell or a solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should not interpret the delivery of this prospectus, or any sale of securities, as an indication that there has been no change in our affairs since the date of this prospectus. You should also be aware that information in this prospectus may change after this date.
Unless stated otherwise or as the context otherwise requires, the terms the "Company," "we," "us," "our" or similar terms and "Centene" refer to Centene Corporation, together with its consolidated subsidiaries.
RISK FACTORS
Investing in our securities involves risks. You should carefully consider the risks described under "Risk Factors" in Item 1A of Part I of our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 20, 2024 (together with any changes thereto contained in subsequently filed Quarterly Reports on Form 10-Q) and in our other filings with the SEC that are incorporated by reference into this prospectus and any accompanying prospectus supplement. These risks could materially affect our business, financial condition or results of operations and cause the value of our securities to decline. You could lose all or part of your investment. See "Where You Can Find More Information and Incorporation by Reference." Additional risks not presently known or that we presently consider to be not material could subsequently materially and adversely affect our financial condition, results of operations, business and prospects.
CENTENE CORPORATION
Our mission is to transform the health of the communities we serve, one person at a time. Centene is a leading provider of government-sponsored healthcare. We provide access to quality healthcare for nearly 1 in 15 individuals nationwide through government-sponsored programs, including Medicaid, Medicare and the Health Insurance Marketplace. Our focus is on improving health and health care for low-income, complex populations.
Centene provides access to high-quality healthcare, innovative programs and a wide range of health solutions that help families and individuals get well, stay well and be well. Our uniquely local approach – with local brands and local teams who live in, care about and directly influence the communities they serve – is a key differentiator in our ability to provide access to quality care to our members. Centene treats the whole person, an approach that is delivered locally but backed by the scale of Centene's expertise, data and resources. Through this approach and our commitment to sustainable partnerships, we work with local community organizations to realize our mission of transforming the health of the communities we serve, one person at a time.
We are focused on making strategic decisions and investments to create additional value in the short-term and to seek opportunities that position the organization for long-term strength, profitability, growth and innovation. In addition to creating shareholder value, we are modernizing and improving how we work in order to propel our organization to new levels of success and elevate the member and provider experiences.
Centene's initial health plan commenced operations in Wisconsin in 1984. The Company was organized in Wisconsin in 1993 as a holding company for its initial health plan and reincorporated in Delaware in 2001. Centene's common stock is publicly traded on the NYSE under the ticker symbol "CNC."
Centene operates in a four-segment structure comprised of (1) a Medicaid segment, (2) a Medicare segment, (3) a Commercial segment and (4) an Other segment. The Medicaid, Medicare and Commercial segments represent the government-sponsored or subsidized programs under which the Company offers managed healthcare services. Specifically, the Medicaid segment includes the Temporary Assistance for Needy Families (TANF) program, Medicaid Expansion programs, the Aged, Blind or Disabled (ABD) program, the Children's Health Insurance Program (CHIP), Long-Term Services and Supports (LTSS), Foster Care, Medicare-Medicaid Plans (MMP), which cover beneficiaries who are dually eligible for Medicaid and Medicare and other state-based programs. The Medicare segment includes Medicare Advantage, Medicare Supplement, Dual Eligible Special Needs Plans (D-SNPs) and Medicare Prescription Drug Plans (PDPs), also known as Medicare Part D. The Commercial segment includes the Health Insurance Marketplace product along with individual, small group and large group commercial health insurance products. The Other segment includes the Company's pharmacy operations, Envolve Benefit Options' vision and dental services, clinical healthcare, behavioral health, international operations and corporate management company, among others.
For the year ended December 31, 2023, our Medicaid, Medicare, Commercial and Other segments accounted for 66%, 14%, 16% and 4%, respectively, of Centene's total external revenues. Centene's membership totaled more than 27.0 million as of December 31, 2023. For the year ended December 31, 2023, Centene's total revenues and net earnings attributable to Centene were $154.0 billion and $2.7 billion, respectively, and its total cash flow from operations was $8.1 billion.
Centene's principal executive offices are located at 7700 Forsyth Boulevard, St. Louis, Missouri 63105, and Centene's telephone number is (314) 725-4477. Centene's website address is www.centene.com. Information contained on Centene's website does not constitute part of this prospectus or any accompanying prospectus supplement.
WHERE YOU CAN FIND MORE INFORMATION AND INCORPORATION BY REFERENCE
Centene files quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet website that contains reports, proxy statements and other information regarding issuers, including Centene, who file electronically with the SEC. The address of that site is www.sec.gov. The information contained on the SEC's website is expressly not incorporated by reference into this prospectus.
The SEC allows Centene to disclose important information to you by referring you to other documents that we filed separately with the SEC. This information is considered to be a part of this prospectus and any accompanying prospectus supplement, except for any information that is superseded by information included directly in this prospectus, any accompanying prospectus supplement, any subsequently filed documents deemed to be incorporated by reference or any free writing prospectus prepared by or on behalf of us.
This prospectus and any accompanying prospectus supplement incorporates by reference the documents listed below that Centene has previously filed with the SEC.
•our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 20, 2024; and •the description of our common stock contained in our registration statement on Form 8-A filed with the SEC on October 14, 2003, as amended by our Forms 8-A/A filed with the SEC on December 17, 2004 and April 26, 2007, including any amendments or reports filed for the purpose of updating such description.
To the extent that any information contained in any report on Form 8-K or 8-K/A, or any exhibit thereto, was furnished to, rather than filed with, the SEC, such information or exhibit is specifically not incorporated by reference.
In addition, Centene incorporates by reference any future filings Centene makes with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus (excluding any current reports on Form 8-K to the extent disclosure is furnished and not filed). Those documents are considered to be a part of this prospectus and any prospectus supplement, effective as of the date they are filed. Any statement contained in this prospectus, any prospectus supplement or in a document incorporated by reference herein or therein shall be deemed to be modified or superseded for purposes of this prospectus or any prospectus supplement to the extent that a statement contained in any subsequently filed document which is or is deemed to be incorporated by reference herein or therein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or any prospectus supplement.
You can obtain any of the other documents listed above from the SEC, through the SEC's website at the address indicated above, or from Centene, without charge, by requesting them in writing or by telephone at the following address and telephone number. Copies of these documents may also be accessed at Centene's website, www.centene.com. Information contained on Centene's website does not constitute part of this prospectus or any accompanying prospectus supplement.
By Mail:
Centene Corporation
7700 Forsyth Boulevard
St. Louis, Missouri 63105
Telephone: (314) 725-4477
USE OF PROCEEDS
Unless we specify another use in an applicable prospectus supplement, we will use the net proceeds from the sale of any securities offered by us for general corporate purposes. Such general corporate purposes may include the repayment of indebtedness, funding for acquisitions, capital expenditures, additions to working capital and to meet statutory capital requirements in new or existing states. Pending such use, the proceeds may be invested temporarily in short-term, interest-bearing, investment-grade securities or similar assets.
CAUTIONARY STATEMENT ON FORWARD-LOOKING STATEMENTS
All statements, other than statements of current or historical fact, contained in this prospectus are forward-looking statements. Without limiting the foregoing, forward-looking statements often use words such as "believe," "anticipate," "plan," "expect," "estimate," "intend," "seek," "target," "goal," "may," "will," "would," "could," "should," "can," "continue" and other similar words or expressions (and the negative thereof). We intend such forward-looking statements to be covered by the safe-harbor provisions for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995, and we are including this statement for purposes of complying with these safe-harbor provisions. In particular, these statements include, without limitation, statements about our future operating or financial performance, market opportunity, competition, expected activities in connection with completed and future acquisitions and dispositions, our investments and the adequacy of our available cash resources.
These forward-looking statements reflect our current views with respect to future events and are based on numerous assumptions and assessments made by us in light of our experience and perception of historical trends, current conditions, business strategies, operating environments, future developments and other factors we believe appropriate. By their nature, forward-looking statements involve known and unknown risks and uncertainties and are subject to change because they relate to events and depend on circumstances that will occur in the future, including economic, regulatory, competitive and other factors that may cause our or our industry's actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance, or achievements expressed or implied by these forward-looking statements. These statements are not guarantees of future performance and are subject to risks, uncertainties and assumptions.
All forward-looking statements included in this prospectus are based on information available to us on the date of this prospectus or in the case of any accompanying prospectus supplement or documents incorporated by reference, the date of any such document. Except as may be otherwise required by law, we undertake no obligation to update or revise the forward-looking statements included in this prospectus or any accompanying prospectus supplement, whether as a result of new information, future events, or otherwise, after the date of this prospectus or the date of any accompanying prospectus supplement. You should not place undue reliance on any forward-looking statements, as actual results may differ materially from projections, estimates, or other forward-looking statements due to a variety of important factors, variables and events including, but not limited to:
•our ability to design and price products that are competitive and/or actuarially sound including but not limited to any impacts resulting from Medicaid redeterminations;
•our ability to maintain or achieve improvement in the Centers for Medicare and Medicaid Services (CMS) Star ratings and maintain or achieve improvement in other quality scores in each case that can impact revenue and future growth;
•our ability to accurately predict and effectively manage health benefits and other operating expenses and reserves, including fluctuations in medical utilization rates;
•competition, including for providers, broker distribution networks, contract reprocurements and organic growth;
•our ability to adequately anticipate demand and provide for operational resources to maintain service level requirements;
•our ability to manage our information systems effectively;
•disruption, unexpected costs, or similar risks from business transactions, including acquisitions, divestitures, and changes in our relationships with third parties;
•impairments to real estate, investments, goodwill, and intangible assets;
•changes in senior management, loss of one or more key personnel or an inability to attract, hire, integrate and retain skilled personnel;
•membership and revenue declines or unexpected trends;
•rate cuts or other payment reductions or delays by governmental payors and other risks and uncertainties affecting our government businesses;
•changes in healthcare practices, new technologies, and advances in medicine;
•increased healthcare costs;
•inflation and interest rates;
•the effect of social, economic, and political conditions and geopolitical events, including as a result of changes in U.S. presidential administrations or Congress;
•changes in market conditions;
•changes in federal or state laws or regulations, including changes with respect to income tax reform or government healthcare programs as well as changes with respect to the Patient Protection and Affordable Care Act and the Health Care and Education Affordability Reconciliation Act (collectively referred to as the ACA) and any regulations enacted thereunder;
•uncertainty concerning government shutdowns, debt ceilings or funding;
•tax matters;
•disasters, climate-related incidents, acts of war or aggression or major epidemics;
•changes in expected contract start dates;
•changes in provider, broker, vendor, state, federal, foreign, and other contracts and delays in the timing of regulatory approval of contracts, including due to protests;
•the expiration, suspension, or termination of our contracts with federal or state governments (including, but not limited to, Medicaid, Medicare or other customers);
•the difficulty of predicting the timing or outcome of legal or regulatory audits, investigations, proceedings or matters, including, but not limited to, our ability to resolve claims and/or allegations made by states with regard to past practices, including at Centene Pharmacy Services (formerly Envolve Pharmacy Solutions, Inc. (Envolve)), as our pharmacy benefits manager (PBM) subsidiary, within the reserve estimate we previously reported and on other acceptable terms, or at all, or whether additional claims, reviews or investigations will be brought by states, the federal government or shareholder litigants, or government investigations;
•challenges to our contract awards;
•cyber-attacks or other data security incidents;
•the exertion of management's time and our resources, and other expenses incurred and business changes required in connection with complying with the terms of our contracts and the undertakings in connection with any regulatory, governmental, or third party consents or approvals for acquisitions or dispositions;
•any changes in expected closing dates, estimated purchase price, or accretion for acquisitions or dispositions;
•losses in our investment portfolio;
•restrictions and limitations in connection with our indebtedness;
•a downgrade of our corporate family rating, issuer rating or credit rating of our indebtedness; and
•the availability of debt and equity financing on terms that are favorable to us.
This list of important factors is not intended to be exhaustive. The risk factors set forth in the section titled "Risk Factors" and incorporated by reference in this prospectus and any accompanying prospectus supplement discuss certain of these matters more fully. We discuss certain of these matters more fully, as well as certain other factors that may affect our business operations, financial condition, and results of operations, in our filings with the SEC, including our annual report on Form 10-K, other quarterly reports on Form 10-Q and current reports on Form 8-K. Due to these important factors and risks, we cannot give assurances with respect to our future performance, including without limitation our ability to maintain adequate premium levels or our ability to control our future medical and selling, general and administrative costs.
We expressly qualify in their entirety all forward-looking statements attributable to us by the cautionary statements contained or referred to in this section.
Because such statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by such forward looking statements. See "Risk Factors" beginning on page 2 of this prospectus and in the documents incorporated by reference into this prospectus and any accompanying prospectus supplement for reference to the factors that could cause actual results to differ materially.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of our debt securities sets forth general terms that may apply to the debt securities. The particular terms of any debt securities will be described in the prospectus supplement relating to those debt securities. For purposes of this description, the terms "we," "our," "ours," and "us" refer only to Centene Corporation and not to any of its subsidiaries.
The Indenture
The debt securities will be issued in one or more series under the Indenture (as defined below), entered into between us and The Bank of New York Mellon Trust Company, N.A., as trustee. The statements herein relating to the debt securities and the Indenture are summaries and are subject to the detailed provisions of the Indenture. The Indenture is subject to and governed by the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The description below is a summary and does not contain all the information you may find useful. We urge you to read the Indenture because it, and not this summary, defines many of your rights as a holder of our debt securities. The Indenture has been filed as an exhibit to the registration statement of which this prospectus is a part. Whenever we refer to particular sections or defined terms in the Indenture, those sections and definitions are incorporated by reference.
General
The debt securities will be our general obligations. The Indenture does not limit the aggregate amount of debt securities which we may issue nor does it limit other debt we may issue. The debt securities will be senior debt securities and will be issued under a senior indenture (the "Indenture"), as supplemented, if applicable. We may issue senior debt securities under the Indenture up to the aggregate principal amount authorized by our board of directors from time to time, in one or more series. Except as may be described in a prospectus supplement, the Indenture does not limit the amount of other secured or unsecured debt that we may incur or issue. The senior debt securities will rank equally with all our other unsubordinated obligations.
The applicable prospectus supplement relating to the particular series of debt securities will describe specific terms of the debt securities offered thereby, including, where applicable:
•the title and any limit on the aggregate principal amount of the debt securities;
•the price at which we are offering the debt securities, usually expressed as a percentage of the principal amount;
•the date or dates on which the debt securities of a series will be issued, and on which the principal of and any premium on such debt securities, or any installments thereof, will mature or the method of determining such date or dates;
•the rate or rates, which may be fixed or variable at which such debt securities will bear interest or the method of calculating such rate or rates, if any;
•the date or dates from which any interest will accrue or the method of determining such dates;
•the date or dates on which any interest will be payable and the applicable record dates;
•the place or places where principal of, premium, if any, and interest, if any, on such debt securities, or installments thereof, if any, will be payable;
•any of our obligations to redeem, repay, purchase or offer to purchase the debt securities pursuant to any mandatory redemption, sinking fund or analogous provisions or upon other conditions or at the option of the holders of the debt securities and the periods, prices and the other terms and conditions of such redemption or repurchase, in whole or in part;
•any of our rights to redeem the debt securities at our option and the periods, prices and the other terms and conditions of such redemption, in whole or in part;
•if minimum denominations other than $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which such debt securities will be issued;
•whether the debt securities are original issue discount securities (as described below under "—Original Issue Discount Securities") and the amount of discount;
•whether such debt securities are secured or unsecured and any collateral securing such debt securities;
•the provisions for payment of additional amounts or tax redemptions, if any;
•any addition to, or modification or deletion of, any event of default or covenant specified in the Indenture with respect to such debt securities;
•whether the debt securities of the series shall be issued in whole or in part in certificated form;
•the designation, if any, of any depositaries, trustees, paying agents, authenticating agents, security registrars or other agents with respect to the debt securities of such series;
•if other than the entire principal amount, the portion of the principal amount of debt securities which becomes payable upon a declaration of acceleration of maturity or the method of determining such portion;
•material federal income tax considerations, if applicable; and
•any other special terms pertaining to such debt securities.
Unless otherwise specified in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange or included in any market.
The Indenture provides that none of our directors, officers, employees, incorporators, or stockholders, past, present or future, will have any liability with respect to our obligations under the Indenture or debt securities.
Original Issue Discount Securities
Debt securities may be sold at a substantial discount below their stated principal amount and may bear no interest or interest at a rate which at the time of issuance is below market rates. Important federal income tax consequences and special considerations applicable to any such debt securities will be described in the applicable prospectus supplement.
Indexed Securities
If the amount of payments of principal of, and premium, if any, or any interest on, debt securities of any series is determined with reference to any type of index or formula or changes in prices of particular securities or commodities, the federal income tax consequences, specific terms and other information with respect to such debt securities and such index or formula and securities or commodities will be described in the applicable prospectus supplement.
Conversion and Exchange
If any debt securities are convertible into or exchangeable for other securities, the prospectus supplement or term sheet will explain the terms and conditions of the conversion or exchange, including the conversion or exchange price or rate (or the calculation method), the conversion or exchange period (or how the period will be determined), if conversion or exchange will be mandatory or at the option of the holder or us, provisions for adjusting the conversion or exchange price or rate and provisions affecting conversion or exchange in the event of the redemption of the underlying debt securities. These terms may also include provisions under which the number or amount of other securities to be received by the holders of the debt securities upon conversion or exchange would be calculated according to the market price of the other securities as of a time stated in the prospectus supplement or term sheet.
Payment
Unless we specify otherwise in the applicable prospectus supplement, payments in respect of the debt securities will be made at the office or agency office or agency maintained by us in New York, New York. Payment of any installment of interest on debt securities in registered form will be made to the person in whose name such debt security is registered at the close of business on the regular record date for such interest.
Registration, Transfer and Exchange
Unless we specify otherwise in the applicable prospectus supplement, a holder may transfer or exchange debt securities in accordance with the provisions of the Indenture. The registrar and the trustee may require a holder to furnish appropriate endorsements and transfer documents in connection with a transfer of debt securities. Holders will be required to pay all taxes due on transfer. We intend to appoint the trustee under the Indenture as security registrar with respect to debt securities issued under the Indenture.
Consolidation, Merger, Conveyance, Sale of Assets and Other Transfers
Unless we specify otherwise in the applicable prospectus supplement, we shall not consolidate or merge with or into another person (whether or not we are the surviving corporation) or, directly or indirectly, sell, assign, transfer, convey, lease, divide or otherwise dispose of all or substantially all of the assets of us and our subsidiaries, taken as a whole, in one or more related transactions, to another person; unless:
(1)either:
(a)we are the surviving corporation; or
(b)the person formed by or surviving any such consolidation or merger (if other than us) or to which such sale, assignment, transfer, conveyance, division or other disposition has been made (the "Surviving Entity") is a person organized or existing under the laws of the United States of America, any state thereof or the District of Columbia.
(2)the Surviving Entity expressly assumes pursuant to a supplemental indenture all our obligations under the debt securities and the Indenture;
(3)immediately after giving effect to such transaction no default or event of default shall have occurred and be continuing.
Modification or Amendment of the Indenture
Unless we specify otherwise in the applicable prospectus supplement, except as provided in the next two succeeding paragraphs, the Indenture or the debt securities of any series may be amended or supplemented with the consent of the holders of at least a majority in aggregate principal amount of the debt securities of all such series affected thereby then outstanding voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, debt securities of any series), and any existing default or event of default or compliance with any provision of the Indenture or the debt securities of any series may be waived with the consent of the holders of a majority in principal amount of the debt securities of all such series affected thereby then outstanding voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, debt securities of any series). Notwithstanding the foregoing, holders of the debt securities of any series shall vote as a separate class with respect to amendments, supplements or waivers that affect only the debt securities of such series, and the holders of debt securities of other series shall not have any voting rights with respect to such matters as they relate to the debt securities of such series.
Unless we specify otherwise in the applicable prospectus supplement, without the consent of each holder of debt securities affected, an amendment, supplement or waiver may not (with respect to any debt securities of any series held by a non-consenting holder):
(1)reduce the principal amount of debt securities whose holders must consent to an amendment, supplement or waiver;
(2)reduce the principal of or change the stated maturity of any debt security or alter the provisions with respect to the redemption or repurchase of any debt security;
(3)reduce the rate of or change the time for payment of interest on any debt security;
(4)waive a default or event of default in the payment of principal of, or interest or premium, if any, on the debt securities of any series (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of any series and a waiver of the payment default that resulted from such acceleration);
(5)make any debt securities of any series payable in money other than that stated in the debt securities of such series;
(6)make any change in the provisions (including applicable definitions) of the Indenture relating to waivers of past defaults or the rights of holders of debt securities of any series to receive payments of principal of, or interest or premium, if any, on the debt securities of such series;
(7)waive a redemption payment with respect to any debt security of any series; or
(8)make any change in the preceding amendment and waiver provisions.
Notwithstanding the preceding and unless we specify otherwise in the applicable prospectus supplement, without notice to or the consent of any holder of debt securities, we and the trustee may amend or supplement the Indenture or the debt securities of one or more series:
(1)to cure any ambiguity, omission, mistake, defect, error or inconsistency;
(2)to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
(3)to provide for the assumption of our obligations to holders of debt securities in the case of a merger or consolidation or sale of all or substantially all of our assets or any other transaction that complies with the Indenture;
(4)to make any change that would provide any additional rights or benefits to the holders of debt securities or that we determine in good faith (as certified in an officers' certificate delivered to the trustee) does not materially and adversely affect the legal rights under the Indenture of any such holder;
(5)to comply with requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act;
(6)to allow any guarantor to execute a supplemental indenture and/or a guarantee with respect to the debt securities of any one or more series;
(7)to provide for the issuance of and establish the form and terms and conditions of debt securities as permitted by the Indenture;
(8)to add to our covenants such further covenants, restrictions, conditions or provisions as we shall consider to be for the protection of the holders of debt securities, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default permitting the enforcement of all or any of the several remedies provided in the Indenture; provided, that in respect of any such additional covenant, restriction, condition or provision 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 an event of default or may limit the remedies available to the trustee upon such an event of default or may limit the right of the holders of a majority in aggregate principal amount of the debt securities to waive such an event of default;
(9)to evidence and provide the acceptance of the appointment of a successor trustee under the Indenture with respect to the debt securities and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee;
(10)to mortgage, pledge, hypothecate or grant a security interest in favor of the trustee for the benefit of the holders of debt securities as additional security for the payment and performance of our or a guarantor's obligations under the Indenture in any property or assets;
(11)to add to, change, or eliminate any of the provisions of the Indenture in respect of the debt securities, provided that any such addition, change, or elimination (i) will neither (A) apply to any debt security created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the holder of any such debt security with respect to such provision or (ii) will become effective only when there is no such debt security outstanding;
(12)to comply with the rules of any applicable securities depositary;
(13)to release a guarantor from its guarantee pursuant to the terms of the Indenture, any applicable supplemental indenture and/or guarantee when permitted or required pursuant to the terms therein;
(14)to conform any provision in the Indenture or in any supplemental indenture or the terms of the debt securities of any series to this "Description of Debt Securities" or other disclosure describing the terms of the debt securities of such series contained in the prospectus supplement applicable to such series of debt securities or any other document pursuant to which the debt securities of such series were offered; or
(15)to comply with the covenant relating to mergers, consolidations and sales of assets.
Events of Default
Unless we specify otherwise in the applicable prospectus supplement, each of the following is an event of default:
(1)default for 30 consecutive days in the payment when due and payable of interest on the debt securities of that series;
(2)default in the payment when due and payable of the principal of or premium, if any, on the debt securities of that series (upon maturity, redemption, required repurchase or otherwise);
(3)failure by us for 90 consecutive days after written notice to us by the trustee or the holders of at least 25% in aggregate principal amount of the debt securities of that series then outstanding to comply with any of our other covenants or agreements in the Indenture or the debt securities of that series (other than (i) a covenant or warranty expressly excluded from events giving rise to a default, including the obligation to file SEC filings with the trustee and (ii) a covenant or warranty that has been included in the Indenture solely for the benefit of debt securities of a series other than that series);
(4)default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by us or any of our subsidiaries (or the payment of which is guaranteed by us or any of our subsidiaries), whether such indebtedness or guarantee now exists, or is created after the issue date with respect to debt securities of any series, if that default:
(a)is caused by a failure to pay principal of such indebtedness at its express maturity prior to the expiration of any applicable grace period (a "Payment Default"); or
(b)results in the acceleration of such indebtedness prior to its express maturity, provided that such acceleration shall not have been rescinded or annulled within 15 days after written notice thereof shall have been given to us by the trustee, or to us and the trustee by the holders as contemplated by the Indenture; provided, however, that if any default with respect to such indebtedness giving rise to such acceleration shall be remedied, cured or waived, as the case may be, then the event of default hereunder by reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived without further action upon the part of either the trustee or any of the holders;
and, in each of (a) and (b), the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness, under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates to $300.0 million or more;
(5)failure by us or any of our subsidiaries to pay final non-appealable judgments entered by a court or courts of competent jurisdiction aggregating in excess of $300.0 million, which judgments are not paid, discharged or stayed for a period of 90 days;
(6)certain events of bankruptcy, insolvency or reorganization described in the Indenture with respect to us; or
(7)any other event of default provided with respect to debt securities, which is specified in a board resolution, a supplemental indenture hereto or an officers' certificate, in accordance with the terms of the Indenture.
In the case of an event of default specified in clause (6), the principal, premium, if any, and accrued and unpaid interest, if any, of all the outstanding debt securities of each such affected series shall become due and payable immediately without further action or notice. If any other event of default occurs and is continuing, then, and in each and every such case, except for any series of debt securities the principal of which shall have already become due and payable the trustee or the holders of at least 25% in aggregate principal amount of the then outstanding debt securities of each such affected series (each such series voting as a separate class) may declare the principal, premium, if any, and accrued and unpaid interest, if any, of all the outstanding debt securities due and payable immediately.
The holders of at least a majority in aggregate principal amount of the debt securities of all series affected thereby, voting as a single class, by notice to the trustee may on behalf of the holders of all of the debt securities of such affected series waive any existing default or event of default and its consequences under the Indenture, except a continuing default or event of default in the payment of interest on, or the principal of, the debt securities of such series, and rescind any acceleration and its consequences with respect to the debt securities of such series.
Legal Defeasance and Covenant Defeasance
Unless we specify otherwise in the applicable prospectus supplement, we may, at our option and at any time, elect to have all of our obligations discharged with respect to the outstanding debt securities of any series ("Legal Defeasance") except for:
(1)the rights of holders of outstanding debt securities of such series to receive payments in respect of the principal of, or interest or premium, if any, on such debt securities of such series when such payments are due from the trust referred to below;
(2)our obligations with respect to the debt securities of such series concerning issuing temporary debt securities, mutilated, destroyed, lost or stolen debt securities and the maintenance of an office or agency for payment and money for security payments held in trust;
(3)the rights, powers, trusts, duties, indemnities and immunities of the trustee, and our obligations in connection therewith; and
(4)the defeasance provisions of the Indenture.
In addition, unless we specify otherwise in the applicable prospectus supplement, we may, at our option and at any time, elect to have our obligations released with respect to certain covenants in the Indenture as well as any additional covenants for a particular series of debt securities ("Covenant Defeasance") and thereafter any omission to comply with those covenants will not constitute a default or event of default with respect to the debt securities of such series. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described under "—Events of Default" will no longer constitute an event of default with respect to the debt securities of a series.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1)we must irrevocably deposit with the trustee, in trust, for the benefit of the holders of the debt securities of such series, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of (including mandatory sinking fund or analogous payments, if any), or interest and premium, if any, on the outstanding debt securities of such series on the stated maturity or on the applicable redemption date, as the case may be, and we must specify whether the debt securities of such series are being defeased to maturity or to a particular redemption date;
(2)in the case of Legal Defeasance, we must deliver to the trustee an opinion of counsel confirming that (a) we have received from, or there has been published by, the Internal Revenue Service a ruling or (b) subsequent to the issue date with respect to the applicable series of debt securities, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel will confirm that, the holders of the outstanding debt securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3)in the case of Covenant Defeasance, we have delivered to the trustee an opinion of counsel confirming that the holders of the outstanding debt securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4)no default or event of default has occurred and is continuing with respect to the debt securities of such series on the date of such deposit (other than a default or event of default resulting from the borrowing of funds to be applied to such deposit and the grant of any lien securing such borrowing);
(5)such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than the Indenture) to which we or any of our subsidiaries is a party or by which we or any of our subsidiaries is bound;
(6)we must deliver to the trustee an officers' certificate stating that the deposit was not made by us with the intent of preferring the holders of such series of debt securities over our other creditors with the intent of defeating, hindering, delaying or defrauding our creditors or others; and
(7)we must deliver to the trustee an officers' certificate and an opinion of counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Satisfaction and Discharge
Unless we specify otherwise in the applicable prospectus supplement, the Indenture will be discharged and will cease to be of further effect as to all debt securities of any series issued thereunder, when:
(1)either:
(a)all debt securities of any series that have been authenticated, except lost, stolen or destroyed debt securities that have been replaced or paid and debt securities for whose payment money has been deposited in trust and thereafter repaid to us, have been delivered to the trustee for cancellation; or
(b)all debt securities of any series that have not been delivered to the trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable or redeemable within one year, and we have irrevocably deposited or caused to be deposited with the trustee as trust funds in trust solely for the benefit of the holders, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the debt securities of such series not delivered to the trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(2)no default or event of default has occurred and is continuing on the date of the deposit or will occur as a result of the deposit (other than a default or event of default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which we are a party or by which we are bound;
(3)we have paid or caused to be paid all sums payable by it under the Indenture; and
(4)we have delivered irrevocable instructions to the trustee under the Indenture to apply the deposited money toward the payment of the debt securities of such series at maturity or the redemption date, as the case may be.
In addition, we must deliver an officers' certificate and an opinion of counsel to the trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Selection and Notice
Unless we specify otherwise in the applicable prospectus supplement, if less than all of the debt securities of a series are to be redeemed at any time, debt securities of the series to be redeemed shall be selected by the trustee by lot (or if the debt securities are held in global form, in accordance with the depositary's customary policies and procedures). Unless we specify otherwise in the applicable prospectus supplement, notices of redemption will be mailed or delivered electronically at least 10 but not more than 60 days before the redemption date to each holder of debt securities to be redeemed at its registered address (or electronically for global notes), except that redemption notices may be mailed or delivered electronically more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the debt securities or a satisfaction and discharge of the Indenture.
Replacement of Securities
Unless we specify otherwise in the applicable prospectus supplement, we will replace any mutilated debt security at the expense of the holder upon surrender of the mutilated debt security to the trustee in the circumstances described in the Indenture. We will replace debt securities that are destroyed, stolen or lost at the expense of the holder upon delivery to the trustee of evidence of the destruction, loss or theft of the debt securities satisfactory to us and to the trustee in the circumstances described in the Indenture. In the case of a destroyed, lost or stolen debt security, an indemnity and/or security satisfactory to the trustee and us, and payment of any taxes, governmental charges or other expenses, may be required from the holder of the debt security before a replacement debt security will be issued.
Governing Law
The laws of the State of New York govern the Indenture and will govern any debt securities.
Regarding the Trustee
If the trustee becomes a creditor of us, the Indenture limits its right to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest, it must (i) eliminate such conflict within 90 days, (ii) apply to the SEC for permission to continue or (iii) resign.
The holders of a majority in principal amount of the then outstanding debt securities will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee, subject to certain exceptions. The Indenture provides that in case an event of default occurs and is continuing, the trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any holder of debt securities, unless such holder has offered to the trustee security and/or indemnity satisfactory to it against any loss, liability or expense.
DESCRIPTION OF CAPITAL STOCK
The following is a summary of the material terms of our capital stock and the provisions of our amended and restated certificate of incorporation and amended and restated by-laws. It also summarizes some relevant provisions of the General Corporation Law of the State of Delaware, which we refer to as Delaware law or the DGCL. Since the terms of our amended and restated certificate of incorporation, amended and restated by-laws, and Delaware law are more detailed than the general information provided below, you should only rely on the actual provisions of those documents and Delaware law. If you would like to read those documents, they are on file with the SEC as described under the heading "Where You Can Find More Information and Incorporation by Reference." For purposes of this section, the terms "we," "our," "ours," and "us" refer only to Centene Corporation and not to any of its subsidiaries.
Authorized Capital Stock of Centene
The Centene amended and restated certificate of incorporation provides that the total number of shares of capital stock which may be issued by Centene is 810,000,000, consisting of 800,000,000 shares of common stock, par value $0.001 per share, and 10,000,000 shares of preferred stock, par value $0.001 per share.
As of December 31, 2023, we had 615,291,000 shares of common stock issued and outstanding and no shares of preferred stock issued and outstanding.
Voting Rights
The holders of Centene common stock are entitled to one vote on each matter submitted for their vote at any meeting of Centene stockholders for each share of Centene common stock held as of the record date for the meeting, including the election of directors. Holders of Centene common stock do not have cumulative voting rights.
Generally, the affirmative vote of the holders of a majority of the total number of votes cast of Centene capital stock represented at a meeting and entitled to vote on a matter is required in order to approve such matter.
Liquidation Rights
In the event that Centene is liquidated, dissolved or wound up, the holders of Centene common stock will be entitled to share ratably in all assets remaining after the payment of liabilities, subject to any rights of holders of Centene preferred stock prior to distribution.
Dividends
Subject to any preference rights of holders of Centene preferred stock, the holders of Centene common stock are entitled to receive dividends and other distributions in cash, stock or property, if any, declared from time to time by the Centene Board out of legally available funds.
Fully Paid and Non-Assessable
All outstanding shares of Centene common stock are fully paid and non-assessable.
No Preemptive Rights or Conversion Rights
The Centene common stock has no preemptive or conversion rights or other subscription rights.
No Redemption Rights or Sinking Fund
No redemption or sinking fund provisions apply to the Centene common stock.
NYSE Listing
Centene common stock is listed on the NYSE under the symbol "CNC."
Transfer Agent and Registrar
The transfer agent and registrar for the Centene common stock is Broadridge Corporate Issuer Solutions, Inc.
Anti-takeover Provisions
Some of the provisions in the Centene amended and restated certificate of incorporation, the Centene amended and restated by-laws and the General Corporation Law of the State of Delaware ("DGCL") could have the following effects, among others:
•delaying, deferring or preventing a change in control of Centene;
•delaying, deferring or preventing the removal of Centene's existing management or directors;
•deterring potential acquirers from making an offer to the Centene stockholders; and
•limiting the Centene stockholders' opportunity to realize premiums over prevailing market prices of Centene common stock in connection with offers by potential acquirers.
The following is a summary of some of the provisions in the Centene amended and restated certificate of incorporation and the Centene amended and restated by-laws that could have the effects described above. Centene believes that the benefits of increased protection of its potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure Centene outweigh the disadvantages of discouraging takeover or acquisition proposals because negotiation of these proposals could result in an improvement of their terms.
Delaware Business Combination Statute
Centene must comply with Section 203 of the DGCL, 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 the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner or certain other exceptions are met. Generally, a "business combination" includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to an interested stockholder. An "interested stockholder" includes a person who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder status, 15% or more of the corporation's voting stock. The existence of this provision generally will have an anti-takeover effect for transactions not approved in advance by the Centene Board, including discouraging attempts that might result in a premium over the market price for the shares of common stock held by stockholders.
Actions at Meetings of Stockholders; Special Meetings
Centene's amended and restated certificate of incorporation and amended and restated by-laws provide that a special meeting of stockholders may be called at any time by either (i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer, (iii) the Board of Directors or (iv) upon the written request delivered to the secretary of Centene in the manner provided in the by-laws, signed and dated by one or more stockholders of record, or beneficial owners, if any, of Centene who own not less than 10% of the outstanding shares of Centene's common stock. The business transacted at a special meeting shall be limited to (i) the purpose or purposes stated in the notice of the meeting and (ii) any additional matters the Centene Board determines to include in Centene's notice of special meeting.
Action by Written Consent
Centene's amended and restated certificate of incorporation and amended and restated by-laws require that any action required or permitted to be taken by stockholders at an annual or special meeting may be taken by written consent, but only if such action is taken in accordance with the DGCL and Centene's amended and restated certificate of incorporation and amended and restated by-laws. Any stockholder seeking to have the stockholders take an action by written consent must request that a record date be fixed for such purpose by submitting a written notice signed by stockholders holding at least 10% of the voting power of the shares of capital stock entitled to vote on such action.
Board of Directors
Centene's amended and restated certificate of incorporation and amended and restated by-laws provide that the term of office of each person elected as a director, whether to succeed a person whose term of office as a director has expired or to fill any vacancy, will be elected for a term expiring at the next annual meeting of stockholders.
Directors, and Not Stockholders, Fix the Size of the Centene Board
Centene's amended and restated certificate of incorporation and amended and restated by-laws provide that the number of directors will be fixed from time to time exclusively pursuant to a resolution adopted by the Centene Board, but in no event will it consist of less than five nor more than 14 directors.
Board Vacancies to Be Filled by Remaining Directors and Not Stockholders
Under Centene's amended and restated certificate of incorporation and amended and restated by-laws, any vacancy on the Centene Board created by any reason prior to the expiration of the term in which the vacancy occurs will be filled by a majority of the remaining directors, even if less than a quorum. A director elected to fill a vacancy will be elected for the unexpired term of his or her predecessor.
Advance Notice for Stockholder Proposals and Nominations
Centene's amended and restated by-laws contain provisions requiring that advance notice be delivered to Centene of any business to be brought by a stockholder before an annual meeting and providing for procedures to be followed by Centene stockholders in proposing business or nominating persons for election to the Centene Board. Ordinarily, the stockholder must give notice not less than 90 days nor more than 120 days prior to the anniversary date of the immediately preceding annual meeting; provided, however, that in the event that the date of the meeting is not within 30 days before or more than 70 days after such date, notice by the stockholder must be received no earlier than 120 days prior to such meeting and no later than the later of 70 days prior to the meeting or the 10th day following the day on which public disclosure of the date of the annual meeting was first made by Centene. The notice must include information regarding the stockholder making the proposal or director nomination(s), the director nominees (if any) and the proposed business (if any), and other specified matters. The Centene Board may reject any proposals that have not followed these procedures.
Limitation on Liability of Directors; Indemnification
Centene's amended and restated certificate of incorporation provides that no director shall be personally liable to Centene or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. If the DGCL is amended hereafter to authorize the further elimination or limitation of the liability of directors, then the liability of directors shall be eliminated or limited to the fullest extent authorized by the DGCL, as so amended. Centene's amended and restated certificate of incorporation further provides that any repeal or modification of this limitation of liability by the Centene stockholders shall not adversely affect any right or protection of a director of Centene existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
Centene's amended and restated certificate of incorporation requires that Centene indemnify its directors and officers to the fullest extent authorized or permitted by law, as now or hereafter in effect, and that such right to indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of his or her heirs, executors and personal and legal representatives. Except for proceedings to enforce rights to indemnification, however, Centene shall not be obligated to indemnify in connection with a proceeding (or part thereof) if such director, officer or successor in interest initiated such proceeding (or part thereof) unless such proceeding was authorized or consented to by the Centene Board. The right to indemnification includes the right to be paid the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition. Any repeal or modification by the stockholders of indemnification or advancement rights shall not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer of Centene existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
The Centene Board may in its discretion provide rights to indemnification and to the advancement of expenses to employees and agents of Centene similar to those described above.
The inclusion of these provisions in the Centene amended and restated certificate of incorporation and amended and restated by-laws may have the effect of reducing the likelihood of derivative litigation against Centene's directors and may discourage or deter Centene or its stockholders from bringing a lawsuit against Centene's directors for breach of their duty of care, even though such an action, if successful, might otherwise have benefited Centene and its stockholders.
General Provisions Related to Centene Preferred Stock
The following is a description of general terms and provisions of the Centene preferred stock. All of the terms of the Centene preferred stock are, or will be contained in Centene's amended and restated certificate of incorporation, or in one or more certificates of designation relating to each series of the preferred stock.
The Centene Board is authorized, without further stockholder approval but subject to applicable rules of the NYSE and any limitations prescribed by law, to issue up to ten million shares of preferred stock from time to time. The Centene Board has the discretion to provide for the issuance of all or any shares of preferred stock in one or more classes or series, and to fix for each such class or series such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the board of directors providing for the issuance of such class or series, including, without limitation, the authority to provide that any such class or series may be:
•subject to redemption at such time or times and at such price or prices;
•entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or any other series;
•entitled to such rights upon the dissolution of Centene or upon any distribution of Centene's assets; or
•convertible into, or exchangeable for, shares of any other class or classes of stock or of any other series of the same or any other class or classes of stock of Centene at such price or prices or at such rates of exchange and with such adjustments as the board may determine.
The purpose of authorizing the Centene Board to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock may provide desirable flexibility in connection with possible acquisitions and other corporate purposes, but could have the effect of making it more difficult for a third party to acquire, or could discourage a third party from acquiring, a majority of Centene's outstanding voting stock.
Certain Effects of Authorized but Unissued Stock
Centene may issue additional shares of common stock or preferred stock without stockholder approval, subject to applicable rules of the NYSE and Delaware law, for a variety of corporate purposes, including future public or private offerings to raise additional capital, corporate acquisitions, and employee benefit plans and equity grants. The existence of unissued and unreserved common and preferred stock may enable Centene to issue shares to persons who are friendly to current management, which could discourage an attempt to obtain control of Centene by means of a proxy contest, tender offer, merger or otherwise. Centene will not solicit approval of its stockholders for issuance of common and preferred stock unless the Centene Board believes that approval is advisable or is required by applicable rules of the NYSE or Delaware law.
DESCRIPTION OF THE DEPOSITARY SHARES
We may elect to offer depositary shares represented by depositary receipts. If we so elect, each depositary share will represent a fractional interest in a share of preferred stock or multiple shares of preferred stock with the amount of the preferred shares to be specified in the applicable prospectus supplement. If we issue depositary shares representing interests in shares of preferred stock, those shares of preferred stock will be deposited with a depositary.
The shares of any series of preferred stock underlying the depositary shares will be deposited under a separate depositary agreement between us and a bank or trust company having its principal office in the United States. The applicable prospectus supplement will set forth the name and address of the depositary and a form of depositary agreement will be filed with the SEC as an exhibit to the registration statement by post-effective amendment or to a Current Report on Form 8-K. Subject to the terms of the depositary agreement, each owner of a depositary share will have a pro rata interest in all the rights and preferences of the preferred stock underlying the depositary share. Those rights include any dividend, voting, redemption, conversion, exchange and liquidation rights. In addition to this summary, you should refer to the applicable prospectus supplement and the detailed provisions of the relevant depositary agreement for complete terms of the depositary agreement.
The depositary shares will be evidenced by depositary receipts issued under the depositary agreement. If you purchase interests in shares of the related series of preferred stock, you will receive depositary receipts as described in the applicable prospectus supplement. While the final depositary receipts are being prepared, we may order the depositary to issue temporary depositary receipts substantially identical to the final depositary receipts although not in final form. The holders of the temporary depositary receipts will be entitled to the same rights as if they held the depositary receipts in final form. Holders of the temporary depositary receipts can exchange them for the final depositary receipts at our expense.
DESCRIPTION OF THE WARRANTS
We may issue warrants, in one or more series, for the purchase of debt securities, shares of our preferred stock or shares of our common stock. 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. In addition to this summary, you should refer to the applicable prospectus supplement and the detailed provisions of the relevant warrant agreement for complete terms of the warrants and the warrant agreement. Unless otherwise specified in a prospectus supplement accompanying this prospectus, each warrant agreement will be between us and a banking institution organized under the laws of the United States or a state thereof as warrant agent. In connection with an offering of our warrants, a form of warrant agreement will be filed with the SEC as an exhibit to the registration statement by post-effective amendment or to a Current Report on Form 8-K.
Warrants will be evidenced by warrant certificates. Unless otherwise specified in the applicable prospectus supplement, the warrant certificates may be traded separately from the debt securities, preferred stock or common stock, if any, with which the warrant certificates were issued. Warrant certificates may be exchanged for new warrant certificates of different denominations at the office of an agent that we will appoint. Until a warrant is exercised, the holder of a warrant will not have any of the rights of a holder of our debt securities, preferred stock or common stock and will not be entitled to any payments on any debt securities, preferred stock or common stock issuable upon exercise of the warrants.
The prospectus supplement relating to a particular series of warrants to issue debt securities, preferred stock or common stock will describe the terms of those warrants, including the following, where applicable:
•the title and the aggregate number of warrants;
•the offering price for the warrants (if any);
•the designation and terms of the securities purchasable upon exercise of the warrants;
•the dates on which the right to exercise such warrants commence and expire;
•the price or prices at which such warrants are exercisable;
•the currency or currencies in which the offering price (if any) and the exercise price for such warrants are payable;
•the periods during which and the places at which such warrants are exercisable;
•the date (if any) on and after which such warrants and the securities purchasable upon exercise of such warrants will be separately transferable;
•the redemption or call provisions (if any) applicable to the warrants;
•the identity of the warrant agent;
•the exchanges (if any) on which such warrants may be listed;
•information with respect to book-entry procedures, if any;
•a discussion of material U.S. federal income tax considerations; and
•any other terms of or material information about such warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
PLAN OF DISTRIBUTION
We may sell any of the securities being offered by this prospectus in any one or more of the following ways from time to time:
•through agents or dealers;
•to or through underwriters;
•through ordinary brokerage transactions and transactions in which the broker solicits purchasers;
•directly by us to purchasers or in other privately negotiated transactions;
•through any other method permitted pursuant to applicable law; and
•a combination of any such methods of sale.
We will describe the details of any such offering and the plan of distribution for any securities offering in a prospectus supplement.
Underwriters, dealers and agents that participate in the distribution of our securities may be underwriters as defined in the Securities Act and any discounts or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the Securities Act. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may engage in transactions with or perform services for us or our subsidiaries in the ordinary course of their businesses.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for us by Davis Polk & Wardwell LLP, New York, New York.
EXPERTS
The consolidated financial statements of Centene and subsidiaries as of December 31, 2023 and 2022, and for each of the years in the three-year period ended December 31, 2023, and management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2023 have been incorporated by reference herein in reliance upon the reports of KPMG LLP, an independent registered public accounting firm, incorporated by reference herein, and upon the authority of KPMG LLP as an expert in accounting and auditing.
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Warrants
PROSPECTUS
February 21, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses in connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions. Other than the SEC registration fee, all the amounts listed are estimates.
| | | | | | | | |
SEC Registration Fee (1) | $ | — | |
Accounting Fees and Expenses (2) | — | |
Legal Fees and Expenses (2) | — | |
Federal and State Taxes (2) | — | |
Fees and Expenses of Trustee and Depositary and its Counsel (2) | — | |
Rating Agencies' Fees (2) | — | |
Miscellaneous Expenses (2) | — | |
| Total | $ | — | |
| |
(1) | Omitted because the registration fee is being deferred pursuant to Rule 456(b) and 457(r). |
(2) | Because an indeterminate amount of securities are covered by this registration statement, the expenses in connection with the issuance and distribution of securities cannot be estimated. |
Item 15. Indemnification of Directors and Officers
Section 102 of the General Corporation Law of the State of Delaware, as amended (the "DGCL" or "Delaware law"), allows a corporation to eliminate or limit the personal liability of a director or officer of a corporation to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except where a director or officer breached his duty of loyalty to the corporation or its stockholders, a director or officer failed to act in good faith, a director or officer engaged in intentional misconduct or knowingly violated a law, a director authorized the payment of a dividend or approved a stock purchase or redemption in violation of Delaware corporate law, a director or officer obtained an improper personal benefit or, in the case of an officer, in any action by or in right of the corporation.
Section 145 of the DGCL provides, among other things, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, agent or employee of the corporation or is or was serving at the corporation's request as a director, officer, agent, or employee of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding. The power to indemnify applies (a) if such person is successful on the merits or otherwise in defense of any action, suit or proceeding, or (b) if such person acted in good faith and in a manner which the person reasonably believed to be in, or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense expenses (including attorneys' fees but excluding amounts paid in settlement) actually and reasonably incurred by the indemnified person and not to any satisfaction of judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event such person is adjudged liable to the corporation, unless a court determines upon application that in light of all the circumstances indemnification should apply.
As permitted under Delaware law, our amended and restated certificate of incorporation includes a provision that eliminates the personal liability of our directors for monetary damages for breach of fiduciary duty as a director, except for liability that may not be eliminated under Section 102 of the DGCL:
•any breach of the director's duty of loyalty to us or our stockholders;
•acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
•unlawful payments of dividends or unlawful stock re-purchases or redemptions; or
•any transaction from which the director derived an improper personal benefit.
Our amended and restated by-laws further provide that:
•we must indemnify our directors and officers to the fullest extent permitted by Delaware law;
•we may indemnify our other employees and agents to the same extent that we indemnified our officers and directors to the extent authorized by our board of directors; and
•we must advance expenses, as incurred, to our directors and executive officers in connection with a legal proceeding to the fullest extent permitted by Delaware law.
The indemnification provisions contained in our certificate of incorporation and by-laws are not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. In addition, we maintain general liability insurance on behalf of our directors and executive officers insuring them against any liability asserted against them based on acts or omissions in their capacities as directors or officers or arising out of such status.
Item 16. Exhibits
The Exhibits to this registration statement are listed in the Index to Exhibits and are incorporated herein by reference.
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 (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that the undertakings set forth in subparagraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act 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, 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 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 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)The undersigned hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
INDEX TO EXHIBITS
| | | | | | | | | | | | | | | | | | | | |
| Exhibit No. | | | | Incorporated by Reference Herein |
| Description | | Reference | | Date Filed |
| | | | | | |
| 1.1* | | Form of Underwriting Agreement | | | | |
| | Amended and Restated Certificate of Incorporation of Centene Corporation, dated September 27, 2022 | | Exhibit 3.1 to Form 8-K | | September 30, 2022 |
| | Amended and Restated By-laws of Centene Corporation, effective December 8, 2023 | | Exhibit 3.1 to Form 8-K | | December 13, 2023 |
| | Senior Base Indenture, dated as of February 21, 2024, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee | | | | |
| 4.4* | | Form of Certificate of Designation | | | | |
| 4.5* | | Form of Depositary Agreement | | | | |
| 4.6* | | Form of Depositary Receipt | | | | |
| 4.7* | | Form of Common Stock Warrant Agreement | | | | |
| 4.8* | | Form of Common Stock Warrant Certificate | | | | |
| 4.9* | | Form of Preferred Stock Warrant Agreement | | | | |
| 4.10* | | Form of Preferred Stock Warrant Certificate | | | | |
| 4.11* | | Form of Debt Securities Warrant Agreement | | | | |
| 4.12* | | Form of Debt Securities Certificate | | | | |
| | Opinion of Davis Polk & Wardwell LLP | | | | |
| | Consent of KPMG LLP, Independent Auditors of the Company | | | | |
| | Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1) | | | | |
| | Power of Attorney (included on signature page) | | | | |
| | Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A., as trustee under the Senior Base Indenture, dated as of February 21, 2024 | | | | |
| | Calculation of Filing Fee Table | | | | |
| * To be filed by an amendment or an exhibit to a document to be incorporated or deemed to be incorporated by reference to this registration statement, including a Current Report on Form 8-K. |
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 St. Louis, State of Missouri, on February 21, 2024.
| | | | | | | | |
| CENTENE CORPORATION |
| |
| By: | | /s/ Sarah M. London |
Name:
Title: | | Sarah M. London
Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Sarah M. London and Andrew L. Asher, or either of them, his or her true and lawful attorney-in-fact and agent, each acting along with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) and exhibits to this Registration Statement on Form S-3, and to any registration statement filed under SEC Rule 462, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the SEC, 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 in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons on behalf of the registrant and in the capacities as indicated, as of February 21, 2024.
| | | | | | | | |
| Signature | | Title |
| |
| /s/ Sarah M. London | | Chief Executive Officer
(principal executive officer) |
| Sarah M. London | |
| |
| /s/ Andrew L. Asher | | Executive Vice President, Chief Financial Officer
(principal financial officer) |
| Andrew L. Asher | |
| |
| /s/ Katie N. Casso | | Senior Vice President, Corporate Controller and Chief Accounting Officer
(principal accounting officer) |
| Katie N. Casso | |
| | |
| /s/ Jessica L. Blume | | Director |
| Jessica L. Blume | | |
| | |
| /s/ Kenneth A. Burdick | | Director |
| Kenneth A. Burdick | | |
| | |
| /s/ Christopher J. Coughlin | | Director |
| Christopher J. Coughlin | | |
| | |
| /s/ H. James Dallas | | Director |
| H. James Dallas | | |
| | |
| /s/ Wayne S. DeVeydt | | Director |
| Wayne S. DeVeydt | | |
| | |
| /s/ Fred H. Eppinger | | Director |
| Fred H. Eppinger | | |
| | |
| /s/ Monte E. Ford | | Director |
| Monte E. Ford | | |
| | |
| /s/ Lori J. Robinson | | Director |
| Lori J. Robinson | | |
| | |
| /s/ Theodore R. Samuels | | Director |
| Theodore R. Samuels | | |
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Centene Corporation
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Security Type | Security Class Title | Fee Calculation or Carry Forward Rule(1) | Amount Registered(2) | Proposed Maximum Offering Price Per Unit(2) | Maximum Aggregate Offering Price(2) | Fee Rate(1) | Amount of Registration Fee(1) | Carry Forward Form Type | Carry Forward File Number | Carry Forward Initial Effective Date | Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward |
| Newly Registered Securities |
| Fees to be Paid | Debt | Debt Securities | Rule 456(b) and 457(r) | | | | | | | | | |
| Equity | Common Stock, par value $0.001 per share | Rule 456(b) and 457(r) | | | | | | | | | |
| Equity | Preferred Stock, par value $0.001 per share | Rule 456(b) and 457(r) | | | | | | | | | |
| Other | Depositary Shares | Rule 456(b) and 457(r) | | | | | | | | | |
| Other | Warrants | Rule 456(b) and 457(r) | | | | | | | | | |
| Fees Previously Paid | N/A | N/A | N/A | N/A | N/A | N/A | | N/A | | | | |
| Carry Forward Securities |
| Carry Forward Securities | N/A | N/A | N/A | N/A | | N/A | | | N/A | N/A | N/A | N/A |
| Total Offering Amounts | | N/A | | N/A | | | | |
| Total Fees Previously Paid | | | | N/A | | | | |
| Total Fee Offsets | | | | N/A | | | | |
| Net Fee Due | | | | N/A | | | | |
(1) In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, Centene Corporation (“Centene”) is deferring payment of all of the registration fee. Registration fees will be paid subsequently on a “pay as you go” basis. Centene will calculate the registration fee applicable to an offer of securities pursuant to this Registration Statement based on the fee payment rate in effect on the date of such fee payment.
(2) An indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be issued at indeterminate prices, including securities that may be issued upon exercise, conversion, settlement or exchange of, any securities offered hereunder.
CENTENE CORPORATION
DEBT SECURITIES INDENTURE
Dated as of February 21, 2024
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| | | | | | | | |
| ARTICLE 1 | |
| DEFINITIONS AND INCORPORATION BY REFERENCE | 1 |
| | |
| Section 1.01. | Definitions | 1 |
| Section 1.02. | Other Definitions | 6 |
| Section 1.03. | Incorporation by Reference of Trust Indenture Act | 7 |
| Section 1.04. | Rules of Construction | 7 |
| | |
| ARTICLE 2 | |
| THE NOTES | 8 |
| | |
| Section 2.01. | Issuable in Series | 8 |
| Section 2.02. | Establishment of Terms of Series of Notes | 8 |
| Section 2.03. | Execution and Authentication | 11 |
| Section 2.04. | Registrar and Paying Agent | 13 |
| Section 2.05. | Paying Agent to Hold Money in Trust | 14 |
| Section 2.06. | Holder Lists | 15 |
| Section 2.07. | Registration; Registration of Transfer and Exchange | 15 |
| Section 2.08. | Replacement Notes | 16 |
| Section 2.09. | Outstanding Notes | 17 |
| Section 2.10. | Treasury Notes | 17 |
| Section 2.11. | Temporary Notes | 17 |
| Section 2.12. | Cancellation | 18 |
| Section 2.13. | Payment of Interest; Defaulted Interest | 18 |
| Section 2.14. | Registered Global Notes | 19 |
| Section 2.15. | CUSIP or ISIN Numbers | 20 |
| Section 2.16. | Record Date | 21 |
| Section 2.17. | Persons Deemed Owners | 21 |
| Section 2.18. | Computation of Interest | 21 |
| | |
| ARTICLE 3 | |
| REDEMPTION AND PREPAYMENT | 21 |
| | |
| Section 3.01. | Notices to Trustee | 21 |
| Section 3.02. | Selection of Notes to Be Redeemed | 21 |
| Section 3.03. | Notice of Redemption | 22 |
| Section 3.04. | Effect of Notice of Redemption | 23 |
| Section 3.05. | Deposit of Redemption Price | 23 |
| Section 3.06. | Notes Redeemed in Part | 24 |
| | |
| ARTICLE 4 | |
| COVENANTS | 24 |
| | |
| Section 4.01. | Payment of Principal, Premium and Interest | 24 |
| Section 4.02. | Maintenance of Office or Agency | 24 |
| Section 4.03. | Compliance Certificate | 25 |
| Section 4.04. | Existence | 26 |
| Section 4.05. | SEC Reports | 26 |
| Section 4.06. | Stay, Extension and Usury Laws | 26 |
| Section 4.07. | Waiver of Certain Covenants | 26 |
| | |
| | | | | | | | |
| ARTICLE 5 | |
| SUCCESSORS | 27 |
| | |
| Section 5.01. | Merger, Consolidation or Sale of Assets | 27 |
| Section 5.02. | Successor Person Substituted | 27 |
| | |
| ARTICLE 6 | |
| DEFAULTS AND REMEDIES | 28 |
| | |
| Section 6.01. | Events of Default | 28 |
| Section 6.02. | Acceleration | 30 |
| Section 6.03. | Other Remedies | 30 |
| Section 6.04. | Waiver of Defaults | 30 |
| Section 6.05. | Control by Majority | 31 |
| Section 6.06. | Limitation on Suits | 31 |
| Section 6.07. | Rights of Holders to Receive Payment | 31 |
| Section 6.08. | Collection Suit by Trustee | 32 |
| Section 6.09. | Trustee May File Proofs of Claim | 32 |
| Section 6.10. | Priorities | 32 |
| Section 6.11. | Undertaking for Costs | 33 |
| | |
| ARTICLE 7 | |
| TRUSTEE | 33 |
| | |
| Section 7.01. | Duties of Trustee | 33 |
| Section 7.02. | Rights of Trustee | 34 |
| Section 7.03. | Individual Rights of Trustee | 36 |
| Section 7.04. | Trustee's Disclaimer | 36 |
| Section 7.05. | Notice of Defaults | 36 |
| Section 7.06. | Reports by Trustee to Holders | 36 |
| Section 7.07. | Compensation and Indemnity | 37 |
| Section 7.08. | Replacement of Trustee | 38 |
| Section 7.09. | Successor Trustee by Merger, etc. | 40 |
| Section 7.10. | Eligibility; Disqualification | 40 |
| Section 7.11. | Preferential Collection of Claims Against Company | 40 |
| | |
| ARTICLE 8 | |
| LEGAL DEFEASANCE AND COVENANT DEFEASANCE | 40 |
| |
| Section 8.01. | Option to Effect Legal Defeasance or Covenant Defeasance | 40 |
| Section 8.02. | Legal Defeasance and Discharge of Notes of any Series | 41 |
| Section 8.03. | Covenant Defeasance | 41 |
| Section 8.04. | Conditions to Legal or Covenant Defeasance | 42 |
| Section 8.05. | Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions | 43 |
| Section 8.06. | Repayment to the Company | 44 |
| Section 8.07. | Reinstatement | 44 |
| | |
| | | | | | | | |
| ARTICLE 9 | |
| AMENDMENT, SUPPLEMENT AND WAIVER | 44 |
| | |
| Section 9.01. | Without Consent of Holders of Notes | 44 |
| Section 9.02. | With Consent of Holders of Notes | 46 |
| Section 9.03. | Compliance with Trust Indenture Act | 48 |
| Section 9.04. | Revocation and Effect of Consents | 48 |
| Section 9.05. | Notation on or Exchange of Notes | 48 |
| Section 9.06. | Trustee to Sign Amendments, etc. | 48 |
| | |
| ARTICLE 10 | |
| [INTENTIONALLY OMITTED] | 49 |
| | |
| ARTICLE 11 | |
| SATISFACTION AND DISCHARGE | 49 |
| | |
| Section 11.01. | Satisfaction and Discharge | 49 |
| Section 11.02. | Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions | 50 |
| Section 11.03. | Repayment to the Company | 50 |
| | |
| ARTICLE 12 | |
| MISCELLANEOUS | 50 |
| | |
| Section 12.01. | Trust Indenture Act Controls | 50 |
| Section 12.02. | Notices | 50 |
| Section 12.03. | Communication by Holders of Notes with Other Holders of Notes | 52 |
| Section 12.04. | Certificate and Opinion as to Conditions Precedent | 52 |
| Section 12.05. | Statements Required in Certificate or Opinion | 52 |
| Section 12.06. | Rules by Trustee and Agents | 53 |
| Section 12.07. | No Personal Liability of Directors, Officers, Employees and Stockholders | 53 |
| Section 12.08. | Governing Law | 53 |
| Section 12.09. | No Adverse Interpretation of Other Agreements | 53 |
| Section 12.10. | Successors | 53 |
| Section 12.11. | Severability | 53 |
| Section 12.12. | Counterpart Originals; Electronic Signatures | 54 |
| Section 12.13. | Table of Contents, Headings, etc. | 54 |
| Section 12.14. | Qualification of this Indenture | 54 |
| Section 12.15. | Waiver of Jury Trial | 54 |
| Section 12.16. | Force Majeure | 54 |
| Section 12.17. | Submission to Jurisdiction | 55 |
| Section 12.18. | FATCA Withholding | 55 |
| Section 12.19. | Economic Sanctions | 55 |
| Section 12.20. | Electronic Communications | 56 |
Cross-Reference Table.1
| | | | | | | | |
TIA Section Reference | | Indenture Section |
| 310(a)(1) | | 7.10 |
| (a)(2) | | 7.10 |
| (a)(3) | | N.A.2 |
| (a)(4) | | N.A. |
| (a)(5) | | 7.10 |
| (b) | | 7.08, 7.10 |
| 311(a) | | 7.11 |
| (b) | | 7.11 |
| 312(a) | | 2.05 |
| (b) | | 12.03 |
| (c) | | 12.03 |
| 313(a) | | 7.06 |
| (b)(1) | | N.A. |
| (b)(2) | | 7.07 |
| (c) | | 7.06, 12.02 |
| (d) | | 7.06 |
| 314(a) | | 4.03, 12.02 |
| 314(b) | | N.A. |
| (c)(1) | | 12.04 |
| (c)(2) | | 12.04 |
| (c)(3) | | N.A. |
| (d) | | N.A. |
| (e) | | 12.05 |
| (f) | | N.A. |
| 315(a) | | 7.01 |
| (b) | | 7.05, 12.02 |
| (c) | | 7.01 |
| (d) | | 7.01 |
| (e) | | 6.11 |
| 316(a) (last sentence) | | 2.11 |
| (a)(1)(A) | | 6.05 |
| (a)(1)(B) | | 6.04 |
| (a)(2) | | N.A. |
| (b) | | 6.07 |
| 317(a)(1) | | 6.08 |
| (a)(2) | | 6.09 |
| (b) | | 6.09 |
| 318(a) | | 12.01 |
1 Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture.
2 N.A. means Not Applicable.
This INDENTURE dated as of February 21, 2024, is by and between Centene Corporation (the “Company”), a Delaware corporation and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee (the “Trustee”).
WHEREAS, all things and acts necessary to make this Indenture the legal, valid and binding obligation of the Company have been done.
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Notes issued under this Indenture, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.
“Authorized Newspaper” means The New York Times or The Wall Street Journal (national edition). 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 that is made or given by the Trustee shall constitute a sufficient publication of such notice.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors, or the law of any other jurisdiction relating to bankruptcy, insolvency, winding up, liquidation, insolvent reorganization or relief of debtors.
“Bearer Note” means any Note, including any interest coupon appertaining thereto, that does not provide for the identification of the Holder thereof.
“Board of Directors” means:
(1) with respect to a corporation, the board of directors of the corporation;
(2) with respect to a partnership, the board of directors of the general partner of the partnership;
(3) with respect to a limited liability company, the managing member or members, any controlling committee of managing members or other governing body thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
“Board Resolution” of a Person means a copy of a resolution certified by the secretary or an assistant secretary (or individual performing comparable duties) of the Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series, any day other than a Legal Holiday.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
“Company” means Centene Corporation, and any successor thereto.
“Company Order” means a written order signed in the name of the Company by an Officer and delivered to the Trustee.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 12.02 hereof, or such other address as to which the Trustee may give notice to the Company.
“Custodian” means, with respect to a Series of Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.04 as Custodian with respect to such Series of Notes, and any and all successors thereto appointed as custodian hereunder and having become such pursuant to the applicable provisions of this Indenture.
“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Depositary” means, with respect to the Notes of any Series issuable or issued in whole or in part in global form, the Person specified in Section 2.04 hereof as the Depositary with respect to the Notes of such Series, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provisions of this Indenture.
“Dollars” and the sign “$” mean the lawful money of the United States of America.
“Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fitch” means Fitch, Inc. or any successor to the rating agency business thereof.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the date hereof.
“Government Securities” means direct Obligations of, or Obligations guaranteed by (or certificates representing an ownership interest in such Obligations), the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the Company’s option.
“Holder” means a Person in whose name a Note is registered in the Note Register or the holder of a Bearer Note.
“Indenture” means this instrument, as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the TIA that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the form and terms of particular Series of Notes established as contemplated hereunder.
“Issue Date” means the date on which the Notes of a particular Series are originally issued under this Indenture.
“Legal Holiday” means, unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture for a particular Series, a Saturday, a Sunday or a day on which banking institutions in the City of New York, the city in which the Corporate Trust Office of the Trustee is located or any other place of payment on the Notes are authorized by law, regulation or executive order to remain closed.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or similar encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to be a Lien.
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Notes” means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Obligations” means any principal, premium, if any, interest (including interest accruing on or after the filing of, or which would have accrued but for the filing of, any petition in bankruptcy or for reorganization relating to the Company whether or not a claim for post filing interest is allowed in such proceedings), penalties, fees, expenses, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any indebtedness.
“Officer” means the Chief Executive Officer, the President, the Chief Financial Officer, Secretary, Treasurer, Assistant Treasurer, Corporate Controller, any Executive Vice President or any Senior Vice President of the Company.
“Officers’ Certificate” means a certificate signed by two Officers of the Company, at least one of whom shall be the principal executive officer or principal financial officer of the Company, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion from legal counsel, acceptable to the Trustee, which meets the requirements of Section 12.05 hereof, and delivered to the Trustee. The counsel may be an employee of or counsel to the Company.
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same indebtedness as that evidenced by such particular Note; and any Note authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same indebtedness as the lost, destroyed or stolen Note.
“Redemption Date” when used with respect to any Note to be redeemed, shall mean the date specified for redemption of such Note in accordance with the terms of such Note and this Indenture.
“Redemption Price” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to the terms of such Note and this Indenture.
“Registered Global Note” or “Registered Global Notes” means a Note or Notes, as the case may be, in the form established pursuant to Section 2.02 evidencing all or part of a Series of Notes, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary or nominee.
“Registered Note” means any Note in the form (to the extent applicable thereto) established pursuant to Section 2.02 hereof which is registered on the books of the Registrar.
“Regular Record Date” for the interest payable on any interest payment date means the applicable date specified as a “Record Date” on the face of the Note.
“Responsible Officer” when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, senior associate, associate, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“S&P” means S&P Global Ratings or any successor to the rating agency business thereof.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Series” or “Series of Notes” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.01 and 2.02 hereof.
“Special Record Date” for the payment of any Defaulted Interest on the Registered Notes means a date fixed by the Trustee pursuant to Section 2.13 hereof.
“Stated Maturity” means, with respect to any installment of interest or principal on any series of indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such indebtedness as of the applicable issue date, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“Subsidiary” means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50.0% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
“TIA” means the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder.
“Trade Payables” means, with respect to any Person, any accounts payable or any other indebtedness or monetary obligation to trade creditors, physicians, hospitals, health maintenance organizations or other health care providers created, assumed or guaranteed by such Person or any of its Subsidiaries arising in the ordinary course of business in connection with the acquisition of goods and services.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee, and if at any time there is more than one such Person, “Trustee” as used with respect to the Notes of any Series shall mean the Trustee with respect to Notes of that Series.
Section 1.02. Other Definitions.
| | | | | | | | |
| Term | | Defined in Section |
| “Act” | | 2.14 |
| “Additional Notes” | | 2.02 |
| “Applicable Law” | | 12.18 |
| “Authorized Officers” | | 12.20 |
| “Covenant Defeasance” | | 8.03 |
| “Defaulted Interest” | | 2.13 |
| | | | | | | | |
| “Event of Default” | | 6.01 |
| “Initial Notes” | | 2.02 |
| “Instructions” | | 12.20 |
| “Legal Defeasance” | | 8.02 |
| “losses” | | 7.07 |
| “Note Register” | | 2.04 |
| “Paying Agent” | | 2.04 |
| “Payment Default” | | 6.01 |
| “Registrar” | | 2.04 |
| “Sanctions” | | 12.19 |
| “Surviving Entity” | | 5.01 |
Section 1.03. Incorporation by Reference of Trust Indenture Act. (a) Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA term used in this Indenture has the following meaning:
“obligor” on the Notes means the Company and any successor obligor upon the Notes.
(c) All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein have the meanings so assigned to them either in the TIA, by another statute or SEC rule, as applicable.
Section 1.04. Rules of Construction.
(a) Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP;
(3) “or” is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) all references in this instrument to “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and subdivisions of this Indenture;
(6) 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.
(7) “including” means “including without limitation;”
(8) provisions apply to successive events and transactions;
(9) references to sections of or rules under the Securities Act, the Exchange Act or the TIA shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time thereunder.
(10) “principal” of a security means the principal of the security plus the premium, if any, payable on the security which is due or overdue or is to become due at the relevant time; and (11) the principal amount of any preferred stock shall be (i) the maximum liquidation value of such preferred stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such preferred stock, whichever is greater.
ARTICLE 2
THE NOTES
Section 2.01. Issuable in Series.
The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited. The Notes may be issued in one or more Series. All Notes of a Series shall be substantially identical except as to denomination and except as may be set forth in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Notes of a Series to be issued from time to time, the Board Resolution, supplemental indenture or Officers’ Certificate may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Notes may differ between Series in respect of any matters; provided that all Series of Notes shall be equally and ratably entitled to the benefits of this Indenture.
Section 2.02. Establishment of Terms of Series of Notes.
At or prior to the issuance of any Notes within a Series, the following shall be established (as to the Series generally, in the case of Section 2.02(a) and either as to such Notes within the Series or as to the Series generally in the case of Section 2.02(a) through (z)) by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate pursuant to authority granted under a Board Resolution, subject to Section 2.03:
(a) the title and designation of the Notes of the Series, which shall distinguish the Notes of the Series from the Notes of all other Series, and which may be part of a Series of Notes previously issued;
(b) any limit upon the aggregate principal amount of the Notes of the Series that may be authenticated and delivered under this Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes of the Series pursuant to Sections 2.07, 2.08, 2.11, 3.06 or 9.05 and except for Notes which, pursuant to Section 2.03, are deemed never to have been authenticated and delivered hereunder);
(c) the date or dates on which the principal of the Notes of the Series shall be payable or the method of determination thereof;
(d) the rate or rates (which may be fixed or variable) at which the Notes of the Series shall bear interest, if any, the date or dates from which such interest shall accrue, the date or dates 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 interest payment periods and the duration of the extensions and (in the case of Registered Notes) the date or dates on which a record shall be taken for the determination of Holders to whom interest is payable or the method by which such rate or rates or date or dates shall be determined;
(e) the place or places where, and the manner in which, the principal of and any interest on the Notes of the Series shall be payable;
(f) the right, if any, of the Company to redeem Notes, in whole or in part, at its option and the period or periods within which, or the date or dates on which, the price or prices at which and the terms and conditions upon which the Notes of the Series may be so redeemed, pursuant to any sinking fund or otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or repay the Notes of the Series pursuant to any mandatory redemption, sinking fund 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 or the date or dates on which, and any terms and conditions upon which the Notes of the Series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(h) [Reserved];
(i) if other than minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which the Notes of the Series shall be issuable;
(j) the percentage of the principal amount at which the Notes of the Series shall be issued, and, if other than the principal amount thereof, the portion of the principal amount of the Notes of the Series that shall be payable upon declaration of acceleration of the Stated Maturity thereof and the terms and conditions of any acceleration;
(k) if other than the coin, currency or currencies in which the Notes of the Series are denominated, the coin, currency or currencies in which payment of the principal of or interest on the Notes of the Series shall be payable, including composite currencies or currency units;
(l) if the principal of or interest on the Notes of the Series is to be payable, at the election of the Company or a Holder thereof, in a coin or currency other than that in which the Notes of the Series are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;
(m) if the amount of payments of principal of or interest on the Notes of the Series may be determined with reference to an index or formula (including an index or formula based on a coin, currency, composite currency or currency unit other than that in which the Notes of the Series are denominated), the manner in which such amounts shall be determined;
(n) whether the Notes of the Series shall be issuable as Registered Notes (and if so, whether such Notes shall be issuable as Registered Global Notes) or Bearer Notes, with or without interest coupons appertaining thereto, or any combination of the foregoing, any restrictions applicable to the offer, sale or delivery of Bearer Notes or the payment of interest thereon and the terms upon which Bearer Notes of any Series may be exchanged for Registered Notes of such Series and vice versa, and the form of legend or legends which shall be borne by any Registered Global Notes in addition to or in lieu of those set forth in Section 2.14(c);
(o) whether and under what circumstances the Company shall pay additional amounts on the Notes 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 shall have the option to redeem the Notes of the Series rather than pay such additional amounts;
(p) if the Notes of the Series shall be issuable in definitive form (whether upon original issue or upon exchange of a temporary Note 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;
(q) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars of any other agents with respect to the Notes of the Series;
(r) any deletion from, modification of or addition to the Events of Default, or covenants with respect to the Notes of such Series, including, if applicable, covenants affording Holders of debt protection with respect to the Company’s operations, financial conditions and transactions involving the Company;
(s) change in or addition to the covenants with respect to the Notes of the Series set forth in Article 5;
(t) if the Notes of the Series shall be convertible into or exchangeable for any other security or property of the Company, including securities of another Person held by the Company or its Affiliates and, if so, the terms thereof, including conversion or exchange prices or rate and adjustments thereto;
(u) the price or prices at which the Notes of the Series shall be issued;
(v) any provisions for remarketing;
(w) the terms applicable to any Notes issued at a discount from their stated principal amount;
(x) if either or both of Sections 8.02 or 8.03 do not apply to the Notes of the Series;
(y) the CUSIP, ISIN or other identification number, if any; and
(z) any other terms of the Notes of the Series.
All Notes of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture. Any Notes of a Series (“Additional Notes”) issued from time to time after the initial issuance of Notes of such Series (“Initial Notes”) shall be consolidated with and form a single Series with the Initial Notes and shall have the same terms as to status, waivers, amendments, offers to purchase, redemptions or otherwise as the Initial Notes; provided that, if any Additional Notes are not fungible with any other Notes of such Series for United States federal income tax purposes, such Additional Notes shall bear a separate CUSIP number. Notwithstanding Section 2.02(b), such Additional Notes may be issued in an unlimited aggregate principal amount (so long as permitted by the terms of this Indenture).
The Notes of each Series shall be in substantially such form as shall be established by or pursuant to a Board Resolution, supplemental indenture hereto, or Officers’ Certificate pursuant to authority granted under a Board Resolution, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the Officers executing such Notes, as evidenced by their execution thereof.
If any of the terms of the Series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the Series.
Section 2.03. Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual, facsimile or electronic signature.
If an Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated or at the date of the Note, the Note shall nevertheless be valid so long as such individual was an Officer at the time of execution of the Note.
A Note shall not be valid until authenticated by the manual, facsimile or electronic signature of the Trustee or an authenticating agent appointed by the Trustee. The signature of the Trustee on a Note shall be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee or any such authenticating agent shall at any time, and from time to time, authenticate Notes for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers’ Certificate, upon receipt by the Trustee or any such authenticating agent of a Company Order. Such Company Order may authorize authentication and delivery pursuant to electronic instructions from the Company or its duly authorized agent or agents. Each Note shall be dated the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.
Prior to the issuance of the Notes of any Series, the Trustee shall have received and (subject to Section 7.02) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Notes of that Series or of Notes within that Series and the terms of the Notes of that Series or of Notes within that Series, (b) an Officers’ Certificate complying with Section 12.04, and (c) an Opinion of Counsel complying with Section 12.04, to the effect that (i) the form of such Notes has been established by a supplemental indenture or by or pursuant to a Board Resolution in accordance with Sections 2.01 and 2.02 and in conformity with the provisions of this Indenture; (ii) the terms of such Notes have been established in accordance with Section 2.02 and in conformity with the other provisions of this Indenture; and (iii) such Notes, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles.
Notwithstanding the provisions of Section 2.02 and of the preceding paragraph, if all Notes of a Series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 2.02 or the Company Order and Opinion of Counsel otherwise required pursuant to the preceding paragraph at or prior to the authentication of each Note of such Series if such documents are delivered at or prior to the authentication upon original issuance of the first Note of such Series to be issued.
The Trustee may (at the expense of the Company) appoint an authenticating agent reasonably acceptable to the Company to authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by a Responsible Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual, facsimile or electronic signature of an authorized signatory, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. The Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
| | | | | |
The Bank of New York Mellon Trust Company, N.A.,
as Trustee |
| By: | |
| Name: |
| Title: |
| |
| Date: | |
Each Note shall be dated the date of its authentication.
Notwithstanding the foregoing, if any Note shall have been duly authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Note to the Trustee for cancellation as provided in Section 2.12 hereof together with a written statement stating that such Note has never been issued and sold by the Company, for all purposes of this Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 2.04. Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of Notes, an office or agency where Notes of such Series may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes of such Series may be presented for payment (“Paying Agent”) in the Borough of Manhattan, the City of New York. The Registrar shall keep a register (the “Note Register”) of each Series of Registered Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar of Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company hereby appoints The Depository Trust Company to act as Depositary with respect to the Registered Global Notes of each Series unless another Depositary is appointed prior to the time the Notes of that Series are first issued.
The Company hereby appoints the Trustee the initial Registrar and Paying Agent and Custodian for each Series unless another Registrar, Paying Agent or Custodian, as the case may be, is appointed prior to the time the Notes of that Series are first issued. The Company or any of its domestically organized Subsidiaries may act as Paying Agent or Registrar.
The rights, privileges, protections, immunities and benefits given to the Trustee under this Indenture 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 acting hereunder.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture, which shall incorporate the terms of the TIA. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such agent.
The Company may remove any Registrar or Paying Agent for any Series of Notes upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (1) acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (2) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (1) above. The Registrar or Paying Agent may resign at any time upon written notice; provided, however, that the Trustee may resign as Paying Agent or Registrar only if the Trustee also resigns as Trustee in accordance with Section 7.08.
Section 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent will hold in trust, for the benefit of Holders of any Series of Notes, or the Trustee, all money held by the Paying Agent for the payment of principal of, premium, if any, or interest on the Series of Notes, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all funds held by it relating to the Notes of such Series to the Trustee. The Company at any time may require a Paying Agent to pay all funds held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for such funds. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders of any Series of Notes all funds held by it as Paying Agent. Upon any Event of Default under Sections 6.01(d) and (g) hereof relating to the Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.06. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders of each Series of Notes and shall otherwise comply with TIA §312(a). If the Trustee is not the Registrar, the Company shall furnish or cause to be furnished to the Trustee at least 7 Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of the Notes of each Series and the Company shall otherwise comply with TIA §312(a).
Section 2.07. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee the Note Register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes of a Series and of transfers of Notes of such Series. The Note Register shall be in written form or in any form capable of being converted into written form within a reasonably prompt period of time.
Upon surrender for registration of transfer of any Note of a Series to the Registrar or any co-registrar for such Series, and satisfaction of the requirements for such transfer set forth in this Section 2.07, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of the same Series, of any authorized denominations, of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture. The Company shall not charge a service charge for any registration of transfer or exchange, but the Company or the Registrar may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges that may be imposed in connection with the transfer or exchange of the Notes from the Holder requesting such transfer or exchange (other than any exchange of a temporary Note for a permanent Note not involving any change in ownership or any exchange pursuant to Sections 2.12, 3.06 or 9.05 hereof, not involving any transfer).
At the option of the Holders of certificated Notes of a Series, certificated Notes of a Series may be exchanged for other certificated Notes of the same Series of any authorized denomination or denominations of like aggregate principal amount and tenor, upon surrender of the certificated Notes to be exchanged at such office or agency. Whenever any certificated Notes of a Series are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the certificated Notes of the same Series which the Holder making the exchange is entitled to receive.
All Notes of a Series issued upon any registration of transfer or exchange of Notes of the same Series shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes of the same Series surrendered upon such registration of transfer or exchange.
Every Note of a Series presented or surrendered for registration of transfer or for exchange shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed, by the Holder thereof or his or her attorney duly authorized in writing.
The Company shall not be required (i) to issue, register the transfer of or exchange any Notes of any Series during a period beginning 15 Business Days before any selection of Notes of that Series to be redeemed and ending at the close of business on the day of the mailing of the relevant notice of redemption or (ii) to register the transfer of or exchange any Notes of any Series or portions thereof so selected for redemption, in whole or in part, except the unredeemed portion of any Notes of that Series being redeemed in part.
Section 2.08. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue and, upon receipt of a Company Order, the Trustee shall authenticate a replacement Note of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. If required by the Trustee or the Company, the Holder of such Note shall provide security and/or indemnity that is sufficient, in the judgment of the Trustee or the Company, to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer in connection with such replacement. If required by the Company, such Holder shall reimburse the Company for its reasonable expenses in connection with such replacement.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay, or authorize the payment of (without surrender thereof except in the case of a mutilated Note), such Note.
Upon the issuance of any new Note under this Section 2.08, 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 and any agent of the Company or the Trustee) connected therewith.
Every replacement Note of any Series issued in accordance with this Section 2.08 shall be the valid obligation of the Company, evidencing the same debt as the destroyed, lost or stolen Note, and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes of that Series duly issued hereunder.
The provisions of this Section 2.08 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Note.
Section 2.09. Outstanding Notes.
The Notes outstanding at any time shall be all the Notes authenticated and delivered by the Trustee under this Indenture, except for those cancelled by it, those delivered to it for cancellation, those subject to reductions in beneficial interests effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.09 as not outstanding. Except as set forth in Section 2.10 hereof, a Note shall not cease to be outstanding because the Company or an Affiliate of the Company holds the Note. If a Note is replaced pursuant to Section 2.08 hereof, it shall cease to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it shall cease to be outstanding and interest on it shall cease to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or a maturity date of Notes of a Series, funds sufficient to pay Notes payable on that date, and the Paying Agent is not prohibited from paying such money to the Holders of Notes of such Series on that date pursuant to the terms of this Indenture, then on and after that date such Notes of such Series (or portions thereof) shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes of a Series have concurred in any direction, waiver or consent, Notes of such Series owned by the Company, or by any Affiliate of the Company, shall be disregarded and deemed not to be outstanding, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes of such Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11. Temporary Notes.
Until certificates representing Notes of a Series are ready for delivery, the Company may prepare and, upon receipt of a Company Order in accordance with Section 2.03 hereof, the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes in certificated form but may have variations that the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Registered Global Notes or definitive Notes in exchange for temporary Notes of the same Series, as applicable. After preparation of definitive Notes, the temporary Note will be exchangeable for definitive Notes upon surrender of the temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this Indenture as definitive Notes of the same Series.
Section 2.12. Cancellation.
The Company at any time may deliver Notes of any Series to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of cancelled Notes (subject to the record retention requirement of the Exchange Act or other applicable laws) unless by written order, signed by an Officer of the Company, the Company directs them to be returned to it.
Certification of the disposal of all cancelled Notes shall be delivered to the Company from time to time upon request. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.13. Payment of Interest; Defaulted Interest.
Except as otherwise provided as contemplated by Section 2.02 with respect to any Series of Notes, interest on any Note which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest.
If the Company defaults in a payment of interest on the Notes of any Series which is payable (“Defaulted Interest”), it shall pay the Defaulted Interest in any lawful manner plus, to the extent lawful, any interest payable on the Defaulted Interest, to the Persons who are Holders of such Series on a subsequent Special Record Date, in each case at the rate provided in the Notes of such Series. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note of such Series and the date of the proposed payment. The Company shall fix or cause to be fixed each such Special Record Date and payment date; provided that no such Special Record Date shall be less than 10 days prior to the related payment date for such Defaulted Interest. At least 10 days before the Special Record Date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders of the Notes of such Series a notice that states the Special Record Date, the related payment date and the amount of such interest to be paid. Unless otherwise provided in the designation of Notes of a Series, the defaulted interest rate shall be the rate of interest borne by such Series at the time of such default.
Subject to the foregoing provisions of this Section 2.13 and Section 2.07 hereof, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 2.14. Registered Global Notes.
(a) Terms of Notes. A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the Notes of a Series shall be issued in whole or in part in the form of one or more Registered Global Notes and the Depositary or Depositaries for such Registered Global Note or Notes.
(b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.07 and in addition thereto, any Registered Global Note shall be exchangeable pursuant to Section 2.07 for Notes registered in the names of Holders other than the Depositary for such Note or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Registered Global Note or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officers’ Certificate to the effect that such Registered Global Note shall be so exchangeable. Any Registered Global Note that is exchangeable pursuant to the preceding sentence shall be exchangeable for Notes registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Registered Global Note with like tenor and terms.
Except as provided in this Section 2.14(b), a Registered Global Note may not be transferred except as a whole by the Depositary with respect to such Registered Global Note to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
(c) Legend. Unless otherwise specified as contemplated by Section 2.02 for the Notes evidenced thereby, each Registered Global Note authenticated and delivered hereunder shall bear a legend in substantially the following form:
“This Note is a Registered Global Note within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee of the Depositary. This Note is exchangeable for Notes registered in the name of a Person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.”
(d) Acts of Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal amount of the Holders of any or all Series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Holders in person or by agent duly appointed in writing (including agents duly appointed by the Depositary, as a Holder); and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments and so voting at any such meeting. Proof of execution of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 7.01 and 7.02) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 2.14(d). The Depositary, as a Holder, may appoint and otherwise authorize participants to give or take any such action which a Holder is entitled to give or take under the Indenture.
(e) Payments. Notwithstanding the other provisions of this Indenture, except as otherwise specified as contemplated by Section 2.02 for the Notes of any Series, payment of the principal of and interest, if any, on any Registered Global Note shall be made to the Holder thereof.
(f) Consents, Declaration and Directions. The Company, the Trustee and any Agent shall treat a Person as the Holder of such principal amount of outstanding Notes of such Series represented by a Registered Global Note as shall be specified in a written statement of the Depositary with respect to such Registered Global Note, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture.
(g) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants or beneficial owners of interests in any Registered Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.15. CUSIP or ISIN Numbers.
The Company in issuing the Notes of any Series may use “CUSIP” and/or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” and/or “ISIN” numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in the “CUSIP” and/or “ISIN” numbers.
Section 2.16. Record Date.
The record date for purposes of determining the identity of Holders of Notes of any one or more Series entitled to vote or consent to any action by vote or consent or permitted under this Indenture shall be determined as provided for in TIA §316(c).
Section 2.17. Persons Deemed Owners.
Prior to due presentment of a Note of any Series for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name such Note is registered as the owner of such Note for the purpose of receiving payment of principal of and (subject to Sections 2.06 and 2.12 hereof) interest on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Note in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 2.18. Computation of Interest.
Except as otherwise specified pursuant to Section 2.02 for Notes of any Series, interest on the Notes of each Series will be computed on the basis of a 360-day year comprised of twelve 30-day months.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
The Company may, with respect to any Series of Notes, reserve the right to redeem and pay the Series of Notes or may covenant to redeem and pay the Series of Notes or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Notes. Such redemption may be subject to the satisfaction of one or more conditions. If a Series of Notes is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Notes pursuant to the terms of such Notes, it shall notify the Trustee in writing of the Redemption Date and the principal amount of Series of Notes to be redeemed. The Company shall give the notice at least 5 calendar days before the Redemption Date (or such shorter notice as may be acceptable to the Trustee).
Section 3.02. Selection of Notes to Be Redeemed.
Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture or an Officers’ Certificate, if less than all of the Notes of a Series are to be redeemed at any time, the Notes of the Series to be redeemed shall be selected by the Trustee by lot or pursuant to applicable Depositary procedures. The selection shall be made from Notes of the
Series outstanding not previously called for redemption. Notes of the Series and portions of them selected shall be in amounts of $2,000 or whole multiples of $1,000 or, with respect to Notes of any Series issuable in other denominations pursuant to Section 2.02(i), the minimum principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Notes of a Series called for redemption also apply to portions of Notes of that Series called for redemption.
Notwithstanding the first paragraph of this Section 3.02, if less than all of the Notes of a Series are to be redeemed at any time and the Notes of such Series have been issued in the form of Registered Global Notes, such Notes to be redeemed shall be selected in accordance with the Depositary’s customary policies and procedures with respect to such Registered Global Notes. The Trustee shall not be responsible for any actions taken or not taken by the Depositary.
Section 3.03. Notice of Redemption.
Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, at least 10 days but not more than 60 days prior to a Redemption Date, the Company shall send or cause to be sent, by electronic transmission (for Registered Global Notes) or first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at such Holder’s registered address appearing in the Note Register and if any Bearer Notes are outstanding, publish on one occasion a notice in an Authorized Newspaper, except that redemption notices may be mailed or delivered electronically more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance pursuant to Article 8 hereof or a satisfaction and discharge pursuant to Article 11 hereof or a redemption of the Notes subject to one or more conditions precedent.
The notice shall identify the Notes of the Series to be redeemed and shall state:
(a) the Redemption Date;
(b) the appropriate method for calculation of the redemption price, but need not include the Redemption Price itself; the actual Redemption Price shall be set forth in an Officers’ Certificate delivered to the Trustee no later than 2 Business Days prior to the Redemption Date.
(c) if less than all outstanding Notes of the Series are to be redeemed, the identification of the particular Notes to be redeemed and the portion of the principal amount of any Note to be redeemed in part and that, after the Redemption Date upon surrender of such Note, if applicable, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes of the Series called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(f) that, unless the Company defaults in making such redemption payment, interest on Notes of the Series called for redemption ceases to accrue on and after the Redemption Date;
(g) any other information as may be required by the terms of the particular Series or the Notes of a Series being redeemed;
(h) if the redemption is to be subject to the satisfaction of one or more conditions, a description of such conditions and that, in the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date so delayed; and
(i) the CUSIP, ISIN or other identification number, if any.
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company shall have delivered to the Trustee, at least 15 days (or such shorter period allowed by the Trustee), prior to the Redemption Date, an Officers’ Certificate requesting that the Trustee give such notice (in the name and at the expense of the Company) and setting forth the information to be stated in such notice as provided in this Section 3.03.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is sent in accordance with Section 3.03 hereof, Notes of a Series called for redemption shall become irrevocably due and payable on the Redemption Date at the Redemption Price, unless the conditions specified in such notice have not been satisfied (or waived by the Company in its sole discretion). Upon surrender to the Paying Agent, such Notes shall be paid at the redemption price therefor plus accrued interest to but excluding the Redemption Date.
Section 3.05. Deposit of Redemption Price.
On or prior to 11:00 a.m. Eastern time on the Redemption Date for the Notes of a Series, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or any of its Subsidiaries is the Paying Agent, shall segregate and hold in trust as provided in Section 2.05) money sufficient to pay the Redemption Price of and, if applicable, accrued and unpaid interest on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly, and in any event within 2 Business Days after the Redemption Date, return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the Redemption Price of, and accrued and unpaid interest, if any, on, all Notes to be redeemed. If the Company complies with the provisions of the preceding paragraph, on and after the Redemption Date, interest shall cease to accrue on the Notes or the portions of Notes called for purchase or redemption in accordance with Section 2.07 hereof, whether or not such Notes are presented for payment. If a Note is redeemed on or after a Regular Record Date but on or prior to the related interest payment date, then any accrued and unpaid
interest, if any, shall be paid to the Person in whose name such Note was registered at the close of business on such Regular Record Date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal from the Redemption Date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Any Note which is to be redeemed only in part (pursuant to the provisions of this Article) shall be surrendered at the office or agency of the Company maintained for such purpose pursuant to Section 4.02 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note at the expense of the Company, a new Note or Notes of the same Series, of any authorized denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Principal, Premium and Interest.
The Company shall pay or cause to be paid the principal of, premium, if any, and interest on, the Notes of each Series on the dates and in the manner provided in this Indenture and such Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. Such Paying Agent shall return to the Company promptly, and in any event, no later than 5 Business Days following the date of payment, any money (including accrued interest) that exceeds such amount of principal, premium, if any, and interest paid on the Notes. If a payment date is not a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest shall accrue on such payment for the intervening period.
Section 4.02. Maintenance of Office or Agency. (a) The Company shall maintain an office or agency (which may be an office or drop facility of the Trustee or an Affiliate of the Trustee, Registrar or co-registrar) where Notes of a Series may be presented or surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes of a Series and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or more other offices or agencies where the Notes of a Series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
(c) The Company hereby designates the Corporate Trust Office of the Trustee, as one such office, drop facility or agency of the Company in accordance with Section 2.04 hereof.
Section 4.03. Compliance Certificate. (a) So long as any Notes are outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, commencing with the fiscal year ended December 31, 2024, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year, has been made under the supervision of the signing Officers with a view to determining whether the Company and its Subsidiaries have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company and its Subsidiaries have kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, premium, if any, or interest on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
(b) The Company shall otherwise comply with TIA §314(a)(2).
(c) The Company shall deliver to the Trustee, within 30 days upon the Company becoming aware of the occurrence thereof, written notice in the form of an Officers’ Certificate of any event that with the giving of notice and/or the lapse of time would become an Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.
Section 4.04. Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its existence in accordance with the organizational documents (as the same may be amended from time to time) of the Company.
Section 4.05. SEC Reports.
The Company covenants to file with the Trustee, within 15 days after the Company is required to file the same with the SEC, copies of the annual reports and of the information, documents and other reports that the Company is required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act or pursuant to Section 314 of the Trust Indenture Act. Annual reports, information, documents and reports that are filed by the Company with the SEC via the EDGAR system or any successor electronic delivery procedure will be deemed to be filed with the Trustee at the time such documents are filed via the EDGAR system or such successor procedure. Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive or actual notice or knowledge of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.07. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 2.02 for Notes of such Series, the Company may, with respect to the Notes of any Series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided herein or pursuant to Section 2.02(s) or Section 9.01(8) for the benefit of the Holders of such Series if before the time for such compliance the Holders of at least 50.0% in principal amount of the outstanding Notes (including Additional Notes of such Series, if any) of such Series (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes) shall, by an Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of such term, provision or condition shall remain in full force and effect.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets. The Company shall not consolidate or merge with or into another Person (whether or not the Company is the surviving corporation) or, directly or indirectly, sell, assign, transfer, convey, lease, divide or otherwise dispose of all or substantially all of the assets of the Company and its subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless:
(1) either
(A) the Company is the surviving Person or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance, division or other disposition has been made (the “Surviving Entity”) is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; provided, however, that, in the case that the Surviving Entity is not a corporation, a corporation organized or existing under such laws is a co-obligor under the Notes and this Indenture;
(2) the Surviving Entity expressly assumes all the Obligations of the Company under the Notes and this Indenture;
(3) immediately after giving effect to such transaction no Event of Default shall have occurred and be continuing; and
(4) the Company or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
Section 5.02. Successor Person Substituted.
Upon the assumption by the Surviving Entity of all Obligations of the Company pursuant to the Notes and this Indenture, the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of the Company under this Indenture, and the Company shall be released of any Obligation pursuant to the Notes and this Indenture; provided, however, that the predecessor entity shall not be released from any of the obligations or covenants under this Indenture in the case of a lease of all or substantially all of the assets of the Company, taken as a whole.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An “Event of Default” wherever used herein with respect to Notes of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
(a) default for 30 consecutive days in the payment when due and payable of interest on the Notes of that Series;
(b) default in the payment when due and payable of the principal of or premium, if any, on the Notes of that Series (upon maturity, redemption, required repurchase or otherwise);
(c) failure by the Company for 90 consecutive days after notice to the Company by the Trustee or the Holders of at least 25.0% in aggregate principal amount of the Notes of that Series then outstanding to comply with any of the Company’s other covenants or agreements in this Indenture or the Notes of that Series (other than (i) the obligations of the Company under Section 4.05 and (ii) a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Notes other than that Series);
(d) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company or any of its Subsidiaries (or the payment of which is guaranteed by the Company or any of its Subsidiaries), whether such indebtedness or guarantee now exists, or is created after the Issue Date with respect to Notes of any Series, if that default:
(1) is caused by a failure to pay principal of such Indebtedness at its express maturity prior to the expiration of any applicable grace period (a “Payment Default”); or
(2) results in the acceleration of such indebtedness prior to its express maturity, provided that such acceleration shall not have been rescinded or annulled within 15 days after written notice thereof shall have been given to the Company by the Trustee, or to the Company and the Trustee by the Holders as contemplated by Section 6.02; provided, however, that if any default with respect to such indebtedness giving rise to such acceleration shall be remedied, cured or waived, as the case may be, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived without further action upon the part of either the Trustee or any of the Holders;
and, in each of (1) and (2), the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness, under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates to $300.0 million or more;
(e) failure by the Company or any of its Subsidiaries to pay final non-appealable judgments entered by a court or courts of competent jurisdiction aggregating in excess of $300.0 million, which judgments are not paid, discharged or stayed for a period of 90 days;
(f) the Company, pursuant to or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case or gives notice of intention to make a proposal under any Bankruptcy Law;
(2) consents to the entry of an order for relief against it in an involuntary case or consents to its dissolution or winding up;
(3) consents to the appointment of a receiver, interim receiver, receiver and manager, liquidator, trustee or custodian of it or for all or substantially all of its property;
(4) makes a general assignment for the benefit of its creditors; or
(5) admits in writing its inability to pay its debts as they become due or otherwise admits its insolvency;
(g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is for relief against the Company in an involuntary case;
(2) appoints a receiver, interim receiver, receiver and manager, liquidator, trustee or custodian, of the Company or for all or substantially all of the property of the Company; or
(3) orders the liquidation of the Company and such order or decree remains unstayed and in effect for 60 consecutive days; or
(h) any other Event of Default provided with respect to Notes of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with Section 2.02(r).
Section 6.02 Acceleration.
If any Event of Default (other than those of the type described in Section 6.01(d) or (g)) occurs and is continuing, then, and in each and every such case, except for any Series of Notes the principal of which shall have already become due and payable, the Trustee may, and the Trustee upon the request of Holders of 25.0% in aggregate principal amount of the outstanding Notes of each such affected Series shall, or the Holders of at least 25.0% in aggregate principal amount of outstanding Notes of each such affected Series (each such Series voting as a separate class) may, declare the principal, premium, if any, and accrued and unpaid interest, if any, of all the outstanding Notes of such Series, to be due and payable by notice in writing to the Company and the Trustee specifying the respective Event of Default and that such notice is a notice of acceleration, and the same shall become immediately due and payable.
In the case of an Event of Default specified in Section 6.01(d) or (g) the principal, premium, if any, and accrued and unpaid interest, if any, of all of the outstanding Notes of each such affected Series shall become due and payable immediately without any further action or notice on the part of the Trustee or the Holders. Holders may not enforce this Indenture or the Notes of any Series except as provided in this Indenture.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing with respect to Notes of any Series, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes of such Series or to enforce the performance of any provision of the Notes of such Series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes of any affected Series or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies shall be cumulative to the extent permitted by law.
Section 6.04. Waiver of Defaults. (a) The Holders of at least a majority in aggregate principal amount then outstanding of the Notes of all Series affected thereby, voting as a single class, by notice to the Trustee may on behalf of the Holders of all of the Notes of such affected Series (i) waive any existing Default or Event of Default, and its consequences, except a continuing Default or Event of Default (A) in the payment of the principal of, premium, if any, or interest, on the Notes of such Series and (B) in respect of a covenant or provision which under this Indenture cannot be modified or amended without the consent of the Holder of each Note of such Series affected by such modification or amendment and (ii) rescind any acceleration and its consequences with respect to the Notes of such Series.
(b) Upon any waiver of a Default or Event of Default, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed cured for every purpose of this Indenture but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Subject to Sections 7.01, 7.02(f) (including the Trustee’s receipt of the security and/or indemnification described therein) and 7.07 hereof, in case an Event of Default shall occur and be continuing, the Holders of a majority in aggregate principal amount of the Notes of any Series then outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes of such Series.
Section 6.06. Limitation on Suits.
No Holder of any Note of any Series shall have any right to institute any proceeding with respect to this Indenture, or for the appointment of a receiver or trustee, or for any remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of a continuing Event of Default or the Trustee receives the notice from the Company with respect to the Notes of that Series;
(b) Holders of at least 25.0% in aggregate principal amount of the Notes of that Series then outstanding have made written request and offered security and/or indemnity to the Trustee reasonably satisfactory to it to institute such proceeding as Trustee; and
(c) the Trustee shall not have received from the Holders of a majority in aggregate principal amount of the Notes of that Series then outstanding a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days.
The preceding limitations shall not apply to a suit instituted by a Holder for enforcement of payment of principal of, and premium, if any, or interest on, a Note of any Series on or after the respective due dates for such payments set forth in such Note.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including Section 6.06), the right of any Holder to receive payment of principal, premium, if any, and interest on the Notes held by such Holder, on or after the respective due dates expressed in such Notes, or to bring 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 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium, if any, and interest then due and owing (together with interest on overdue principal and, to the extent lawful, interest) and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable and documented compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee shall be authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable and documented compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of Notes of any Series allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes of any Series), its assets or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder of Notes of any Series 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 of each such affected Series, to pay to the Trustee any amount due to it for the reasonable and documented compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee and its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, moneys, securities and any other properties that the Holders of Notes of any Series may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. 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 Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes of any Series for principal, premium, if any, and interest ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes of such Series for principal, premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent jurisdiction shall direct in writing.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 shall not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by Holders of more than 10.0% in principal amount of the then outstanding Notes of any Series.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of certificates or opinions specifically required by any provision herein to be furnished to it, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take with respect to Notes of any Series in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or security and/or indemnity satisfactory to it against such risk or liability is not assured to it.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02. Rights of Trustee.
Subject to TIA §315:
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(d) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(e) The Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of any event which is in fact such a Default or Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee from the Company or the Holders of 25.0% in aggregate principal amount of the outstanding Notes, and such notice references the specific Default or Event of Default, the Notes and this Indenture.
(f) The Trustee shall not be required to give any bond or surety in respect of the performance of its power and duties hereunder.
(g) The Trustee shall have no duty to inquire as to the performance of the Company’s covenants herein.
(h) 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.
(i) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security and/or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(j) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(k) 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.
(l) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as Trustee or resign. Any Agent may do the same with like rights and duties. The Trustee shall also be subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee’s Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect to the Notes of any Series and if a Responsible Officer of the Trustee has received written notice of such Default or Event of Default, the Trustee shall send to Holders of the Notes of such Series and, if any Bearer Notes are outstanding, publish on one occasion in an Authorized Newspaper, a notice of the Default or Event of Default within 90 days after the Trustee’s receipt of such notice. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Note of any Series, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of Notes of that Series.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the date hereof, and for so long as any Notes of any Series remain outstanding, the Trustee shall send to the Holders of Notes of each Series and, if any Bearer Notes are outstanding, to the holder(s) of Bearer Notes who have provided written request therefor and their mailing address to the Trustee, a brief report dated as of such reporting date that complies with TIA §313(a) (but if no event described in TIA §313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA §313(b)(2). The Trustee shall also transmit all reports as required by TIA §313(c).
A copy of each report at the time of its sending to the Holders of any Series shall be sent to the Company and filed with the SEC and each stock exchange on which the Notes of that Series are listed in accordance with TIA §313(d). The Company shall promptly notify the Trustee when the Notes of any Series are listed on any stock exchange and any delisting thereof.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable and documented disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable and documented compensation, disbursements and expenses of the Trustee’s agents and counsel. The Company shall indemnify the Trustee, its directors, officers, employees or agents or any predecessor Trustee against any and all losses, claims, damages, penalties, fines, liabilities or expenses, including incidental and out-of-pocket expenses and reasonable and documented attorneys’ fees and expenses (for purposes of this Article, “losses”) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company (including this Section 7.07) and defending itself against any claim (whether asserted by the Company or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent such losses have been determined to have been caused by its own negligence or willful misconduct. The Trustee shall notify the Company promptly of any claim of which a Responsible Officer has received written notice and for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations under this Section 7.07. The Company shall defend the claim, and the Trustee shall cooperate in the defense. The Trustee may have separate counsel if the Trustee has been reasonably advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Company and in the reasonable judgment of such counsel it is advisable for the Trustee to engage separate counsel, and the Company shall pay the reasonable and documented fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The Company need not reimburse any expense or indemnify against any loss incurred by the Trustee through the Trustee’s own willful misconduct or gross negligence.
The obligations of the Company under this Section 7.07 shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the Trustee and payment in full of the Notes.
To secure the Company’s payment obligations in this Section, the Trustee shall have a Lien prior to the Notes of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal, premium, if any, and interest on particular Notes of that Series. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(d) or (g) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
The Trustee may resign with respect to the Notes of one or more Series in writing at any time upon 30 days’ prior notice to the Company and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority in aggregate principal amount of the then outstanding Notes of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company in writing 30 days prior to such removal’s effectiveness. The Company may remove the Trustee with respect to Notes of one or more Series if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee with respect to one or more Series for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes of the applicable Series may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Notes of any one or more Series does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10.0% in aggregate principal amount of the then outstanding Notes of the applicable Series may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to the Notes of any one or more Series, after written request by any Holder of such Series who has been a Holder of such Series for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company and enter into a supplemental indenture with the retiring Trustee and the Company in which it assumes the rights, powers and duties of the Trustee under this Indenture. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Notes for which it is acting as Trustee under this Indenture. The successor Trustee shall send a notice of its succession to Holders of each such Series and, if any Bearer Notes are outstanding, publish such notice on one occasion in an Authorized Newspaper. Subject to the Lien provided for in Section 7.07 hereof, the retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided, however, that all sums owing to the Trustee hereunder shall have been paid. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
In the case of an appointment hereunder of a separate or successor Trustee with respect to the Notes of any one or more Series, the Company, any retiring Trustee and each successor or separate Trustee with respect to the Notes of such Series shall execute and deliver a supplemental indenture hereto (1) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Notes of such Series have been assumed by a successor Trustee and in the case where any retiring Trustee is retiring only with respect to some of the Notes of such Series that the rights, powers, trusts and duties of any retiring Trustee with respect to the Notes as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (2) that shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustee co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any such other Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the successor corporation or banking association without any further act shall, if such successor corporation or banking association is otherwise eligible hereunder, be the successor Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the Trustee with respect to the Notes of any one or more Series shall succeed to the trusts created by this Indenture any of the Notes of the applicable Series shall have been authenticated but not delivered, any such successor to such Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes of the applicable Series so authenticated; and in case at that time any of the Notes of such Series shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes of such Series or in this Indenture provided that the certificate of the Trustee shall have.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a Person organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million (or a wholly-owned subsidiary of a bank or trust company, or of a bank holding company, the principal subsidiary of which is a bank or trust company having a combined capital and surplus of at least $50.0 million) as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of TIA §310(a)(1), (2) and (5). The Trustee is subject to TIA §310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA §311(a), excluding any creditor relationship listed in TIA §311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option and at any time, elect to have either Sections 8.02 or 8.03 hereof be applied to all outstanding Notes of any Series upon compliance with the conditions set forth in this Article 8. Any such election shall be evidenced by a Board Resolution set forth in an Officers’ Certificate.
Section 8.02. Legal Defeasance and Discharge of Notes of any Series.
Unless this Section 8.02 is otherwise specified pursuant to Section 2.02(x) to be inapplicable to Notes of any Series, upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from its Obligations with respect to all outstanding Notes of any Series on the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “Legal Defeasance”) and each guarantor, if any, shall be released from all of its obligations under its guarantee. For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes of the applicable Series, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in (a) and (b) of this Section 8.02, and to have satisfied all its other Obligations under the Notes of such Series and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes of such Series to receive solely from the trust fund described in Section 8.04, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, or interest on such Notes of such Series when such payments are due, (b) the Company’s Obligations with respect to Notes of such Series under Article 2 and Sections 4.01 and 4.02, (c) the rights, powers, trusts, duties, indemnities and immunities of the Trustee hereunder and the Company’s and the guarantor’s, if any, Obligations in connection therewith and (d) this Article 8. If the Company exercises under Section 8.01 the option applicable to this Section 8.02 with respect to Notes of any one or more Series, subject to the satisfaction of the conditions set forth in Section 8.04, payment of the Notes of such Series may not be accelerated because of an Event of Default. Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03.
Section 8.03. Covenant Defeasance.
Unless this Section 8.03 is otherwise specified pursuant to Section 2.02(x) to be inapplicable to Notes of any Series, upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from its Obligations under the covenants contained in Sections 4.03, 4.04 and 5.01 hereof as well as any additional covenants contained in a supplemental indenture hereto for a particular Series of Notes or a Board Resolution or an Officers’ Certificate delivered pursuant to Section 2.02(w), with respect to the outstanding Notes of any Series on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”) and each guarantor, if any, shall be released from all of its Obligations under its guarantee with respect to such covenants in connection with such outstanding Notes and the Notes of such Series shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes of such Series shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes of such Series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above in this Section 8.03, the remainder of this Indenture and such Notes of such Series shall be unaffected thereby.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 8.02 or 8.03 to the outstanding Notes of any one or more Series.
The Legal Defeasance or Covenant Defeasance may be exercised only if:
(a) the Company irrevocably deposits with the Trustee, in trust, for the benefit of the Holders of such Series of Notes, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable U.S. Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants (a copy of which shall be provided to the Trustee), to pay the principal, premium, if any, and interest on the outstanding Notes of such Series on the Stated Maturity or on the next Redemption Date, as the case may be, and the Company shall specify whether the Notes of such Series are being defeased to maturity or to such particular Redemption Date;
(b) in the case of Legal Defeasance, the Company shall deliver to the Trustee an Opinion of Counsel confirming that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) subsequent to the Issue Date with respect to the applicable Series of Notes, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall deliver to the Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default has occurred and is continuing with respect to the Notes of such Series on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to make such deposit and the grant of any Lien securing such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(f) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05. Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06, all cash and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 in respect of the outstanding Notes of any Series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes of such Series and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest but such cash and securities need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any cash or non-callable Government Securities held by it as provided in Section 8.04 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee (which may be the certification delivered under Section 8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to the Company.
The Trustee shall promptly, and in any event, no later than 5 Business Days, pay to the Company after request therefor, any excess money held with respect to the Notes of any Series at such time in excess of amounts required to pay any of the Company’s Obligations then owing with respect to the Notes of such Series.
Any cash or non-callable Government Securities deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal, premium, if any, or interest on any Note of any Series and remaining unclaimed for one year after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder shall thereafter, as an unsecured creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash and securities, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper notice that such cash and securities remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such cash and securities then remaining shall be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or non-callable Government Securities in accordance with Sections 8.02 or 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Notes of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Sections 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such cash and securities in accordance with Sections 8.02 or 8.03, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or interest on any Note of such Series following the reinstatement of its Obligations, the Company shall be subrogated to the rights of the Holders to receive such payment from the cash and securities held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or supplement this Indenture or the Notes of one or more Series without notice to or the consent of any Holder:
(1) to cure any ambiguity, omission, mistake, defect, error or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) to provide for the assumption of the Company’s obligations to Holders of Notes in the case of a merger or consolidation or sale of all or substantially all of the Company’s assets or any other transaction that complies with this Indenture;
(4) to make any change that would provide any additional rights or benefits to the Holders of Notes or that the Company determines in good faith (as certified in an Officers’ Certificate) does not materially and adversely affect the legal rights under this Indenture of any such Holder;
(5) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act;
(6) to allow any guarantor to execute a supplemental indenture and/or guarantee with respect to the Notes of any one or more Series;
(7) to provide for the issuance of and establish the form and terms and conditions of Notes of any Series as permitted by this Indenture;
(8) to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Company shall consider to be for the protection of the Holders of Notes, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision 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 an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Notes of such Series to waive such an Event of Default;
(9) to evidence and provide the acceptance of the appointment of a successor trustee under this Indenture with respect to the Notes of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee;
(10) to mortgage, pledge, hypothecate or grant a security interest in favor of the Trustee for the benefit of the Holders of Notes of one or more Series as additional security for the payment and performance of the Company’s or a guarantor’s Obligations under this Indenture in any property or assets;
(11) to add to, change, or eliminate any of the provisions of this Indenture in respect of one or more Series of Notes; provided that any such addition, change, or elimination (i) will neither (A) apply to any Note of any Series created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Note with respect to such provision or (ii) will become effective only when there is no such Note outstanding;
(12) to comply with the rules of any applicable Depositary;
(13) to release a guarantor from its guarantee pursuant to the terms of this Indenture, any applicable supplemental indenture and/or guarantee when permitted or required pursuant to the terms herein or therein;
(14) to conform any provision in this Indenture or in any supplemental indenture or the terms of the Notes of any Series to the “Description of Debt Securities” or other disclosure describing the terms of the Notes of such Series contained in the prospectus supplement applicable to such Series of Notes or any other document pursuant to which the Notes of such Series were offered; or
(15) to comply with Section 5.01.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture and the Notes of any Series with the consent of the Holders of at least a majority in aggregate principal amount of the Notes of all such Series affected thereby then outstanding voting as a single class (including, without limitation, consents obtained in connection with a purchase of or tender offer or exchange offer for the Notes of any such Series), and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default or compliance with any provision of this Indenture or the Notes of any Series may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the Notes of all such Series affected thereby then outstanding voting as a single class (including, without limitation, consents obtained in connection with a purchase of or tender offer or exchange offer for the Notes of any such Series). Notwithstanding the foregoing, Holders of the Notes of any Series shall vote as a separate class with respect to amendments, supplements or waivers that affect only the Notes of such Series, and the Holders of Notes of other Series shall not have any voting rights with respect to such matters as they relate to the Notes of such Series.
Without the consent of each Holder affected, an amendment, supplement or waiver may not (with respect to any Notes of any Series held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the Stated Maturity of any Note;
(3) reduce the rate of or change the time for payment of interest on any Note;
(4) waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the Notes of any Series (except a rescission of acceleration of the Notes of such Series by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes of such Series and a waiver of the Payment Default that resulted from such acceleration);
(5) make any Note of any Series payable in money other than that stated in the Notes of such Series;
(6) [Reserved];
(7) make any change in the provisions (including applicable definitions) of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes of any Series to receive payments of principal of, or interest or premium, if any, on the Notes of such Series;
(8) waive a redemption payment with respect to any Note of any Series; or
(9) make any change in the preceding amendment and waiver provisions.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any supplemental indenture. If a record date is fixed, the Holders of any Series of Notes on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 120 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect.
It shall not be necessary for the consent of the Holders of Notes of any Series under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall send to the Holders of Notes affected thereby and, if any Bearer Notes affected thereby are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly describing the amendment, supplement or waiver. Any failure by the Company to send or
publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes of one or more Series shall be set forth in an amended or supplemental indenture that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion thereof that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to its Note or portion thereof if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver shall become effective in accordance with its terms and thereafter shall bind every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note of any Series thereafter authenticated. The Company in exchange for all Notes of that Series may issue and, upon receipt of a Company Order in accordance with Section 2.03 hereof, the Trustee shall authenticate new Notes of that Series that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental indenture until its Board of Directors (or committee serving a similar function) approves it. In executing any amended or supplemental indenture, the Trustee shall be provided with and (subject to Section 7.01 hereof) shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and that such amended or supplemental indenture is the legal, valid and binding obligations of the Company enforceable against it in accordance with its terms, subject to customary exceptions and that such amended or supplemental indenture complies with the provisions hereof (including Section 9.03).
ARTICLE 10
[INTENTIONALLY OMITTED]
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge.
This Indenture shall be discharged and shall cease to be of further effect, as to all Notes of any Series issued hereunder, when:
(a)either:
(1)all Notes of any Series that have been authenticated, except lost, stolen or destroyed notes that have been replaced or paid and notes for whose payment money has been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or
(2)all Notes of any Series that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable or redeemable within one year, and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes of such Series not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(b)no Default or Event of Default has occurred and is continuing on the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) or will occur as a result of the deposit and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument (other than resulting from borrowing of funds to be applied to make such deposit) to which the Company is a party or by which the Company is bound;
(c)the Company has paid or caused to be paid all sums payable by it under this Indenture; and
(d)the Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes of such Series at maturity or the Redemption Date, as the case may be.
In addition, the Company shall deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Section 11.02. Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 11.03, all cash and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 11.02, the “Trustee”) pursuant to Section 11.01 hereof in respect of the outstanding Notes of any Series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes of such Series and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of such Series of all sums due and to become due thereon in respect of principal, premium, if any, and interest but such cash and securities need not be segregated from other funds except to the extent required by law.
Section 11.03. Repayment to the Company.
Any cash or non-callable Government Securities deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on, any Note of any Series and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder shall thereafter, as an unsecured creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash and securities, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once in an Authorized Newspaper notice that such cash and securities remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such cash and securities then remaining shall be repaid to the Company.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the provision required by the TIA shall control.
Section 12.02. Notices.
Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested) or overnight air courier guaranteeing next-day delivery, to the other’s address:
If to the Company:
Centene Corporation
7700 Forsyth Boulevard
St. Louis, MO 63105
Attention: Chief Financial Officer
If to the Trustee:
The Bank of New York Mellon Trust Company, N.A.
311 South Wacker Drive
Suite 6200B, Floor 62
Mailbox #44
Chicago, Illinois 60606
Attention: Corporate Trust Administration
The Company or the Trustee, by notice to the other, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to the Trustee or Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; 5 Business Days after being deposited in the mail, postage prepaid, if mailed; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next-day delivery. All notices and communications to the Trustee or Holders shall be deemed duly given and effective only upon receipt.
Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next-day delivery to its address shown on the Note Register and, if any Bearer Notes are outstanding, published in an Authorized Newspaper.
Any notice or communication shall also be so mailed to any Person described in TIA §313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder of any Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the Holder receives it.
If the Company sends a notice or communication to Holders of any Series, it shall send a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event or any other communication (including any notice of redemption or repurchase) to a Holder of a Registered Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices at the Depositary.
Section 12.03. Communication by Holders of Notes with Other Holders of Notes.
Holders of any Series may communicate pursuant to TIA §312(b) with other Holders of that Series or any other Series with respect to their rights under this Indenture or the Notes of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA §312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee:
(a)an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b)an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA §314(a)(4)) shall comply with the provisions of TIA §314(e) and 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.
With respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate, certificates of public officials or reports or opinions of experts.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders of one or more Series. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders.
No past, present or future director, officer, employee, incorporator, stockholder, member, manager or partner of the Company or any guarantor, as such, shall have any liability for any Obligations of the Company or any guarantors, if any, under the Notes, this Indenture, any supplemental indenture the guarantees, if any, or for any claim based on, in respect of, or by reason of, such Obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver and release may not be effective to waive or release liabilities under the federal securities laws.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 12.10. Successors.
All covenants and agreements of the Company in this Indenture and the Notes shall bind its successors. All covenants and agreements of the Trustee in this Indenture shall bind its successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes of any Series shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.12. Counterpart Originals; Electronic Signatures.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Any such counterparts may be signed manually, electronically or by facsimile. This Indenture, the Trustee’s certificate of authentication on the Notes, and any other document delivered in connection with this Indenture or the issuance and delivery of the Notes may be signed by or on behalf of the Company and the Trustee by manual, PDF or other electronically imaged or produced signature.
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings in this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 12.14. Qualification of this Indenture.
The Company shall qualify this Indenture under the TIA and shall pay all reasonable costs and expenses (including reasonable and documented attorneys’ fees and expenses for the Company, the Trustee and the Holders) incurred in connection therewith, including, but not limited to, costs and expenses of qualification of this Indenture and the Notes and printing this Indenture and the Notes. The Trustee shall be provided with any such Officers’ Certificates, Opinions of Counsel or other documentation as it may reasonably request in connection with any such qualification of this Indenture under the TIA.
Section 12.15. Waiver of Jury Trial.
EACH OF THE COMPANY, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 12.16. 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, work stoppages, pandemics or epidemics, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 12.17. Submission to Jurisdiction.
The parties irrevocably submit to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, City of New York, over any suit, action or proceeding arising out of or relating to this Indenture. To the fullest extent permitted by applicable law, the parties irrevocably waive and agree not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
Section 12.18. FATCA Withholding.
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) that a foreign financial institution, the Company, Trustee, Paying Agent, Holder or other institution is or has agreed to be subject to related to this Indenture and the Notes, the Company agrees (a) to provide to the Trustee and/or any other Paying Agent upon its request information in the Company’s possession about applicable parties and/or transactions (including any modification to the terms of such transactions) so that the Trustee or any other Paying Agent can determine whether it has tax related obligations under Applicable Law, and (b) that the Trustee and/or any other Paying Agent shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with Applicable Law for which the Trustee or any other Paying Agent shall not have any liability to the Company for its withholding or deduction from payment under this Indenture to the extent necessary to comply with Applicable Law.
Section 12.19. Economic Sanctions.
(a)The Company represents that neither it nor any of its subsidiaries, controlled affiliates, directors or officers are the target or subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State), the United Nations Security Council, the European Union, HM Treasury, or other relevant sanctions authority (collectively “Sanctions”);
(b)The Company covenants that neither it nor any of its subsidiaries, controlled affiliates, directors or officers will directly or indirectly use any payments made pursuant to this Indenture, (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
Section 12.20. Electronic Communications.
Notwithstanding any provisions of Article 12, the Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
[Signatures on following page]
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed.
| | | | | |
Company: CENTENE CORPORATION |
| By: | /s/ Andrew L. Asher |
| Name: Andrew L. Asher |
| Title: Executive Vice President and Chief Financial Officer |
[Signature Page to Indenture]
| | | | | |
Trustee: THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. |
| By: | /s/ Michael C. Jenkins |
| Name: Michael C. Jenkins |
| Title: Vice President |
[Signature Page to Indenture]
| | | | | | | | | | | |
| Davis Polk & Wardwell llp 450 Lexington Avenue
New York, NY 10017 davispolk.com | | |
Exhibit 5.1
OPINION OF DAVIS POLK & WARDWELL LLP
February 21, 2024
Centene Corporation
7700 Forsyth Blvd.
St. Louis, Missouri 63105
Ladies and Gentlemen:
Centene Corporation, a Delaware corporation (the “Company”) is filing with the Securities and Exchange Commission a Registration Statement on Form S-3 (the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), (a) shares of common stock, par value $0.001 per share (the “Common Stock”) of the Company; (b) shares of preferred stock, par value $0.001 per share (the “Preferred Stock”) (c) the Company’s senior debt securities (the “Debt Securities”), which may be issued pursuant to a senior debt indenture between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) (the “Indenture”); (d) warrants of the Company (the “Warrants”), which may be issued under one or more warrant agreements to be entered into between the Company and the warrant agent to be named therein (the “Warrant Agent”) (each such warrant agreement, a “Warrant Agreement”); and (e) depositary shares representing fractional interests in shares or multiple shares of the Preferred Stock (the “Depositary Shares”), which may be issued under one or more preferred stock depositary agreements (each, a “Depositary Agreement”) to be entered into between the Company and the preferred stock depositary to be named therein (the “Depositary”).
We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinions expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement that have not been executed will conform to the forms thereof, (iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vii) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion:
1. When the necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of such shares of Common Stock proposed to be sold by the Company, and when such shares of Common Stock are issued and delivered in accordance with the applicable underwriting or other agreement against payment therefor (in excess of par value thereof) or upon conversion or exercise of any security offered under the Registration Statement (the “Offered Security”), in accordance with the terms of such Offered Security or the instrument governing such Offered Security providing for such conversion or exercise as approved by the Board of Directors of the Company, for the consideration approved by such Board of Directors (which consideration is not less than the par value of the Common Stock), such shares of Common Stock will be validly issued, fully-paid and non-assessable.
2. Upon designation of the relative rights, preferences and limitations of any series of Preferred Stock by the Board of Directors of the Company and the proper filing with the Secretary of State of the State of Delaware of a Certificate of Designation relating to such series of Preferred Stock, all necessary corporate action on the part of the Company will have been taken to authorize the issuance and sale of such series of Preferred Stock proposed to be sold by the Company, and when such shares of Preferred Stock are issued and delivered in accordance with the applicable
underwriting or other agreement against payment therefor (in excess of par value thereof), such shares of Preferred Stock will be validly issued, fully paid and non-assessable.
3. When the Indenture and any supplemental indenture to be entered into in connection with the issuance of any Debt Securities have been duly authorized, executed and delivered by the Trustee and the Company; the specific terms of a particular series of Debt Securities have been duly authorized and established in accordance with the Indenture; and such Debt Securities have been duly authorized, executed, authenticated, issued and delivered in accordance with the Indenture and the applicable underwriting or other agreement against payment therefor, such Debt Securities will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to the enforceability of any waiver of rights under any usury or stay law or the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Debt Securities to the extent determined to constitute unearned interest.
4. When the Warrant Agreement to be entered into in connection with the issuance of any Warrants has been duly authorized, executed and delivered by the Warrant Agent and the Company; the specific terms of the Warrants have been duly authorized and established in accordance with the Warrant Agreement; and such Warrants have been duly authorized, executed, issued and delivered in accordance with the Warrant Agreement and the applicable underwriting or other agreement against payment therefor, such Warrants will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability.
5. When the Depositary Agreement to be entered into in connection with the issuance of any Depositary Shares has been duly authorized, executed and delivered by the Depositary and the Company; the specific terms of the Depositary Shares have been duly authorized and established in accordance with the Depositary Agreement; and such Depositary Shares have been duly authorized, executed, issued and delivered in accordance with the Depositary Agreement and the applicable underwriting or other agreement against payment therefor, such Depositary Shares will constitute legal and valid interests in the corresponding shares of Preferred Stock, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability.
In connection with the opinions expressed above, we have assumed that, at or prior to the time of the delivery of any such security, (i) the Board of Directors of the Company shall have duly established the terms of such security and duly authorized the issuance and sale of such security and such authorization shall not have been modified or rescinded; (ii) the Company is, and shall remain, validly existing as a corporation in good standing under the laws of the State of Delaware; (iii) the Registration Statement shall have become effective and such effectiveness shall not have been terminated or rescinded; (iv) the Indenture, the Debt Securities, the Warrant Agreement and the Depositary Agreement are each valid, binding and enforceable agreements of each party thereto (other than as expressly covered above in respect of the Company); and (v) there shall not have occurred any change in law affecting the validity or enforceability of such security. We have also assumed that (i) the terms of any security whose terms are established subsequent to the date hereof and the issuance, execution, delivery and performance by the Company of any such security (a) require no action by or in respect of, or filing with, any governmental body, agency or official and (b) do not contravene, or constitute a default under, any provision of applicable law or public policy or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon the Company and (ii) any Warrant Agreement and Depositary Agreement will be governed by the laws of the State of New York.
We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and further consent to the reference to our name under the caption “Legal Matters” in the prospectus, which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
Consent of Independent Registered Public Accounting Firm
We consent to the use of our reports dated February 20, 2024, with respect to the consolidated financial statements of Centene Corporation, and the effectiveness of internal control over financial reporting, incorporated herein by reference, and to the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
St. Louis, Missouri
February 21, 2024
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
___________________________
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
| | | | | |
(Jurisdiction of incorporation
if not a U.S. national bank)
| 95-3571558
(I.R.S. employer
identification no.) |
333 South Hope Street
Suite 2525 Los Angeles, California (Address of principal executive offices) |
90071
(Zip code) |
___________________________
Centene Corporation
(Exact name of obligor as specified in its charter)
| | | | | |
Delaware
(State or other jurisdiction of
incorporation or organization) | 42-1406317
(I.R.S. employer
identification no.) |
7700 Forsyth Blvd. St. Louis, Missouri
(Address of principal executive offices)
|
63105
(Zip code) |
___________________________
Senior Debt Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
| | | | | |
Name | Address |
Comptroller of the Currency United States Department of the Treasury | Washington, DC 20219 |
Federal Reserve Bank | San Francisco, CA 94105 |
Federal Deposit Insurance Corporation
| Washington, DC 20429 |
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").
1. A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).
2. A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No.
333-121948).
3. A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No.
333-152875).
4. A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762).
6. The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).
7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Jacksonville, and State of Florida, on the 12th day of February, 2024.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
By: /s/ Michael C. Jenkins
Name: Michael C. Jenkins
Title: Vice President
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business December 31, 2023, published in accordance with Federal regulatory authority instructions.
Dollar amounts
in thousands
ASSETS
Cash and balances due from
depository institutions:
Noninterest-bearing balances and currency and coin………………………………………… 2,559
Interest-bearing balances 331,039
Securities:
Held-to-maturity securities 0
Available-for-sale debt securities 524
Equity securities with readily determinable fair values not held for trading …………………………0
Federal funds sold and securities
purchased under agreements to resell:
Federal funds sold in domestic offices 0
Securities purchased under agreements to resell 0
Loans and lease financing receivables:
Loans and leases held for sale 0
Loans and leases, held for investment ……………………0
LESS: Allowance for loan and
lease losses ………………………………………………0
Loans and leases held for investment,
net of allowance ………………………………………… 0
Trading assets 0
Premises and fixed assets (including capitalized leases) ……………………………………………. . 13,138
Other real estate owned 0
Investments in unconsolidated subsidiaries and associated companies ……………………………………… 0
Direct and indirect investments in real estate ventures ……………………………………………………. .. 0
Intangible assets ……………………………………………………………………………………….856,313
Other assets 114,683
Total assets $1,318,256
LIABILITIES
Deposits:
In domestic offices 1,264
Noninterest-bearing…………………………………………………………… 1,264
Interest-bearing …………………………………………………………………... 0
Federal funds purchased and securities
sold under agreements to repurchase:
Federal funds purchased in domestic offices 0
Securities sold under agreements to repurchase 0
Trading liabilities 0
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases)………………………………….. 0
Not applicable
Not applicable
Subordinated notes and debentures 0
Other liabilities 263,286
Total liabilities 264,550
Not applicable
EQUITY CAPITAL
Perpetual preferred stock and related surplus ………………………………………………………………...0
Common stock 1,000
Surplus (exclude all surplus related to preferred stock) 106,539
Not available
Retained earnings 946,167
Accumulated other comprehensive income ……………………………………………………… 0
Other equity capital components……………………………………………………………………………... 0
Not available
Total bank equity capital ………………………………………………………………………….1,053,706
Noncontrolling (minority) interests in consolidated subsidiaries….……………………………………….. 0
Total equity capital 1,053,706
Total liabilities and equity capital 1,318,256
I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
Matthew J. McNulty ) CFO
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Antonio I. Portuondo, President )
Loretta A. Lundberg, Managing Director ) Directors (Trustees)
Jon M. Pocchia, Managing Director )
Centene (NYSE:CNC)
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